1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2605 OF 2008 WITH WRIT PETITION NO.5351 OF 2008 Mahadev Aganu Dhange ..Petitioner. Vs. National Heavy Engineering Co-op. Ltd. ..Respondent. .... Mr. N.A. Kulkarni for the Petitioner. Mr. V.P. Sawant for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 8th October, 2008. P.C. : 1. The Labour Court in a complaint of unfair labour practices instituted by the Petitioner granted reinstatement with continuity of service, but without backwages by its order dated 14th July, 2006. Two revision applications were filed against the order of the Labour Court. The workman filed a revision application in order to challenge the finding of the Labour Court in regard to the charge of misconduct as well as in regard to the denial of backwages. The employer filed a revision application against the grant of reinstatement with continuity of service. By an order dated 4th September, 2007 the revision application filed by the employer was allowed and the direction in regard to reinstatement with 2 continuity of service was set aside. By a separate order dated 4th September, 2007 the revision application filed by the workman was dismissed. 2. The workman was employed as a security guard and was charge-sheeted on the allegation that he had committed a theft while on duty on 2nd August, 2001. The enquiry officer came to the conclusion that there was no evidence to indicate that the workman was guilty of the theft that had taken place. The enquiry officer, however, held that having regard to the quantity of the theft it had emerged that about two hours would be required for the removal of the articles belonging to the company and that the theft had taken place as a result of the negligence of the workman in the performance of his duties. The Labour Court had confirmed the finding as to misconduct and observed in its order dated 14th July, 2006 that on 2nd August, 2001 the workman was on duty in the third shift in the machine and fabrication shop and that welding cables, lugs and holders were found to be missing from nine machines in the fabrication shop. The Labour Court noted that none of the management witnesses stated that the workman had committed theft or that he had abetted the theft. The finding of the Labour 3 Court was that it was the paramount duty of the workman in the present case to protect the machine and its property and that it would appear that the workman was “somewhat negligent” in the performance of his duties. 3. The order passed by the Labour Court was challenged by the workman and by the management as noted earlier. The revision application which was filed by the workman before the Industrial Court would show that the challenge was not merely confined to the denial of backwages but, was also on the ground that the finding as to misconduct was unsustainable. The grievance of the workman in these proceedings is that the Industrial Court, while considering the revision application filed by him was required to consider both the aspects of the challenge viz. (i) the challenge as regards the finding of misconduct; and (ii) the challenge in regard to the denial of backwages. The grievance is that the Industrial Court has considered only the issue as regards the denial of backwages, in the revision application filed by the workman. On the other hand, counsel appearing for the management, attempted to sustain the order of the Industrial Court. 4 4. Now as noted earlier two revision applications were filed before the Industrial Court. In the revision application that was filed by the management, the Industrial Court observed that the Labour Court having held that the misconduct was duly proved and that the management had not engaged in an unfair labour practice, the grant of reinstatement was not warranted. In other words, in the revision application which was filed by the management, the Industrial Court has while delivering its judgment proceeded on the basis that there is a subsisting finding in regard to the misconduct of the workman. The challenge to the finding of misconduct was in fact raised in the revision application filed by the workman. The Industrial Court ought to have considered the revision application filed by the workman on both the facets viz. on the question of misconduct and on the denial of backwages. This has evidently not been done, because ex facie the order dated 4th September, 2007 passed in the revision application of the workman, (Revision Application (ULP) 80 of 2006 – Exhibit N to the to the writ petition) would show that the award only as regards the denial of backwages has been considered. 5. The finding as regards the misconduct really goes to the 5 root of the matter. It was on the footing that the misconduct was established as held by the Labour Court; that the Industrial Court proceeded to set aside the order of reinstatement in the revision application filed by the employer. Whether as a matter of fact the misconduct was duly established or not has not been considered at all by the Industrial Court in the exercise of its revisional jurisdiction. In the circumstances, the appropriate direction would be to set aside the impugned orders of the Industrial Court and to remit the proceedings back to the Industrial Court for a decision afresh on the two revision applications filed respectively by the workman and by the management. The Petitions shall accordingly stand disposed of in terms of the following directions : i) The judgments of the Industrial Court dated 4th September, 2007 in the revision application filed by the management and the revision application filed by the workman (Revision Application (ULP) 70 of 2006 and 80 of 2006) are quashed and set aside; ii) The aforesaid revision applications are restored to the file of the Industrial Court at Pune; 6 iii) The Industrial Court shall pass fresh orders on both the revision applications after furnishing to the parties an opportunity of being heard, preferably within a period of three months; iv) All the rights and contentions of the parties are kept open and this order shall not be construed as the expression of any opinion by the Court on the merits of the rival cases of the parties in the revision applications; v) Parties to appear before the Industrial Court for directions on 20th October, 2008. The Petitions shall stand disposed of in the aforesaid terms. There shall be no order as to costs. *****