Ashokbhai Fusabhai Makwana vs Municipal Commissioner
2021 Latest Caselaw 18445 Guj

      C/SCA/18721/2021                                      ORDER DATED: 15/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18721 of 2021

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                       ASHOKBHAI FUSABHAI MAKWANA
                                  Versus
                     MUNICIPAL COMMISSIONER & 2 other(s)
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Appearance:
MR K R MISHRA(6312) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                  Date : 15/12/2021
                                   ORAL ORDER

1. By this writ petition, the petitioner has challenged the order dated 23.08.2021 passed in Reference (LCA) No.874 of 2009 by the Labour Court, Ahmedabad below Exh.3, wherein the Labour Court has held that the departmental inquiry conducted by the employer is declared as just, legal and proper.

2. Thus, the petitioner has challenged the order of interim stage, whereby the departmental proceedings initiated against the petitioner- workman has been declared as just, legal and proper.

3. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Cooper Engineering Limited vs. P.P.Mundhe, AIR 1975 SC 1900 and the judgment dated 04.08.2004 passed in Special Civil Application No.8754 of 2006 with allied matters by the Coordinate Bench of this Court.

4. At this stage, it would be apposite to incorporate the observations made in the case of Cooper Engineering (supra):-

"22.We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial

C/SCA/18721/2021 ORDER DATED: 15/12/2021

adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."

Thus, the Supreme Court has clarified that the preliminary issue with regard to questioning the domestic inquiry can also be agitated even after the final award and it will be also legitimate for the High Court to refuse to intervene at this stage so that there may not be any delay in industrial adjudication.

5. The Coordinate Bench of this Court on a similar issue, after considering the judgment of the Apex Court in the case of Cooper Engineering (supra), has observed thus:-

9. From the above decisions and in particular from the decision of the Hon'ble Supreme Court in Cooper Engineering (supra), one thing is clear that whenever the Labour Court or the Industrial Tribunal decides the validity of the departmental inquiry conducted by the employer at the interlocutory stage, writ petition challenging the said order would not be maintainable. The Hon'ble Supreme Court in Cooper Engineering (supra) observed that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision which is at a preliminary issue and the same can be agitated even after the final award. The Hon'ble Supreme Court had also observed that it will be legitimate for the High Court to refuse to intervene at that stage. The Hon'ble Supreme Court had also observed that the above observations are made to ensure that there is no undue delay in industrial adjudication.

Thus, the Coordinate Bench has observed that whenever the

C/SCA/18721/2021 ORDER DATED: 15/12/2021

Labour Court or the Industrial Tribunal decides the validity of the departmental inquiry conducted by the employer at the interlocutory stage, a writ petition challenging the said order would not be maintainable.

6. Thus, the present writ petition is disposed of with a clarification that it will be open for the petitioner to challenge the legality, validity and findings of domestic inquiry after the final award is passed before the appropriate forum by filing appropriate proceedings in case the award is passed against him. Rule is discharged.

(A. S. SUPEHIA, J) ABHISHEK/43