1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.2213/2010 Bhanudas N. Tayade Vs. M.S.R.T.C. and another. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. B.M. Khan, Adv. for the petitioner. Mr. V.G. Wankhede, Adv. for respondents 1 and 2. CORAM: B.P.DHARMADHIKARI, J. DATE : 7TH JULY, 2010. 1] Heard learned counsel for the respective parties. 2] A short contention of Mr. Khan is that as the Labour Court, while deciding preliminary issue about validity of the department inquiry, found that charge-sheet was issued by an incompetent authority, the misconduct based upon that charge-sheet could not have been allowed to be proved. The charge-sheet itself is void. Unless and until proper charge-sheet is issued by the Competent Authority, the charges cannot be proved before the Labour Court. He has relied upon the judgment reported at 1980 LAB. I.C. 1088 (Steel Authority of India Vs. The Presiding Officer, Labour Court at Bokaro Steel City, Dhanbad and another) in support of his submission. 3] Advocate Wankhede for the respondents points out that the misconduct can be allowed to be proved by the Labour Court after 2 inquiry is found to be vitiated or even in case of no inquiry. He contends that when the Labour Court permits misconduct to be proved before itself, there is no question of any charge-sheet again being issued by the employer. 4] The arguments itself show that the facts constituting misconduct culminated into charge-sheet and departmental inquiry was conducted by the respondents which resulted in punishment. Dismissal of the petitioner is challenged under Section 28 of M.R.T.U. and P.U.L.P. Act. As per the settled procedure, the Labour Court decided the preliminary issue at the beginning and accepted the contention of the employee that charge-sheet was served and drawn by the incompetent Authority. It, therefore, declared the departmental inquiry as bad and gave the respondent an opportunity to prove his conduct. That opportunity has been utilised by the respondents, misconduct has been proved and punishment imposed was then maintained by the Labour Court in complaint as well as Industrial Court in ULP Revision. The course adopted is in accordance with the judgment of Hon'ble Apex Court reported at AIR 1975 SC 1900 (Cooper Engienering Ltd. Vs. P.P. Mundhe). 5] In the judgment, on which Advocate Khan has placed reliance challenge was only to preliminary order of the Labour Court wherein the Labour Court found that charge-sheet was issued by the 3 Personnel Manager and not by Disciplinary Authority as per Rule 8 of Discipline and Appeal Rules of Steel Authority of India. The Labour Court, however, was of the opinion that case of the employer before it could not be dismissed at that stage and gave employer opportunity to adduce evidence in support of the action it had taken against an employee. The Labour Court on preliminary point was challenged unsuccessfully by the employer before the High Court and then before the Hon'ble Apex Court. The facts do not show that the order of the Labour Court granting opportunity to employer to prove misconduct was quashed and set aside by the High Court or the Apex Court. The judgment, therefore, is of no assistance in the present matter. 6] The misconduct was already on record and facts constituting it needed to be proved as per the judgment of Hon'ble Apex Court in Cooper Engineering Ltd. (supra). It is not necessary for employer to issue fresh charge-sheet through a Competent Officer as employer itself had sought leave to prove misconduct before the Labour Court in case departmental inquiry was found to be vitiated. 7] I do not find any substance in the contentions raised by the petitioner. The writ petition is dismissed. 8] At this stage, Mr. Khan states that this Court has 4 protected the services of the petitioner and said interim order should be continued further in order to permit the petitioner to challenge the order passed today. Advocate Wankhede is opposing the said request. Looking to the nature of misconduct, I am not inclined to grant any relief to the petitioner. Request made by Advocate Khan is rejected. C. C. expedited. JUDGE Ambulkar.