Bombay High Court

Maharashtra State Road Transport ... vs Anil Narayan Sonawane on 5 January, 2022

Bench: Mangesh S. Patil

                                                                               902.WP.7702.17.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.7702 OF 2017

Maharashtra State Road
Transport Corporation,
Dhule Division, Dhule,
through its Divisional Controller.                                  ... PETITIONER
                                                                   (Org. Respondent)
         VERSUS

Anil S/o Narayan Sonawane,
Age: 48 years, Occu: Service,
R/o. Municipal Colony, Nehrunagar,
Dhule, Tq. & Dist. Dhule.                                           ... RESPONDENT
                                                                   (Org. Complainant)
                                           ...
                        Advocate for Petitioner : Mr. D.S. Bagul
                      Advocate for Respondent : Mr. P.S. Paranjape
                                           ...

                                    CORAM           :   MANGESH S. PATIL, J.
                                    Reserved on     : 08.12.2021
                                    Pronounced on   : 05.01.2022

JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. The

learned advocate Mr. Paranjape waives service for sole respondent. At the

request of both the sides, the matter is heard finally at the stage of

admission.

2. The petitioner establishment is aggrieved by the judgment and

order passed by the Member of the Industrial Court, Dhule dated

24.08.2016 in the respondent's Complaint ULP No.85/2012 by which the

punishment imposed on him in a Disciplinary Inquiry dated 08.03.2011 is

quashed and set aside.

902.WP.7702.17.odt

3. The respondent is appointed and working as a Conductor in the

petitioner's establishment. He was served with a charge sheet dated

27.08.2010 for unauthorized absenteeism for a period of 53 days. The

inquiry concluded with a report dated 29.06.2011 holding the charge to

have been proved. He was served with a notice to show cause before

inflicting punishment. After he submitted a reply a punishment was

imposed of reduction of basic pay by two stages, under the order dated

30.08.2011.

4. The respondent preferred a complaint under Section 28 of the

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour

Practices Act, 1971 (herein after the ULP Act) complaining of unfair labour

practice as defined under Items 9 and 10 of Scheduled IV of the ULP Act.

The Industrial Court by the judgment and order dated 12.08.2014 allowed

the complaint partly. It held that the findings recorded by the Inquiry

Officer were perverse and the charges were not proved.

5. The petitioner establishment challenge that judgment before

this Court in Writ Petition No.5762/2015. By the judgment dated

20.10.2015 the Writ Petition was partly allowed. It was observed that the

Industrial Court had erred in directly entertaining the complaint on merits in

its entirety when it was obligatory on its part to, first of all, frame issues

regarding observance of principles of natural justice and perversity of the

findings recorded by the Inquiry Officer, by referring to catena of decisions

of the Supreme Court and even this Court summed up in the matter of

902.WP.7702.17.odt

Maharashtra State Co-operative Cotton Growers Marketing Federation Ltd.

and Anr. Vs. Vasant Ambadas Deshpande; 2014 (1) CLR 878 and MSRTC,

Beed Vs. Syed Saheblal Syed Nizam ; 2014 (3) CLR 514. This Court

therefore allowed the petition partly and directed Industrial Court to frame

those two issues and to try them as preliminary ones.

6. Pursuant to such direction the Industrial Court framed the two

issues and decided the complaint once again by the order under challenge,

whereby it allowed the complaint and quashed and set aside the

punishment.

7. The learned advocate Mr. Bagul for the petitioner vehemently

submitted that the respondent has been a chronic absentee. His previous

conduct was required to be taken into consideration and was rightly taken

into consideration while holding the charge to have been duly proved. He

did not deny the fact of being absent without prior sanction of the leave or

even without prior intimation. He had miserably failed to prove that he was

required to remain absent because of his illness. A plausible view taken by

the Inquiry Officer could not have been upset by the Industrial Court while

deciding the complaint. It was not competent to sit in appeal and judge

legality of the report submitted by the Inquiry Officer. It was not a case of

no evidence. There was some evidence and based on that a conscious

decision was taken by the Inquiry Officer and the punishment was inflicted

by the competent authority. There was no perversity. Principles of natural

justice were followed. The judgment of the Industrial Court is erroneous

902.WP.7702.17.odt

and may be quashed and set aside.

8. The learned advocate Mr. Pranjape for the respondent

supported the judgment of the Industrial Court. He submitted that the

principles of natural justice were not followed while conducting the inquiry.

The observations and conclusions drawn by the Inquiry Officer were

perverse and erroneous. Keeping the applications for leave tendered by the

respondent pending, he was sought to be punished. The applications were

not even decided till date. The charge was not proved and consequently his

previous conduct could not have been taken into consideration. No error is

committed by the Industrial Court in allowing the complaint.

9. I have considered the rival submissions and perused the record.

As can be appreciated, this is a second round of the litigation. Already the

Industrial Court had quashed and set aside the punishment while allowing

the complaint under Section 28 of the ULP Act. This Court had remanded

the matter with a direction to the Industrial Court to first frame and decide

the issues in respect of observance of principles of natural justice and

perversity in the findings of the Inquiry Officer.

10. As can be seen from the observations in paragraph No.5 of the

judgment under challenge, such issues were framed at Exhibit O-5 and those

were decided on 23.03.2016. It has also been mentioned therein that the

Member of the Industrial Court had found that the inquiry was not

conducted fairly and properly and the findings of the Inquiry Officer were

also perverse.

902.WP.7702.17.odt

11. Once having reached such conclusion which goes to the root of

the jurisdiction of the Industrial Court, in fact, no further decision on merits

was expected on other issues. If it had already recorded a finding that the

inquiry was not conducted fairly and properly and the findings were

perverse, the matter had ended then and there as a legal and logical

corollary. Once having recorded such findings there was no reason or

occasion for the Industrial Court to go into the merits of the other issues and

to find out as to if the charges were otherwise proved or not.

12. Precisely for this reason, when the petitioner establishment has

not challenged the finding on the two preliminary issues recorded by the

Industrial Court on 23.03.2016, independently or even in the present Writ

Petition, the Writ Petition itself is not maintainable. The finding to the

issues would clearly have the effect of washing away the inquiry.

13. Suffice for the purpose to note the observations of this Court

from paragraph Nos.31 to 33 from the decision in the case of MSRTC Beed

(supra):

"31. In the light of the observations of the Apex Court and this Court in the above referred cases, it is, therefore, settled that when a workman challenges the domestic enquiry as being unfair and vitiated and attempts to brand the findings of the EO as being perverse, there ought to be pleadings as well as prayers praying for such declaration in the memo of the complaint under the ULP Act, 1971 or in the statement of claim under the Industrial Disputes Act, 1947 (hereinafter referred to as "IDA, 1947"). The pleadings are complete with the filing of the written statement by the employer and by reserving the right to conduct a denovo enquiry. The Hon'ble Apex Court in the case of K.S.R.T.C. Vs. Lakshmidevamma and another, 2001 (II) CLR 640 has held that when an employer reserve such right to conduct a denovo enquiry, it

902.WP.7702.17.odt

does not amount to an admission on his part that the enquiry is bad in law or the findings are perverse.

32. It is therefore crystallised that when the right to conduct a de novo enquiry is reserved in the written statement, and the Labour Court or Tribunal has framed the two issues referred above, in relation to the enquiry, the said issues are to be decided as preliminary issues, before taking up other issues. It is an anathema to decide the first two issues together with the other issues. Whenever, in proceedings under the MRTU & PULP Act, 1971 or the IDA, 1947, a domestic/departmental enquiry is under challenge with pleadings and substantive prayers seeking the quashing of the domestic enquiry on the ground of either non observance of the principles of natural justice or findings being perverse, the Court or Tribunal has to frame a preliminary issue and try the same pre-emptorily.

33. If the two issues are answered in the negative, by the Labour Court, the enquiry and the findings of the EO stand upheld. Thereafter, the issue as regards shockingly disproportionate punishment and other connected issues are to be taken up for adjudication. In the event, either of the first two issues are answered in the affirmative, the domestic enquiry is washed away and the situation is as like that of a case in which no enquiry has been conducted [Bharat Forge judgment (supra)]."