1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4432 OF 2008 WITH WRIT PETITION NO.5968 OF 2008 W.P. 4432/08 : The State of Maharashtra & Ors. ...Petitioners. Vs. Smt. Shrimati Mahadeo Kawale. ...Respondent. .... Mr. A.P. Vanarase, AGP for the Petitioners. Mr. Nitin A. Kulkarni for the Respondent. ..... W.P. 5968/08 : Smt. Shrimati Mahadeo Kawale. ...Petitioner. Vs. The State of Maharashtra & Ors. ...Respondents. .... Mr. Nitin A. Kulkarni for the Petitioner. Mr. A.P. Vanarase, AGP for the Respondents. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 30, 2008. P.C. Two petitions have been filed before the Court, the first by 2 the employer and the second by the workman in order to impugn an order of the Industrial Court at Satara dated 28th January 2008. The Labour Court had, by an order dated 30th November 2005, granted reinstatement with 50% back wages and continuity of service to the workman. The Industrial Court confirmed the order of reinstatement, but set aside the direction in regard to the grant of 50% back wages and continuity of service. 2. The workman, in the present case, was employed on 24th May 1982 as a cook under the establishment of the District Social Welfare Officer at Satara. According to the Written Statement filed by the First Respondent before the Labour Court, the workman was initially engaged for 29 days only upto 20th September 1983. Thereafter, on 24th May 1990 she was appointed for a period of 29 days on the recommendations of the concerned Minister. The employee was continued from time to time, the last order of 26th December 1993 being valid until 14th January 1994. On 14th January 1994, the services of the workman were discontinued since there 3 were various complaints against her. The workman filed a complaint of unfair labour practices, being Complaint (ULP) 18 of 1994 before the Labour Court at Sangli in which an application for interim relief was allowed. Accordingly, the workman was allowed to join duty at Government Ladies Hotel, Dahiwadi. According to the Divisional Social Welfare Officer, there were serious complaints against the workman both by the officers and inmates of the Institution. A meeting was held on 8th January 1996 of the officers of the District Women and Child Welfare Office at Satara during the course of which it is alleged that the workman indulged in acts of misconduct. The workman was suspended. An Enquiry Committee was set up. The Committee submitted a report on 8th November 1996. The workman was dismissed from service on 23rd February 1996. 3. A complaint of unfair labour practices was instituted by the workman under Items 1(a), (b), (d ) and (f) of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 before the Labour Court at Satara. The 4 Labour Court allowed the complaint on 30th November 2005. The Labour Court held that the termination was stigmatic. An Enquiry Committee was constituted which found that the workman was engaged in serious acts of misbehaviour and misconduct. The Labour Court was of the view that though the workman was temporary, the termination was on the ground of misconduct and that consequently, a domestic enquiry ought to have been held. In these circumstances, an order of reinstatement with 50% back wages was passed. 4. When the matter was carried in revision, the Industrial Court confirmed the finding of the Labour Court that the termination was punitive and was consequently illegal since the principles of natural justice were not complied with by serving a chargesheet or holding a disciplinary enquiry. However, the Industrial Court set aside the direction in regard to the payment of back wages and continuity of service. 5 5. The order of the Industrial Court is challenged by the workman in so far as the denial of back wages and continuity of service are concerned. The order of the Industrial Court has also been challenged by the employer. 6. Paragraph 6 of the Written Statement which was filed by the Divisional Social Welfare Officer contains a categoric averment that the dismissal of the complainant-workman was on the ground of misconduct, including threatening officers, assaulting them, harassing the departmental staff and on account of the complaints which were received from the inmates of the girls' hostel. The Special District Social Welfare Officer has also filed an affidavit in these proceedings on 8th April 1996 to which a copy of the report of the Enquiry Committee has been annexed. The Labour Court noted that the Enquiry Committee had, as a matter of fact, conducted an enquiry on a complaint made by the workman but found that her conduct and behaviour was not proper. Admittedly, no chargesheet was issued, nor was the workman given an opportunity of defending herself in a 6 disciplinary proceeding. The termination was stigmatic. In these circumstances, an order of reinstatement was passed. There can be no manner of doubt that though the workman was a temporary employee, if the termination of her services was founded on acts of misconduct, it was necessary to hold an enquiry. That is admittedly not held. In these circumstances, the order of reinstatement cannot be faulted. In so far as back wages are concerned, the Industrial Court furnished cogent reasons for denying back wages. The Industrial Court has inter alia relied upon the judgment of this Court in Renuka S. Dhoke vs. Chief Executive Officer, Zilla Parishad, Yavatmal, 2007 Lab. I.C. 3487. 7. The charges against the workman, in the present case, are evidently serious. Hence, it is only appropriate and proper if permission is granted to the Divisional Social Welfare Officer to convene a disciplinary enquiry to enquire into the allegations of misconduct. As already noted earlier, the workman had been under suspension. Pending the disciplinary enquiry, it would be appropriate 7 if the workman continues to be under suspension. The question as regards continuity of service shall necessarily have to abide by the result of the disciplinary enquiry. 8. The petitions shall accordingly stand disposed of with the following directions: (I) The order passed by the Industrial Court on 28th January 2008 in so far as it grants reinstatement without back wages shall stand confirmed inasmuch as the services of the workman were terminated for an act of misconduct without compliance with the principles of natural justice; (ii) The Divisional Social Welfare Officer, Pune Division, is permitted to hold a disciplinary enquiry in accordance with law to probe the allegations of misconduct against the workman. The Divisional Social Welfare Officer will be at liberty to issue a chargesheet to the workman in regard to the allegation of misconduct 8 and to hold a disciplinary enquiry thereupon in accordance with law; (iii) Pending disciplinary proceedings, the workman shall remain under suspension in pursuance of the order dated 8th January 1996. During the period of suspension and commencing from the month of October 2008, the workman shall be entitled to subsistence allowance; (iv) The enquiry shall be concluded expeditiously and preferably within a period of six months from today; (v) The question as regards the grant of continuity of service shall abide by the result of the enquiry. 9. There shall be no order as to costs. ..... 9