bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5985 OF 2008 PETITION NO. 5985 OF 2008 PETITION NO. 5985 OF 2008 IN REVN. APPLICATION (ULP) NO. 13 OF 2005 IN COMPLAINT (ULP) NO. 166 OF 2001 Municipal Corporation of Gr. Mumbai & ors. ... Petitioners (Ori. Applicants) v/s Rajendra Yeshwant Pawar ... Respondent (Ori. Opponent) ALONGWITH ALONGWITH ALONGWITH WRIT WRIT WRIT PETITION NO. 5986 OF 2008 PETITION NO. 5986 OF 2008 PETITION NO. 5986 OF 2008 IN REVN. APPLICATION (ULP) NO. 24 OF 2005 IN COMPLAINT (ULP) NO. 166 OF 2001 Municipal Corporation of Gr. Mumbai & ors. ... Petitioners (Ori. Opponents) v/s Rajendra Yeshwant Pawar ... Respondent (Ori.Applicant) Mr.A.Y.Sakhare with Mr.A.J.Bhor i/by A.R.Malandkar for the petitioners. Ms.Netra L. Kargutkar for the respondent workman. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 26TH AUGUST, 2008 26TH AUGUST, 2008 26TH AUGUST, 2008 P.C. P.C. P.C.: 1. By these petitions the petitioners have challenged 2 the orders of the Labour Court and the Industrial Court in revision. By its impugned order, the Labour Court has directed that the respondent should be reinstated in service by concluding that the petitioners have engaged in unfair labour practices under Item 1(f) of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The Labour Court has directed the petitioners to reinstate the workman with continuity of service but without back wages. The revisional Court has dismissed the revision application filed by the petitioners and has partly allowed the application filed by the respondent workman. The petitioners have been directed to pay 25% of the back wages to the respondent workman. 2. The Labour Court has framed the following issues:- "1. Whether an enquiry conducted is fair and proper? 2. Whether the findings are proper ? 3. Whether the complainant proves that the respondent is engaged in unfair labour practice as alleged ? 4. Whether the punishment is disproportionate ? 5. Whether the complainant is entitled to the reliefs claimed ? 6. What order ?" The Labour Court has concluded that the enquiry conducted against the respondent workman was not fair 3 and proper. After drawing this conclusion, it was necessary for the Labour Court to permit the petitioners to lead evidence to prove the misconduct. In the written statement the petitioners have sought permission to prove the misconduct in Court in the event the enquiry was held to be bad. The Labour Court has, without considering this request and without following the procedure laid down in a catena of judgments of the Supreme Court as well as this Court, has held that the petitioners have engaged in unfair labour practices and that the punishment of dismissal was disproportionate. Surprisingly, the Industrial Court has also ignored the well settled principles of law where the Courts have held that "a defective enquiry" and "no enquiry" stand on the same footing. The employer must be permitted to lead evidence to prove the misconduct against the workman before the Court in the event the employer seeks such permission in its written statement. 3. In my view, therefore, the order of the Industrial Court must be set aside. The order of the Labour Court also must be set aside except with respect to the findings as to whether the enquiry conducted against the respondent workman was fair and proper. The Labour Court having held that the enquiry conducted against the respondent workman was not fair and proper, should have 4 permitted the petitioners to lead evidence to prove the misconduct against the workman in Court. This is because, as already mentioned, the petitioners have sought permission to lead evidence to prove the misconduct in Court in their written statement. 4. The orders are accordingly set aside. 5. The order of the Labour Court with respect to issue Nos.2, 3, 4, 5 and 6 is set aside and confirmed with respect to Issue No.1. 6. Parties shall appear before the Labour Court on 8.9.2008. The Labour Court will then permit the petitioners to lead evidence on a suitable date. 7. The Labour Court will dispose of the complaint within three months from that date. 8. Writ petitions disposed of accordingly.