1 wp2334.95 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2334 OF 1995 Ahmedkhan S/o Nawabkhan, age : 53 years, Occ : Nil, presently residing at Near Ceema Photo Studio, Ranmastpura, Jinsi, Aurangabad. ..PETITIONER -VERSUS- 1. Maharashtra State Road Transport Corporation, Aurangabad, through its Divisional Controller, In front of Employment Exchange, Station Road, Aurangabad. 2. Depot Manager, Maharashtra State Road Transport Corporation, Depot No.2, Rly. Station Road, Aurangabad. RESPONDENTS ..... Mr. N.N. Tungar, Advocate for petitioner. Mrs. R.D. Reddy, Advocate for respondents. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 25TH APRIL, 2011. ORAL JUDGMENT : 1. Heard Advocate Mr. Tungar for petitioner-employee and Advocate Mrs. Reddy for respondent nos. 1 and 2. 2. Records show that for continuous absence, petitioner was charge sheeted and thereafter dismissed after holding departmental enquiry. The Labour Court has dismissed his ULP 2 wp2334.95 Complaint no. 426 of 1990 by its judgment dated 13.09.1993. The petitioner then challenged that judgment in Revision under Section 44 of the M.R.T.U. & P.U.L.P. Act before the Industrial Court. Industrial Court has dismissed his Revision on 05.04.1995. Thereafter, the present Writ Petition has been preferred and admitted for final hearing. 3. According to learned counsel for petitioner, the petitioner was absent from duty on account of his illness and on each occasion, he has submitted application. While joining, he also sought that leave to join with certificate counter signed by Civil Surgeon. At that time, he learnt that he was already dismissed because of orders dated 10th July, 1987. He states that departmental enquiry alleged to have been held was exparte and petitioner was not given any opportunity. 4. Learned counsel for respondents is substantiating the dismissal by contending that absence from duty is not in dispute before this Court and it was also not in dispute before the Industrial Court as well as Labour Court. While withdrawing the provident fund amount, the petitioner expressly agreed not to challenge the order of dismissal. Attention is also being invited to similar misconduct repeated on 5th occasion earlier. 3 wp2334.95 5. Perusal of the judgment delivered by Labour Court and Industrial Court show the absence of procedure which is required to be followed in such matters. Procedure is laid down by Hon'ble Apex Court in the judgment reported at " A.I.R. 1975 S.C. 1900" The Cooper Engineering Ltd., V/s P.P. Mundhe and "A.I.R. 1996 S.C. 1556" Bharat Forge Company Ltd., V/s A.B. Zodge. In such circumstances, Labour Court or Industrial Court has to first frame preliminary issue regarding the validity and fairness of departmental enquiry and about correctness or otherwise of findings reached by Enquiry Officer. If the court finds that principles of natural justice have not been followed or departmental enquiry was defective or then there was no enquiry, it has to give opportunity to employer to adduce evidence before it to prove that misconduct. Similarly, if the finding recorded by the Enquiry Officer are found perverse, employer needs to be given opportunity. 6. As laid down by Constitution Bench of the Hon'ble Apex Court in the judgment reported at " A.I.R. 2001 S.C. 2090" -Karnataka State Road Transport Corporation V/s Smt. Lakshmidevamma and another, an opportunity needs to be given only if the employer at the time of filing of written statement has reserved such liberty. Here, perusal of the written statement filed by employer before the Labour Court on 26.03.1991 shows that in 4 wp2334.95 paragraph no. 8 employer had reserved such opportunity. It is therefore clear that had Labour Court framed appropriate issues and recorded the necessary answers to the same, the course prescribed in the above judgments could have been followed. By not taking recourse to that procedure, serious prejudice is caused not only to the present petitioner but also his employer. 7. In view of this, the judgment of Industrial Court dated 05.04.1995 in ULP Revision No. 61 of 1993 and judgment of the Labour Court dated 13.09.1993 in ULP Complaint no. 426 of 1990 are hereby quashed and set aside. Proceedings in ULP Complaint no. 426 of 1990 are restored back to the Labour Court, Aurangabad for taking fresh decision in the matter in accordance with law. The objection to the maintainability of complaint on the ground of alleged undertaking/estopple is left open and Labour Court can look into that aspect. The parties are directed to appear before the Labour Court on 25th May, 2011 and abide by its further instructions. 8. Rule is made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp2334.95