1 FARAD CONSTITUTION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 3863/2009 (Ashok Punaji Dhok ..vs.. Mah. State Road Transport Corpn. And another) -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. CORAM:- B.P. DHARMADHIKARI, J. DATE:- DECEMBER 01, 2009 Heard finally by consent of the parties. The petitioner has been issued Charge sheet on 05/1/2005 by the respondent for mis-behaving with a lady and after completing enquiry, second Show Cause Notice dated 15/1/2005 for his dismissal from employment came to be issued. The copy of Enquiry Report was annexed with it and the petitioner was called upon to submit his say on the same. The petitioner then approached the Labour Court at Yavatmal by filing ULP Complaint No. 1/2005 and sought interim order under Section 30(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. That interim order was given on 20/1/2005 and it continues to operate till today. The said order was confirmed on 21/7/2007 after hearing both the sides. The respondent employer then 2 approached Industrial Court at Yavatmal in Revision under Section 44 of the M.R.T.U. & P.U.L.P. Act and that Revision ULP No. 42/2007 has been allowed by the learned Industrial Court. Because of this order, the petitioner herein again apprehended dismissal from service and hence, preferred this writ petition. Learned Advocate Shri C.V.Jagdale has contended that the complainant lady had also approached police and on the basis of her complaint, criminal prosecution in Summary Criminal Case No. 52/2004 was started in the Court of Judicial Magistrate, First Class, Yavatmal by the State Government. The evidence of complainant lady was recorded in that case and on 16/12/2006, the learned J.M.F.C., Yavatmal acquitted the petitioner. In that case, learned APP cross-examined the lady and it came on record that the matter was settled out of the Court between the petitioner and said lady. He further contends that when criminal prosecution and Departmental Enquiry is on same facts, in view of the judgment of Division Bench of this Court reported in 2009 II C.L.R. 866 in the case of Ramkrishna Shivram Gadekar ..vs.. Board of Trustees of the Port of Mumbai and another, the Departmental Enquiry cannot be allowed on merits. Learned counsel Shri Jagdale further contends that alleged misconduct was out side the premises of 3 employer and the petitioner was not on duty at the relevant time. The alleged misconduct has, therefore, no bearing on employer employee relationship and does not constitute misconduct as required by the Discipline and Appeal Rules of the respondent. Learned Advocate Shri V.G.Wankhede for respondents has stated that all these arguments are premature because employer has yet not taken any decision about the quantum of punishment. He argues that only show cause notice has been given and after receipt of appropriate reply, the decision in this respect can be taken by the employer and that decision can be challenged. He further states that the misconduct committed is within the premises of employer and the lady had been there as a passenger and hence, the misconduct definitely has got bearing on employer employee relationship and constitutes misconduct under the Discipline and Appeal Rules of the respondent Corporation. In view of this, the Division Bench judgment cited supra is not relevant at this stage. The learned Labour Court, Yavatmal had considered the issue prima facie. The learned Industrial Court has only found that the charge against the petitioner herein was rather grave. The other aspects of the matter are not looked into by it. If the petitioner was exonerated by the competent court and the complainant lady there did 4 not depose against him, the same should have been considered by the learned Industrial Court in its right perspective. There is no such consideration. The Charge Sheet issued does not very clearly show that the complainant lady was passenger or then she was within the area of Yavatmal bus station at the relevant time. The charge sheet also does show that on the same day, the petitioner was having his weekly off and therefore, was not on duty. It is settled law that if any criminal prosecution on self same facts and self same evidence, the employee exonerated by criminal court, the Departmental Enquiry on that ground cannot be sustained. However, it will be premature in present matter to declare so and I have considered the relevant facts only prima facie. As I find that the interim order is operating in favour of the present petitioner since last about 5 years, it will be in fitness of the things in above circumstances to expedite the proceedings in Complaint ULP No. 01/2005 and direct the learned Labour Court, Yavatmal to decide the same as early as possible and in any case by 30th April, 2010. Till then status-quo as on today in relation to service of the petitioner shall be maintained. The impugned order of Industrial Court, Yavatmal dated 27/7/2009, is accordingly quashed and set aside. 5 Needless to mention that observations made by this court in this order are only for prima facie consideration of the facts and shall not influence the Labour Court while deciding the controversy on merits. Writ Petition is allowed and disposed of accordingly. Rule accordingly. No order as to costs. JUDGE Diwale.