ssp 1 LPA 285 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.285 OF 2010 IN WRIT PETITION NO.7975 OF 2010 WITH CIVIL APPLICATION NO.358 OF 2010 IN LETTERS PATENT APPEAL NO.285 OF 2010 IN WRIT PETITION NO.7975 OF 2010 The Maharashtra State Other Backward Class Finance and Development Corporation Ltd., having Office at Administrative Building, 4th Floor, Ramkrushna Chamburkar Marg, Chembur, Mumbai – 400 071, Through its Managing Director. .....Appellant versus Shri Gopal Laxmanrao Yedake, aged 58 years, Occu – Suspended/retired employee, R/o 11­A, Shriniwas, Jawan Nagar, Vijapur Road, Solapur. ..... Respondent Mr.N.V.Bandiwadekar, for the appellant. Mr.P.R.Arjunwadkar, for the respondent. CORAM: P.B.MAJMUDAR & A.A.SAYED, JJ. DATE: 07th APRIL, 2011 ORAL JUDGMENT ( PER P.B.MAJMUDAR, J.) : ­ 1. The appellant Corporation has challenged the order of the learned Single Judge dated October 18, 2010 passed in Writ Petition No. ssp 2 LPA 285 of 2010 7975 of 2010. The learned Single Judge rejected the writ petition filed by the appellant by observing that respondent shall not claim any retiral benefits till the complaint is disposed of and the appellant was directed not to recover any amount from the respondent till the complaint is disposed of. 2. The respondent herein was appointed as District Manager in the appellant­Corporation. The respondent was subjected to departmental proceedings and chargesheet was issued to him on 26­08­2008 in connection with 17 charges which are in connection with financial irregularities alleged to have been committed by the respondent. Charge No.1 is in connection with disbursing the amount to the tune of Rs. 27,63,000/­ to 41 beneficiaries in Solapur District in cash illegally and without following the procedure and contrary to the practice. It is also alleged that respondent has not even taken receipts from some of the beneficiaries at the time of making payment in cash and the entire loan disbursement is a suspicious. 3. Charge No.2 is in connection with loan disbursement of Rs. 50,000/­ to Mrs.D.S.Harkunde, Shri V.G.Patil and Shri S.S.Patil, for purchase of livestock. It is alleged against the respondent that purchase receipts seem to be false and receipts are not found in the file. Charge No.3 is in connection with the expenditure bills in respect of the amount of ssp 3 LPA 285 of 2010 Rs.50,538 for a particular period. The other charges are also in connection with the irregularities in the matter of disbursement of the loan amount. 4. A departmental inquiry was conducted under the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 against the respondent. The Inquiry Officer was appointed and respondent led his defence before the Inquiry Officer. The Inquiry Officer thereafter submitted its report, a copy of which was made available to the respondent. The findings of the Inquiry Officer against each of the charge, read as under : ­ 1) Charge No.1 – Fully proved. 2) Charge No.2 – Fully proved. 3) Charge No.3 – Partly proved. 4) Charge No.4 – Fully proved. 5) Charge No.5 – Fully proved. 6) Charge No.6 – Not proved. 7) Charge No.7 – Partly proved. 8) Charge No.8 – Admitted. 9) Charge No.9 – Partly proved. 10) Charge No.10 – Fully proved. 11) Charge No.11 – Admitted. 12) Charge No.12 – Admitted. 13) Charge No.13 – Fully proved. 14) Charge No.14 – Fully proved. 15) Charge No.15 – Admitted. 16) Charge No.16 – Admitted. 17) Charge No.17 – Fully proved. 4. On the basis of the report of the Inquiry Officer, second ssp 4 LPA 285 of 2010 show cause notice was issued to the respondent by the appellant asking him as to why major penalty should not be imposed against him and he should not be dismissed from the service and for recovery of the amount. The respondent gave reply to the show cause notice. But thereafter, before any order was passed, he filed a complaint under M.R.T.P. & P.U.L.P.Act, 1971 (hereinafter referred to as “the said Act”). before the Labour Court, Solapur being complaint (U.L.P.) No.10 of 2010. The said complaint is filed under Section 28 Schedule IV Item 1(a), (b), (d), (f), (g) of the said Act, on the ground that the issuance of show cause notice regarding dismissal may amount to unfair labour practice. 5. In the aforesaid pending complaint, respondent herein preferred an application at Exh.U­2 under Section 30(2) of the said Act, for interim relief. At that time, respondent had not taken any point regarding non­applicability of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979. But before the Labour Court, during the course of hearing, the said point was argued by the respondent and after the order of the Labour Court, the complaint was also amended. The learned Judge of the Labour Court found that the applicant/respondent has failed to make out any prima facie case for interim relief and also found that the balance of convenience is also not in favour of the present respondent. The Labour Court accordingly rejected the prayer for interim relief by an ssp 5 LPA 285 of 2010 order dated 13­04­2010. 6. The aforesaid order of the Labour Court was challenged by way of Revision Application by the respondent herein under Section 44 of the said Act. At the time of filing revision, respondent herein had also prayed for ad­interim order and the learned Judge of the Industrial Court by its order dated 26­04­2010, granted ad­interim order in the said Revision application and the present appellant herein, who was opponent in the revision application, was restrained from implementing show case notice. 7. The said Revision was finally heard and by an order dated 25­06­2010, the learned Judge of the Industrial Court allowed the said Revision application by setting aside the order passed by the Labour Court, by which the Labour Court declined to grant interim relief. The ad­ interim order was directed to be continued till the main complaint is decided by the Labour Court. The Revisional Court found that since appellant is an independent body and unless by way of appropriate Notification the M.C.S. Rules are made applicable, the Inquiry held under the said Rules can be said to be unfair labour practice. The aforesaid order of the Industrial Court was challenged by the present appellant by way of Writ Petition No.7975 of 2010 and the learned Single Judge by the impugned order, found that since respondent has already retired from ssp 6 LPA 285 of 2010 service, there is no need to interfere with the order passed by the Industrial Court. The learned Single Judge rejected the petition with a direction that respondent shall not claim any retiral benefits till the complaint is disposed of. It is the aforesaid order which is impugned at the instance of the appellant­Corporation. 8. Learned counsel for the appellant vehemently submitted that the learned Single Judge has failed to exercise jurisdiction by non­ examining the matter on merits as the writ petition of the appellant was dismissed only on the ground that respondent has retired from service and it was not necessary to interfere with the order of the Revisional Court. He further submitted that respondent after getting interim relief from the Industrial Court has ultimately retired by way of superannuation, though the appellant in turn have pointed out that the respondent is permitted to retire without prejudice to the rights and contentions of the appellant to take appropriate action as per the show cause notice. 9. Learned counsel for the appellant further submitted that as per Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, a employer is required to take appropriate action even if employee is retired from the service and even if employee is allowed to retire, appropriate disciplinary proceedings can be continued against the said employee. He submitted that in the instant case, inquiry is already held for recovery of ssp 7 LPA 285 of 2010 large amount from the respondent, regarding loss which the employer has sustained. It is submitted by him that simply because respondent had approached Industrial Court and by way of superannuation he is allowed to retire, then also inquiry proceedings cannot be said to have become infructous. It is further submitted that departmental proceedings have been initiated against respondent under the M.C.S.Rules, 1979. It is submitted that appellant Corporation has not yet framed their own rules and have adopted rules of the State Government as appellant is a Government Undertaking. Learned counsel for the appellant contended that for adopting Maharashtra Civil Services Rules, a Resolution was also passed by the Board of the appellant Corporation and the said Resolution finds place at page No.47 in the compilation, by which the said rules have been made applicable. He further submitted that subsequently draft rules have been framed by the Corporation which are sent to the Government for approval. He contended that the show cause notice is issued against respondent under the aforesaid rules and that he has not taken any objection of holding inquiry under the said rules in the reply, nor any objection was taken before the Labour Court and for the first time, at the time of argument before the Labour Court, said point was raised. It is submitted by the learned counsel for the appellant that it is always open to the Corporation to adopt Government rules subject to finalization of their ssp 8 LPA 285 of 2010 own rules independently. It is also submitted that respondent was subjected to inquiry proceedings and the charges which are serious in nature have been proved against him and the respondent after giving reply and having realized that on the basis of the findings of the Inquiry Officer, he is likely to be dismissed, that he approached the Labour Court without waiting for the final decision and final order in the disciplinary proceedings. Learned counsel for the appellant further contended that at the time when inquiry was pending, respondent was under suspension and the said order was passed under the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, which he could not challenge. Learned counsel for the appellant strenuously submitted that even though complaint is maintainable even before passing the final order, yet, this is not a case in which any interim relief could have been granted in favour of the present respondent. It is pointed that the revisional Court has passed the order on extraneous ground for which he he has relied upon Para No.21 page 264 of the revisional Court order. Learned counsel for the appellant further submitted that in any case, when the Labour Court in its discretion has passed interim order, the revisional Court could not have passed such an order and the learned Single Judge of this Court has committed an error by not examining the matter on merits. In case complaint is allowed, all consequential benefits can be given to the respondent, but this ssp 9 LPA 285 of 2010 is not a case in which interim relief could have been granted by the revisional Court. 10. The learned counsel for the respondent, on the other hand, submitted that this appeal is not maintainable as the appellant has not pleaded as to how the appeal is maintainable. He further contended that since the order of the learned Single Judge is under 227 of the Constitution of India, the above appeal is not maintainable. Learned counsel for the respondent submitted that since the matter is at interlocutory stage before the Labour Court and even if it is held that the above appeal is maintainable, then also this Court may not interfere with the order passed by the revisional Court, which is confirmed by the learned Single Judge of this Court. He submitted that even if no final order is passed, complaint of the respondent under Section 28 Schedule IV Item 1(a), (b), (d), (f), (g) of the said Act, is maintainable. He further submitted that the appellant could not have initiated inquiry under the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, as the said rules unless are properly adopted by issuance of Notification, could not have been made applicable to the respondent and the appellant could have proceeded under the Model Standing Orders. 11. Learned counsel for the respondent further contended that respondent is allowed to retire by way of superannuation during the ssp 10 LPA 285 of 2010 pendency of the proceedings and under these circumstances, this Court may not interfere with the appeal and may expedite the original complaint filed by the respondent. He further contended that appellant committed unfair labour practice. It is further submitted that at the time of allowing the respondent to retire, the appellant in its order has stated that he is allowed to retire and that inquiry was initiated against him for serious allegations and only awarding of punishment is pending. In view of the above, it is clear that the appellant has decided to dismiss him from the service. Learned counsel for the respondent, however, strenuously contended that since Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 are not applicable, initiation of inquiry proceedings are a nullity and all the proceedings are therefore, required to be quashed in complaint filed by the respondent before the Labour Court and to continue that inquiry itself amounts to unfair labour practice. He further submitted that revisional Court has not taken any extraneous ground and what is stated in the order of the Revisional Court, is as per the record and he has not taken any extraneous facts into consideration while passing the order. 12. We have heard the learned counsel for the appellant and respondent at great length. We have also gone through the order of the Labour Court, Revisional Court and the order of the learned single Judge of this Court. We have also gone through the necessary documents forming ssp 11 LPA 285 of 2010 part of the present proceedings, interim charge­sheet and the report of the Inquiry Officer. 13. So far as preliminary objection taken by the respondent about the maintainability of the writ petition is concerned, it is required to be noted that the learned single Judge has not considered the case of the appellant on merits at all. The learned single Judge has dismissed the writ petition only on the ground that the respondent has now retired from the services. The learned single Judge has not even mentioned in the order as to whether the said order is passed under Articles 226 and 227 of the Constitution of India or not. Recently, in the case of M/s. Advani Oerlikon Ltd. vs. Machindera Govind Makasare and others, the Full Bench of this Court while deciding LPA No. 261 of 2005 along with other cognate LPAs has examined this question in paragraph 15 and it is held as under. “15.In Lokmat Newspapers Pvt. Ltd. vs.Shankarprasad1 a complaint filed by the Respondent under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, was dismissed by the Labour Court and the dismissal of the complaint was affirmed in revision by the Industrial Court. A Writ Petition by the respondent under Articles 226 and 227 of the Constitution was dismissed by a single Judge. An appeal by the respondent was entertained by the Division Bench which held that the 1 AIR 1999 SC 2423 ssp 12 LPA 285 of 2010 employer was guilty of unfair labour practices consequent upon which reliefs were granted to the workman in the Letters Patent Appeal. On behalf of the employer, it was sought to be contended before the Supreme Court that the petition filed by the Respondent before the High Court was in substance under Article 227 and that hence, the judgment of the single Judge could not have been appealed against under clause 15 of the Letters Patent. The Supreme Court adverted to the averments contained in the petition filed by the workman while invoking Articles 226 and 227 of the Constitution and observed that it was clear that the workman had tried to make out a case for the interference of the High Court seeking an appropriate writ of certiorari under Article 226 of the Constitution. Noting that the appeal before the Division Bench under clause 15 of the Letters Patent was maintainable, the Supreme Court held as follows:­ “ Basic averments for invoking such jurisdiction were already pleaded in the writ petition for High Court’s consideration. It is true, as submitted by learned counsel for the appellant, that the order of the learned single Judge nowhere stated that the court was considering the writ petition under Article 226 of the Constitution of India. It is equally true that the learned single judge dismissed the writ petition by observing that the courts below had appreciated the contentions and rejected the complaint. But the said observation of the learned single Judge did not necessarily mean that the learned Judge was not inclined to interfere under Article 227 of the Constitution of India only. The said observation equally supports the conclusion that the learned Judge was not inclined to interfere under Articles 226 and 227. As seen earlier, that he was considering the aforesaid writ petition moved under Articles 226 as well as 227 of the Constitution of India. Under these circumstances, it is not possible to agree with the contention of learned counsel for the appellant that the learned single Judge had refused to interfere only under Article 227 of the Constitution of India when he dismissed the writ ssp 13 LPA 285 of 2010 petition of the respondent.” After adverting to the judgment in Umaji’s case, the Supreme Court concluded thus: “It was open to the respondent to invoke jurisdiction of the High Court both under Articles 226 and 227 of the Constitution of India. Once such jurisdiction was invoked and when his writ petition was dismissed on merits, it cannot be said that the learned single Judge had exercised his jurisdiction only under Article 226 (sic) of the Constitution of India.This conclusion directly flows from the relevant averments made in the writ petition and the nature of jurisdiction invoked by the respondent as noted by the learned single Judge in his judgment, as seen earlier. Consequently, it could not be said that clause 15 of the Letters Patent was not attracted for preferring appeal against the judgment of learned single Judge.” The Full Court has also observed that even if in a given case if a writ petition is filed before the learned single Judge invoking Article 227 of the Constitution of India and a decision is rendered in favour of the petitioner, it is open for the respondent to demonstrate before the Division Bench in Appeal that the nature of controversy, the averments contained in the petition, the reliefs sought and the principal character of the order of the learned single Judge would support the maintainability of the appeal on the ground that the facts justify the invocation of both Articles 226 and 227 of the Constitution of India. As pointed out earlier, in the instant case, the learned single Judge has not referred any of the Articles i.e. Articles 226 and 227 of the Constitution of India and in view of the decision of the ssp 14 LPA 285 of 2010 Supreme Court in Lokmat’s case and the Full Bench decision which we have referred to above, this Appeal is maintainable especially when the learned single Judge has not considered the matter on merits at all. The learned counsel for the respondent is also not in a position to point out as to how this appeal is not maintainable. Accordingly, it is found that there is no substance in the preliminary objection taken by the respondent and, in our view, this appeal is maintainable. 14. It is, however, required to be noted that the complaint against contemplated action under the MRTU & PULP Act is maintainable as held by the Supreme Court in the case of Hindustan Lever Ltd. V/s. Ashok Vishnu Kate and Ors., (1995) 6 SCC 326, wherein it was held that Labour Court has jurisdiction to entertain complaint under Section 28 alleging unfair labour practice mentioned under Item 1 of Sch.IV even at the stage of initiation of a firm step in the direction of discharge or dismissal by starting departmental enquiry by serving charge­sheet to the delinquent. Accordingly, the complaint of the respondent was maintainable before the Labour Court. 15. The question which requires consideration is as to whether the interim relief granted by the revisional Court during the pendency of ssp 15 LPA 285 of 2010 the complaint is justified or not and is legal and proper or not. In this connection, it is required to be noted that inquiry was initiated against the respondent under Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 and the Inquiry Officer has already submitted its report. In view of the said report, charges levelled against the respondent which are serious in nature are also proved. After giving reply to the show cause notice, respondent approached the Labour Court. It is not the case that respondent approached the Labour Court immediately after charge sheet is issued against him on the ground that the inquiry is not under the Rules and is not competent. Learned counsel for the appellant has pointed out that the appellant Corporation has already adopted the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979, for which no prior permission is required from the Government and mere intimation is required to be given to the Government. The Revisional Court while dealing with the question about unfair labour practice has observed in the order, thus : 21. It appears that the complainant has put about 37 years of service and he is on the verge of retirement. The opponent has not prima facie shown any other misconduct on the part of the complainant committed by him in the past except the present one. In such situation, in case, interim relief granted in favour of the complainant by this Court is not continued till the decision of the complaint then, the opponent would certainly execute the show cause notice of the dismissal and thereby the complainant would be deprived of all the retiral benefits at the very initial stage of the complaint that would certainly be a greater hardship ssp 16 LPA 285 of 2010 to the complainant and his family. 16. In our view, the Industrial Court has unfortunately not considered the matter in a proper manner. The Industrial Court is assigned an important duty to decide important cases. It is the duty of the Court while deciding interim applications to consider both prima facie case and balance of convenience. The Labour Court has properly dealt with this aspect and the Revisional Court, in our view, in a most casual manner has set aside the order of the Labour Court and because of the interim order, ultimately the respondent has retired from service, while continuing in service. As a matter of fact, the Court while deciding interim application for interim protection is required to consider not only the prima facie case but the aspect about balance of convenience also. The Revisional Court has completely lost sight of this aspect while allowing the revision application filed by the respondent. 17. As pointed out earlier, in every case when the Court is considering interim application, the Court is required to decide not only prima facie case but balance of convenience also. In a given case, even if there is a prima facie case in favour of the applicant, the Court may refuse to grant interim relief, if the balance of convenience is not in favour of the person ssp 17 LPA 285 of 2010 applying for interim relief. While deciding the application for interim injunction or interim protection, the Court is required to decide both the points viz. (i) prima facie case and (ii) balance of convenience. If there is no prima facie case, naturally the question of deciding balance of convenience becomes academic but even