Nayabrao Bhivsan Zanjal vs Aurangabad Muncipal Corporation ...
2017 Latest Caselaw 7189 Bom

                                                        WP/4885/2009 &  ANR
                                       1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                  WRIT PETITION NO. 4885 OF 2009 
                                WITH
                 CIVIL APPLICATION NO. 6652 OF 2017

 Nayabrao Bhivsan Zanjal,
 Age 54 years, Occ. Junior Clerk,
 R/o Sujit Nagar, Near Harsul Lake,
 Aurangabad.                                               ..Petitioner

 Versus

 Aurangabad Municipal Corporation,
 Through its Chief Officer, office of
 Aurangabad Municipal Corporation,
 Aurangabad.                                               ..Respondent

                                 ...
          Advocate for Applicant : Shri Naseem R. Shaikh 
        Advocate for Respondent : Smt. Manjusha Deshpande 
                                 ...

                    CORAM : RAVINDRA V. GHUGE, J.

Dated: September 14, 2017 ...

ORAL JUDGMENT:-

1. The petitioner has challenged the order of dismissal dated

16.10.2008, by which, he has been punished for proved

misconducts. A full-fledged enquiry is said to have been

conducted and he has been held guilty of mis-appropriation of

Rs.13,74,275/-. The petitioner is a Clerk with the respondent /

Corporation. It is informed by the learned Advocate for the

petitioner that the petitioner has been acquitted from the

WP/4885/2009 & ANR

criminal proceedings in RCC No. 409 of 2004 dated 5.11.2015

for the offences punishable under Sections 409 read with 34 of

the Indian Penal Code.

2. It appears that this Court, prior to issuing notices, has

admitted this petition on 7.8.2009.

3. There can be no debate that the petitioner is a 'workman'

under Section 2(s) of the Industrial Disputes Act and the

respondent is an 'industry' under Section 2(j) of the said Act.

4. It is equally settled that in the matters of disciplinary

proceedings, if the enquiry is vitiated for any reason whatsoever,

including for the reason that the findings of the Enquiry Officer

are perverse, the enquiry is watered down and the management

is granted the liberty to conduct a de novo enquiry in the Court.

If such an eventuality occurs in this proceeding, such a de novo

enquiry cannot be conducted in this Court under it's supervisory

jurisdiction. In contra distinction, if the petitioner is to approach

the Labour Court, under the ID Act or under the Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour

Practices Act, 1971 ("the said Act"), the fairness of the enquiry

and the findings of the enquiry officer would be decided as

WP/4885/2009 & ANR

preliminary issues for delivering the Part I award / judgment. If

the enquiry is vitiated, the Labour Court would then be a Judge

in the de novo enquiry and that would be a sufficient protection

to the petitioner as such a de novo enquiry would be conducted

in the Court itself.

5. Considering the above, I find that it would be

advantageous to the petitioner to raise an industrial dispute

under Section 2A of the ID Act and after the matter is referred to

the Labour Court for adjudication, all his contentions would be

considered by the Reference Court.

6. In the light of the above, this petition is disposed off with

liberty to the petitioner to raise an industrial dispute under

Section 2A of the ID Act. If such a dispute / demand is raised,

the Conciliation Officer, Aurangabad would conduct the

conciliation proceedings as expeditiously as possible and

preferably within a period of six months. In the event of a failure

in the conciliation proceedings and if the appropriate

Government concludes that the matter deserves to be referred to

the Labour Court at Aurangabad, the petitioner would then be at

liberty to raise all contentions before the Labour Court.

WP/4885/2009 & ANR

7. Rule is discharged.

8. Pending Civil Application does not survive and stands

disposed off.

( RAVINDRA V. GHUGE, J. ) ...

akl/d