The court emphasized the importance of adhering to the mandate of Section 79(3)(a) of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965, and found that the opportunity granted to the employee under this section was more than sufficient, even though legally no such opportunity should have been granted.

B.P. Dharmadhikari, J.

1. Judgment delivered on 29.1.2009 by learned Single Judge in Writ Petition No. 906/01 is questioned by petitioner employer therein in L.P.A. No. 93/09. Employee Ashok has questioned the very same judgment in L.P.A. No. 145/09.

2. The learned Single Judge while partly allowing Writ Petition found that the order of dismissal dated 17.12.1992 passed by employer needed to be maintained but direction given by Labour Court to employer to reinstate employee with full back wages has been set aside. Employer has been given liberty to hold departmental enquiry and to take action as per law afresh.

3. The learned Single Judge has also observed that if within six weeks employer decides to take action, the employee would be deemed to be under suspension. Otherwise, he would be reinstated back in service. In that contingency, employer has been directed to pay back wages at 25% from 7.12.1992 till 27.1.1997 and thereafter at 50% till actual reinstatement. In case decision to hold departmental enquiry was taken, the learned Single Judge directed employer to treat employee under suspension and granted employee liberty to claim subsistence allowance as per Rules.

4. Employer seeks deletion of the later direction to hold enquiry or to reinstate. According to employer, order of termination dated 17.12.1992 must be maintained as it is and no relief can be given to employee.

5. The employee questions the liberty given to employer and seeks relief of reinstatement with full back wages and continuity.

6. L.P.A. No. 145/09 has been filed by employee on 2.3.2009. L.P.A. No. 93/09 came to be filed on 7.3.2009 by employer. In L.P.A. filed by employer on 18.3.2009 while issuing notice Division Bench directed that both L.P.As. should be listed together. On 27.4.2009 the L.P.A. No. 93/09 came to be admitted for final hearing and this Court then granted interim relief in terms of prayer clause in Civil Application No. 163/09. Thus, effect and operation of judgment dated 29.1.2009 delivered by learned Single Judge came to be stayed, with the result, no further decision whether to conduct enquiry or not has been taken till date. Employee admittedly is more than 66 years old as of now.

7. In this backdrop, we have heard Mr. M.I. Dhatrak, learned Advocate for employer and Ms. N.P. Mehta, learned A.G.P. for respondent Industrial Court. Nobody has appeared for employee.

8. Mr. M.I. Dhatrak, learned Advocate for employer, submits that the employee was convicted by Criminal Court and as such, under Section 79(3) of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 holding of departmental enquiry was not necessary. He submits that thus emphasis on resolution of Standing Committee and direction to hold departmental enquiry is unwarranted and erroneous. He further submits that accordingly in fact a departmental enquiry was started, due opportunity was given to employee and when he did not appear, the matter was again placed before the Standing Committee. Standing Committee in view of these developments, on 7.3.1992 permitted Chief Officer to proceed further as per law. Hence, decision to terminate was taken on 17.12.1992. He, therefore, prays for allowing L.P.A. No. 93/09 and for dismissing L.P.A. No. 145/09.

9. The perusal of order of removal dated 17.12.1992 reveals that at that time employee Ashok was already under suspension. The order informs him that pursuant to the Resolution No.1 of Standing Committee dated 7.3.1992 he was retrenched from post of Naka Mohrir with effect from 7.12.1992. Resolution of Standing Committee dated 7.3.1992 and necessary developments are pointed out by an employee in paragraph no. 8 of Written Statement filed before the Labour Court at Bhandara. In that paragraph it is mentioned by employer that various dates were given to employee by Enquiry Officer and employee was also served with notice to remain present on such dates. However, he did not turn up and also did not apply for