1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 3889 OF 1993 AND WRIT PETITION NO.: 3890 OF 1993 *** WRIT PETITION NO.: 3889 OF 1993 The Ahmednagar District Central Cooperative Bank Ltd. Atation Road, Ahmednagar THROUGH Shri Bhausaheb Bhikaji Katore, Aged: 58 years, Occu.: Service, Managing Director, Resident of Bank Quarters, Station Road, Ahmednagar. ... PETITIONER. Versus Bhagwan Laxman Sangale, Aged: about 41 years, Resident of Village Puntamba, Taluka: Kopergaon, District Ahmednagar. ... RESPONDENT *** Shri V. D. Hon, Advocate for the Petitioner. Shri S. B. Gorde Patil, Advocate for the Respondent. *** The Ahmednagar District Central Cooperative Bank Ltd. Atation Road, Ahmednagar THROUGH Shri Bhausaheb Bhikaji Katore, Aged: 58 years, Occu.: Service, Managing Director, Resident of Bank Quarters, Station Road, Ahmednagar. ... PETITIONER. VERSUS 1. Shri Gangadhar Damodar Garje, Aged: Major, Resident of At Post and Taluka Pathardi Dist. Ahmednagar. 2 2. Shri Prakash Narayan Salunke Aged - Major, Resident of Balwant Bhawan, Shrirampur Tal. Shrirampur, Dist. Ahmednagar. ... RESPONDENTS *** Mr. V. D. Hon, Advocate for the Petitioner. Mr. Barde, Advocate for Respondent No.2. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 26th APRIL, 2011. ORAL JUDGMENT: 1. The common order passed by Labour Court, Ahmednagar in Application (B.I.R.) No.5 of 1979, Application (B.I.R.) No.10 of 1979 and Complaint (ULP) No.1 of 1979 on 8th January, 1991 holding departmental inquiry conducted by petitioner against respective respondent/ employee to be fair and valid, was questioned by respective employee by filing Revision (ULP) No.5 of 1991 under section 44 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 and Appeal (IC) Nos.1 and 2 of 1991 under section 84 (1) of Bombay Industrial Relations Act, 1946. The same Member of Industrial Court has decided the challenge on same day i.e. on 17th September, 1993 but by different judgments. The learned Member of Industrial Court found inquiry vitiated as there was breach of principles of natural justice. This judgment of Industrial Court in Complaint (ULP) No. 3 5 of 1991 has been questioned by employer in Writ Petition NO.3889 of 1993 and the judgment in BIR Appeals is questioned in writ petition No.3890 of 1993. This Court has issued rule in the matter and then the impugned orders came to be stayed. With the result, the proceedings before Labour Court could not be decided finally and are still pending. In the meanwhile, respective employee has attained the age of superannuation and retired some time in the year 2000 or 2001. 2. In this background, Advocate Mr. Hon for Petitioner bank has contended that well reasoned order of Labour Court on preliminary issue holding departmental inquiry to be fair and valid could not have been interfered with by Industrial Court either in revision or in appeal. He has invited attention even to later orders passed in Revision or in appeal to contend that there is non- application of mind. Effort therefore is to justify the order of Labour Court on merits. 3. Shri Gorde Patil, Advocate for the Respondent/ employee in Writ Petition NO.3889 of 1993 and Shri Barde, Advocate for Respondent No.2 Prakash in Writ petition NO.3890 of 1993 have supported the impugned order of Industrial Court. According to 4 them, there is no jurisdictional error or perversity. They also challenge maintainability of present writ petitions. 4. In view of the judgment of Honourable Apex Court in the case of "The Cooper Engineering Ltd. V/s P. P. Mundhe" reported in AIR 1975 S.C. 1900 I find that the challenge in revision or appeal to the order of Labour Court holding departmental inquiry to be valid itself was unsustainable. Perusal of impugned orders/ judgment of Industrial Court reveals that Industrial Court has found production of relevant documents at the eleventh hours objectionable and in breach of principles of natural justice. It has also found non-supply of inquiry report to respective employee by petitioner bank in breach of principles of natural justice. The challenge to these findings of Industrial Court has been admitted by this Court about 17 years back. Thereafter, respective respondents have already retired on superannuation. 5. The Honourable Apex Court has in its judgment (supra) has already held that when such punishment inflicted after departmental inquiry is questioned before Labour Court or Industrial Tribunal, the Labour Court or Industrial Tribunal has to decide 5 first preliminary issue regarding validity or otherwise of departmental inquiry. The Honourable Apex Court has further held that if the inquiry is held to be valid or then invalid, the aggrieved party should not challenge such order and the proceedings before Labour Court or Industrial Court should be permitted to be decided finally and, thereafter, said challenge can be raised. This court in the case of "Maharashtra State Road Transport Corporation V/s Naruram Mohanlal Verma and another" reported in 2001 (1) ALL MR 475 has already held that in such situation challenge of interlocutory stage to such orders is not maintainable. 6. Here, Advocate Shri Barde has invited attention to written statement filed by the Petitioner before Labour Court to point out that it does not reserve leave to prove misconduct. He also relies upon judgment of Constitution Bench of Honourable Apex Court in the case of "Karnataka State Road Transport Corpon. V/s Smt. Lakshmidevamma and another" reported in AIR 2001 SC 2090 to urge that as said leave is not reserved, the petitioner cannot be permitted to prove misconduct before Labour Court. 6 7. In the light of discussion above, I do not find it necessary to observe anything more in these matters. Petitioner never raised objection to maintainability before Industrial Court. The challenge to impugned orders of Labour Court or then of Industrial Court could not have been entertained and the Labour Court ought have been permitted to decide ULP complaint and BIR appeals filed before it finally. Here, I hold that the challenge to orders of Industrial Court can be raised only thereafter. 8. In this situation, the petitioner is permitted to take appropriate steps as are open to it before Labour Court in the light of order of Industrial Court. The same shall be without prejudice to its rights to challenge the findings of Industrial Court. The Labour Court shall decide ULP complaint or BIR Applications finally as early as possible. If thereafter the employer is required to challenge that adjudication, he shall be free to raise appropriate challenges in relation thereto before the Industrial Court in accordance with law. The finding of Industrial Court in impugned order that inquiry conducted is not in accordance with principles of natural justice shall not come in his 7 way at that stage and Industrial Court shall consider the said challenge afresh in accordance with law. 9. With these observations, the petitions are partly allowed. No orders as to costs. [B.P.DHARMADHIKARI, J.] Dated:26/04/2011. ans/3889 8 WRIT PETITION NO.: 3889 OF 1993 Date of decision: 26th APRIL, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE