IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR WRIT PETITION NO.4844 OF 2007 M.S.E.D.C.L. ..VS.. Vijay Gupta ================================== CORAM: B.P. DHARMADHIKARI, J. DATE:20.10.2008 Civil Application No.766/2008 The prayer is to vacate the interim relief granted by this court on 19.11.2007 while issuing rule. However, after noticing the facts parties were informed that the matter itself will be disposed of finally. Limited grievance made by Advocate Moharir for petitioner is that by impugned judgment dated 12.3.2007 delivered in complaint ULP No.123/2006, the learned Member of Industrial Court has without deciding the preliminary issue regarding validity of departmental enquiry or otherwise, disposed of the complaint on merits and in the process, as final judgment itself came to be delivered the right available to the petitioner to prove misconduct before Industrial Court, has been lost. He invites attention to written statement filed before the Industrial Court, particularly paragraph 17 thereof to show that such liberty was sought for before Industrial Court. Attention is also invited to judgment of Hon. Apex Court in AIR 1996 SC Page 1556 [Bharast Forge Company Ltd ..vs.. A.B. Zodge and another] to urge that even if findings of Enquiry Officer are found to be perverse, the opportunity in terms of judgment of the Hon. Apex Court reported at AIR 1975 SC 1900 [The Cooper Engineering Ltd ..vs.. P.P. Mundhe] needs to be given. Advocate Marpakwar on the other hand states that this was a case of no enquiry and patent breach of principles of natural justice amounting to victimization of respondents. He states that the judgment of the Hon. Apex Court reported in AIR 1975 SC 1900 [The Cooper Engineerings Ltd ..vs.. P.P. Mundhe] does not contemplate such an opportunity to employer who blatantly violates all principles of natural justice and he further argues that if such opportunity is extended to employers in such matters, it would be putting premium on their injustice and unfair labour practice. However, as the perusal of the judgment impugned reveals that learned Member of Industrial Court did not undertake the exercise of deciding only preliminary issue first, the complication has arisen. Industrial Court ought to have proceeded to decided the issue regarding fairness or otherwise of departmental enquiry first and thereafter dependent upon his finding on that issue he should have considered the request made by petitioner employer in paragraph 17 of its written statement. That has not been done and therefore, entire exercise stands vitiated. At this juncture Advocate Moharir states that petitioner should be permitted to prove misconduct itself before the Industrial Court. He further points out that respondent is already continuing in service. In these circumstances, instead of calling upon the Industrial Court to decide preliminary issue again and to postpone the consideration of controversy on merits further, I find it appropriate to permit the petitioner to prove misconduct before the Industrial Court as early as possible. For that purpose impugned judgment dated 12.3.2007 in complaint ULPA No.123/2006 is hereby set aside. Complaint ULPA No.123/2006 is restored back to the file of Industrial Court Bhandara for giving opportunity to petitioner employer to prove misconduct before it. The petitioner employer shall complete the evidence as early as possible and Industrial Court shall decide the complaint on merits as early as possible and in any case within 4 months from the communication of this order to it. With these observations, the writ petition is allowed. However, in these circumstances of the case, there shall be no orders as to cost. JUDGE smp.