Bombay High Court
The Principal, B.N. College Of ... vs Sultan Khan Hamidullahkhan on 16 June, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO.53 OF 2008
IN
WRIT PETITION NO. 6079 OF 2006(D)
The Principal,
B.N. College of Engineering,
Pusad, District Yavatmal. .... APPELLANT
VERSUS
Sultan Khan s/o Hamidullahkhan,
Aged about 34 years,
Resident of Vasant Nagar, Pusad,
District Yavatmal. .... RESPONDENT
______________________________________________________________
Shri D.A. Sonawane, Advocate for the appellant,
Shri B.M. Khan, Advocate for the respondent.
______________________________________________________________
CORAM : B.P. DHARMADHIKARI AND
ROHIT B. DEO, JJ.
DATED : 16-06-2017
ORAL JUDGMENT : (PER : B.P. DHARMADHIKARI, J.)
1. Heard Advocate Shri D.A. Sonawane for the
appellant/employer and Advocate Shri B.M. Khan for the
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respondent/employee.
2. After hearing respective Advocates, we find that remand of
matter back to the Industrial Court is necessary as there is material
irregularity in exercise of jurisdiction by that Court, which has vitiated
the entire adjudication. Hence, we are not required to delve into
details of the controversy or misconduct.
3. The respondent filed U.L.P. Complaint No.522/1996. This
complaint was later on registered as U.L.P. Complaint No.533/1999
before the Industrial Court at Yavatmal. From documents made
available to this Court, it appears that appellant/employer filed reply to
application under Section 30(2) of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971
opposing grant of interim relief, however, no formal written statement
was filed.
4. The Industrial Court framed following issues and recorded
its answer to the same as under :
Issues Answer
1) Does it prove that the respondent
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held departmental enquiry against
the petitioner ? - Yes
2) Does it prove that the punishment
imposed as per order dated 31-05-1996
is disproportionate and against the
principles of natural justice ? - No.
3) Does complainant prove that the
respondent is indulged in unfair labour
practice ? - No.
4) What order and reliefs ? - As per final order.
5. Aggrieved by dismissal of his complaint, employee
approached this Court in Writ Petition No.6079/2006. He contended
that there was no formal charge-sheet, no proper departmental enquiry
and as such punishment was unsustainable. Learned Single Judge
after hearing respective Advocates and after perusal of the service
conditions found that punishment could not have been inflicted
without holding proper departmental enquiry. It appears that Rule 43
of the Maharashtra Non-Agricultural Universities and Affiliated
Colleges Standard Code (Terms and Conditions of Service of Non-
Teaching Employees) Rules, 1984 has been relied upon for this
purpose.
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6. The learned Single Judge, therefore, on finding of fact that
the petitioner was not served with charge-sheet and was not given a
reasonable fair opportunity of defence, allowed writ petition and made
Rule absolute in terms of prayer clauses (b) and (c) in writ petition i.e.
the order of punishment dated 01-06-1996 was quashed and set aside.
7. In present letters patent appeal, Advocate Shri Sonawane
is relying upon deposition of respondent/employee to urge that
respondent/employee accepted receipt of charge-sheet and grant of full
opportunity of defence to him in cross-examination.
8. Advocate Shri Khan submits that the learned Single Judge
has looked into provisions of law and thereafter arrived at appropriate
findings.
9. It is well settled law that in such matters when
punishment imposed after departmental enquiry is questioned either
before the Labour Court or Industrial Court, the said Court is expected
to frame a preliminary issue regarding fairness and validity of
departmental enquiry and about perversity or otherwise of the findings
of enquiry officer. If the enquiry is found to be vitiated or the findings
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are held to be perverse, employer needs to be given opportunity to
prove misconduct before the said Court by producing witnesses, if he
has reserved that right while filing written statement. Judgment in
case of Bharat Forge Company Ltd. vs. A.B. Zodge and another
reported at AIR 1996 SC 1556, the Hon'ble Apex Court has pointed
out this position.
10. It appears that in present matter before the Industrial
Court the proper assistance was not given and hence issue accordingly
was not framed and has not been answered. Had the issue been so
framed and answered, the controversy looked into by the learned
Single Judge of this Court while deciding the writ petition would not
have surfaced.
11. In this situation, as we find that the Industrial Court has
acted with material irregularity in exercise of jurisdiction available to it
and it has vitiated the further consideration of the controversy, we
quash and set aside the judgment dated 30-11-2005 delivered by the
Industrial Court in U.L.P. Complaint No.533/1999. U.L.P. Complaint
No.533/1999 is restored back to the file of Industrial Court, Yavatmal
for its appropriate consideration from the stage of framing the issues-
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preliminary issue.
12. Needless to mention that in view of this, the judgment
delivered by the learned Single Judge on 21-09-2007 in Writ Petition
No.6079/2006 does not hold the field. It is also set aside.
13. The parties are directed to appear before the Industrial
Court at Yavatmal on 28-07-2017 and to abide by its further directions.
The Industrial Court shall attempt to complete further adjudication as
per law in next six months.
Letters Patent Appeal is thus partly allowed and disposed
of. No costs.
JUDGE JUDGE
adgokar
