JUDGMENT - NAIK A.B., J.:---FACTS IN BRIEF:

This petition is filed challenging the orders passed by the Labour Court, Aurangabad and Industrial Court, Aurangabad. The petitioner was in employment at relevant time with respondent No. 1. Petitioner was appointed by respondent No. 1 on 26th October 1983 and was dismissed from service for proved misconduct. This dismissal led the filing of complaint by the petitioner under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as Act of 1971) under Item Nos. 1(a), (b), (f) and (g) of Schedule IV. The Labour Court after trial, allowed the said complaint in part by the order dated 11th August, 1988. The learned Judge of the Labour Court, Aurangabad declared that the respondent engaged in unfair labour practice, but instead of reinstatement, directed the respondent to pay compensation.

2. The order passed by the Labour Court, Aurangabad on August 11, 1988 came to be challenged by both the parties by filing 2 separate revision applications viz. Revision (U.L.P. No. 24/88) and Revision (U.L.P. No. 41/1988) the petitioner has challenged the order whereby the Labour Court has refused to reinstate and the respondent challenged the part of the order of granting compensation. The Industrial Court by the order dated 6th February, 1989 disposed of both the revisions by common order dismissing the revision filed by the petitioner and allowed the revision filed by the respondent and remanded the matter back to the Labour Court to decide afresh, the question of alleged misconduct permitting the respondent employer to prove the same. Feeling aggrieved by the said order passed by the Industrial Court, Aurangabad the employee has approached this Court by filing this writ petition under Articles 226 and 227 of the Constitution of India.

3. This writ petition came for motion hearing on 24th April, 1989 and this Court granted "Rule Nisi" and granted interim relief in terms of prayer Clause (B). The effect of interim relief was that the proceedings before the Labour Court, Aurangabad came to be stayed.

CAUSE FOR REFERENCE:---

4. This writ petition is placed before us pursuant to the order passed by the learned Chief Justice, as a reference made by the learned Single Judge (B.N. Deshmukh, J., as then he was) as the learned Judge felt that the point involved in this petition is of immense importance and is of great consequences. The learned Judge in referring order has referred two judgments of this Court (1) (N.S. Koli v. Shri Shidheshwar Sahakari Sakhar Karkhana Ltd. and others)1, reported in 1981 Mh.L.J. 888 and (2) (Amravati District Central Co-operative Bank, Amravati v. Shamrao N. Deshmukh and others)2, reported in 1982 Mh.L.J. 431. The learned Judge while referring the matter has only observed that the point involved is of immense importance as the learned Single Judge has not referred any point for determination by the Division Bench. Hence we formulate the points looking into the facts of this case:

POINTS FOR CONSIDERATION:

(1) "Whether Amravati Banks case 1982 Mh.L.J. 431, lays down correct law or whether it requires reconsideration."

(2) "Whether the employer/management can prove misconduct/charges before the Court, if the enquiry is vitiated on account of some defect."

Shri Joshi, learned Counsel raised following contentions:

CONTENTIONS:

CONTENTION NO. 1: Giving an opportunity to the employer to prove misconduct/charges before Court/Tribunal, when the domestic/departmental enquiry is vitiated on one or several grounds, will lead to allow unfair labour practice to continue.

CONTENTION NO. 2: Dismissal of employee/workman without proper enquiry, or without any enquiry is itself unfair labour practice, as prescribed under Schedule IV, Item No. 1(1) of Act of 1971, and once it is noticed that the enquiry is vitiated and dismissal is illegal, the Court/Tribunal hearing the dispute has no authority to allow the employer/management to prove charge

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