Bombay High Court
Zilla Parishad, Through Its Chief ... vs Kishor Bhaurao Kandalkar Dead, ... on 21 August, 2021
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3964 OF 2018
Zilla Parishad, Amravati
-vs-
Kishor Bhaurao Kandalkar thr. L.Rs.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
Mr. J.B.Kasat, Advocate for petitioner.
Mr. C.A.Barekar, Advocate for Respondent No.1.
CORAM : A. G.GHAROTE, J.
DATE : 21/08/2021
The respondent who was working as a Gram Sewak
with the petitioner Zilla Parishad, Amravati, was issued a
charge-sheet on 14.5.2001 regarding defalcation of certain sum
which were delineated vide charges 1 to 6. The respondent, by
his reply dated 17.07.2001, is claimed to have admitted the
charges to a substantial extent, as a result of which by the final
order dated 20.10.2002, a punishment of termination from
services and recovery of Rs. 1,98,794/- was passed.
An appeal was preferred against this punishment by
the respondent under Rule 13 of the Maharashtra Zilla Parishad
District Services (Discipline and Appeal) Rules, 1964, in which
by order dated 10.02.2003, the punishment of termination, was
set aside and in place, the respondent was compulsorily retired.
In so far as the imposition of recovery is concerned, the same
was reduced as indicated therein. Rule 15 of the Maharashtra
Zilla Parishad District Services (Discipline and Appeal) Rules,
1964, provided a revision before the State Government, since
the order under Rule 13 was passed by the Divisional
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Commissioner, which course was not adopted by the
respondent.
The respondent, however, filed complaint under the
MRTU and PULP Act, invoking Section 28(1) therein, before the
learned Labour Court, being ULP No. 21 of 2005. A preliminary
issue was framed, regarding the jurisdiction of the learned
Labour Court, to entertain the proceedings, on account of non
availing of revision remedy, which preliminary issue came to be
decided against the petitioner, by an order dated 02.08.2011,
whereby it was held that the remedy under the MRTU and PULP
Act was an independent remedy available, which could be
availed of without resorting to the revisional remedy under the
Rules. This order dated 02.08.2011 holding that the complaint
was tenable, was not challenged further.
The learned Labour Court by the judgment dated
09.04.15 held that the punishment of compulsory retirement
was shockingly disproportionate and set aside the same, further
directing the payment of 50% back wages to the L.Rs of the
complainant, who had since then passed away, till the date of
his demise.
A revision preferred by the petitioner bearing No. 93
of 2015, came to be dismissed by the learned Industrial Court
by judgment dated 06.01.2018. It is against this that the present
petitioner is before this Court.
Mr. Kasat learned counsel for the petitioner contends
that the Labour Court ought not to have exercised jurisdiction in
view of the remedy of revision available under Rule 15 of the
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Maharashtra Zilla Parishad District Services (Discipline and
Appeal) Rules, 1964. He further submits that the order passed
under Rule 13 would not give rise to a cause of action to the
respondent, which would arise only in pursuance to an order
under Rule 15 alone. That apart, he submits that since the
respondent in his reply dated 17.07.2001 (page 21), and
18.02.2002 (page 32) had admitted his guilt in the matter, it
was not permissible for the Courts below to have interfered in
the punishment imposed holding that it was shockingly
disproportionate. Learned counsel submits that in a case of
defalcation of the funds of the petitioner, there was no question
of the learned Labour Court imposing its own punishment in
place of what had been done by the appellate authority under
the Maharashtra Zilla Parishad District Services (Discipline and
Appeal) Rules, 1964. He further submits that question of
jurisdiction of the learned Labour Court was still open and in
case it is found that the learned Labour Court did not have any
jurisdiction, both the impugned order would not survive.
Mr. Barbrekar, learned counsel for Respondent No.1
submits that since the preliminary issue had been decided in
favour of the respondent, which was not challenged in revision,
the question of jurisdiction was no longer open to be raised by
the petitioner. He however, seeks some time to place the
relevant position on record.
List the matter on 31.08.2021.
JUDGE
Rvjalit
