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2012 DIGILAW 790 (BOM)

Yuvraj Kalu Patil v. Dhule & Nandurbar Zilla Parishad Karmachari Sahakari Patpedhi Maryadit, Dhule

2012-04-13

R.M.BORDE

body2012
Judgment: 1. Heard. 2. rule. With the consent of the parties, petition is taken up for final disposal at admission stage. 3. Petitioner is taking exception to the order passed by the industrial court, nashik & incharge member, industrial court, dhule in revision application (ulp) no. 6/2011 decided on 8/9/2011. The revisional court has dismissed the revision application tendered by petitioner herein without entering into the merits of the controversy and on the ground that it would be permissible for the petitioner to challenge final decision in the complaint, if it goes against him, alongwith the impugned order. 4. Petitioner was serving with respondent since 14/6/1980 as a clerk and thereafter was promoted in the year 1989 as accountant. Petitioner has rendered service for more than 27 years with respondent. Services of the petitioner are terminated in view of order passed on 1/10/2007. According to petitioner, termination of service is without following due process of law and without applying the principles of natural justice. Petitioner challenged the order of termination passed by the employer by presenting complaint ulp no. 45/2007 before labour court, dhule. Petitioner / employee raised serious objection regarding fairness of the enquiry. Grievance is also made that inspite of tendering request for supply of copies of documents, those were not supplied. It is alleged that the enquiry officer has played the role of management representative. Complainant / petitioner herein contends that the enquiry held against him is not fair and proper and as such he is entitled to be reinstated in service. 5. respondents appeared and presented written statement and refuted all the allegations made in the complaint by petitioner / complainant. It is contended by respondent / employer that enquiry was fair and proper and complainant was given full opportunity to present his case. Labour court framed preliminary issue in the matter regarding fairness of enquiry and, after considering the submissions of both sides, recorded finding that the enquiry conducted by respondent is legal, fair and proper and there has been observance of principles of natural justice and that findings of enquiry officer are not perverse. 6. Petitioner herein raised challenge to the order passed by the labour court, dhule on 322011 by presenting revision application no. 6/2011 to the industrial court, dhule. The revisional court, however, without considering the merits of contentions has proceeded to dismiss the revision application. 6. Petitioner herein raised challenge to the order passed by the labour court, dhule on 322011 by presenting revision application no. 6/2011 to the industrial court, dhule. The revisional court, however, without considering the merits of contentions has proceeded to dismiss the revision application. It is observed by revisional court in the judgment that the employee is having remedy to challenge the final decision in the complaint, if it goes against him, alongwith the impugned order. If the grievance of complainant / employee is considered at the stage of decision on revision application, it will cause delay in deciding the dispute between parties. revisional court is of the opinion that in order to avoid delay in final decision or adjudication of dispute, revision application is not liable to be considered. 7. Petitioner has seriously objected to the decision rendered by revisional court and contended that it was the responsibility of the revisional court to appreciate arguments of complainant and decide revision application on its own merits. According to complainant, enquiry conducted by employer is illegal and perverse and as such it was the responsibility of revisional court to probe into the correctness of the contentions raised by complainant and record findings. Complainant has remedy to challenge findings of labour court on preliminary issue at appellate stage, cannot be a ground for revisional court to refuse to consider the objections of complainant and decide the revision application on its own merits. 8. It is to be considered that scope of scrutiny of decision in domestic enquiry is limited. The enquiry is circumscribed to see – i) whether there is some evidence in support of the findings, ii) whether evidence is such that a prudent and reasonable man would accept the same, iii) whether the approach of enquiry officer is judicious and iv) whether principles of natural justice have been followed. If these tests are satisfied, the court can refuse to interfere with the subjective satisfaction of the enquiry officer. In the instant matter, grievance is made by complainant that principles of natural justice were not observed while holding enquiry. It is also contended that evidence led by complainant has not been scrutinised and appreciation of evidence by enquiry officer is perverse. It is the contention of complainant that objections raised by complainant in support of preliminary objection were not properly considered by the labour court. It is also contended that evidence led by complainant has not been scrutinised and appreciation of evidence by enquiry officer is perverse. It is the contention of complainant that objections raised by complainant in support of preliminary objection were not properly considered by the labour court. It was therefore the responsibility of the revisional court to consider the objections raised by complainant / employee and record findings as regards legality and correctness of the order passed. 9. Learned counsel for respondents placing reliance on a judgment in the matter of cooper engineering ltd. Vs. B.p. Mundhe reported in air 1975 (31) f.l.r. 188 contended that there would be no justification for any party to stall final adjudication of the dispute by labour court by questioning its decision with regard to preliminary issue when the matter, if worthy can be agitated even after final award. The decision in the matter of cooper engineering (cited supra) was considered by the learned single judge of this court in mahindra & mahindra vs. Suryabhan avhad reported in 2007(4) bom.c.r. 118 and it is observed in paragraph no. 72 of the judgment thus : 72. In the above circumstances, i am unable to agree with ms. Singh, appearing for the respondent, that this is not a fit case for exercising writ jurisdiction of this court. normally, this court is reluctant to interfere at a preliminary stage. However, when illegality and perversity of the above nature is noticed and seen, when the courts below do not perform their duty in accordance with law, so also, when exercise of powers vested in them results in miscarriage of justice, then it is the duty of this court to interfere in the writ jurisdiction. I am unable to agree with any of the contentions of ms. Singh and i am in agreement with those of the petitioner that the impugned judgments need to be quashed and set aside. Decision rendered by the learned single judge in mahindra & mahindra’s case (cited supra) has been confirmed in letters patent appeal no. 547/2007 by the division bench of this court. 10. In the instant matter considering the arguments advanced by complainant, it would be necessary to direct the revisional court to scrutinise legality and correctness of the order passed by the labour court in the light of objections raised to the order by complainant. 547/2007 by the division bench of this court. 10. In the instant matter considering the arguments advanced by complainant, it would be necessary to direct the revisional court to scrutinise legality and correctness of the order passed by the labour court in the light of objections raised to the order by complainant. Complainant / petitioner herein is specifically making complaint that the order passed by the labour court is illegal since the objections raised by complainant have not been properly scrutinised by the labour court. Complainant is also making grievance in respect of nonobservance of principles of natural justice by employer while conducting domestic enquiry. Thus, objections raised by petitioner / complainant are required to be gone into and it was the responsibility of the revisional court to scrutinise the objections and test correctness of the order passed by the labour court. revision application ought not to have been dismissed on the ground that remedy is available to the complainant to raise challenge to the preliminary issue at the appellate stage, if occasion arises. 11. The order passed by the labour court, dhule on 322011 thus needs to be quashed and set aside and the same is accordingly quashed and set aside. The matter is remitted back to the revisional court for rendering decision in accordance with law. The industrial court, after extending an opportunity of hearing to both the parties shall proceed to decide the revision application on its own merits and in accordance with provisions of law. revisional court is also expected to deal with the challenge raised by complainant in respect of correctness of findings recorded by labour court on preliminary issue. revisional court shall proceed to decide the revision application as expeditiously as possible preferably within six months from today. rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. 12. Pending civil application, if any, does not survive and stands disposed of.