V.S. Kotwal, J.
1. The first respondent herein was employed as a clerk with the first petitioner which is a Government undertaking incorporated under the Road Transport Corporation Act. He was confirmed in that capacity in April 1976. He was at the relevant time posted as a clerk at the Gargoti Depot in Kolhapur District. The concerned authorities on or about December 6, 1980, discovered the commission of a fraud in the matter of misappropriation of an amount of Rs. 5579-90 ps. which event according to the department took place some time in October 1980.
2. Armed with this information and the requisite material a preliminary enquiry came to be held and it is thereafter on the basis of the findings of the said enquiry, that on December 11, 1980, a charge-sheet was levelled against the first respondent incorporating the said charge of misappropriating the said amount along with some other delinquent. On December 19, 1980, the first respondent tendered his reply to the said authority. Then a full fledged enquiry was held in the month of January and February 1981, and it is claimed written statement was filed by him. It is with interest to note that the first respondent actually participated in the said enquiry and even cross-examined the witnesses examined therein.
3. After observing all the due formalities, the Enquiry Officer, on the material placed before him, held the charge proved against the first respondent. It is on that basis that the further follow up action was taken, inasmuch as on March 19, 1981 a notice was issued to the first respondent to show cause as to why he should not be dismissed from his service. It is on the very next day i.e. on March 20, 1981, when he filed his reply and thereby he obviously wanted to show cause to the said notice.
4. It is thereafter that the proceeding took a turn inasmuch it is on 21st March, 1981, that the first respondent filed a complaint under section 7 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (shortly stated as the Act), in the Labour Court at Kolhapur. It was presumably a complaint under section 7 read with section 28 of the said Act, inter alia complaining therein that the employer had indulged in unfair labour practices within the meaning of Item Nos. (1) b, h, f and g with Schedule IV of the said Act. A declaration in that behalf, therefore, was sought for and along with it an interim relief in the shape of stay of the further enquiry and its conclusion was also sought for.
5. The respondents who were made parties to the said complaint appeared in response to the notice had filed their written say. A preliminary objection to the maintainability of the said complaint was raised on behalf of the respondents essentially on the ground that since there was no formal order either of discharge or dismissal and since there has not been any finality to the said proceeding, the complaint was premature and as such was not maintainable. It was also contended that even interim relief in such circumstances could not be granted when once the main complaint itself is liable to be held as unsustainable. It is on that preliminary point that the matter was heard and the learned Presiding Officer came to the conclusion that the complaint as filed by the petitioner under section 7 of the said Act read with section 28 was maintainable and could not be said to be premature. The learned Judge appears to have essentially relied on a ratio of a decision given by the learned President of the Industrial Tribunal in another proceeding wherein a similar question was canvassed.
6. The respondents then felt that the matter deserved to be reviewed in the face of another decision which according to them took a contrary view, consequently an application for review was filed. The learned Presiding Officer, however, came to the conclusion that the was not vested with the power of review and on that short count the said application came to be dismissed.
7. It was, therefore, necessary for the respondents, therein to file a revision application against the main order wherein their preliminary objection was rejected and consequently such a revision application came to be filed in the Industrial Court at Pune, being No. 25 of 1981. More or less, identical contentions were raised on behalf of both the sides. The learned Presiding Judge, endorsed the finding of the learned trial Judge about the absence of power to review the order. The learned member of the Industrial Court further held essentially relying on the ratio of the other case indicated earlier that the complaint as filed by the complainant employee could not be said to be premature or not maintainable, consequently the revision application came to be dismissed on March 18, 1982 which order is being impugned on behalf of the petitioners in this petition under Article 226 of the Constitution.
8. Having regard to the nature of the grievance that are reflected in the complaint which is the subject matter of this proceeding, in our opinion, it may not be necessary to go into the details about the various contentions raised on behalf of both the sides. The graveness of the charge in a nutshell is to the effect that on the fateful day, the first respondent in collusion with his colleague in the department managed to misappropriate the said amount while he was attached to Gargoti Depot.
9. Shri Sawant the learned Counsel appearing on behalf of the petitioners has contended amongst other features that the complaint filed by the first respondent is obviously premature and unsustainable inasmuch as the items incorporated in Schedule IV of the Act would cause a pointer in favour of his submission that such complaint can be filed and can be entertained only after the act of discharge or dismissal is complete. Miss Buch the learned Counsel for the first respondent, countered this contention by submitting that if the facts even ex-facie are so glaring so as to attract any of the items of the said schedule then it is not necessary for the employee to await the final decision of the enquiry and he gets right vested in him to move the Court even at the earlier stage. As indicated earlier reliance was placed on the ratio of two decisions of the Industrial Tribunal, by the learned Counsel for both the sides to which a reference has been made in details by the learned member in the revision application. On going through the said decisions, it becomes clear that in reality there is no conflict as such between the two ratios. However, both the decisions rest entirely and predominantly on the peculiar facts of those two cases. Thus for instance, in the case decided by the learned President of the Industrial Court in Revision Application Nos. 4, 5 & 6 of 1977 dated July 25, 1977, the facts have their own peculiarity. In the said case, the employer had served a charge-sheet on the workman and had actually held the enquiry and on the basis of the enquiry report and the findings therein, he not only passed the order of dismissal but in fact dismissed the said employee. An application for approval became necessary since a reference under the Industrial Disputes Act, was then pending before concerned officer. This approval application was resisted by the employees on the ground that the enquiry was not fair and proper and various other contentions were raised. The development at that stage is quite relevant and has its own impact. Realizing that there was reasonable probability of rejection of approval as required under section 33(2)(b) of the said Act, the employer himself withdrew the said application on the ground that there was technical defect. The matter did not stop at that stage when the employer gave an undertaking to the Court that he would reinstate those employees with full back wages. In spite of these developments and a clear undertaking, a fresh show cause notice came to be issued on the basis of the same enquiry report and it is under these circumstances, that the employees filed a complaint under section 7 of the said Act, before the Labour Court ventilating the grievance that unfair labour practice has been operated by the employer for obvious reasons. The matter went up to the Industrial Court when an identical contention was raised that the complaint at that stage was not maintainable being premature, it is in the circumstances and against the back drop of these peculiar facts that the learned President observed that the complaint was maintainable and could not be said to be premature. It is, however, significant to note that the learned President qualified his observations by saying that in a given case a complaint under section 7 before the actual orders of dismissal or discharge can be entertained. The learned President thereafter scanned the facts and it is on the basis of those facts held that there was enough justification for the employees to move the Court even before the formal order was passed.
10. Reliance on behalf of the petitioners was placed on a ratio of another decision which was subsequent in point of time in Application No. 34 of 1979. It is in that case, that a charge-sheet was served on the employee who remained absent without permission. During the course of the enquiry in spite of seeking several adjournments, the delinquent remained absent and before there could by any progress as such in the enquiry, the delinquent filed a complaint under section 7 of the Act, asking for a relief that the charge-sheet should be withdrawn. Therein also the ratio of the earlier decision was cited. The learned President of the Industrial Court held on the basis of the facts of that case that no hard and fast rule could be enunciated in the matter of interpretation as was sought to be contended. According to the learned President, the facts were peculiar in themselves, inasmuch as there was no progress in the enquiry worth the name and it was almost at the threshold of the said enquiry that it was made to frustrate the same by filing the complaint. It is in the context of these facts that the learned President held that the said complaint was not maintainable. It is worth noting that in that decision also it has been indicated in clear terms that the ratio was being enunciated on the facts of that case though it was indicated that in a given case non-maintainability of the complaint can be upheld.
11. It is on the basis of these decisions that Shri Sawant the learned Counsel for the petitioners endeavoured to submit that the complainant should be ousted from approaching the Court on this short premises. The learned Counsel also endeavoured to submit that having regard to the various items as incorporated in Schedule IV a formal order of discharge or dismissal is patently required for the entitlement to the employee to file a complaint under section 7 of the Act. As indicated earlier Miss Buch the learned Counsel for the respondents countered this submission and contended that if the facts and the circumstances even ex facie indicate that any of the items in Schedule IV can be easily attracted then the formality of passing a final order need not deprive the employee from moving the Court even at earlier stage.
12. In our view, it is not necessary to express any opinion on this aspect of the controversy inasmuch as this proceeding can be disposed off on yet another aspect. It is practically conceded on behalf of the first respondent that the condition for the maintainability of such an application would be that there should be at least ex facie existence of some features which would attract the items mentioned in Schedule IV as so as to attribute the affecting of an unfair labour practice against the employee. It is in that context we have carefully gone through the complaint which is the basis of the entire proceeding. Suffice it to observe that the delinquent has placed his reliance on Item Nos. 1-b, 1-f and 1-g of Schedule IV and it is on the basis of these three items that it is contended in the complaint that the petitioners have operated unfair labour practice. It was in that behalf sought to be contended by the learned Counsel for the first respondent that the enquiry officer was himself present at the time of the alleged incident and thus had personal knowledge about certain features. An impression was also sought to be created that the delinquent though not on duty was directed by the authority to take the documents containing the calculations from the conductor concerned and he merely passed on those documents to the officer incharge and thereby he was not concerned with the money matter. Having, going through the complaint we have no hesitation to hold that for every item prima facie indicating these allegations, absence thereof is more eloquent. In other words, the complaint even ex facie does not substantiate any of these allegations sought to be raised on behalf of the respondent. Shri Sawant the learned Counsel for the petitioner, in our opinion, is justified in submitting that none of the three items in Schedule IV is even prima facie attracted even on the plain reading of the complaint. Thus for instance it cannot be said at least at this stage that everything was done not in good faith but in colourable exercise or that there has been violation of principles of nature justice and it cannot equally be said at this juncture that the alleged misconduct is of a minor or technical character. It is in that context worth noting that the first respondent has actually participated in the said enquiry and had tendered his say at every stage and also was active enough to cross-examine the witnesses. It was faintly suggested by the learned Counsel for the first respondent that the enquiry officer has incurred disqualification from holding the enquiry and for that purpose it was submitted that the enquiry officer was himself present at the spot at the relevant time. There is no material to substantiate this contention from any of the documents and as stated even if the recital in the complaint is stretched in favour of the first respondent it does not support his contention. It will also not be out of place to observe that the first statement tendered by the first respondent at the earliest opportunity also does not reflect this contention.
13. In view of the position it would be clear that no case has been made out even prima facie by the first respondent to persuade the Court to entertain his complaint on merits at a stage when the final order is yet to be passed. It is well settled that the enquiry once commenced normally should reach its logical end and the matter is awaiting the final decision when the first respondent has already tendered his say to the show cause notice. In the fact of the utter paucity of material in the complaint and in the other documents and in the face of the progress of the enquiry we are not in agreement with the impugned order recorded by the authorities below holding that the complaint under section 7 read with section 28 of the Act was maintainable at that stage. Entertaining of a complaint in these circumstances at this juncture, in the face or utter inadequacy of the necessary material, would be fully unjustified.
14. In this view of the matter, it is not necessary to resolve to controversy and express any opinion in so far as the other point about the necessary or otherwise of existence of the final order of discharge or dismissal before hand in the context of the interpretation with reference to Schedule IV is concerned.
15. We are, therefore, inclined to quash the proceeding as the impugned order is wholly unsustainable. The first respondent must face the enquiry to its logical end where he will get full opportunity to ventilate all his grievances. In any event to put it at the minimum, no case is made out even prima facie to entertain the complaint in question at this stage on the material as it stands and that by itself is enough to entitle it to its dismissal.
16. In the result, the rule is made absolute. The impugned order recorded by the trial Court in Complaint No. 29 of 1981 and confirmed by the Industrial Court in Revision No. 25 of 1981 is set aside. The Complaint (U.L.P.) No. 20 of 1981 pending on the file of the Labour Court at Kolhapur is dismissed and the said proceedings are quashed. There will be no order is to costs.