Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
RAVINDRA V. GHUGE, J.
Rohidas S/o Nakaliram Dulgach – Petitioner
Versus
Nanded-Waghala City Municipal Corporation through its Commissioner – Respondent
Writ Petition No. 563 of 2019
Decided On : 08-08-2019
Industrial Disputes Act, 1947 – Section 10,11-A33 and 44 - Bombay Reorganization Act, 1960 - MRTU & PULP Act, 1971- Charter Act of 1861 – Reinstatement - Continuity in service - Conduct a de-novo enquiry - Petitioner-employee is aggrieved by Judgment of the Industrial Court, delivered in Revision, by which Judgment of the Labour Court – Court have heard the learned advocates for respective sides extensively and the submissions made - Issue that once again calls for a decision is, as to whether it is necessary for an employer to reserve its right to conduct a de-novo enquiry, in the written statement itself - Petitioner had challenged fairness of enquiry, findings of Enquiry Officer and had prayed for reinstatement with continuity in service and full back wages - Management filed its written statement, but did not reserve a right to conduct a de-novo enquiry in the event, domestic enquiry was vitiated for any reason - By part-I order, Labour Court declared that, enquiry was conducted in an unfair manner and findings of the Enquiry Officer are perverse – Enquiry stood vitiated - Though the management had not reserved a right to conduct a de-novo enquiry and no application or request was made for conducting such enquiry, Labour Court permitted management to examine one witness to support decision of dismissal from service - Petitioner contends that, a de-novo enquiry could not have been conducted by the Labour Court, in the absence of any right reserved by employer, in written statement - Reliance is placed upon the Judgment of the Honourable Apex Court (5 Judges bench) in the matter of Karnataka State Road Transport Corporation vs. Smt. Lakshmidevamma and Another, 2001 (2) CLR 640 - It is strenuously contended that, unless employer reserves its right, in the written statement, no permission to conduct a de-novo enquiry could be granted - Whether domestic enquiry has violated principles of natural justice – Held, court find that counsel appearing in the said matters did not cite law laid down in Shankar Chakravarti (supra), Wajid Ali T. Kadri vs. M/s D.D. Shaha and Co. 2007 (6) Mh. L.J. 650, Judgment delivered by this Court in the matter of Arjun Shankar Wagh vs. MSRTC, 2014 (5) BCR 999 and Chandrikaprasad (supra) - In fact, the law laid down in Chandrikaprasad is practically a tailor made Judgment in matter of Maharashtra State Electricity Transmission Co. Ltd delivered - As such, keeping in view the law laid down by learned five judges Bench of this Court in the matter of Murarao Ghorpade (supra), view taken by this court in the Maharashtra State Electricity Transmission case is rendered per incuriam - Learned advocate for petitioner employee submits that he has just learnt that said judgment is now subject matter of a review filed by Vasant Deshpande and Honourable Court has issued notice in the said matter - In view of the above, court find that the law laid down in matters of Shambhu Nath Goyal (supra) and Lakshmidevamma (supra) has crystallized the position - In the light of several judgments delivered thereafter by Honourable Apex Court and Bombay High Court referred to above, any view taken to permit an employer to conduct a de-novo enquiry without reserving such a right in the written statement would amount to deviating from law crystallized over 40 years - Petition is allowed.
JUDGMENT :
RAVINDRA V. GHUGE, J.
1. Rule. Rule made returnable forth-with and heard finally by the consent of the parties.
2. The petitioner-employee is aggrieved by the Judgment of the Industrial Court dated 21.7.2018, delivered in Revision (ULP) No. 31/2016, by which the Judgment of the Labour Court dated 20.6.2016, delivered in Complaint (ULP) No. 27/2013, was quashed and set aside. The Complaint was dismissed.
3. I have heard the learned advocates for the respective sides extensively and the submissions made by Shri Barde, Shri Shelke and Shri Bhandari.
4. The issue that once again calls for a decision is, as to whether it is necessary for an employer to reserve it's right to conduct a de-novo enquiry, in the written statement itself.
5. The undisputed factors are as under:-
(a) The petitioner was appointed as a sweeper with the respondent Corporation on 5.6.1995.
(b) It was alleged that, he was absent for a period of six months.
(c) A charge sheet cum show cause notice was issued and after conducting a full-fledged domestic enquiry, he was dismissed by order dated 22.2.2013.
(d) He preferred a Complaint before the Labour Court under the MRTU & PULP Act, 1971.
(e) The petitioner had challenged the fairness of the enquiry, the findings of the Enquiry Officer and had prayed for reinstatement with continuity in service and full back wages.
(f) The management filed its written statement on 20.8.2014, but did not reserve a right to conduct a de-novo enquiry in the event, the domestic enquiry was vitiated for any reason.
(g) By the part-I order dated 30.10.2015, the Labour Court declared that, the enquiry was conducted in an unfair manner and the findings of the Enquiry Officer are perverse. The enquiry, therefore, stood vitiated.
(h) Though the management had not reserved a right to conduct a de-novo enquiry and no application or request was made for conducting such enquiry, the Labour Court permitted the management to examine one witness to support the decision of dismissal from service.
(i) By Judgment dated 20.6.2016, the Labour Court, after considering the evidence recorded in the enquiry, concluded that the charges are not proved. The complaint was, therefore, allowed and by setting aside the order of dismissal, he was granted reinstatement with continuity and the punishment of permanent stoppage of three years increments was ordered. The back wages were denied.
(j) The respondent Management filed Revision (ULP) No. 31/2016 under section 44 for challenging the Judgment of the Labour Court.
(k) The Industrial Court went into the entire evidence in its revisional jurisdiction under section 44 and concluded that the charges are proved.
(l) The Industrial court did not consider the fact that, no right to conduct a de-novo enquiry was reserved by the employer and therefore, a de-novo enquiry could not be permitted.
(m) The Industrial Court upheld the punishment and set aside the Judgment of the Labour Court by dismissing the complaint.
6. The petitioner contends that, a de-novo enquiry could not have been conducted by the Labour Court, in the absence of any right reserved by the employer, in the written statement. Reliance is placed upon the Judgment of the Honourable Apex Court (5 Judges bench) in the matter of Karnataka State Road Transport Corporation vs. Smt. Lakshmidevamma and Another, 2001 (2) CLR 640. It is strenuously contended that, unless the employer reserves it's right, in the written statement, no permission to conduct a de-novo enquiry could be granted.
7. The learned advocate for the petitioner-employee, then relies upon the Judgment delivered by this Court in the matter of Arjun Shankar Wagh vs. Maharashtra State Road Transport Corporation, 2014 (5) BCR 999 to support his contention. This Court had considered the law laid down in Lakshmi Devamma (supra) and several Judgments of the Honourable Apex Court including Divyash Pandit vs. Management NCCBM, AIR 2006 SC 92.
8. Learned advocate for the management corporation, also places relia
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
