WRIT PETITION NO v. The Divisional Controller, Maharashtra State Road Transport Corporation, Dhule Division, Dhule

Heard Adv. Mr. Shrikant Patil, appearing for the petitioner, and Adv. Mr. Y.B. Borikar, holding for Mr. D.S. Bagul, for the respondent.

The petitioner has challenged the order dated 2-7-2010, passed by the learned Member of Industrial Court, Dhule, in Revision Application (ULP) No. 17/2010, thereby allowing the revision filed by the respondent. By the impugned order, Industrial Court has set aside the order dated 30-11-2009, passed by the learned Judge of the Labour Court, Dhule, in Complaint (ULP) No. 16/2008, and remanded matter back for re- deciding the same on all issues including that of fairness of inquiry.

The punishment of dismissal inflicted upon petitioner for proved misconduct was questioned by him by filing Complaint (ULP) No. 16/2008 before Labour Court. The petitioner / complainant filed a Pursis before Labour Court and accepted that inquiry conducted against him was fair and valid. It is claimed that some evidence was led by the petitioner to show that findings of Inquiry Officer are perverse. The respondent / employer did not lead any evidence in that respect. (3) Labour Court found findings not satisfactory and hence ultimately partly allowed ULP Complaint and granted him reinstatement with continuity but without back wages. It is to be noted here, that the petitioner / complainant had also filed a Pursis before Labour Court giving up back wages. Because of this judgment of Labour Court dated 30-11-2009, the employer has by order dated 25-1-2010 reinstated the petitioner back in service subject to further adjudication of controversy by competent court. Accordingly, today the petitioner in service.

In this background, Adv. Mr. Shrikant Patil, appearing for the petitioner, points out that in Revision No. 17/2010 filed under Section 44 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (For short, "1971 Act"), learned Member of the Industrial Court has erroneously interfered with the findings of the Labour Court and has remanded matter back to the Labour Court for fresh consideration. He contends that the said approach is not sustainable in law and because of limited jurisdiction available under Section 44 of 1971 Act, the judgment should be quashed and set aside.

Adv. Mr. Y.B. Borikar, appearing for the respondent, is supporting the impugned order. He contends that the matter is (4) only remanded back to Labour Court. The petitioner continues in service and hence no prejudice is caused to him if the Labour Court gives a re-look to the matter.

After hearing respective Counsel, I am satisfied that the Labour Court has not acted in accordance with jurisdiction vested in it in the matter. In the written statement, as filed, present respondent / employer in paragraph 14, specifically reserved leave to prove misconduct, if the inquiry is found to be defective. The judgment of Hon. Apex Court reported at AIR 1996 SC 1556, in the case of Bharat Forge Company Ltd. Vs. A.B. Zodge and another, clearly stipulates that in case of defective inquiry or in case of no inquiry or even when findings of Inquiry Officer are found to be perverse / vitiated, employer needs to be given an opportunity to prove misconduct. This position in law is lost sight of not only by Labour Court but also by Industrial Court.

In view of this position, though I find some substance in the ground raised by Adv. Mr. Shrikant Patil, for the petitioner, to show that some observations made by the Industrial Court are unsustainable, I do not find anything wrong with the ultimate result thereof, namely, remand to Labour Court for fresh consideration. (5)

In the result, I pass the following order : (i) Parties are directed to appear before Labour Court on 16th May 2011 and Labour Court shall, in accordance with law, permit respondent / employer before it, to prove misconduct. The Labour Court shall attempt to decide the ULP Complaint finally as early as possible and in any case, by 31st December

2011. (ii) Needless to mention, that reinstatement already effected by the respondent / employer shall continue and will be subject to final orders of the Labour Court in the matter.

With these directions and observations, the petition is disposed of. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp7547