1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 5999 OF 2006 Abdul Waheed s/o Abdul Hamid Patel, aged about 50 years, occupation – Compulsory Retired employee, r/o Satramjipura, Premseva Road, Nagpur 440 008. ... PETITIONER Versus 1. State of Maharashtra through its Secretary, Department of Industry, Labour and Energy, Mantralaya, Mumbai through the Government Pleader, High Court, Nagpur. 2. The Assistant Director, Government Printing and Stationary Department, Civil Lines, Nagpur. ... RESPONDENTS Shri A.A. Patel, Petitioner in person. Shri D.B. Patel, AGP for the respondents. ..... CORAM : B.P. DHARMADHIKARI, J. OCTOBER 23, 2008. ORAL JUDGMENT : 2 Heard Shri A.A. Patel, petitioner-in-person and Shri Patel, learned AGP for the respondents. 2. As the petitioner is appearing in person and insisted for hearing him, with the assistance of learned AGP, the relevant records have been perused and hearing has been unnecessarily prolonged. However, I find that it is not necessary at this stage to write an elaborate judgment. The petitioner, who was in service as Senior Typewriter Mechanic was charge sheeted for some misconducts and after completing enquiry, punishment of compulsory retirement was imposed on him on 12.1.1995. He challenged that punishment by filing Complaint ULP No. 419 of 1995 before the Industrial Court. For the present purposes, it is not necessary to mention all grounds of challenge but he complained that witnesses were not recorded in his presence, he was not permitted to cross examine them and records of departmental enquiry were fabricated so as to anyhow punish him. He has pointed out that enquiry was fixed on 21.11.1994 3 and on that date, the Presenting Officer of State Government filed his written brief. The enquiry was then adjourned to 28.12.1994 for written brief of present petitioner but then the Enquiry Officer suddenly took up the matter on 28.11.1994 itself and submitted enquiry report on 3.12.1994. This ground was specifically taken by the petitioner in his evidence before the Industrial Court to demonstrate that enquiry conducted was not in accordance with principles of natural justice. It is argued by the petitioner in person that this ground is totally overlooked by the learned Member, who passed the order of pre-point on 2.8.2000. He states that this incident itself shows that the enquiry stands vitiated. 3. The learned AGP in reply has contended that the challenge to order sheets dated 28.11.1994 or 21.11.1994 was not raised in his ULP Complaint by the petitioner and even if it is accepted that enquiry was adjourned to 28.12.1994, on preponed date i.e. 28.11.1994, the petitioner was present in person. He, 4 therefore, argues that no prejudice has been caused to the petitioner by preponing the date. It is further argued that the order on pre-point passed by the Industrial Court on 2.8.2000 is not questioned in present petition. The learned AGP has further stated that the petitioner is not a workman and had already approached Maharashtra Administrative Tribunal twice in the matter. He contends that having approached Maharashtra Administrative Tribunal, the forum of Industrial Court was not available to the petitioner. He points out that Original Application No. 498 of 1993 filed by the petitioner before the Maharashtra Administrative Tribunal was decided on 28.10.1993 i.e. before imposing the order of punishment upon him. He further states that in January 1995, O.A. No. 82 of 1995 was filed by the present petitioner and the Government is attempting to verify what was the subject matter of that A.O. It is his contention that in these circumstances, the petition is without any merits and the challenge to order on preliminary point cannot be entertained at this stage. 5 4. Though in Writ Petition filed before this Court, the petitioner has challenged the final order dated 19.7.2006 which is in fact passed in review petition by the Industrial Court, preferred by the petitioner, the review has been rejected and judgment delivered on 2.8.2005 dismissing ULP Complaint has been maintained. It is settled law that against final judgment delivered under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, no review is maintainable and as such the challenge to the order dated 19.7.2006 to that extent is misconceived. Writ Petition, therefore, needs to be looked into, to the extent it challenges judgment dated 2.8.2005. 5. In the body of petition, the petitioner has specifically raised a ground about the order sheets maintained by the Enquiry Officer on 21.11.1994 and 28.11.1994. Though there is no express prayer, the perusal of para 18A of writ petition shows that the petitioner wants to demonstrate to this Court that 6 enquiry conducted was not fair and in accordance with principles of natural justice. In this view of the matter, it is apparent that the petitioner has also challenged the order dated 2.8.2000 on preliminary point delivered by the Industrial Court. The contention of learned AGP that the order on preliminary issue is not challenged is, therefore, misconceived. 6. The petitioner has filed his evidence on the affidavit before the Industrial Court and in para 30 of that affidavit, he made his grievance at length. He has pointed out that 28.11.1994 was never the date fixed and he did not remain present before the Enquiry Officer on that date. He has stated that 28.12.1994 was the date fixed. He has also cross examined in this connection. Not only this, the present respondents examined Enquiry Officer Shri Meshram as their witness to show that enquiry was conducted in accordance with principles of natural justice. This witness in para 3 of his cross examination accepted that enquiry was fixed on 28.12.1994. However, he has 7 explained that 28.12.1994 was the date fixed by him for his own purposes and therefore by preponing it to 28.11.1994, no injustice is caused to the present petitioner. The order sheet dated 21.11.1994 shows that after Presenting Officer filed his written brief on that date, Enquiry Officer directed that copy of said written brief be forwarded to present petitioner and the petitioner be intimated to submit his written brief in reply by 28.12.1994. Thus, date 28.12.1994 was scheduled for filing of his written brief in defence by present petitioner and it was not fixed by Enquiry Officer as tried to be explained by him. By preponing that date to 28.11.1994, prejudice and injustice has been done to the petitioner as admittedly the petitioner has not filed any written brief in defence before the Enquiry Officer. It is also to be noted here that the Enquiry Officer submitted Enquiry report on 3.12.1994 i.e. before 28.12.1994. The Enquiry Officer has recorded enquiry proceedings of 28.11.1994 and it is mentioned there that the present petitioner was present on that date. The petitioner has disputed this and he has attempted to 8 show that on that date he was doing the work of repairing Typewriter machines in the office of High Court. He has also produced some documents to show that on that date, he was present in High Court for repairing work of Typewriter. The perusal of order sheet dated 28.11.1994 shows that on that date, the Enquiry Officer attempted to give copy of written brief of Presenting Officer to the petitioner and he refused to accept it. Because of this refusal, Enquiry has proceeded ex parte on 28.11.1994 and enquiry report came to be delivered on 3.12.1994. But on said order sheet dated 28.11.1994, there is no signature of the petitioner to demonstrate that he was present. The Enquiry Officer has accepted that there is no signature of the petitioner on that date. But then, it is also important to note that he has also not recorded that the petitioner refused to sign on order sheet on 28.11.1994. If the Enquiry Officer could record that when written brief was tendered to the petitioner he refused to accept it and he could also record the names of witnesses who witnessed this refusal, he could have also very well written this 9 fact also to show that though the petitioner was present, he refused to sign order sheet on 28.11.1994. There is no material on record to show that the date as preponed was communicated to the petitioner and he was present on that date before the Enquiry Officer. The order sheet dated 28.11.1994, therefore, cannot be accepted as true and correct. The learned AGP has pointed out that Enquiry Officer has given these details in his enquiry report, however, giving these details in Enquiry Report is not sufficient because what transpired on 28.11.1994 ought to have been mentioned in the order sheet of that date immediately. 7. All this is required to be said because the learned Member of Industrial Court while passing orders on preliminary issue has not considered all these aspects. Though there was specific challenge in written arguments to these order sheets dated 21.11.1994 and 28.11.1994, that has not been considered by the learned Member. The order on preliminary issue only holds that the petitioner is workman under Section 2(s) of 10 Industrial Disputes Act, 1947 and further holds that enquiry is fair and valid. But then the discussion about the correctness of procedure followed by the Enquiry Officer, is on the basis of the Enquiry papers and not on the strength of evidence adduced by the parties. The evidence on oath given by the present petitioner or then cross examination of Enquiry Officer Shri Meshram is not reflected anywhere in the entire order. 8. The contention of the respondents that the petitioner is not a workman, cannot be considered in this writ petition because the order dated 2.8.2000 held that the petitioner is workman and that order was not challenged and has not been challenged till today by the respondents. Insofar as contention or relevance of the petitioner's approaching Maharashtra Administrative Tribunal is concerned, the necessary details are not available on record before me. However, if the petitioner has challenged unsuccessfully or even otherwise his compulsorily retirement before Maharashtra Administrative Tribunal, the 11 respondents can bring that fact to the notice of Industrial Court and the Industrial Court can thereafter take appropriate view because of said approach to Maharashtra Administrative Tribunal in the matter. 9. In view of this, it is apparent that the order dated 2.8.2000 holding enquiry to be fair and valid is unsustainable. It is apparent that the moment the order dated 2.8.2000 is found to be unsustainable, the final judgment of Industrial Court dated 2.8.2005 cannot be sustained. The said judgment dated 2.8.2005 as also the order on preliminary issue dated 2.8.2000 is, therefore, quashed and set aside. ULP Complaint No. 419 of 1995 is, therefore, restored back to the file of Industrial Court. 10. The petitioner at this stage states that he should be reinstated and he should be permitted to perform his duties. The learned AGP states that the petitioner was not on duty for last more than 13 years and grant of reinstatement to him may not be 12 in the interest of administration. He, therefore, states that whether to keep the petitioner under suspension or then to reinstate or what course of action should be followed, may be left for determination by the respondents. In the present circumstances, as the order on pre point and the final judgment of Industrial Court is quashed and set aside, that does not mean that the order of punishment is also set aside. 11. Shri A.A. Patel, the petitioner-in-person states that he should be permitted to continue as he is today i.e. under Compulsory retirement, but proceedings in ULP Complaint should be expedited. The learned AGP states that as large number of witnesses are to be examined, it will take sometime for the department to decide right course of action. 12. As the enquiry is found to be vitiated, the further course of action, is to be decided by the Industrial Court after going through relevant records. Accordingly, after records are 13 received by the Industrial Court, the Industrial Court shall, after hearing parties, take appropriate decision in the matter. As the Complaint is very old, further adjudication in the Complaint is expedited and the learned Member of Industrial Court shall decide the same as early as possible and in any case by 31st July 2009. 13. Writ Petition is disposed of. Rule accordingly. However, in the circumstances of the case, there shall be no order as to costs. R & P be sent back immediately. JUDGE ******* *GS.