(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 674 OF 2011 Maharashtra State Road Transport Corporation, Ahmednagar, through the Divisional Controller. .. Petitioner. versus Arjun Shankar Wagh, R/o. Ward No.7, Near Oza Pump, Shrirampur, Taluka : Shrirampur, District : Ahmednagar. .. Respondent. ....................... Mr. Bhausaheb S. Deshmukh, Advocate, for the petitioner. Mr. P.V. Barde, Advocate, for the respondent. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 23RD MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. B.S. Deshmukh, for the petitioner, and Adv. Mr. P.V. Barde, for the respondent. (2) 2. Rule. Rule made returnable forthwith. Heard finally with consent of parties. 3. The judgment delivered by the learned Member of the Industrial Court, Ahmednagar, dated 13-9-2010, in Revision (ULP) No. 8/2006, thereby remanding Complaint (ULP) No. 206/1993, to the learned Judge of the Labour Court, Ahmednagar, for fresh decision, is questioned before this court. 4. Adv. Mr. B.S. Deshmukh argues that two reasons given for remand are not available. He states that liberty to amend written statement was already given and hence there was permission in favour of the petitioner to prove misconduct. Similarly, though issue expressly mentioning any item or sub- item of Clause 1 of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (For short, "1971 Act"), was not framed, the necessary issue in this respect was framed by the Labour Court to find out whether termination of respondent was legal or not and while answering that issue, the Labour Court has found that no unfair labour practice falling under Item 1 of Schedule IV of 1971 Act has been established. According to him, thus, there is total failure on the part of the Industrial Court to apply its mind. (3) 5. Adv. Mr. Barde points out that the respondent is already superannuated and after remand, the proceedings before Labour Court are also nearing stage of completion. According to him, though Industrial Court has made some inconsistent observations, as fair opportunity is given to both sides, this court should not interfere. He contends that without there being any liberty in written statement to prove misconduct, the petitioner adduced evidence for that purpose before Labour Court and respondent also participated in the process. After realizing the error, the respondent filed application at Exhibit U-23 before Labour Court for not reading that evidence and at that stage, petitioner filed another application Exhibit U-29 seeking leave to incorporate necessary amendment in the written statement. Application Exhibit U-29 was allowed on 26-12-2005 and application Exhibit U-23 came to be rejected. He contends that because of remand order, now the petitioner / Corporation is also getting fair opportunity and respondent has no objection if evidence already on record is allowed to be looked into by the Labour Court. 6. After hearing respective Counsel, I find that the Labour Court had framed issues as under : (4) (1) Does the complainant prove that his services are illegally and improperly terminated by the respondent ? (2) Is the complainant entitled for reinstatement with continuity of services and full back wages ? (3) What order ? Thus, though expressly no sub-item of Item 1 of Schedule IV of 1971 Act is mentioned, the Labour Court has looked into relevant material to find out whether services of complainant before it were illegally and improperly terminated and also whether he was entitled to relief of reinstatement with continuity and full back wages. Thus, though issues specifically mentioning legal provision has not been framed, the issues required for answering the dispute were framed and accordingly law has been applied. I, therefore, do not see any prejudice caused to either of the parties by not specifically framing issue in relation to a particular item or sub-item of Clause 1 of Schedule IV of 1971 Act. Not only this, it is not in dispute that on 26-12-2005, the Labour Court had permitted the petitioner / employer to amend its written statement and thereby granted it leave to prove misconduct. In fact, in earlier part of its judgment in paragraph 4, the Industrial Court has also noted that order. (5) 7. I, therefore, find application of mind by the Industrial Court insufficient and the Industrial Court appears to be confused in the matter. This has resulted in refusal to exercise jurisdiction available to it in accordance with law. The grievance of respondent / employee needed to be considered on merits in accordance with law. The defence of the petitioner / employer also, therefore, needed to looked into accordingly. As that has not been done, the impugned judgment will have to be set aside. 8. In the result, the petition is allowed. (i) The impugned judgment and order dated 13-9-2010, passed by the learned Member of the Industrial Court, Ahmednagar,, in Revision (ULP) No. 8/2006, is quashed and set aside. The proceedings in the said revision are restored back to the file of Industrial Court, Ahmednagar, for taking fresh decision in accordance with law. (ii) Parties shall appear before the Industrial Court, Ahmednagar, on 20th April 2011, and abide by its further instructions in the matter. (iii) The Industrial Court shall attempt to decide the said (6) revision as early as possible and in any case, by 31st August 2011. 9. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/674wp