The main legal point established in the judgment is the importance of appropriate pleadings, the relevance of the provisions of Section 78[1][D][i] of the Bombay Industrial Relations Act, and the impact of the interim order of the Labour Court in determining unfair labour practices.

B.P. Dharmadhikari, J.

Petitioner - Employer has challenged the order dated 16.02.2005 passed by the Industrial Court, Nagpur in complaint ULP No. 282/1996 declaring that, by issuing charge sheet dated 10.01.1996, it had indulged in unfair labour practice falling under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the MRTU & PULP Act" for short).

2. The facts on record reveal that the respondent No. 2 employee did not report for duties from 07.11.1991 and filed ULPA Complaint vide ULP Complaint No. 379/1992, before the 2nd Labour Court, Nagpur contending that he was on ESI leave and has been orally terminated on 03.06.1992. He also sought interim relief by moving application u/s 30[2] of the MRTU & PULP Act and, Labour Court on 17.05.1995 directed petitioner - employer to provide him work. On 10.01.1996, the employer issued charge sheet alleging that employee was unauthorizedly absent from 05.11.1991 and filed a false case against the company before the Labour Court, thereby committing misconduct under Clause 24 [f], [h] and [l] of the Model Standing Orders.

3. The employee challenged this charge sheet as an unfair labour practice falling under item 9 in ULPA complaint No. 282/1996. The employer filed his reply refuting the allegations and then the employee lead oral evidence. The petitioner employer did not find it necessary to enter the witness box. On the basis of the material produced and proved, the Industrial Court delivered the impugned order on 16.02.2005.

4. In this background, I have heard Shri Bhoot, learned Counsel for petitioner - employer, Shri Kakani, learned Counsel for respondent No. 2 - employee. Learned A.G.P. appeared for respondent No. 1.

5. Learned Counsel for petitioner has contended that the Industrial Court has overlooked the scope of complaint before it and has recorded findings on case not pleaded or proved. According to him, unfair labour practice falling under item 9, was sought to be made out by showing that, the employer could not have conducted the enquiry on the allegations of absentism, when employee was on ESI leave and under medical treatment. He states that, leaving this limited contention aside, the Industrial Court has ventured into other fields and has made out a new case which was never pleaded. According to him, as it was the case requiring finding of unfair labour practice, appropriate pleadings on record were necessary and in absence of those pleadings, the Industrial Court could not have considered either such case or evidence if any, in relation thereto. To emphasize the importance of pleadings in such circumstances, he has relied upon the judgment of Hon'ble Apex Court reported at Mukand Ltd. Vs. Mukand Staff and Officers' Association, (2004) 10 SCC 460, particularly paragraph No. 37. He has stated that because of this exercise undertaken by the Industrial Court, employer did not get opportunity to address that Court to show that charge sheet was served within reasonable time, or then also to show that provisions of Section 78 [1][D][i] of the Bombay Industrial Relations Act, were only directory. He argues that, because of its conclusions in this respect, the Industrial Court was unduly prejudiced and ultimately decided the complaint in favour of respondent. To show that provisions of Section 78 [1][D][i] of the Bombay Industrial Relations Act, are only directory he has relied upon the Division Bench judgment of this Court reported at Maniram and others Vs. Richardson and Cruddas (1972) Ltd., (1994) 1 BomCR 593..

6. He further states that, though charge sheet was in relation to absence from 05.11.1991, ultimately the enquiry officer has recorded a finding only for period upto 31.03.1993, as the name of employee was appearing in muster only upto the said date and enquiry officer has not gone into the absence beyond 31.03.1993. He further states that, the enquiry became necessa