1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10552 OF 2009 Mr. Hiralal Maoji Bhariya. ....Petitioner vs The Municipal Commissioner, Municipal Corporation of Greater Mumbai. ....Respondent Ms. Neeta Karnik for the Petitioner. Mr. M.M. Malvankar for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 24TH FEBRUARY, 2010. P.C. :- 1. Rule. 2. By an order dated 8th February, 2010, the parties were put to notice that the matter may be disposed of finally at the stage of admission. I, accordingly, proceed to decide the matter finally. 2 3. The Petitioner has challenged the order passed by the Labour Court dismissing the Reference. The Petitioner sought reinstatement to the original post with full back wages and continuity of service with effect from 18th July, 2002. The Petitioner’s services were made permanent in the year 1988 as a labour/sweeper. In view of the order I intend to pass, it is not necessary to set out the facts and the rival contentions in detail. Suffice it to state that according to the Respondents, the Petitioner has been a habitual absentee. He has remained absent on various occasions without submitting a leave application. The Petitioner alleged that he was absent due to his having been ill. The impugned order holds that he remained absent in the years 1998, 2000, 2001 and 2002 for eighty-one days, two hundred and ten days, two hundred and sixty-five days and one hundred and ninety-one days respectively without any prior sanction or intimation. In the year 2002, he was absent without prior sanction or intimation for one hundred ninety-one days between the period January to July. His absenteeism continued despite notice being served on him to report to work. 4. If the findings against the Petitioner are correct, the Respondents cannot really be faulted for having imposed the major penalty of dismissal. However, I am inclined to interfere with the 3 impugned order and with the enquiry process on one ground. For whatever reason, it is an admitted position that the Petitioner was served with a charge-sheet only on 16th March, 2001 when he attended the office. The enquiry was held at the very moment on 16th March, 2001. From the R&P it appears that the finding that the Petitioner had cross- examined the Management witness is not correct as only his thumb impression appears on the document. It would indeed be surprising if a person like the Petitioner could have cross-examined a witness immediately. The entire enquiry concluded on 16th March itself. 5. In these circumstances, it cannot be stated that the Petitioner had a fair opportunity of defending himself by meeting the allegations in the charge-sheet. For this reason alone, the impugned order is liable to be set aside and the enquiry proceedings are also liable to be set aside. 6. However, considering the nature of the allegations, it is necessary that a fresh enquiry be held. 7. In the circumstances, the Writ Petition is disposed of by the following order :- (a) The impugned order is set aside. 4 (b) The enquiry proceedings are set aside. (c) The Petitioner shall be entitled to file a reply to the charge-sheet on or before 31st March, 2010. (d) The Respondent shall inform the Petitioner’s advocate, the name of the Enquiry Officer and the date, time and venue of the first hearing. No further notice of the first hearing shall be necessary. The Petitioner shall attend the subsequent hearings as maybe fixed by the Enquiry Officer. (e) Till the conclusion of the enquiry proceedings, the Petitioner shall remain under suspension unless the Respondent desires to permit him to attend work. (f) The Writ Petition is, accordingly, disposed of. (g) There shall be no order as to costs.