UNREPORTED v. Shri S.G.Kamble, N-9, K-42/6, Pawan Nagar, Hudco, Aurangabad

Mr.R.P.Powar, advocate for the Petitioner. Mr.P.V.Daware, advocate for Respondent No.1 absent. ... CORAM : S.V.GANGAPURWALA,J. Date : 12.03.2012. 2 W.P.No.2620/93 ORAL JUDGMENT :

#2. Heard. The present petitioner had terminated the services of the Respondent after conducting an inquiry and submitting the charge-sheet. A proposal was submitted U/s 33(2)(b) of the Industrial Disputes Act, for approval before the Assistant Commissioner of Labour. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed.

#3. At the out-set I had asked Mr.Powar, learned counsel for the petitioner regarding the present status of the matter and whether the Respondent is serving with the petitioner. Mr.Powar, learned counsel on instructions of the petitioner submits that after this Writ Petition was filed, the Respondent has joined as a full time employee with ESI Corporation in 1994-95 and is posted at dispensary No.3 at Hudco. As such since 1994-95, the Respondent is in employment of ESI Corporation. 3 W.P.No.2620/93

#4. Mr.Powar, learned counsel for the petitioner submits that after holding a fullfledged inquiry, the Respondent was dismissed from service. Ample opportunity was given in the inquiry. The Assistant Commissioner of Labour while considering the application for approval to the dismissal of the Respondent has to only see three facts : (i) Inquiry was conducted regarding order of dismissal; (ii) payment of one month's wages and (iii) application seeking approval to the said dismissal is made simultaneously. In the present case all these things are simultaneous. The Assistant Commissioner of Labour while passing the impugned order has not given any reasons. It has simply rejected the application observing that the petitioner Company has violated the principles of natural justice and it did not consider the reason of opponent's absence from the duty. The learned 4 W.P.No.2620/93 counsel submits that if the report of the inquiry Officer is perused, it would be clear that ample opportunity was given to the Respondent, even his representative only attended the meeting once. All the charges were proved by virtue of documentary evidence and also oral evidence. The production record was placed before the Inquiry Officer which proved that he had slowed down in performance of work willfully. The learned counsel contends that it is not the case that that the action of the petitioner is not bonafide or tantamounts to victimisation. The order impugned should not have been passed in such a slipshod manner.

#5. I had adjourned this matter on number of occasions as none appeared for the Respondent. At least on five occasions, I have adjourned the matter as nobody appeared for the Respondent. Today also none appeared for the Respondent.

#6. With the assistance of the learned counsel, I have gone through the order.

#7. The inquiry report says that nine dates 5 W.P.No.2620/93 were fixed but the workman was absent on all the dates except one i.e. 17.11.1991 and the workman's representative also attended only once i.e. on 10.12.1991. It shows that ample opportunity was given to the workman. The inquiry Officer has relied on the production record and has held that for the work to be completed in 16 hours, he took 48 hours for completing the same. So also the other charges were proved. Even show cause notice was issued and the reply was considered. Thereafter, the petitioner took the decision of dismissing the Respondent from service. The petitioner Company simultaneously paid him wages of one month and also submitted an application for approval U/s 33(2)(b) of the Industrial Disputes Act. The procedure was complied. The approval could have been rejected by the Assistant Commissioner if he would have come to the conclusion that the action of the petitioner is not bonafide or the action of the petitioner amounts to victimisation of the Respondent. The Assistant Commissioner could have gone through the findings of the Inquiry Officer and then he would have passed the order. 6 W.P.No.2620/93

#8. The order impugned only says that the principles of natural justice were not followed. As is observed earlier, ample opportunity was given to the workman and principles of natural justice were adhered.

#9. Even taking into consideration today' position as is submitted by the petitioner that the Respondent since the year 1994-95 is working as fullfledged employee of ESI Corporation and presently stationed at dispensary No.3,Hudco. No fruitful purpose would be served by remitting the matter back to the Commissioner.

#10. As the order can not be sustained and the provisions have been followed by the petitioner in its letters and spirit, I quash and set aside the order impugned in the present Writ Petition and direct the Assistant Commissioner of Labour to grant approval as sought vide application No.1/1992.

#11. The Writ Petition is accordingly allowed in above terms. Rule accordingly made 7 W.P.No.2620/93 absolute. No costs. (S.V.GANGAPURWALA,J.) asp/office/wp2620.93