Writ petition 5503.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5503/2010 M/s Greaves Ltd. (Now Greaves Cotton Limited), MIDC Area, Chikalthana, Aurangabad through its Authorized Signatory ...Petitioner. Versus Pradeep Gundappa Malkunaik, Age : 52 years, Occu. Nil, R/o Plot No. 1034, Sainagar, Aurangabad District Aurangabad. ...Respondent. WITH WRIT PETITION NO. 5502/2010 M/s Greaves Ltd. (Now Greaves Cotton Limited), MIDC Area, Chikalthana, Aurangabad through its Authorized Signatory ...Petitioner. Versus Pradeep Gundappa Malkunaik, Age : 52 years, Occu. Nil, R/o Plot No. 1034, Sainagar, Aurangabad District : Aurangabad. ...Respondent. WITH WRIT PETITION NO. 5504/2010 M/s Greaves Ltd. (Now Greaves Cotton Limited), MIDC Area, Chikalthana, Aurangabad through its Authorized Signatory ...Petitioner. Versus Pradeep Gundappa Malkunaik, Age : 52 years, Occu. Nil, R/o Plot No. 1034, Writ petition 5503.10 2 Sainagar, Aurangabad District : Aurangabad. ...Respondent. Mr. S.V. Dankh for the petitioner. Mr. Pradeep Shahane for respondent. (In all three petitions) CORAM : A.V. NIRGUDE, J. Date : 21st March, 2011. ORAL (COMMON) JUDGMENT: 1. Heard. 2 All the three writ petitions can be decided at this admission stage finally by consent of the parties. 3 Rule. Rule made returnable forthwith. 4 The facts leading to these writ petitions in short can be stated as under. The parties shall be referred to as the employer and the employee. The employee by name Pradeep Gundappa Malkunaik was working as machine operator, in the employer’s industrial unit prior to 1999. The employer initiated a domestic inquiry against the employee and ultimately dismissed him. The employee challenged his dismissal by filing U.L.P. Complaint No. 149/1999 before the labour Court. The employer opposed the complaint by filing written statement. The employee filed an interim application in the complaint case for getting an order of reinstatement pending the disposal of the complaint case. During pendency of this application, the employee made an application Ex. U-6. In this application, the employee called for certain record in respect of domestic inquiries held against two other employees of the employer. The employer opposed this application saying that the record in respect of the other two employees is not relevant and should therefore, be not called. The learned judge of the Writ petition 5503.10 3 Labour Court (for short the learned Judge), on this application, passed following order. “Read application. Perused the same. This application will be considered along with merit.” The employee's interim application failed. During 2002 to 2005, the learned judge framed issues in the case, recorded some evidence of the parties. But on 17/01/2006 he said he would first give his finding on preliminary issues which were framed as under. 1. Whether the inquiry conducted against the complainant as per the charge sheet dated 28th November, 1988 is just, legal and proper ? 2. Whether the findings of the inquiry officer are perverse ? The learned judge then decided these two issues in favour of the employer. Thereafter, the learned judge recorded further evidence of the parties and on 09/01/2008 the complaint was dismissed. What is pertinent to note here is the fact that the employee simply forgot to press application Exh. U-6. Till then, I am assuming that the learned judge had kept Exh. U-6 pending till the trial stage of the case. During the trial therefore, it was incumbent upon the employee/ the learned Judge to get the said application decided. As said above, the employee did not press this application at all and allowed the trial Court to decide the case on merits. The application Exh. U-6 thus remained undecided till the disposal of the case. In March, 2008 the employee filed revision No. 25/2008 before the Industrial Court, Aurangabad. Even in this revision application, he failed to take specific objection in writing to the fact that the learned Writ petition 5503.10 4 judge did not decide his application Ex. U-6. But at the time of making oral submission on the revision, it seems, this was the only ground raised by the employee. The learned member of the Industrial Court readily accepted this submission. He recorded his finding as under. “Entire emphasis of the learned Advocate Mr. Mundada is on Exh. U-6. According to him, the Labour Judge ought to have considered Exh. U-6. I have gone through the judgment of the Labour Judge and found that he has not referred to the application Exh. U-6. Therefore, I have to say that there is lacuna in trial either the Labour Judge ought to have reject the said application or ought to have stated that the record which is called for by the said application is not relevant etc. but as it is not mentioned, it is the ground for comment.............. Therefore, now considering the above aspect of the matter I have to say that the matter is to be remanded back to the trial court for calling for the record as prayed and giving fresh findings on the issues if the court found the documents as called by Exh. U-6 are relevant. If the said documents are not relevant according to the Labour Judge, the findings to that extent can be recorded. No additional oral evidence of the complainant and the respondent is to be allowed by the Labour Judge. Only documents as sought under Ex. U-6 is to be called and on that documents findings is to be given afresh on all the issues.” 5 Recording this, the learned member set aside the entire judgment of the Labour Court and remanded the case back. As against this, the employer filed the writ petition No. 5503/2010 rather belatedly on 28/04/2010. In the mean time, the parties were relegated before the trial Court and had even started attending Court as directed by the Industrial Court. 6 Before filing of this writ petition No. 5503/2010, in March, 2009 the learned judge of the Labour Court, heard submissions on application Ex. U-6. The employer for the first time in March, 2010 disclosed to the trial Court that the record in respect of the other two Writ petition 5503.10 5 employees sought to be produced before Court is no longer available with them. The learned judge still allowed application Ex. U-6 and directed production of the record. The employer challenged this interlocutory order in a revision which also failed. As against that, writ petition No.5504/2010 is filed. 7 On 16/03/2010 both the parties submitted a purshis before trial Court that the preliminary issues quoted above in this judgment should be decided first. But on 06/04/2010 the learned judge of the trial Court rejected this plea and held that he should decide all the issues simultaneously. As against this order, the employer again went in revision but they again failed and as against that, the third writ petition No. 5502/2010 is filed. Having heard the submissions of the learned counsel appearing for the parties, in my view, writ petition No. 5503/2010 filed against the order of remand passed by the learned judge of the Industrial Court deserves to be allowed. The impugned order is grossly erroneous. Firstly because the revision did not mention the ground in respect of failure of the trial Court to decide application Exh. U-6. The learned member should not have allowed the employee’s counsel to raise this point. Assuming that such a ground was mentioned in the revision and the employee was entitled to raise the same at the time of oral submission, still the learned member ought not to have set aside all the findings on all the issues recorded by the trial Court. The learned member erred in not discussing the other points for consideration at all. In fact, he did not take pains to record the points for consideration. It seems, he hurriedly accepted the Writ petition 5503.10 6 above mentioned objection and took advantage of the same for remanding the case back to the trial court. Assuming that the application Exh. U-6 ought to have been decided by the trial Court, the learned member should have directed the learned judge of the Labour Court to decide the said application and then record limited evidence, only for proving the documents that would have been taken on record, pursuant to the order on Exh. U-6. It is obvious that the employee wanted to rely on the record in respect of other employees of the company. He had sought production of “production record” in respect of two employees by name Galphade and Ghodaskar. He thereby suggested that these two employees gave low production during the relevant time and despite of the same, they were not dismissed and were treated differently in the domestic inquiries held against them. It is thus clear that the record in respect of the two employees was sought to be produced to demonstrate to the Court that quantum of punishment awarded to the employee was far too harsh than quantum of punishment awarded to other employees who were similarly placed. Assuming that such evidence is recorded afresh, the same would be used only to decide issue No.3 which reads as under. 3. Whether the respondent has engaged in an unfair labour practice by dismissing the services of the complainant w.e.f 14.9.1999 ? The learned member should have taken pains to identify as to in which area the evidence that was proposed to be recorded, would be useful, and only to that extent the learned judge should have remanded the case back to the trial Court. In other words, the learned Writ petition 5503.10 7 member should have kept revision No. 25/2008 pending before him. He should have directed the parties to go before trial Court for getting the application Exh U-6 decided on merits and should have directed the trial Court decide the issue No.3. Had he passed such order, what has happened subsequently before trial Court, could have been avoided. I think, if the writ petition No. 5503/2010 is allowed for this limited purpose, the parties would be saved from lot of inconvenience. Even the learned judge of the trial Court would know as to what he is expected to do. 8 The learned advocate appearing for the employee submitted that the employer has now taken a stand that the record in respect of other two employees named above, sought to be produced before Court, is no longer available with them. But he admitted that (on taking instructions from his client who is present before Court) the above mentioned two employees are still working with the employer. The Court can even call the above mentioned two employees as Court witnesses. I think it is clear that if the case is remanded back to the trial Court only for recording evidence on issue No.3, the lot of time would be saved. Hence, order. ORDER Rule is made absolute in terms of following order in Writ petition No. 5503/2010. a) The impugned order dated 21/01/2009 in revision No. 25/2008 is set aside and the same is substituted as under. b) Pending revision No. 25/2008, the learned judge Writ petition 5503.10 8 of the Labour Court shall record additional evidence of the parties on issue No.3 and record afresh finding on the same. The learned judge of the Labour Court may call Shri Galphade and Shri Ghodaskar as Court witnesses and record their deposition giving liberty to both the parties to cross examine them. The learned judge of the Labour Court, shall also record additional evidence which is found relevant for deciding issue No.3. The learned judge of the Labour Court shall dispose of the case before him within six months from the date of communication of this order to him and send papers back to the Industrial Court. The Industrial Court thereupon shall decide revision No. 25/2008 on merits. In view of this, the impugned orders in writ petition No. 5502/2010 and 5504/2010 are set aside. c) It is made clear that finding recorded by the Labour Court on all issues except issue No.3 are not disturbed. d) After receipt of the record and proceedings from trial Court, the learned Member of the Industrial Court shall decide the revision No. 25/2008 on all the points. The petitioner employer shall pay cost of Rs.5,000/- to the employee within two weeks from today. The cost may be paid to Shri Pradeep Shahane, learned advocate appearing for the employee. [A.V. NIRGUDE,J.] ts k/2011/march21/wp5503.10/ok