Jairaj Chandrakant Yevale vs Shri Chhatrapati Shivaji ...
2022 Latest Caselaw 281 Guj

     C/SCA/9873/2021                                       ORDER DATED: 10/01/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9873 of 2021
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                   JAIRAJ CHANDRAKANT YEVALE
                              Versus
          SHRI CHHATRAPATI SHIVAJI SAHAKARI MANDALI LTD.
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Appearance:
MR PARESH J BRAHMBHATT(9788) for the Petitioner(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 10/01/2022
                   ORAL ORDER

1. In the present writ petition, the petitioner has challenged the order dated 20.11.2019 passed by the Labour Court, Vadodara in Reference (T) No.500 of 2010 holding the departmental inquiry as legal and proper against the petitioner.

2. At the outset, learned advocate Mr.Prabhakar Upadyay has submitted that the writ petition is not maintainable as the preliminary issue which is decided by the Labour Court with regard to determining the legality and validity of the departmental proceedings can always be challenged after final award is passed. He has placed reliance on the judgment 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 2003 with allied matters by the Coordinate Bench of this Court.

3. Learned advocate Mr.Brahmbhatt, appearing for the petitioner has submitted that in fact the Labour Court has passed the aforesaid order without appreciating the legal aspect. He has submitted that in fact, the departmental

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proceedings can be held to be illegal, since the petitioner was not paid the subsistence allowance and such allowance has been set off against the loan given by the respondent. It is further submitted that the departmental proceedings in fact were not held legally without appreciating the documentary evidences. Finally, it is submitted by the learned advocate Mr.Paresh Brahmbhatt, that the Labour Court may be directed to decide the reference as expeditiously as possible, since the reference is of the year 2010.

4. I have heard the learned advocates appearing for the respective parties.

5. In the present writ petition, the petitioner has challenged the order dated 20.11.2019 passed by the Labour Court, Vadodara, below Exh.189 declaring such departmental proceedings as valid and legal and in compliance with principle of natural justice.

6. 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 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

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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.

7. In the judgment dated 04.08.2004 passed in Special Civil Application No.8754 of 2003, 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

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(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."

8. Thus, it is well established proposition of law that whenever the Labour Court or Industrial Tribunal decides the validity of the departmental inquiry conducted by the employer at an interlocutory stage, a writ petition challenging the said order would not be maintainable.

9. 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. However, since the reference is of the year 2010, the Labour Court shall decide the same, preferably within a period of eight months. Notice is discharged.

(A. S. SUPEHIA, J) MAHESH BHATI/30