1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9385 OF 2010 M.C.G.M. ... Petitioner v/s Mr.Madhusudan S. Kanth ... Respondent Mr.S.S.Pakale for the petitioner. None present for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 13TH DECEMBER, 2010 P.C.: 1. The award Part I in Reference (IDA) No.513 of 2004 challenged in this petition has been passed on 8.10.2010. The Labour Court has held that the enquiry conducted pursuant to the charge-sheet dated 24.4.2001 issued to the respondent workman is not fair and proper and, therefore, the enquiry is vitiated. The Labour Court has further held that the findings recorded by the enquiry officer are perverse. 2 2. It is argued on behalf of the petitioner that the Labour Court has erred in concluding that the enquiry was vitiated by relying on a judgment of this Court in the case of Sitaram Tukaram Walunj vs. Municipal Corporation of Greater Mumbai & Ors. in Writ Petition No.8711 of 2007. A learned Single Judge of this Court (Chandrachud, J.) has held that the Industrial Employment Standing Orders Act and the Model Standing Orders Act would prevail over the B.M.C. Service Regulations. It is submitted that in view of the judgment of the Supreme Court in the case of P. Balakotaiah v/s Union of India, reported in A.I.R. 1958 SC 232, which was not cited before the learned Single Judge, the judgment in Sitaram’s case (supra) is erroneous. 3. On a perusal of the Award Part-I, in my opinion, no case for interference has been made out. The Labour Court has observed in para 6 that the workman was directed to appear before the enquiry officer on the same day as the charge- sheet was issued to him. Apart from this, he was directed to appear to admit the charges levelled against him on a printed form. The Labour Court has found that these factors vitiate the enquiry. 4. It has been submitted on behalf of the Corporation that these facts are not pleaded in the statement of claim nor was 3 any evidence led in that respect and, therefore, the Labour Court on its own could not have examined these issues. 5. In my opinion, this submission is without merit. The workman has stated in his statement of claim that the enquiry was conducted contrary to the principles of natural justice and fair play. The Labour Court, after examining the enquiry proceedings, has found serious lapses on the part of the Corporation which led to the conclusion that the enquiry was vitiated. In my opinion, the Labour Court has not committed any error by holding that the enquiry was vitiated. 6. Apart from this,the Labour Court has not accepted the argument of the petitioners that their service regulations would prevail over the Model Standing Orders. In the case of Shri Sitaram Tukaram Walunj v/s Municipal Corporation of Greater Mumbai (supra), Chandrachud, J. has held that the Model Standing Orders were applicable to the B.M.C. and that they would prevail over the B.M.C. Service Regulations while conducting a domestic enquiry. The submission that in view of the judgment of the P.Balakotaiah (supra) and the observations made in para 10 of that judgment, the judgment of the learned Single Judge is erroneous and cannot be accepted. The learned Single Judge has considered the provisions of the Bombay Municipal 4 Corporation Service Regulations vis-a-vis the Model Standing Orders which provisions are directly in issue in the present case, were not under consideration before the Supreme Court in the aforesaid judgment. 7. In any event, the enquiry is vitiated because of the manner in which it was conducted, by obtaining an admission of the charges levelled against him on a printed form. The Labour Court is right when it observes that the conduct of the enquiry was in violation of the principles of natural justice and fair play as the workman was not given any time or opportunity to appoint a legal representative to defend himself in the enquiry. Thus considering the lapses on the part of the petitioner while conducting the enquiry, there can be no manner of doubt that the enquiry is vitiated. 8. Writ petition rejected. ..... 5