1 WP No.1496/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1496/2011 The Executive Engineer, Maharashtra State Electricity Distribution Company Ltd., Division-(i), Aurangabad. - PETITIONER VERSUS Harishchandra s/o Popatrao Tupe Age:33 Yrs., occu.Service, R/o Opp.Chinnar Garden, Padegaon, Aurangabad, District Aurangabad. - RESPONDENT ***** Mr.Anil M.Gaikwad, Advocate for petitioner; Mr.SJ Salunke, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 9th DECEMBER, 2011. ORAL JUDGMENT: 1) Heard finally. 2) Show cause notice of dismissal dated 27.7.2007 was served upon the respondent by his employer (petitioner). He challenged the same before the learned Judge, Labour Court, Aurangabad and the learned Judge, by order dated 13th October, 2008, held that the employer has indulged in unfair labour practice, as contemplated under item 1(a)(b)(d) (f) & (f) of Schedule-IV of M.R.T.U. And P.U.L.P.Act, 1971, by issuing the show cause notice of dismissal dated 27.7.2007. 3) Learned Judge, Labour court directed the 2 WP No.1496/2011 petitioner/employer to withdraw the show cause notice of dismissal dated 27.7.2007 by quashing and setting aside the charge sheet and findings of the Enquiry Officer. The employer challenged the same before the learned Member, Industrial Court, Aurangabad in Revision (ULP) No.1/2009, rejection thereof by order dated 27.7.2010, is questioned in the present writ petition. 4) The facts, essential for the present controversy are: Crime was registered at Kranti Chowk Police Station, Aurangabad vide Crime No.II-3119/2006 under section 7 of Prevention of Corruption Act, 1988, the respondent/employee having demanded Rs. 55,000/- and allegedly received the same through channels. An inquiry was directed, Enquiry Officer recorded evidence. Enquiry Officer in his report dated 2.6.2007, after conclusion, did not find to take action against the respondent on other three charges. However, he found that the act of the respondent amounted to contaminate and lower down employer's position/reputation in the public at large. The competent authority felt that since this charge is established, why action of termination from service should not be taken and consequently, show cause notice dated 27.7.2007 was issued, calling upon the respondent/employee to respond within four days, as to why penalty directed by the Enquiry Officer should not be imposed. It was also informed, if the response is not given within scheduled time, further action may be initiated. 3 WP No.1496/2011 5) Taking into consideration the legal position and the language used in Schedule-I, clauses (a) to (g), starting with “ to” and as observed by the Hon'ble Supreme Court in the matter of Hindustan Lever Ltd Vs. Ashok Vishnu Kate and Ors - AIR 1996 SC 285(1), it is explicit that Labour Court is competent to entertain legality/correctness of the show cause notice, terminating the services of an employee. 6) Now, turning to the facts of the present case, it is evident and indicative that the inquiry of the respondent is governed by MSEB Employees’ Service Regulations. Chapter-VII Rules 87 and 88 thereof deal with the procedure to be followed, according to which, a charge sheet is to be served upon an employee, against whom action is supposed to be taken for any act of misconduct. Submission of written statement was to be put in; oral statements are to be recorded; inspection of document is to be allowed; production of documents/s is to be entertained; evidence of the employee, including oral evidence, is permitted. Findings of the Enquiry Officer, after the employee being given an opportunity of making a written or oral statement, are to be served upon the employee. Show cause notice is to be issued after completion of the inquiry. The competent authority, after service of such show cause notice on the employee, indicating to him its finding and asking him to show cause, within specified time as to why the contemplated action/punishment of dismissal, removal or reversion or withholding of increments, should not be inflicted 4 WP No.1496/2011 upon him. The employer was supposed to furnish a copy of findings of the competent authority or decision of the Enquiry Officer, as the case may be, or he may be given an opportunity to take copy of such findings. 7) It is apparent, the respondent/employee, based on the findings of the Enquiry Officer being served with show cause notice dated 27.7.2007, rushed to the Labour Court without resorting to available remedies under Service Rules. Such action indeed was premature, as the Rules and Regulations provide that an opportunity to be given to the employee to traverse to the show cause notice as even if a threat was perceived in the show cause notice of termination, however, that does not mean that the Competent Authority was pre-determined to terminate the employee from service. 8) Presumption nursed by the respondent/employee, during the course of submission, is uncalled for. It is expected, the competent authority shall not allow such impression to further generate by the respondent/employee. 9) The Rules under Chapter-VII 88(k) also informs of communication of the decision, which illustrate : on receipt of explanation within specified time or if no response is received, within specified time, the competent authority shall, within seven days thereafter, on the basis of its own findings or on the findings of the Enquiry Officer, 5 WP No.1496/2011 appointed under Service Regulation 93, pass such orders, as he may deem fit and appropriate. Every order imposing a punishment, as provided in Service Regulation 91, shall be communicated to the employee in writing as per Annexure-5. The employee did not allow all these situations to be adhered to be followed. He has simply banked upon the show cause notice dated 27.7.2007. 10) Normally, Courts are not expected to interfere with findings of fact recorded in departmental enquiry. The Court will interfere with such findings if principles of natural justice or statutory regulations have been violated, or if the order is arbitrary, capricious, malafide and based on extraneous consideration. However, no such situation has emerged in the present case. The show cause notice could not be said to be activated with malafides or issued with prejudice mindset. 11) Any observations made by learned Judge of the Labour Court or by the Member, Industrial Court, contrary to the Inquiry report will not touch to the roots of the matter. A representation, if any, from the respondent is to be entertained independently. The observations of the learned Judge of the Labour Court is set aside. The show cause notice, coupled with report of Enquiry Officer, is beyond the scope of even items 1(a)(b)(d)(f) or (g)of Schedule IV of MRTU and PULP Act, 1971. The learned Judge, Labour Court certainly exceeded his jurisdiction as he has quashed the charge sheet and findings of the Enquiry 6 WP No.1496/2011 Officer. The area of Judge, Labour Court has to be restricted only to the extent of legality of show cause notice, however, he has traveled beyond it and encroached upon the rights of the Enquiry Officer or the Department to follow procedure of service regulations. This aspect was not considered by the learned Member of the Industrial Court. The departmental inquiry and criminal case are necessarily to be dealt with separately. 12) During the course of submissions Mr. Salunke has informed that since last more than four years or after the report of the Enquiry Officer, the respondent/employee is under suspension. If it is so, the Competent Authority, under the Service Regulations, shall take care not to drag/protract such suspension beyond the stretchable limits within bracket of the statute. 13) With the above observations, the impugned order calls for interference. It is accordingly quashed and set aside. Consequently, the show cause notice to remain in force. However, the authority shall give audience to the respondent under the statutory Rules and then pass appropriate orders. 14) Writ petition is allowed in the aforesaid terms with no order as to costs. The observations made here are prima facie in nature, to be restricted to this writ petition only. 7 WP No.1496/2011 15) Heard Mr.Salunke. The order is stayed for a period of four weeks. sd/- (K.U.CHANDIWAL) JUDGE bdv/