1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.1621 of 2008 Mr.Sambhajirao Baburao Chavan Petitioner Vs. Maharashtra State Road Transport Corporation, Sangli Division, Sangli Respondent Mr.M.S.Topkar for petitioner. Mr.G.S.Hegde with Mr.G.A.Karmarkar for respondent. CORAM: B.H.MARLAPALLE, J. March 13, 2008 P.C. 1. Heard Mr.Topkar, the learned counsel for the petitioner who is employed as a driver under the respondent - Corporation. While he was driving the Corporation bus in discharge of his duties on 15/5/2003 on Chinchali - Kavathe Mahankal Road, bus hit a cyclist near the Pawar Wadi and the cyclist was coming from the opposite direction. The cyclist died on the spot. The Reporter of the Corporation visited 2 the spot of accident, drew a panchanama and prepared a report which was submitted to the Corporation. Consequently he was issued charge-sheet on 4/2/2004 on the charge of rash and negligent driving resulting into the death of a young boy. As he denied the charges, a departmental enquiry was initiated and the Enquiry Officer submitted his report holding that the petitioner was gulity of rash and negligent driving which resulted in the said accident in which a cyclist lost his life. The Disciplinary Authority accepted the said report and issued a show cause notice dated 11/8/2005 proposing the punishment of dismissal from service. Instead of replying to the said notice, the petitioner approached the Labour Court and filed Complaint (ULP) No.25 of 2005 under Section 28 read with Item 1 of the MRTU & PULP Act, 1971 challenging the said show cause notice and also filed an application for interim relief seeking directions against the Corporation not to act upon the report submitted by the Enquiry Officer till the said complaint was decided. The learned Judge of the Labour Court at Sangli was pleased to dismiss the said application at Exhibit U-2 by his order dated 15/2/2007. The petitioner, therefore, approached the Industrial Court at Sangli in Revision Application 3 &ULP) No.13 of 2007 and the said application also came to be dismissed on 13/2/2008. Hence this petition. 2. It is obvious that the petitioner filed Complaint (ULP) No.25 of 2005 on the apprehension of dismissal from service by way of punishment pursuant to the show cause notice dated 11/8/2005 and during the last more than two and half years the Corporation could not act upon the said show cause notice nor did the petitioner file any reply to the same. In the case of Hindustan Lever Ltd. Vs. Ashok Vishnu Kate & ors. [AIR 1996 SC 285] [AIR 1996 SC 285] [AIR 1996 SC 285], the Supreme Court affirmed the view of this Court that a complaint of unfair labour practice can be filed before the Labour Court under the Act on the apprehension of an order of dismissal from service. However, the Supreme Court set out a note of caution to the Labour Court or the Industrial Court while entertaining a complaint of unfair labour practice, in the following words, "53. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the Bombay High Court. It could not be gainsaid 4 that the employers have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if necessary, get the necessary investigation made in the light of such complaint and only when a very strong prima facie case is made out by the complainant appropriate interim orders 5 intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts. Otherwise, the very purpose of holding domestic enquiries as per the standing orders would get frustrated." . Following the law laid down in Kate’s case (Supra), when the petitioner approached the Labour Court in Complaint (ULP) No.25 of 2005 along with an application for interim relief under Section 30(2) of the Act and while deciding such application, the scope of consideration by the Labour Court was limited to finding whether the enquiry was conducted in keeping with the principles of natural justice, the proposed punishment was in keeping with the Service Rules / Standing Orders and whether the punishment of dismissal was for frivolous charge. The Labour Court as well as the Industrial Court considered the enquiry officer’s report and noted that the accident in which the cyclist died was attributable to the rash and negligent driving of the petitioner and this prima facie finding is based on the documents placed before the Labour Court. 6 Mr.Topkar, the learned counsel for the petitioner has taken me through the Enquiry Officer’s report and pointed out that the bus was at the relevant time driven by the petitioner purportedly at the speed of 20 Kms. per hour. Even if so, it cannot be said that, prima facie, finding of rash and negligent driving could not be attributed to the petitioner. Only when the bus is in a high speed, can the driver be attributed rash and negligent driving is not a proposition which finds acceptance in law. Even a vehicle may be at a slow speed and still the driver may be guilty of rash and negligent driving. I, therefore, do not find any reason to take a different view as has been taken by both the Courts below concurrently in holding the petitioner, prima facie, guilty of rash and negligent driving. 3. It is also well known that under the Service Rules applicable to him, the petitioner has the right to file First Appeal and thereafter the Second Appeal against any order of punishment and thereafter he can approach the Labour Court under the Act or get a reference made under the I.D. Act for adjudication. The Courts below have rightly rejected the application filed under Section 30(2) of the Act 7 thereby declining the restraining order against the employer to proceed further against the petitioner. 4. Hence the petition fails at the threshold and the same is hereby rejected summarily. (B.H.MARL