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2011 DIGILAW 83 (BOM)

Dilip Atmaram Rane v. Larsen and Toubro Ltd.

2011-01-19

S.C.DHARMADHIKARI

body2011
JUDGMENT : S.C. Dharmadhikari, J. 1. The petitioner-employee is aggrieved by an order dated 16th September 2010. The operative part of which read thus: 8. In such circumstances, I proceed to pass following order: ORDER: 1. The fresh inquiry has to be conducted in pursuance of the charge sheet-cum-suspension order dated 31.1.2001 issued to the second party, and the inquiry has to be conducted within three months from the date of this order, by same inquiry officer or by appointing other inquiry officer by the company. 2. The first party is directed to hold fresh inquiry which will be conducted in English or Marathi, but it can be recorded in English after explaining the contents of the second party in Marathi. The inquiry officer is directed to give equal time to both parties to adduce their evidence. 3. The second party will be entitled to appoint his DR as per certified standing orders. If the second party consumes time in appointment of DR that time will be deducted from the equal time allotted to him to adduce his evidence. Date: 16.9.2010 SD/- Ast/-17910 (Smt. P.N. Nair) Judge, 11th Labour Court, Mumbai SEAL 2. It is contended that if the original enquiry proceedings were not filed on record and only a xerox copy of which was filed and Enquiry Officer who was examined, having not admitted the said record and the documents, if the opinion of the learned Judge was that the issue of fairness of the enquiry or perversity of the findings cannot be decided in such peculiar facts and circumstances, then, the fresh enquiry which is directed, could not have been by the employer and by the Enquiry Officer appointed by the employer as a logical corollary, the Court should have given that opportunity to the employer to lead evidence and prove the charges of misconduct alleged against the petitioner. The Court having permitted the employer to hold an enquiry in the charge sheet-cum-suspension order dated 3rd January 2001 and directed the petitioner to appear before it, has acted contrary to the scheme of Industrial Disputes Act and particularly section 11-A thereof. 3. On the other hand Mr. Naik appearing on behalf of the respondent submitted that the Court has directed fresh enquiry and whether it is conducted by the management or by permitting the management/employer to lead evidence in Court is immaterial and of no consequence. 3. On the other hand Mr. Naik appearing on behalf of the respondent submitted that the Court has directed fresh enquiry and whether it is conducted by the management or by permitting the management/employer to lead evidence in Court is immaterial and of no consequence. The opportunity contemplated by law has to be afforded and has been afforded. Therefore, this Court should not interfere with the order of the Labour Court, particularly because the petitioner has participated in the enquiry held pursuant to the impugned order. 4. Without entering into any larger controversy as to whether the course adopted by the Labour Court was permissible in reference which is made over to that Court on the issue of dismissal of the petitioner-workman, interest of justice would be served if the order passed by the Labour Court set aside and substituted with a direction that in the peculiar facts of this case, the respondent-management will have opportunity to prove the charges in Court and that opportunity be afforded by the said Labour Court to the respondent. The parties will proceed on the basis that the charge-sheet dated 31st January 2001 has been duly served and the petitioner-employee has received the same. Therefore, opportunity to prove the charges as afforded by this order will proceed from the stage of issuance of charge-sheet and needless to state that when the employer has been permitted to lead evidence to prove the charges equally the petitioner-employee has an opportunity to defend himself. All pleas and contentions in that behalf of both sides are kept open. The Labour Court to grant the opportunity as directed in this order to the respondent-management and conclude the proceedings as expeditiously as possible and in any event within a period of four months from the date of receipt of the copy of this order. 5. Needless to state that the Labour Court shall proceed in accordance with law and without being influenced by the observations in the impugned order and if copies of the proceedings before the Enquiry Officer have to be relied upon, that aspect can be gone into by the Labour Court after both sides are heard on the said issue it is dealt with and decided in accordance with law. 6. Petition is disposed off in the above terms. No costs.