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Maharashtra State Road Transport Corporation, Bombay Vs. A.N. Jadhav and Another - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Application No. 2195 of 1976
Judge
Reported in(1981)ILLJ186Bom
ActsIndustrial Disputes Act, 1947 - Sections 33 and 33(2)
AppellantMaharashtra State Road Transport Corporation, Bombay
RespondentA.N. Jadhav and Another
Excerpt:
.....as was necessary itself clearly indicated that the charge-sheet was not being withdrawn or the inquiry proceedings were not being treated as in any way invalid or inflective. strictly speaking, if the only legal infirmity was that the previous approval of the appropriate authority was not obtained, the employer could well have only restricted his further action to obtaining such approval and it was really not necessary to grant any fresh opportunity to show cause as to why the respondent should not be dismissed nor was it necessary to re-open the enquiry. 4. after the order of dismissal was withdrawn, the petitioner was reinstated, a course which was the only one open and proper for the employer because the employer/employee relationship was restored back, but nothing prevented the..........as was necessary itself clearly indicated that the charge-sheet was not being withdrawn or the inquiry proceedings were not being treated as in any way invalid or inflective. it was, therefore, competent for the employer to proceed further from the stage up to which there was no legal infirmity in the proceedings. strictly speaking, if the only legal infirmity was that the previous approval of the appropriate authority was not obtained, the employer could well have only restricted his further action to obtaining such approval and it was really not necessary to grant any fresh opportunity to show cause as to why the respondent should not be dismissed nor was it necessary to re-open the enquiry. there is, therefore, no basis for the view taken by the labour court that the order of.....
Judgment:

Chandurkar, J.

1. The respondent was in the employment of the petitioner which is the Maharashtra State Road Transport Corporation. Disciplinary proceedings were taken against the respondent as it was noticed that when the bus was checked by the checking staff on 7-9-1970 on which day the respondent was on duty as a conductor on a vehicle on route from Jath to Bijapur 37 passengers were travelling without tickets although the fare was collected from the passengers. After a regular enquiry which was made, the respondent was dismissed by an order dated 20th March, 1971. The petitioner, however, received a letter from the Deputy Commissioner of Labour, Bombay that the dismissal of the respondent was in contravention of the provisions of S. 33 of the Industrial Disputes Act because an industrial dispute was pending before the Conciliation Officer and, therefore, it was necessary to take the prior approval of the Conciliation Officer before dismissing the respondent. Realising the infirmity in the dismissal order, the petitioner withdrew the dismissal order without prejudice to the right of the Corporation to take the necessary action against him. It appears that in the meantime the dispute which was the subject-matter of conciliation came to an end and a fresh notice came to be issued to the respondent as to why he should not be dismissed from service. This was on 17-2-1972. It also appears that a fresh inquiry was made and the dismissal order came to be finally passed on 26-10-1972.

2. With regard to this dismissal, a dispute was raised by the first respondent which came to be referred by the Deputy Commissioner of Labour, Pune to the Labour Court, Kolhapur. This dispute related to a claim for reinstatement with full back wages and continuity in service. The Labour Court took the view that the cancellation of the first order of dismissal amounted to an acquittal and that if the Corporation wanted to remedy the defect, a fresh inquiry has to be started and the record of the previous inquiry cannot be relied upon for taking action against the respondent. The Labour Court seems to have taken the view that the inquiry related to the old charge which could not be done because the charge-sheet was already cancelled. Thus, according to the Labour Court, the second inquiry and the dismissal of the conductor was without jurisdiction and invalid. The Labour Court, therefore, held that it was not necessary to go into the merits of the case. He, however, did not grant any back wages but directed the reinstatement of the respondent with continuity of service in the original post. This order is now challenged by the Corporation in this petition.

3. M. Sawant appearing on behalf of the Corporation has contended that the Labour Court was in error in holding that the second inquiry was entirely without jurisdiction. There is no appearance on behalf of the respondent and we do not, therefore have the advantage of hearing his counsel. Now, it is obvious from the order of the Labour Court and the averments in the petition that there was a technical defect in the order of dismissal which was made because prior approval as required under S. 33(2)(b) Proviso of the Industrial Disputes Act, 1947 was not taken. Having noticed the technical defect which vitiated not the entire inquiry but merely the order of dismissal, it was open to the Corporation to withdraw that order of dismissal. The fact that the order was said to have been cancelled would not change the nature of the action taken by the Corporation which was really one of withdrawal of the order of dismissal as the order was legally defective and infirm. Once the order of dismissal is withdrawn, the proceedings would be relegated back to the stage immediately before the order of dismissal. The provisions of S. 33(2)(b) of the Industrial Disputes Act, 1947 do not prohibit the making of an inquiry into the charges of misconduct where any dispute is pending. All that was required under the Proviso was that if an order of dismissal was to be made, the previous approval of the appropriate authority had to be obtained. Till the stage at which the employer reaches the conclusion that the employee should be dismissed, the proceedings were thoroughly competent and there was no infirmity in these proceedings. The cancellation of the order of dismissal by the same authority which passed it because of the legal infirmity in that order did not mean that the charges were being withdrawn; indeed, the very mention of the fact that the employer reserves he right to take such further action as was necessary itself clearly indicated that the charge-sheet was not being withdrawn or the inquiry proceedings were not being treated as in any way invalid or inflective. It was, therefore, competent for the employer to proceed further from the stage up to which there was no legal infirmity in the proceedings. Strictly speaking, if the only legal infirmity was that the previous approval of the appropriate authority was not obtained, the employer could well have only restricted his further action to obtaining such approval and it was really not necessary to grant any fresh opportunity to show cause as to why the respondent should not be dismissed nor was it necessary to re-open the enquiry. There is, therefore, no basis for the view taken by the Labour Court that the order of cancellation of the earlier dismissal amounted to the 'acquittal' of the respondent and that the second enquiry was entirely without jurisdiction.

4. After the order of dismissal was withdrawn, the petitioner was reinstated, a course which was the only one open and proper for the employer because the employer/employee relationship was restored back, but nothing prevented the employer from continuing the proceedings which were perfectly legal and proper.

5. We may refer to the observations of the Supreme Court in Workmen of Motipur Sugar Factory v. Motipur Sugar Factory, : (1965)IILLJ162SC , where the Supreme Court has observed as follows :

'If it is held that in a case where the employer dismissed an employee without holding an inquiry, the dismissed must be set aside only on that ground which would mean that the employer will immediately proceed to hold the inquiry and pass an order dismissing the employee once again.'

These observations will also indicate that there is no bar on the employer to continue the inquiry from the stage beyond which it had proceeded illegally. Even in the case of public servants, the Supreme Court has taken the same view as will be clear from the decision of the Supreme Court in Anand Narain Shukla v. State of Madhya Pradesh, (1979) Lab Ind cas 1214. In that case the order of reversion of a public servant after he was found guilty of some charges was set aside by the High Court and the reversion was quashed on the ground that the inquiry was not proper and legal. The public servant was reinstated in the original post, but he was put under suspension again and fresh proceedings were started on the basis of the same old charges. He was found guilty of certain charges and was again reverted. A second petition, therefore, came to be filed in the High Court which was dismissed. The matter was taken to the Supreme Court and it was contended on behalf of the public servant that after the earlier order of reversion was quashed by the High Court and after he was reinstated, no second inquiry on the very same charges could be held and no second order of reversion could be legally and validly made. This contention was negatived by the Supreme Court in the following words :

'We find no substance in either of the points urged on behalf of the appellant. The earlier order was quashed on a technical ground. On merits second inquiry could be held. It was rightly held. The order of reinstatement does not bring about any distinction in that regard. The Government had to pass that order because the earlier order of reversion was quashed by the High Court. Without reinstating the appellant it would have been difficult, perhaps, unlawful to start a fresh inquiry against the appellant ...'

The position would not in any way be different in the case of an employee governed by the Industrial Law. If the order of dismissal is either withdrawn or set aside on a technical ground as in the instant case the fresh proceedings could validly be taken or the old proceeding can be continued from the stage till which they were valid. Unless the order of dismissal it set aside on the ground that the charges are not proved it will not be open to the employee to contend that he must be treated as having been absolved of the charges. There was, therefore, no bar to the Corporation to make a second inquiry and pass an order of dismissal, the validity of which would have to be judged independently on its own merits.

6. The order of the Labour Court, however, shows that the reference was disposed of by the Labour Court on this short ground and it did not go into the merits of the dismissal of the respondent. The proper course would, therefore, be to remit the reference back to the Labour Court for a decision of the industrial dispute referred to it on merits. Consequently the petition is allowed. The order of the Labour Court dated 19-11-1975 is quashed. The matter is remanded back to the Labour Court, Kolhapur for adjudication of the dispute referred to it on merits.

7. The petition is, thus, allowed. However, there will be no order as to costs.


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