- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.496 OF 2008 PETITION NO.496 OF 2008 PETITION NO.496 OF 2008 M/s.Electronic & Engineering Co. ...Petitioner vs. Engineering & Metal Workers Unicon (AITOC) ...Respondent Mr.R.S.Pai i/b Mr.Sanjay Udeshi & Co. for the petitioner Ms Gayatri Singh for the respondent CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 9,2008 : APRIL 9,2008 : APRIL 9,2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. Rule. Learned Counsel for the Respondents waives service. Petition is taken up for final hearing by the consent of the learned counsel for the parties. 2. The Petitioner had appointed one Manohar Kudalkar as a Transformer Winder in the Electrical Department in the year 1982. Disciplinary proceedings were initiated against the said Shri Kudalkar. The Enquiry Officer submitted a report holding that the charges levelled against him were proved in the enquiry. The Petitioner issued an order of dismissal. The Respondent-Union raised a demand for reinstatement with full backwages. 3. After a contest, the Presiding Officer of the Labour Court made Part-I Award holding that the enquiry against the said workman was not fair and proper on the ground that a sufficient opportunity was not afforded to the workman. It is - 2 - the case of the Petitioner that in November 2004, the Petitioner-company permanently closed down its manufacturing activities. It is the case of the petitioner that after the Part-I Award was made, the Petitioner was granted an opportunity to adduce evidence for proving the charges against the workman. Accordingly, the Petitioner examined certain witnesses. By Judgment dated 28th September 2007, the learned Labour Court made Part-II Award directing the petitioner to pay full backwages to the workman by way of compensation from the date of termination till the date of the said Award. 4. The learned counsel for the petitioner pointed out that by this petition, the petitioner has impugned both Part I and Part II Awards. Inviting my attention to the findings recorded by the learned Presiding Officer of the Labour Court in order dated 28th September 2007, he submitted that the court has not at all considered and appreciated oral evidence of the witnesses examined by the Petitioner. The learned counsel for the Respondent invited my attention to the issues framed by the learned Presiding Officer. She submitted that at no stage any application was made by the Petitioner seeking permission from the Labour Court for adducing the evidence. She submitted that in any event, the evidence of the witnesses is on totally a different point and that is how the issues have been framed by the learned Presiding Officer. She submitted that in any event, the Petitioner could not have adduced any evidence in as much as at no stage a permission - 3 - was sought by the Petitioner to adduce the evidence. She submitted that even in the written statement such permission was not sought. By way of reply, the learned counsel for the Petitioner submitted that in view of the law laid down by the Apex Court in case of Karnataka State Road Transport Corporation [(2001) 5 S.C.C. page 433] as well as Divyash Pandit vs. Management,NCCBM [(2005) 2 S.C.C. 284], permission could have been sought by the Petitioner for adducing the evidence at any stage and it was not necessary to seek such permission while filing his written statement. 5. I have carefully considered the submissions. The issues framed by the learned Presiding Officer while making Part-II Award read thus : . ISSUES ISSUES ISSUES FINDINGS FINDINGS FINDINGS 1. Is punishment awarded is disproportionate? Yes 5. Is he entitled for reinstatement? No. 6. Is he entitled for back wages ? Yes. 7. What order ? As per final order. In paragraph 3 of the Judgment, the learned Presiding Officer has observed thus : - 4 - "3. On behalf of the 1st party company, the witnesses Ashok Shantilal Seth, Prabhakar Revappa Desai, Nikhil Ramesh Parikh, Sunil Sadanand Raut, Rajul Ramesh Parikh, Suresh Gulabrao Phadtare are examined. On behalf of the 2nd party workman, Shri Manohar V. Kudalkar has examined himself before the Court." 6. Perusal of the impugned Judgment and Order shows that there is no consideration of oral testimony of the witnesses examined by the Petitioner. The learned counsel for the Respondent tried to argue that in so many words the learned Presiding Officer may not have referred to the evidence but still the evidence was considered. On plain reading of the impugned Judgment and Order it is apparent that there is no consideration of the evidence adduced by the parties by examining their witnesses. Only on this ground, the impugned order becomes vulnerable. Only on this ground, the impugned order deserves to be quashed and set aside. 7. The issues which are canvassed by the learned counsel for the parties will have to be canvassed before the learned Presiding Officer of the Labour Court before whom the matter will be decided afresh. 8. It is obvious that if the fresh award which may be made by the learned Presiding Officer is adverse to the Petitioner, it - 5 - will be open for the Petitioner to file a fresh petition challenging both the Part-I and Part-II awards. 9. Hence, I pass the following order : i) Impugned Judgment and Order dated 28th September 2007 is quashed and set aside. The reference (IDA) 1033 of 1998 is remanded to the 2nd Labour Court, Bombay. ii) Parties are directed to appear before the learned Presiding Officer of the 2nd Labour Court, Mumbai on 15th May 2008 at 11.00 a.m. iii) It is made clear that no further notice of the date fixed will be given to the parties. iv) The learned Presiding Officer will dispose of the reference afresh after hearing the parties. Since the reference is of the year 1988, the reference shall be disposed of as expeditiously as possible and in any event on or before 31st October 2008. v) All contentions of the parties on merits of the reference are expressly kept open. vi) Rule is partly made absolute in above terms. vii) The parties and the concerned Presiding Officer of the - 6 - Labour Court to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE