1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3255 OF 2009 (District Branch Manager, M.S. Coop. Bank Ltd. vs. Member, IC, Akola & 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. NOVEMBER 25, 2009. Heard Shri Ghare, learned counsel for the petitioner and Shri Chopde, learned counsel for respondents No.(a) to 2(c). The Employer – State Cooperative Bank has filed this petition challenging the judgment dated 09.07.2009 delivered by the learned Member of Industrial Court, Akola, whereby it has upheld the judgment dated 08.08.2000 passed by the Labour Court. It needs to be mentioned that though said judgment of Labour Court is titled as judgment on preliminary issue, by said order the Labour Court has finally allowed complaint filed by the deceased Complainant as written statement did not contain any plea to prove misconduct before Labour Court. Thus, law as settled by the Hon’ble Apex Court in the case of Karnataka State Road Transport Corporation vs. Lakshmidevamma, reported at AIR 2001 SC 2090, has been applied in the matter. The Labour Court found that the appointing authority as per Rule 29 was Executive Committee and 2 President and District Branch Manager was, therefore, not competent to issue charge sheet. There was no document of delegation placed before it which authorizes District Branch Manager in this respect. It therefore, directed reinstatement of complainant with full back wages and continuity. The petitioner employer then filed ULP Revision No. 106 of 2000 and in that Revision the learned Member of Industrial Court has maintained the order. Shri Ghare, learned counsel for the petitioner has contended that the document of delegation was very much on record and Labour Court has granted relief of reinstatement only because charge sheet could not have been issued by District Branch Manager. He contends that no finding about the validity or otherwise of the order of punishment or competency of authority issuing that order are made by the Labour Court. He further relies upon the judgment of the Hon’ble Apex Court in the case of U.P. State Brassware Corporation Ltd. vs. Uday Narain Pandey (2006) 1 SCC 479, to urge that in complaint there was no plea of absence of gainful employment and also there was no evidence and hence grant of back wages cannot be sustained. He points out that complainant expired in 2004 and hence there is no question of relief of reinstatement at this stage. Shri Chopde, learned counsel states that the Labour Court has rightly granted back wages as there 3 was no assertion of gainful employment by the petitioner – employer. He further states that the delegation produced on record is only for the purposes of issuance of charge sheet or conduct of departmental enquiry and there is no delegation about passing of any punishment order by District Branch Manager. He has pointed out that the Labour Court has found that the appointing authority was the Executive Committee and the President of the Bank. The fact that the complainant has expired in 2004 cannot be lost sight of. The judgment of Labour Court in his favour is dated 08.08.2000. Hence, even if he may not be entitled to any back wages i.e. wages for the period from his dismissal till the order of Labour Court dated 08.08.2000, after the order of Labour Court he is definitely entitled to wages and that entitlement can be looked into by the competent forum in appropriate proceedings. The absence of plea in complaint regarding gainful employment is very much there and the fact that the deceased complainant did not utter a word about absence of gainful employment. These facts are not looked into by the Labour Court or Industrial Court at all. The reinstatement has been ordered after noticing that enquiry was vitiated. The merits of the charges are not looked into. Considering all these circumstances, I find it appropriate to reduce the back wages to 30% for the period from 19.01.1995 till 08.08.2000. 4 The order of dismissal is produced by Shri Chopde, learned counsel before the Court. The said order shows that it is issued by the Manager (Establishment and Administration). It further mentions that the report of Enquiry Committee along with representation against it by the deceased employee along with legal opinion of consultant were placed before the Employees Sub-Committee and that Sub-Committee has recommended the dismissal. That recommendation was implemented by said authority. The Labour Court has specifically found that Rule 29 empowered the Executive Committee and the President to make appointments and therefore to impose punishments. These findings are not shown to be either erroneous or perverse. In the circumstances, it is apparent that the punishment imposed upon said employee was not inflicted by the competent authority. The finding of Labour Court and Industrial Court in that respect needs to be maintained and as there was no leave sought to prove misconduct, the relief of reinstatement granted also needs to be maintained. Thus, writ petition is partly allowed. The deceased complainant is held entitled to reinstatement in service with 30% back wages. Rule accordingly. However, there shall be no order as to costs. JUDGE *GS.