1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 549 OF 2010 (Suresh Govindrao Kirde vs. Nagpur Municipal Corporation & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 17, 2010. Heard Shri Bhongade, learned counsel for the petitioner, Shri Kasat, learned counsel for respondents No.1 & 2 and Shri Sonare, learned counsel for respondent No. 3. Looking to the nature of controversy, the matter is heard finally by making rule returnable forthwith. Shri Bhongade, learned counsel contends that the punishment inflicted after departmental enquiry was assailed by the petitioner in Complaint ULPA No. 895 of 1998. The Industrial Court framed various issues. The petitioner led evidence only on issue No. 3 regarding fairness and validity of departmental enquiry. Instead of adjudicating that issue, it has decided all issues together and dismissed the complaint on merits. He argues that no opportunity was given to the petitioner to argue on merits. Shri Kasat, learned counsel, on the other hand, contends that the Industrial Court framed all 2 issues together and then asked the petitioner to lead evidence. The petitioner voluntarily restricted himself only to issue No.3 and, therefore, now he cannot be allowed to make any grievance about the alleged procedural fault by the Industrial Court. The learned AGP also adopts the arguments of Shri Kasat, learned counsel. It is settled position that if punishment after departmental enquiry is assailed, the Tribunal considering such challenge has to first frame preliminary issue regarding the validity of such departmental enquiry. After adjudication on that issue, if the enquiry is found to be invalid and the employer has asked for an opportunity to prove the enquiry to be fair and valid, the Tribunal has to give such an opportunity to the employer and thereafter the merits of the matter can be looked into. The judgment of the Hon'ble Apex Court in the case of Cooper Engineering Ltd. vs. P. P. Mundhe, reported at AIR 1975 SC 1900 can be safely relied upon to support this procedure. The petitioner has gone by that procedure and the Industrial Court has overlooked the same. It has decided all issues together. It is, therefore, apparent that the petitioner did not get an opportunity to lead any evidence on merits. Hence, the finding recorded by the Industrial Court on other issues i.e. issues No. 1, 2, 4, 5 & 6 are hereby set aside. The proceedings in Complaint ULPA 3 No. 895 of 1998 are restored back to the file of Industrial Court to give the parties an opportunity to lead evidence on merits. After such evidence is led by the parties, the Industrial Court shall record its findings on other issues. Writ Petition is disposed of. Rule accordingly. No order as to costs. JUDGE *GS.