1 wp1898-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1898 OF 2011 Hindustan Unilever Ltd .. Petitioner versus Ramdas D. Gangoda .. Respondent Mr.R.N.Shah with Ms.Pallavi Dedhia i/by Sanjay Udeshi & Co for the petitioner. CORAM : S.C.DHARMADHIKARI, J. 06th September 2011. P.C.: . By this petition under Article 226 of the Constitution of India, the petitioner challenges the order dated 5th February 2011 passed by the Presiding Officer, Labour Court, Dadra and Nagar Haveli, Silvassa on an application at Exhibit 20 in IDR No.17 of 2007. 2 The petitioner-employer had by the said application invited attention of the Labour Court to the written statement and particularly para 7 thereof contending that the petitioner has dismissed the respondent after holding a departmental/disciplinary enquiry. It was asserted that full opportunity was given to the respondent and the enquiry conducted was fair, just and proper. 2 wp1898-11.doc The principles of natural justice have been complied with and even the findings of the Enquiry Officer in his report, are not perverse. It was submitted that issue of fairness and validity of the inquiry b e tried as preliminary issue. 3 The attention was invited to the judgment of the Hon’ble Supreme Court in the case of Delhi Cloth and General Mills Co v. Ludh Budh Singh reported in AIR 1972 SC 1031 and in the case of Cooper Engineering Ltd Vs. P.P.Mundhe reported in 1975 (II) Labour Law Journal, 379. 4 That application is dismissed on the ground that the proceeding would be unnecessarily delayed if this course is adopted. It was observed that the request was opposed by the respondent-workman and the witness examined by the worker has been cross-examined. The matter has proceeded at the stage at which even evidence in chief of the workman has been filed. The learned Judge, therefore, held that this will not be in the interest of the early adjudication, instead, the petitioner should proceed to cross-examine the workman. The correctness of this finding and 3 wp1898-11.doc conclusion is challenged in this writ petition. 5 The respondent-workman is absent though duly served. Having perused the application made by the petitioner-employer and the order passed thereon, a copy of which is at Annexure F to this writ petition, I am of the view that the settled principle is that when the domestic enquiry has been held, but, its legality and validity is challenged, then, a preliminary issue be framed with regard to the fairness of the same. That issue be decided before the matter proceeds on other issues. This principle applies equally to a Reference under section 10 of the Industrial Disputes Act, 1947. In such circumstances, the learned Judge has committed an error apparent on the face of record by refusing to accede to the request of the petitioner-employer. The request if accepted, would have facilitated the adjudication and avoided duplication. The matter can then proceed in the manner which the Labour Court desires it to proceed. If the issue of legality and validity of the enquiry and perversity of findings in the enquiry report are decided as preliminary issues and if the workman succeeds, then, in terms of the further directions of the Hon’ble Supreme Court, the matter 4 wp1898-11.doc must proceed by giving an opportunity to the petitioner-employer to lead evidence and prove the charges before the Court. If still the workman succeeds, then, reference is over. However, if the employer succeeds then, the issue of punishment only is required to be answered. Equally, if the petitioner succeeds on preliminary issues and it is held that the inquiry was fair and proper so also the report of the Inquiry Officer is not perverse, then, only arguments on quantum of punishment and ultimate relief would be canvassed. Therefore, it is in the interest of both, that these issues are determined as preliminary issues and findings thereon are rendered in accordance with law. The course adopted by the learned Judge proceeds on misreading of the judgments of the Supreme Court. Quite contrary to what the learned Judge holds, the Hon’ble Supreme Court directs that whenever there is a contest on the issue of fairness of the enquiry and validity of the same, so also the findings of the Enquiry Officer therein, interest of justice demands that these issues are determined before any further adjudication takes place. Therefore, the impugned order cannot be sustained. It is accordingly quashed and set aside. The application made by the petitioner is allowed. The writ petition is disposed off in terms of the 5 wp1898-11.doc following directions: 6 The following two issues shall be decided as preliminary issues: (1)Whether the first party proves that the enquiry held prior to imposing the punishment was fair, just and proper? (2)If the finding an issue No.1 is in the affirmative, whether the respondent-workman proves that the findings of the Enquiry Officer are perverse? 7 Let the parties be permitted to place all materials in support of their rival cases, on these preliminary issues and findings are rendered thereon as expeditiously as possible and within a period of three months from the date of receipt of a copy of this order. (S.C.DHARMADHIKARI, J)