1 wp-7179-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 7179 OF 2009 M/s.Pennwalt Limited Nerul, Navi Mumbai ..Petitioner Vs. Shri.A.B.Jadhav and Anr. ..Respondents .... Mr. P.K.Rele Senior Counsel with Mr.J.S.Shetty and Mr.Satish Shetty i/b Mr. Santosh Shetty Advs. for Petitioner Mr. C.R.Naidu counsel i/b M/s.C.R.Naidu and Co.for Respondent No.1. .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING : SEPT. 30, 2009 DATE OF PRONOUNCING:OCT., 6, 2009 P.C.: 1. Heard the learned counsel for the Petitioner-Company and the learned counsel for the Respondent No.1-original Complainant. 2. Rule. By consent, rule is made returnable forthwith and the petition is being disposed of forthwith. 3. The Petitioner has impugned the Part-I Award passed on 9th March, 2009 by the IIIrd Labour Court, at Thane in Reference (IDA) No.81 of 2006. The case of the Respondent No.1 is that he is a workman 2 wp-7179-09 employed in the establishment of the Petitioner. Some mis-conduct was alleged on his part, hence, departmental enquiry came to be held and Respondent No.1 came to be discharged from service with effect from 28th June, 2005. He raised a dispute. Thereafter, a Reference came to be made to the IIIrd Labour Court at Thane. In the said matter, a preliminary objection came to be raised by the Respondent. According to the Respondent No.1, inquiry was not fair and proper and findings are perverse. Issues came to be framed by the learned Labour Judge as to whether the inquiry is fair and proper and whether the findings of the Inquiry Officer are perverse. In the Part-I Award dated 9th March 2009, the Labour Court at Thane held that inquiry is not fair and proper and findings are perverse. It is this Part-I Award which has been challenged in the present petition. 4. Having regard to the well established position in law, I am of the opinion that it would not be proper for this Court to interfere with the said Award at this stage. Reference be allowed to proceed and incase, Reference is decided against the Petitioner, the Petitioner be given liberty to challenge both the awards i.e. the final award of the Labour Court as well as Part-I Award. 5. The Supreme Court in the case of Cooper Engineering Ltd. and P.P.Mundhe, reported in 1975 II LLR S.C. 379, has held thus: “We are, therefore, clearly of opinion that when a case of dismissal or 3 wp-7179-09 discharge of an employee is referred for industrial adjudication, the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced, it will be for the management to decide whether it will adduce any evidence before the Labour Court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication ” [EMPHASIS SUPPLIED]. 6. The learned counsel for the Petitioner submitted that the petition ought not to be rejected in limine holding that the Petitioner can challenge Part-I Award while challenging the Part-II Award in the event Part-II award is passed against the Petitioner. In support of his contention, he has placed reliance on the decision of the Division Bench of this Court 4 wp-7179-09 in the case of Hindustan Unilever Ltd. Vs. Hindustan Lever Employees Union and Anr. reported in 2009 II CLR 1083. I have perused the said decision. In the said case, it was observed that the learned Single Judge while declining to entertain the petition, has not considered the problems that were pointed out by the Petitioner in leading evidence before the Labour Court because, the incident is about 20 years old and according to the Petitioner, the whereabouts of the witnesses are not known, hence, in this context, this Court observed that “In our opinion, before declining to entertain the petition on the ground that the Petitioner can challenge Part I of the Award in case Part II of the Award goes against the Petitioner, the learned Single Judge should have applied his mind to the doubts expressed by the Petitioner about his ability to lead evidence in the matter due to expiry of 20 years. ” 7. The learned counsel for the Petitioner has pointed out that in the present case, the principal witness Mr.Sunil Shetty who was a canteen boy, is not alive and hence, it would not be possible to lead evidence before the Labour Court. However, firstly the incident in the decision relied upon is 20 years old whereas in the present case, the incident occurred hardly about four years before. Moreover, it is not the case of the Petitioner that Mr.Sunil Shetty is the only witness in respect of misconduct and that whereabouts of the other witnesses are not 5 wp-7179-09 known. In my opinion, this decision being distinguishable on facts, it would not apply to the facts of the present case. In this view of the matter, I am not inclined at this stage to interfere in the Part-I Award and the following order is passed: a) The petitioner is at liberty to challenge the final decision of the Labour Court, if occasion arises, on all issues including the preliminary issues decided in the impugned order. b) All rights and contentions of the parties are left open and disposal of the petition would not be deemed to have confirmed findings on the preliminary issues recorded by the Labour Court in the order dated 9th March, 2009. c) Writ Petition and Rule disposed of with above directions. [ SMT.V.K.TAHILRAMANI,J.]