JUDGMENT - A.A. DESAI, J.:---This petition raises a question as to whether a contemplated action for dismissal or discharge amounts to an unfair labour practice, cognisable under section 28 read with Item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the Act").

2. The petitioner Divisional Controller as a competent authority held departmental enquiry into the conduct of respondent No. 2 leading to an accident on 8-7-1984 while driving State Transport Bus No. MHQ 8326 resulting in death of a Luna Moped driver. In a departmental enquiry, the charges were held to have been proved. The petitioner, therefore, taking into account the previous record and seriousness of misconduct on 25-3-1988 issued a show cause notice proposing punishment of dismissal. The respondent No. 2 thereunder was called upon to submit his say within 3 days.

3. The respondent No. 2 instead of submitting his explanation to show cause notice, filed a complaint under section 28 of the Act. According to him, Discipline and Appeal Rules constitute an agreement between the parties as contemplated under Item 9 of Schedule IV. Clause 7 of the Rules provides for awarding of punishment for good and sufficient reasons. The respondent in the complaint has averred "the complainant is approaching this Hon'ble Court, mainly for the reasons that there is a total absence of good and sufficient reasons for awarding punishment and, therefore, there is a failure to implement the terms of discipline and appeal procedure which is in the form of agreement between the Corporation and its workmen". The respondent, therefore, sought a declaration that the petitioner has engaged in and/has been engaging in the unfair labour practice enumerated under Item 9 of Schedule IV. He further sought quashing of show cause notice dated 25-3-1988.

4. The respondent also filed application under sub-section (2) section 30 claiming interim relief by directing the petitioner to desist from taking action in pursuance of the show case notice.

The learned Member of the Industrial Court on the same day i.e. on 8-4-1988 passed the following ex-parte order :---

"The applicant (respondent) should first submit reply to the show cause notice dated 25-3-1988 to the non-applicant and the non-applicant shall consider it and come to a decision. However, the decision of non applicant pursuant to the impugned show cause notice shall not be implemented until further order."

The Industrial Court also issued notice to the non-applicant petitioner.

5. The petitioner thereupon filed a reply contending that the complaint is not maintainable under section 28 read with Item 9 of Schedule IV of the Act. They prayed for setting aside the ex parte order and permitting the petitioner to pass the final order.

The complaint was initially fixed for 20-4-1988. Without hearing it was adjourned from time to time and lastly it was posted on 24-11-1988. The application of the petitioner for vacation of the ex parte order was not considered. The petitioner, therefore, presented this petition raising the question as formulated.

6. Mr. Khan the learned Counsel appearing for the respondent No. 2. -original complainant tried to support the impugned order. He invited my attention to a decision of the Allahabad High Court reported in a case of (Dharam Pal Kukrety v. Chief of the Army Staff)1, (1978) L.I.C. Page 9. The High Court while considering the scope of Article 226 of the Constitution, held that mere threat of damage is enough so as to sustain the maintainability of a writ petition. Mr. Khan then invited my attention to the observation of the Central Administrative Tribunal in a case of (A.V.S. Reddy v. State of Andhra Pradesh and another)2, reported in 1988 Lab.I.C. 1230. The Tribunal has observed that in view of the provisions laid down under section 14 of the Administrative Tribunals Act, 1985, it is the substitute for the High Court so for

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