bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6198 OF 2008 PETITION NO. 6198 OF 2008 PETITION NO. 6198 OF 2008 Bajirao Subhana Kenjale ... Petitioner v/s 1. M/s.Vidyut Metallics P. Ltd. & anr. ... Respondents Smt.Gayatri Singh i/by Smt.Seema Chopda with T.R.Yadav for the petitioner. Mr.S.P.Salkar for the respondent No.1. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 24TH SEPTEMBER, 2008 24TH SEPTEMBER, 2008 24TH SEPTEMBER, 2008 P.C. P.C. P.C.: 1. This petition has been filed challenging the order passed on 5.8.2008 by the Industrial Court in Revision Application (ULP) No. 77 of 2007 which has arisen from the dismissal of the interim application in Complaint (ULP) No. 110 of 2006. 2. The petitioner was suspended from employment on 9.5.2002. He was chargesheeted for certain acts of misconduct on 17.5.2002. A domestic enquiry was conducted in respect of the charges contained in the chargesheet. According to the petitioner, the enquiry 2 was conducted in breach of the principles of natural justice. A copy of the findings of the enquiry officer was furnished to the petitioner on 9.10.2006. The petitioner immediately filed Complaint (ULP) No.110 of 2006 apprehending the termination of his service. The application for interim relief was refused on 30.3.2007. The Industrial Court has confirmed that order. It is submitted on behalf of the petitioner that since the enquiry was conducted in breach of the principles of natural justice and fair play, the Courts below ought to have granted interim relief in favour of the petitioner and allowed him to continue in service. 3. Admittedly, the petitioner has not submitted his contentions in respect of the findings of the enquiry officer which he has right to reply to. The learned counsel for the respondents contends that, in the facts and circumstances of this case, there is no need to grant any liberty to the petitioner to show cause against the findings of the enquiry officer. He submits that the petitioner having elected to approach the Labour Court has forfeited his right to show cause against the findings of the enquiry officer. The learned counsel also submits that, even assuming the petitioner is allowed to show cause against the findings of the enquiry officer at this stage, the Labour Court 3 and the Industrial Court have already concluded that the enquiry is not vitiated. The learned counsel submits that, by giving an opportunity to an employee such as the petitioner to reply to the findings of the enquiry officer, a license would be given to an employee to approach the Court at any time rather than waiting for the enquiry proceedings to be completed and for the punishment to be imposed. He relies on the judgments of this Court in the case of Maharashtra General Kamgar Maharashtra General Kamgar Maharashtra General Kamgar Union Union Union v/s Star Oxides and Chemicals Ltd. & ors., v/s Star Oxides and Chemicals Ltd. & ors., v/s Star Oxides and Chemicals Ltd. & ors., reported reported reported in 2001 III L.L.J. (Suppl.) 54 in 2001 III L.L.J. (Suppl.) 54 in 2001 III L.L.J. (Suppl.) 54 and Solapur Solapur Solapur Janata Janata Janata Sahakari Bank Ltd. & anr. v/s Vilas Digambar Sahakari Bank Ltd. & anr. v/s Vilas Digambar Sahakari Bank Ltd. & anr. v/s Vilas Digambar Kamble, Kamble, Kamble, reported in 2002 III C.L.R. 308, reported in 2002 III C.L.R. 308, reported in 2002 III C.L.R. 308, in support of his contention that both the Courts have rightly refused the interim relief to the petitioner. 4. The submissions of the learned counsel for the respondents are unsustainable. Firstly, it is now well settled that an apprehended termination of service can be challenged by a workman if such termination is likely to be an unfair labour practice as set out in Item 1 (a), (b), (c), (d), (e), (f) & (g) of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The Supreme Court in the case of Hindustan Lever Ltd. v/s Ashok Vishnu Kate & Hindustan Lever Ltd. v/s Ashok Vishnu Kate & Hindustan Lever Ltd. v/s Ashok Vishnu Kate & ors., ors., ors., reported in 1995 II C.L.R. 823, reported in 1995 II C.L.R. 823, reported in 1995 II C.L.R. 823, has upheld the contention of the workman that an apprehended 4 termination from service can also be challenged under Item 1 of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The submission of the learned counsel for the respondents that the petitioner has elected to approach the Labour Court and now cannot be granted an opportunity to file a reply to the findings of the enquiry officer, is also unsustainable. The findings of the Labour Court and the Industrial Court are prima facie and both the Courts below have considered the enquiry proceedings while deciding whether to grant interim relief to the petitioner. However, this would not, by any stretch of imagination, conclude the aspect regarding the fairness of the enquiry as both the Courts below have not dealt with the procedure adopted at the enquiry or the perversity or otherwise of the findings of the enquiry officer. Only a prima facie view has been taken, that the petitioner is not entitled to the relief of reinstatement or of payment of wages during the pendency of the complaint. 5. In my opinion, it is not necessary for me to consider whether impugned orders are correct when the petitioner has admittedly not shown cause in respect of the findings of the enquiry officer. The petitioner, instead, must be given an opportunity to reply to the report of the enquiry officer. After such a reply is 5 furnished, the employer can decide whether to impose any punishment upon the workman. 6. In my opinion, since the petitioner is still under suspension, the appropriate order would be as follows:- (i) The petitioner shall reply to the report of the enquiry officer within two weeks from today. (ii) The management shall pass appropriate orders after considering the findings of the enquiry officer and the reply of the petitioner. (iii) After communicating the order to the petitioner, the management will not terminate the services of the petitioner for a period of two weeks from the date of that order. (iv) In the event the petitioner challenges the order passed by the management, the Labour Court will consider any interim application filed on behalf of the workman on its own merits and the present order will not create any equities in favour of the petitioner regarding continuance in service after the order of dismissal. 6 7. Writ petition disposed of accordingly.