Decided on July 29,1983



P.D.DESAI - (1.) The petitioner was a workman in the employment of the respondent-Company. In respect of an incident which is stated to have taken place on Au 4/08/1975 the petitioner was served with a show cause notice on 8/08/1975 and an intimation was given to him that an inquiry will be held in connection with the said incident on 11/08/1975 By an order dated 25/08/1975 the services of the petitioner were terminated.
(2.) The petitioner thereupon carried the matter to the Labour Court under the provisions of the Bombay Industrial Relations Act 1946 The Labour Court raised a preliminary issue as to whether the inquiry held against the petitioner was legal and proper. After hearing the parties the Labour Court passed an order on 29/03/1979 holding that the inquiry was legal and proper. The Labour Court then heard the parties on the question of punishment and held that having regard to the charges levelled against the petitioner the order of dismissal was justified. Consequently by the award dated 12/06/1981 the petitioners application was dismissed
(3.) The petitioner carried the matter in appeal to the Industrial Court. The Industrial Court raised two issues first whether the inquiry was proper and legal and secondly whether the charges levelled against the petitioner were proved. The Industrial Court came to the conclusion that the inquiry was not legal and proper because it was conducted in violation of the principles of natural justice. The Industrial Court then proceeded to consider as to what course of action should be adopted in view of the aforementioned finding. The petitioner urged that since no request was made by the respondent-Company before the Labour Court to permit it to lead evidence to establish the misconduct and to sustain the order of penalty such an opportunity ought not to be afforded to the respondent-Company. The Industrial Court made the following observations while considering this plea: (as translated into English from Gujarati): It is true that if no preliminary issue as to the legality and propriety of the inquiry is raised before the lower Court and that if the employer has not even made any such request and if the inquiry is ultimately held to be illegal and reinstatement of the delinquent is ordered the employer would not be entitled to raise a plea or demand before the appellate Court that he should be afforded an opportunity to lead evidence to establish the charges. However in the present case the facts are somewhat different. Herein the lower Court had raised a specific issue whether the inquiry held against the workman was legal and proper. On the said issue the learned presiding Officer had recorded a finding that the inquiry was legal and proper. Under those circumstances even if the employer had not sought an opportunity before the lower Court to establish the charges by leading evidence his right to adopt such a course is not destroyed. When I have reached the conclusion in appeal that the inquiry was not legal and proper it appears to me that in the interest of justice I should afford an opportunity to the employer to establish the charges against the workmen. In view of the finding recorded in the aforesaid terms the Industrial Court quashed and set aside the decision impugned in the appeal and remanded the case to the Labour Court with a direction that fresh decision be recorded after affording an opportunity to the respondent Company to lead evidence with a view to establishing the charges leveled against the workman and an opportunity to the petitioner to controvert such evidence if any. It is this decision of the Industrial Court which is under challenge in the present petition.;

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