1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5495 OF 2009. M.S.Co-op. Cotton Growers Marketing and another -: versus :- Babusingh Maroti Rajput. 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 : APRIL 22, 2010. 1. Heard finally by consent of Shri M.V. Samarth, learned counsel for petitioners and Shri I.J. Damle, learned counsel for respondent. 2. Contention of learned counsel for petitioner is, respondent and one other watchman supposed to be on duty at warehouse remained absent and facilitated commission of theft. Inquiry was conducted and in inquiry both of them were found guilty and hence amount of Rs. 35,000/- each for recovery of cost of stolen bales of cotton was directed to be deducted from their earnings. Learned Member of Industrial Court has ignored the fact that the matter was coming out after departmental inquiry and has attempted to evolve its own theory to conclude that such theft was not possible. 3. Learned Counsel for respondent on the other 2 hand states that it was all the while case of respondent that in departmental inquiry proper opportunity to defend himself was not given and hence finding of inquiry officer was perverse and he relies upon the fact that Nandura Police Station did not find it necessary to record any FIR against the present respondent. 4. With the assistance of both the learned counsel, I have perused the impugned judgment. It is apparent that the learned Member of the Industrial Court has overlooked the fact that as matter came to it if after inquiry by petitioners, it was obligatory for it to frame preliminary issue regarding the validity of the departmental inquiry and the perversity of the finding recorded by the inquiry officer. This issue has not been framed and parties were not given any opportunity to lead evidence or to advance arguments in that respect. It is to be noted that if complainant succeeds in showing that the inquiry is vitiated, the employer gets an opportunity to prove misconduct before the Industrial Court. 5. As this has not been done, it is apparent that there is failure to exercise jurisdiction in accordance with the law in the matter. Reference in this respect, may conveniently be made to the judgment of Hon'ble Apex Court reported at AIR 1975 SC 1900 (The Cooper Engineering Ltd. .vrs. P.P. Mundhe). The judgment dated 25.08.2009 delivered by the Industrial Court in Complaint ULP No. 69/2002 is therefore unsustainable and is quashed and set aside. The learned Member of the Industrial Court shall frame preliminary issue in accordance with the law and shall 3 proceed further with the adjudication thereof. As the matter is old the learned Member of Industrial Court shall attempt to decide the complaint as early as possible and in any case by 31.12.2010. Parties to appear before the Industrial Court on 09.06.2010 and to abide by its further directions in the matter. Writ Petition is allowed in the aforesaid terms. Rule accordingly. No cost. JUDGE Rgd.