1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1072 OF 2009 M/s Air Serco Pvt. Ltd. ..... Petitioner. V/s Shri Lakkhi Singh .... Respondent. Mr. S.S. Pathak, Advocate for the petitioner. Mr. Nitin A. Kulkarni, Advocate for the respondent. CORAM: V.M. KANADE, J. DATE : 22ND JUNE, 2009 P.C:- 1. By this Petition, the petitioner is challenging the judgment and award passed by the Labour Court, Pune in Reference (IDA) No.298 of 1997 whereby the Labour Court was pleased to allow the reference and direction was given to the petitioner herein to reinstate the respondent on the original post with continuity of service and full back-wages with effect from 6/11/1996. 2 2. Brief facts are as under:- 3. Respondent joined the services of the petitioner – Company as a Mechanic in the year 1975 at their Branch at Mumbai. He was, thereafter, transferred to Pune in 1991. He challenged the order of transfer by filing Complaint (ULP) No. 680 of 1991 before the Industrial Court, Mumbai. In the said complaint, consent terms were filed and, thereafter, the respondent joined Branch of the petitioner herein at Pune on 13/3/1991. 4. A charge-sheet-cum-suspension order was issued by the petitioner on 6/11/1993 to the respondent. The Company decided to conduct an inquiry at Mumbai. Respondent, therefore, asked for to and fro charges in advance and since the charges were not paid, the respondent again filed Complaint (ULP) No.173 of 1994 before the Industrial Court, Pune. The 3 subsistence allowance was paid by the petitioner in the year 1997 and, thereafter, the complaint was withdrawn. The inquiry was completed and the Inquiry Officer submitted his report, holding that the charges against the respondent were proved and the petitioner, therefore, issued a letter of termination to the respondent on 14/9/1996. Against the order of termination, reference was raised vide Reference (IDA) No.298 of 1997. The statement of claim was filed on 29/1/1998. Petitioner filed Written Statement on 27/11/1998. The Labour Court passed an award on 27/07/2007, directing reinstatement with continuity of service and full back-wages. 5. Mr. Pathak, the learned Counsel appearing on behalf of the petitioner submitted that the Labour Court ought to have framed preliminary issue on the fairness and legality of the inquiry and, thereafter, opportunity ought to have been given to the petitioner to lead the evidence to prove the misconduct 4 before the Labour Court. He submitted that, however, the said procedure was not followed and a common award was passed and no opportunity was given before recording the finding that the inquiry which was held was not fair, legal and proper. This is the only contention raised by Mr. Pathak, the learned Counsel appearing on behalf of the petitioner. In support of the said submission, he relied upon the judgment of the Apex Court in the case of Cooper Engineering Limited vs. Shri P.P. Mundhe, reported in (1975) 2 SCC 661. 6. Respondent has filed an affidavit-in-reply. He submitted that the Labour Court was constrained to pass Part-II award since the petitioner – Company did not examine any witnesses and the matter was adjourned for almost 10 years on one pretext or the other and no evidence was led by the petitioner – Company. In para 7 of the said affidavit-in-reply, it is stated that on 2/11/2001 a witness of the petitioner was 5 present but the matter was adjourned. However, thereafter, till final decision of the reference, the petitioner – Company remained absent with effect from 7/12/2001 onwards. Though, I had specifically asked the learned Counsel Mr. Pathak as to whether he wanted to file an affidavit-in-rejoinder to the said averments which are made in the affidavit-in-reply, he submitted that he did not wish to file an affidavit-in-rejoinder. It is further submitted that the matter was kept for final arguments after the order was passed, stating therein that no oral evidence was being led by the petitioner herein and the matter was, thereafter, adjourned for final arguments. This order was not challenged by the petitioner at any time. Respondent has filed roznama alongwith the affidavit-in-reply. Counsel for the petitioner has not disputed the genuineness of the said roznama. Perusal of the roznama clearly indicates that after filing Written Statement, nearly for about 10 years nobody represented the petitioner – Company before the Labour Court and, therefore, 6 the Labour Court, ultimately, was pleased to pass an award and allow the reference which was filed by the respondent herein. Even on the question of legality of the inquiry though an issue was framed, nobody appeared on behalf of the petitioner to prove the inquiry papers filed on record. The Labour Court, however, went through the xerox copies of the inquiry papers and found that the inquiry was not fair and proper. The ratio of the judgment relied upon by the learned Counsel for the Petitioner in the case of Cooper Engineering Limited (supra) is not applicable to the facts of this case. 7. In my view, there is no infirmity in the judgment and order passed by the Labour Court. No case is made out to interfere with the judgment and award passed by the Labour Court. Petition, therefore, is dismissed. (V.M. KANADE, J.) 7