1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1839 OF 1991. Masilmani S/o Dnyanprakash Pillay died through L.Rs. 1-A) Mrs.Margaret wd/o Masilmani Pillay, Aged 45 years, Occ. Household, R/o Ramwadi, Sarjepura, Opp.S.T.Workshop, Ahmednagar, Tq. & Dist.Ahmednagar. 1-B) Simon S/o Masilmani Pillay, Age 24 years, Occ.Nil, R/o as above. 1-C) Silven S/o Masilmani Pillay, Age 18 years, Occ.Nil, R/o as above. ... Petitioners. Versus 1. The Divisional Controller, Maharashtra State Transport Corporation, Kothala, Ahmednagar. 2. The Mechanical Engineer (Operation) Maharashtra State Board Transport Corporation Kothala, Ahmednagar. ... Respondents. ... Mr.Pravin Wagh, advocate for the petitioner. Mr.M.K.Goyanka, advocate for the Respondents. 2 ... CORAM : S.V.GANGAPURWALA,J. Date : 13.08.2010. JUDGMENT 1. The petitioner at the relevant time was a permanent employee of the Respondents and was working as helper. In the year 1980 Departmental Proceedings were initiated against the petitioner on the charges of absentism from duty for thirty (30) days. The petitioner was suspended. Summary procedure was followed while conducting the Departmental Inquiry. Pursuant to the inquiry the Petitioner was removed from service. 2. The petitioner challenged the order of removal before the Presiding Officer, Labour Court, Ahmednagar, vide complaint (ULP) No. 2/1981. The Labour Court framed preliminary issue as under : "Does the applicant prove that the enquiry conducted against him is illegal, improper and against the principles of natural justice." 3 The Labour Court held that the Domestic Inquiry against the complainant was illegal and improper vide order dated 3l.1.1981. Thereafter, the Labour Court held that the Respondent No.2 indulged in unfair Labour practice and allowed the complaint. The Labour Court directed the Respondents to reinstate the petitioner with continuity of service with effect from 25.6.1981 and to pay full back wages till the date of reinstatement. 3. The present Respondents preferred Revision against the aforesaid judgment of the Labour Court before the Industrial Court, Ahmednagar, who allowed the said Revision by setting aside the order of the Labour Court. The petitioner being aggrieved by the said order of the Industrial Court dated 2l.1.1991, has approached this Court. 4. Mr.Pravin Wagh, learned counsel for petitioner contended that : 4 (i) The petitioner was issued a summary charge-sheet along with suspension order by Respondent No.2 who had no authority to take such action under the Standing Order or Discipline and Appeal Procedure. (ii) The charge-sheet was not issued in proper form i.e. E-II form of the Discipline and Appeal Procedure. No second show cause notice was issued to the petitioner. (iii) The punishment imposed is too disproportionate to the act alleged. 5. Per contra, Mr.Goyanka, learned counsel for the Respondents submitted : (a) The inquiry was held by the superior authority and as such no prejudice would be caused to the petitioner and an act which could be done by particular authority, the same can always be done by the higher authority. (b) The issuance of charge-sheet is only 5 meant to give knowledge to the petitioner about the charges which are framed against him, just because punishment is stated in the charge-sheet, the same would not vitiate the proceedings. (c) The ample opportunity was given to the petitioner but he failed to avail the same. (d) The inquiry conducted was in a free and fair manner and as the petitioner had absented himself, the punishment imposed was appropriate. The Industrial Court has rightly come to the conclusion. 6. It is not disputed that as per Schedule "C" of the relevant Rules, the competent authority to hold inquiry is a Divisional Engineer but the inquiry was conducted by a higher authority i.e. the Mechanical Engineer (Operation). It is a trite law that when a statute or rules require an act to be performed in a particular manner it has to be performed in that manner, otherwise not to be performed at all. When the Rules specifically lay down the powers and duties, so also the persons who can 6 act as competent authorities then in such circumstances the said authority only is empowered to hold the inquiry. In the present matter as the inquiry is not held by the competent authority, the same would be without jurisdiction. 7. It is also seen that the charge-sheet should have been issued in Schedule E-II for charge-sheet in summary cases but admittedly the charge-sheet is not issued in the said form but the charge-sheet itself specifies the punishment i.e. sought to be inflicted on the petitioner. The said charge-sheet is not in consonance with the Rules i.e. Discipline and Appeal Procedure Rules. 8. In light of the fact that very initiation of the proceedings is by an Officer who was not competent as laid down under the Rules, the inquiry is vitiated. In such circumstances, I need not go to the other allegations about of the observance or non- observance of principles of natural justice. The 7 petition would succeed on the ground of inquiry not being initiated by a competent person and the charge-sheet not having been issued in proper form. The impugned order passed by the Industrial Court, Ahmednagar, deserves to be quashed and set aside. 9. As far as Back wages is concerned the petitioner has nowhere made a statement that during all these years he was not gainfully employed. The burden is upon the employee to plead and prove that he was not gainfully employed and if he discharges the said burden then only he is entitled for back wages. In the present case as the petitioner has not pleaded nor proved that he was not gainfully employed, the petitioner would not be entitled for any back wages. 10. In the result, I pass the following order : The impugned order dated 2l.1.1991, passed by the Member, Industrial Court, 8 Ahmednagar in Revision Application/ULP No.12/1990 is set aside. As it is reported that the petitioner is dead, the order of reinstatement can not be passed but the petitioner shall get all the retiral benefits considering the period till his death or till the period he would have attained the age of superannuation whichever is earlier as on duty. The petitioner's wife i.e. the petitioner No.1-A shall be entitled for the family pension. The Respondents shall pay the arrears of pension and family pension to petitioner No.1-A within a period of four months from today. The petitioner No.1-A shall comply with all legal formalities for the purpose of the availment of the said pension. However, the petitioner would not be entitled for any back wages. 11. Rule accordingly made absolute with no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/wp183991 9