1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5239 OF 2009. ( Namdeo B. Gedam -: versus :- Mah. State Co-op. Tribal and another ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : FEBRUARY 02, 2010. Heard Shri M.V. Mohokar, learned counsel for petitioner and Shri A. Neware, learned counsel for respondent nos. 1 and 2. Petitioner filed ULPA Complaint No.168/2001 challenging the recovery order dated 02.02.2001 by which the amount of Rs. 1070/- and of Rs.28,389/- respectively was sought to be recovered from his salary on account of loss of food grains stored in the warehouse of respondents, under him. Petitioner contended that he was not responsible for the weight loss and the loss was on account of natural consequences. The respondents opposed this complaint. The Industrial Court has in the impugned judgment dated 14.09.2009 found that no departmental enquiry was conducted, however, it found that weight loss was huge and as fact of weight loss was accepted by the petitioner, there was no need to give him any further opportunity. It has 2 therefore dismissed his complaint. Shri Mohokar, learned counsel has pointed out that during one of the inspections, Inspector of respondents has found the loss to be excessive, but then that Inspector himself has given reasons which show that petitioner was not being blamed for that loss. He further argues that in any case mere acceptance of weight loss does not mean that the petitioner was responsible for it and hence recovery from petitioner was unwarranted. During the arguments, he points out that respondents in their written statement before the Industrial Court did not seek leave to prove misconduct before the Industrial Court. Shri Neware, learned counsel for respondents on the other hand states that the loss was three times or four times the permissible loss and as it was huge, it became apparent that the petitioner who was in custody of those food grains, was responsible for said loss. He contends that it was the responsibility of the petitioner to inform the respondents about that loss. Thus not informing about weight loss and acceptance thereof by petitioner according to him are sufficient to sustain the order of recovery and no departmental enquiry was independently warranted. The contention of respondents cannot be accepted. Inspections of godown were carried out by the employee of the respondents and those inspections were within the knowledge of the respondents, it therefore cannot be presumed that loss was not communicated to the respondents. The Inspector who has inspected the godown between 25.09.1998 to 10.10.1998 has given two reasons for the excessive loss, and first reason is the food grains stored 3 were old and the second reason is because of moisture and fungal infection and other similar circumstances, the weight loss was caused. Inspector has therefore recommended for acceptance i.e. waiver of that weight loss. It is therefore, clear that the Inspector who visited the godown found the circumstances were such that the weight loss noticed would have resulted. This document is not looked into by the Industrial Court. The fact of weight loss was before the respondents and petitioner has only accepted it. That acceptance therefore does not mean that petitioner accepted his involvement in any way in that weight loss. It is therefore, apparent that the entire approach of the Industrial Court in this respect is vitiated. The circulars pointed out to this Court and issued by the respondents from time to time themselves warrant holding of proper departmental enquiry for fastening the responsibility. Those circulars are not followed by the respondents in the matter. The respondents therefore are not in a position to support the order of recovery passed by them. It appears that the order of recovery has been passed only to show the paper compliance. The impugned judgment of Industrial Court is therefore quashed and set aside. The respondents have indulged in unfair labour practice falling under Item 9 of Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, by resorting to forcible and coercive recovery from petitioner without following the principles of natural justice. Said ULPA Complaint No.13/2001 is therefore allowed, the order of recovery dated 02.02.2001 is quashed and set aside. 4 Rule accordingly. However, in the circumstances of the case there shall be no order as to cost. JUDGE Rgd.