Omkar Sitaram Rane vs Maharashtra State Khadi And Village ... on 19 June, 2002

[Cites 26, Cited by 6]

Bombay High Court

Omkar Sitaram Rane vs Maharashtra State Khadi And Village ... on 19 June, 2002

Equivalent citations: [2003(97)FLR492], (2003)ILLJ929BOM, 2003(1)MHLJ643

Bench: R.M. Lodha, A.B. Naik

JUDGMENT
 

 A. B. Naik, J.

FACTS IN BRIEF :

1. This petition is filed challenging the orders passed by the Labour Court, Aurangabad and Industrial Court Aurangabad. The petitioner was in employment at relevant time with respondent No. 1. Petitioner was appointed by respondent No. 1 on 26th October 1983 and was dismissed from service for proved misconduct. This dismissal led the filing of complaint by the petitioner under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as Act of 1971) under item Nos. 1(a), (b), (f) and (g) of Schedule IV. The Labour Court after trial, allowed the said complaint in part by the order dated 11th August 1988. The learned judge of the Labour Court, Aurangabad declared that the respondent engaged in unfair labour practice, but instead of reinstatement, directed the respondent to pay compensation.

2. The order passed by the Labour Court, Aurangabad on August 11, 1988 came to be challenged by both the parties by filing 2 separate revision applications viz. revision (U.L.P. No. 24/88) and revision (U.L.P. No. 41/1988) the petitioner has challenged the order whereby the Labour Court has refused to reinstate and the respondent challenged the part of the order of granting compensation. The Industrial Court by the order dated 6th February 1989 disposed of both the revisions by common order dismissing the revision filed by the petitioner and allowed the revision filed by the respondent and remanded the matter back to the Labour Court to decide afresh, the question of alleged misconduct permitting the respondent employer to prove the same. Feeling aggrieved by the said order passed by the Industrial Court, Aurangabad the employee has approached this court by filing this Writ Petition under Article 226 and 227 of the Constitution of India.

3. This Writ Petition came for motion hearing on 24th April 1989 and this court granted "Rule Nisi" and granted interim relief in terms of prayer Clause (B). The effect of interim relief was that the proceedings before the Labour Court, Aurangabad came to be stayed.

CAUSE FOR REFERENCE :--

4. This Writ Petition is placed before us pursuant to the order passed by the learned Chief Justice, as a reference made by the learned Single Judge (B. N. Deshmukh, J. as then he was) as the learned Judge felt that the point involved in this Petition is of immense importance and is of great consequences. The learned Judge in referring order has referred two judgments of this court (1) N, S. Koli v. Shri Shidheshwar Sahakari Sakhar Karkhana Ltd. and Ors. reported in 1981 Mh.L.J. page 888 and (2) Amravati District Central Co-operative Bank, Amravati v. Shamrao N. Deshmukh and Ors. reported in 1982 Mh.L.J. page 431. The learned Judge while referring the matter has only observed that the point involved is of immense importance as the learned Single Judge has not referred any point for determination by the division bench. Hence we formulate the points looking into the facts of this case :

POINTS FOR CONSIDERATION:

(1) "Whether Amravati Bank's case 1982 Mh.LJ. 431 lays down correct law or whether it requires reconsideration."

(2) "Whether the employer/management can prove misconduct/charges before the Court, if the enquiry is vitiated on account of some defect."

Shri Joshi, learned counsel raised following contentions :

CONTENTIONS :

CONTENTION NO. 1 : Giving an opportunity to the employer to prove misconduct/charges before court/tribunal, when the domestic/departmental enquiry is vitiated on one or several grounds, will lead to allow unfair labour practice to continue.

CONTENTION NO. 2 : Dismissal of employee/workman without proper enquiry, or without any enquiry is itself unfair labour practice, as prescribed under Schedule IV Item No. 1(I) of Act of 1971, and once it is noticed that the enquiry is vitiated and dismissal is illegal, the court/tribunal hearing the dispute has no authority to allow the employer/management to prove charges by leading evidence to justify its action.

CONTENTION NO. 3 : While deciding Amravati Bank's case, this court has adopted the principles governing the Industrial Disputes Act (hereinafter referred to as the Act of 1947), as both the enactments i.e. Act of 1971 and Act of 1947, occupy different field. The principle that govern the trial of dispute under Act of 1947, cannot be applied while deciding complaint under Act of 1971. The Amravati Bank's case, needed a second look.

CONCLUSION AND ANSWER TO REFERENCE To appreciate and consider the contentions, we will refer to the judgments referred to by the learned Single Judge in the referring order and also relied on by the learned counsel for respondent to find out whether there is any divergent views expressed by the two learned Single Judges. On going through the judgment of the learned Single Judge (R. A. Jahagirdar, J. as then he was) in Navnath's case, we find that the point which we are considering was not agitated before the learned Single Judge, nor the point was involved. Learned counsel Shri Joshi, has fairly conceded that it is not necessary to refer to Navnath's case (supra) as no point, which we are dealing with is involved in that case. We see no difficulty in accepting to this statement of the learned counsel.

We will make a reference to the judgment referred to in the referring order i.e. Amravati Bank's case.

In Amravati Bank's case the learned single Judge (R. S. Padhye, as then he was) was considering a case which arose out of the following facts :

The facts in the case were "the bank framed charges against the three employees alleging misconduct against them. The charges were that they consumed liquor at 5 p.m. during office hours in the rest house of the bank and that the said act was against the interests of the bank and public at large. Clauses (XV) and (XVI) of standing orders number 11, settled under Section 35(2) of Bombay Industrial Relations Act, 1946, provides for misconduct and for major punishment of termination of service. The inquiry officer held an inquiry and found that the employees committed misconduct and accordingly the inquiry officer submitted his report suggesting the punishment. Acting on the report of the inquiry officer the bank terminated the employees. The order of termination was challenged before Labour Court at Akola by filing complaints. The Labour Court decided the complaint by the order dated July 27, 1981 directing the reinstatement of the employees to their original post with continuity of service and l/4th backwages for the period during which they were out of employment on account of termination of their service by the bank.

The order passed by the Labour Court came to be challenged by the bank as well as by the employees, before the Industrial Court, Nagpur by filing revision applications. The Industrial Court at Nagpur by the order dated October 30, 1981 dismissed the revision filed by the bank and allowed the revisions filed by the employees, directing that full backwages be paid to them. The order passed by the Industrial Court was challenged by the bank before this court.

Before this court a preliminary objection was raised by the employees regarding propriety of the court allowing the bank to lead evidence to prove the charges against the employees as the Labour Court held that the domestic inquiry conducted by the bank against the employees was illegal, improper and against principles of natural justice. By the same order, the court allowed the bank to lead evidence and prove charges against the employees because the bank had asked in alternative form an opportunity to lead evidence to prove the charges against the employees before the court it was held by the court that domestic inquiry was illegal but allowed the employer to prove misconduct. The Industrial Court while hearing revision applications held that the court deciding the complaint under the Act of 1971 had no power to allow the employer to lead evidence in court for establishing the charges which were the subject matter of the departmental enquiry. It was contended before this court by the employees that the evidence recorded at the instance of the bank before Labour Court could not be read and since it was already found that the domestic inquiry was in utter disregard of the principles of natural justice. As the inquiry itself was vitiated for not following the principles of natural justice the writ petition require to be rejected, this was the preliminary objection taken at the time of hearing of the writ petition. In short the contention of the employees was that the court/tribunal has no jurisdiction to allow the employer to prove misconduct before the court if the domestic enquiry is violated. This objection was considered by the learned Judge, while overruling the preliminary objection. This court considering the judgment of the Apex Court in Management of Ritz Theatre (Pvt. Ltd.) v. Its Workmen, , where the Apex Court even prior to introduction of Section 11A of the Act of 1947 held that if it appeared to the court that the departmental inquiry held by the employer was not fair, in the sense that a proper charge was not framed and served on the employee, or a proper or full opportunity to defend was not offered, the court would be entitled to deal with the merits of the dispute as to dismissal of the employee itself. It was contended by the employees before the court that the position of law so far as the trial of disputes under the Act of 1947, was concerned similar position could not obtain in case under Act of 1971. It was argued that the Act of 1947 was an Act making provision for investigation of settlement of industrial dispute, while Act of 1971, was Act for recognition of trade unions for facilitating the collective bargaining for certain undertaking and for defining and providing for the prevention of certain unfair labour practices. It was contended that if the court finds that the employer is guilty of unfair labour practice, the reinstatement should follow. This court has considered these contentions and did not agree with the contention of the employees and held, "That the other alternative of permitting an inquiry afresh by the same unscrupulous employer who has been found guilty of an unfair labour practices is certainly not desirable in the interests of the workmen concerned and would not have been contemplated by the legislature. It could certainly not be said with any reasonableness that an employee charged with a serious misconduct that is defalcation, should be allowed to go scot-free after his punishment is set aside by court on the ground of commission of an unfair labour practices and such a result also could not have been in contemplation of the legislature." This court after considering the provisions of Act of 1971, Schedule IV which enumerate 10 general unfair labour practices on the part of the employer held, "Dismissing employee for patently false reasons and taking a hypothetical case in which the only allegation in the complaint was that an employee was dismissed for patently false reasons, without a further allegation that the dismissal was in utter disregard of principles of natural justice in conducting domestic inquiry, as provided, the Labour Court deciding such a case necessarily will have to enter into merit of the charges for examining as to whether the reasons were false or true and if that be so, the court sitting under the Act of 1971 will have to point out the merits of the charges while the same court dealing with the cases in which the charge of unfair labour practices made is to the effect that the domestic inquiry was held in an utter disregard of the principles of nature justice, the court will have to pen down the moment it finds that the domestic inquiry was vitiated on account of non observation of the principles of natural justice." This court did not agree with the contentions of the employees but accepted that the employer can be permitted to prove misconduct before the court, on failure of the domestic enquiry.

Learned counsel Shri Joshi relied on the judgment of this court, reported in 1984 Mh.L.J. 983 Maharashtra State Road Transport Corporation v. Niranjan Shridhar Gade, and contended that the Labour Court/tribunal has no jurisdiction to allow the management/employer to prove misconduct before the Court/tribunal in case the domestic enquiry is vitiated. In this case the learned Single Judge (R. A. Jahagirdar, J. as then he was) held that "It is not open to Labour Court which is not sitting as a Court of appeal, to sit in judgment over the findings recorded by the enquiry officer in a domestic enquiry, unless the finding is perverse." Presently we will find out from the judgment whether the question which we are dealing with was before this court in Niranjan Cade's case.

(1) The facts of Niranjan Gade's case were as follows :

"A driver belonging to the Maharashtra State Road Transport Corporation was charge-sheeted on the ground that he did not stop the Bus at the bus stand despite the fact that several persons who had assembled at the bus stand signalled him to do so. He stopped the bus at some distance and told the passengers who intended to board that bus that each one of them should pay Rs. 2 and if they boarded the bus without making the said payment, he threatened, he would take the bus to the office of R.T.O. Some of the passengers paid the money in the hands of the conductor who handed over the same to the driver. At the domestic enquiry, the Enquiry Officer came to the conclusion that the driver of the bus was guilty of the misconduct with which he had been charged. A show cause notice was issued as to why the penalty of dismissal should not be imposed. Ultimately he was dismissed. The dismissal was challenged before the Labour Court contending that the dismissal was an unfair labour practice within the meaning of Clauses (b), (d) (f) and (g) of Item 1 of Schedule IV of the Unfair Labour Practices Act. The Labour Court framed two issues, (1) Whether the enquiry was fair, proper and legal and (2) if not, whether the respondent has been able to justify the order of dismissal? The Labour Court while dealing with the matter held that as some of the statements of the witnesses examined at the preliminary enquiry had not been supplied, it had the effect of vitiating the domestic enquiry. Some of the witnesses whose statements were recorded in the preliminary enquiry were not again examined in the domestic enquiry. Ultimately the Labour Court proceeded to answer Question No. 1 in the negative and held that the Corporation had engaged in an unfair labour practice and therefore, the driver was entitled to be re-instated with full backwages and continuity of service. The order was challenged under Article 227 in the High Court."

On these backdrops of facts, this Court held that :

"that in a case where the employer has been charged with an unfair labour practice of dismissal or discharge of a workman for patently false reasons, it is not enough for the Labour Court to hold that the order of dismissal or discharge was wrong or that the domestic enquiry had become vitiated for some other reasons. It must be established that the dismissal was motivated by false reasons and that such false reasons were patent. The Labour Court was entitled to see whether the act of dismissal amounted to an unfair labour practice under one or the other clause of item 1 of Schedule IV of the Act. Instead, the Labour Court gave to itself an enlarged jurisdiction of finding out whether the domestic enquiry was fair, proper and legal and thereafter proceeded to answer this question in the negative holding that the employer had engaged in an unfair labour practice and the employee was, therefore, entitled to be reinstated with full backwages and continuity of service. The Labour Court while dealing with the matter had held that as some of the statements of the witnesses examined by the preliminary enquiry Officer had not been supplied it had the effect of vitiating the domestic enquiry which approach was patently erroneous. As a matter of law when some of the witnesses whose statements were recorded in the preliminary enquiry were not again examined in the domestic enquiry, it is not necessary by any rule of natural justice that copies of their statements should be supplied to the delinquent workman. Even if some of the witnesses whose statements are recorded in the preliminary enquiry are examined in the domestic enquiry again and their statements are recorded afresh in the domestic enquiry, it is not necessary that their statements recorded in the preliminary enquiry should be supplied to the delinquent workman. The rule of natural justice is that the domestic enquiry officer shall not rely upon any material which is not put to the delinquent workman against whom the enquiry is held. There was, therefore, no contravention of any rule of natural justice and the Labour Court was in error in holding that there was a contravention of or utter disregard of the rules of natural justice when the domestic inquiry officer did not supply copies of the statements. It is not open to Labour Court which is not sitting as a Court of appeal, to sit in judgment over the findings recorded by the enquiry officer in a domestic enquiry unless the findings are perverse. The Labour Court exceeded its jurisdiction in reversing the finding recorded by domestic enquiry officer and therefore, the order made by the Labour Court was erroneous and liable to be set aside."

6. While coming to the findings, the learned Judge referred to a judgment reported in 1981 Mh.LJ, 888 (supra). On the facts of Niranjan's case (supra) we find that the question posed before this court in that case was altogether distinct and different, so also, the Apex Court judgments in Ritz Theatre, Motipur Sugar Factory and this Court in Amravati Bank's case were not brought to the notice of the learned judge, as Apex Court has considered such situation, and ruled that if the domestic enquiry is held to illegal, the employer will be permitted to lead evidence before the court where the action of employer is challenged, to prove its case against, the employee. Though the Apex Court was dealing with the cases, those arose out of the proceeding taken under the Act of 1947. The principle underlying the Apex Court judgment has to be made applicable, in view of this aspect of the matter, it is not necessary to apply the ratio of Niranjan's case and we hold that the said judgment is per incuriam. The judgment in Niranjan's case (supra) came for consideration before learned Single Judge of this Court (B. N. Srikrishna, J. as then he was). Satish v. Kirolskar Oil Engines Ltd. reported in 1995(1) Mh.LJ. 774 (we will deal with Satish's case little later). The learned Single Judge has considered Niranjan Gade's case and not accepted the principle stated in view of the law declared by the Apex Court in Chandra Tiwari v. U.O.I. Be it as may, presently we are not concerned with the controversy as raised in Niranjan Gade's case, hence the judgment referred by the learned counsel is not at all helpful to substantiate his contention.

7. The question which is to be considered by us in this reference is "whether an opportunity is to be given to the employer to prove misconduct in the court or Tribunal where the action is challenged and in case the enquiry conducted is vitiated on account of some difficulty either legal or factual in conducting the said enquiry."

In the present case, the Industrial Court has allowed the revision application filed by the respondents and remanded the matter to the Labour Court to allow the respondents i.e. employer to lead evidence to prove the alleged misconduct. In Amravati Bank case, this court while dealing with this aspect has accepted that the employer/management in a given case when the court holds that the domestic enquiry is vitiated for some reason or other, can justify its action and prove misconduct against the employee/workman before the court or tribunal. While arriving at this conclusion, the learned single judge has followed the judgment of the Apex Court in Ritz Theatre. We see no difficulty in accepting the view taken by this court in Amravati Bank case.

8. We have to consider some more judgments of the Apex Court to find out the principle whether the employer can in case of failure in the domestic enquiry establish the acts of misconduct or charges in the court. For this purpose, we will refer to the judgment of the Apex Court Workmen of the Motipur Sugar Factory Pvt. Ltd. v. The Motipur Sugar factory Pvt. Ltd. The Apex Court has considered this aspect and on a point of policy to curtail the delay in disposing of the industrial disputes and to avoid multiple proceedings, observed thus :

"11. It is now well-settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic inquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic inquiry has been properly held see Indian Iron and Steel Co. v. Their workmen (1) but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified. We may in this connection refer to Sasa Musa Sugar Works (P) Limited v. Shobrati Khan (2), Phulbari Tea Estate v. Its Workmen (3) and the Punjab National Bank Limited v. Its Workman (4). There three cases were further considered by this court in Bharat Sugar Mills Limited v. Shri Jai Singh (5), and reference was also made to the decision of the Labour Appellate Tribunal in Shri Ram Swarath Sinha v. Belaund Sugar Co.

(6). It was pointed out that "the import effect of commission to hold an enquiry was merely this; that the tribunal would not have to consider only whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges have really been made out". It is true that three of these cases, except Phulbari Tea Estate's case (3), were on applications under Section 33 of the Industrial Disputes Act, 1947. But in principle we see no difference whether the matter comes before the tribunal for approval under Section 33 or on a reference under Section 10 of the Industrial Disputes Act, 1947. In either case if the enquiry is defective or if no enquiry has been held as required by Standing Orders, the entire case would be open before the tribunal and the employer would have to justify on facts as well that its order of dismissal or discharge was proper. Phulbari Tea Estate's (9) was on a reference under Section 10, and the same principle was applied there also, the only difference being, that in that case, there was an enquiry though it was defective. A defective enquiry in our opinion stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper."

12. If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must be set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely upon the enquiry which he had held in the mean-time. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes. Therefore, we are satisfied that no distinction can be made between cases where the domestic enquiry is invalid and those where no enquiry has in fact been held. We must therefore reject the contention that as there was no enquiry in this case it was not open to the respondent to justify the discharge before the tribunal,"

9. We may refer to the latest judgment of the Apex Court in this context wherein the law declared by the Apex Court in Motipur Sugar Factory is reaffirmed and restated in 2001(V) SC 433 Karnataka State Road Transport Corporation v. Lakshmidevamma (Smt.) and Anr.. Though the Constitution Bench of the Apex Court was dealing with a different point which was referred but the nonetheless point was involved that, at what point of time the employer/ management can ask for opportunity at the trial, to prove misconduct/charges in case the domestic enquiry held to be invalid. The Apex Court reiterated the law declared in Motipur Sugar Factory's case thus found :

"The right of management to lead evidence before the Labour Court or the industrial tribunal in justification of its decision under consideration by such tribunal or the court is not statutory right. This is actually a procedure laid down by the Apex Court to avoid the delay and multiplicity of the proceedings in the disposal of dispute between management and the workmen."

10. In view of the law declared by the Apex Court i.e. Ritz Theatre, Motisagar and Laxmideomma (supra) it is not possible to accept the contentions Nos. 1 and 2 (supra) that by allowing the employer to establish or prove the charges/misconduct before the court/tribunal by itself will lead to allow the unfair labour practice to continue. On the principle as laid down by the Apex Court, permitting the employer to prove misconduct/charges, before the court/tribunal, will minimize the time and avoid multiplicity of the proceedings and that would enable to adjudicate the dispute finally without further delay.

11. Now we will consider the contention No. 2. The learned counsel contended that Act of 1947, came to be enacted for the purpose of investigating and settlement of the industrial dispute and for certain other purpose as elaborated in the Act. The learned counsel contended that the provisions that are brought in the Act of 1947 by virtue of Section 11-A which gave power to court/tribunal to differ from the finding of domestic enquiry has as a matter of fact enlarged the power of the court/tribunal to consider the findings recorded in the domestic enquiry like 1st appellate court. On the contrary, the complaint which is filed under Section 28 of the Act of 1971 has to be dealt with by the court/tribunal by exercising the powers within the parameters of Section 30 of the Act of 1971. Therefore, the learned counsel contended that the principle that is brought in the Act of 1947, by virtue of Section 11-A cannot be brought into and read into the Act of 1971 for the purpose of deciding the complaint/dispute. Before considering the merit of these contentions, one aspect we have to note here that by Act 46 of 1982, the Act of 1947 came to be amended and the term unfair labour practice is incorporated in the Act of 1947. Section 2(ra) defines unfair labour practice which means, any of the practice categorised in the Vth schedule, if we peruse Vth Schedule of Act of 1947, it gives categories of the unfair labour practices. To appreciate both provisions, we will refer to the provisions of Act of 1971.

ACT OF 1971 "Section 2(16) - Unfair Labour Practice means unfair labour practice as defined in Section 26."

Section 26 defines the unfair labour practice, Section 26 runs thus :

"In this Act, unless the context requires otherwise, unfair labour practice means any of the practice listed in Schedule II, III and IV. Schedule II deals with unfair labour practice on the part of employer. Schedule HI deals with unfair practice on the part of Trade Union and Schedule IV general unfair labour practice on the part of employers."

Schedule IV of the Act of 1971 reads as under :

SCHEDULE IV General Unfair Labour Practices on the Part of employers

1. To discharge or dismiss employees--

(a)     by way of victimization.
 

(b)    not in good faith, but in the colourable exercise of the employer's rights;
 

(c)     by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;
 

(d)     for patently false reasons;
 

(e)     on untrue or trumped up allegations of absence without leave;
 

(f)     In utter disregard of the principles of natural justice in the conduct
of domestic enquiry or with undue haste;  
 

 (g)     for misconduct of a minor or technical character, without having
any regard to the nature of the particular misconduct or the past

record or service of the workman, thereby leading to a disproportionate punishment."

ACT OF 1947 Section 2(ra) of the Act of 1947 reads as under

"2(ra) "unfair labour practice" means any of the practices specified in the Fifth Schedule;"

THE FIFTH SCHEDULE [See Section 2(ra)] UNFAIR LABOUR PRACTICES

1. On the part of employers and trade unions of employers :

.........................

5. To discharge or dismiss workmen--

(a)     by way of victimisation;
 

(b)     not in good faith, but in the colourable exercise of the employer's rights;
 

(c)     by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;
 

(d)    for patently false reasons;
 

(e)     on untrue or trumped up allegations of absence without leave;
 

(f)     In utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste;
 

(g)     for misconduct of a minor or technical character, without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment."

If we compare Vth Schedule of the Act 1947, with Schedule IV of the Act of 1971, we find that the categories of unfair labour practices referred to in both the Acts are not only identical but also strikingly similar, as the legislature has brought the identical categories and definitions in both the enactments and with this background, one has to read provision of Section 11-A, which deals with the powers of the court/tribunal in case arising out of Act of 1971. As the principle (i.e. procedure) that is enunciated by the Apex Court in Ritz Theatre, Motipur Sugar Factory and Laxmidevamma's case has to be made applicable on the principle of parity of reasons in a trial under the Act of 1971, no distinction can be made between the two. To illustrate this, we may take a hypothetical case in the domestic enquiries against two or more employees in an undertaking on same set of facts leading to misconduct. In the domestic enquiry, the misconduct is proved and accordingly employer imposes a penalty of dismissal or any other penalty on all the employees charged, aggrieved by the action of employer one set of employees through its union raises a dispute under Act of 1947, and another set of employees file a complaint under Section 28 of the Act of 1971 alleging that the employer has indulged in unfair labour practice. In both the proceedings it is found that the domestic enquiry is vitiated on some ground. The court/tribunal dealing with the dispute under Act of 1947, will permit the employer to prove the charge before it, but the court/tribunal dealing with complaint will be a silent spectator and cannot allow the employer to prove the charges if the enquiry is found to be vitiated. To avoid such an eventuality and situation, one may lean in favour, of allowing the employer to lead evidencee and to prove misconduct in the court, to avoid fresh enquiry by the employer and for this purpose the procedure, that is laid down by the Apex Court from Ritz Theatre, Motipur Sugar Factory to Laxmideomma's case, so far it relates to the industrial dispute, will have to be adopted in the industrial adjudication under Act of 1971. The said procedure, is now the settled law and it will have to be made applicable to a complaint before the Labour Court/tribunal under Act of 1971. If contention of the learned counsel is accepted then it will lead to (i) allowing the erring employee to work with the management and he will go scot-free, (ii) it may lead to the management/employer to start de-novo enquiry into charges of misconduct. For the above reasons, and the law declared by the Apex Court, we have not accepted the contentions of the learned counsel.

12. We will now make a brief reference to the judgment of the learned Single Judge of this Court reported in 7995 Mh.LJ.(1) page 818 Divisional Controller, M.S.R.T.C. Bhandara v. Gulab Tanbaji Bhandarkar, where the learned single judge (Rebello, J.) has considered the provisions of Section 11-A of the Act 1947 and Section 30 of the Act of 1971. The learned Single Judge has held that both the Acts are supplementary to each other. This court has observed thus :

"6. The only question which requires consideration is the order of the Labour Court which invoked jurisdiction under Section 11A of the Industrial Disputes Act, 1947, for interfering with the punishment imposed by the Disciplinary Authority. The Labour Court was hearing the complaint under the provisions of MRTU and PULP Act and not under the provisions of the Industrial Disputes Act, 1947. The Labour Court therefore could not have exercised the powers conferred on it while exercising jurisdiction under the MRTU and PULP Act, Section 11A is a power conferred on Labour Courts. Tribunals and National Tribunals as also on Arbitrator which are authorities created under the said Act. The Industrial Disputes Act, 1947 and the MRTU and PULP Act are two different legislations which are supplemental to each other. In the case of Hindustan Lever Limited v. Ashok Vishnu Kate the Apex Court has noted the provisions of the Industrial Disputes Act, 1947, the provisions of the Bombay Industrial Relations Act and the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The Apex Court noted that under the Bombay Industrial Relations Act various protections were given to the workmen covered by the said Act but there was no provisions regarding prevention of unfair labour practices either on the pan of the employers or on the part of the unions of employees. Insofar as the Industrial Disputes Act, 1947, it was applicable to industries not covered benefit of the provisions regarding unfair labour practices when MRTU and PULP Act was enacted. The Industrial Disputes Act provided for a reference by an Appropriate Government of any industrial disputes between the employers and employees for adjudication of competent, industrial or Labour Courts. Where an industrial dispute or industrial dispute exists, reference has to be made by the Appropriate Government under Section 10 of the Industrial Disputes Act. There was no provision for reference of an industrial dispute under the Industrial Disputes Act for preventing any unfair labour practice at the time of the Maharashtra Act saw the light of day. The Apex Court there noticed the amendment to the Industrial Disputes Act whereby the Vth Schedule was added which catalogued unfair labour practices on the part of the employers, the trade unions of the employers and on the part of the workmen and trade unions of the workmen which are in pari materia with the unfair labour practices on the part of the employers and the trade unions and general unfair labour practices on the part of employers, under the MRTU and PULP Act. This the Apex Court noted also did not provide for reference of an unfair labour practice. Other provisions of the Industrial Disputes Act and the Bombay Industrial Relations Act were also noted and the lacuna was indicated in both the Acts which did not provide for provisions for reference of unfair labour practice which has been provided for in the Maharashtra Act. Thereafter on a consideration of this Scheme of the MRTU and PULP Act the Apex Court noted that MRTU and PULP Act sought to supplement and cover the field for which the industries concerned governed by the Industrial Disputes Act and Bombay Industrial Relations Act did not get any coverage and that field was obviously amongst other a field pertaining to prevention of unfair labour practices as defined by the Act. It is clear, therefore, that the MRTU^nd PULP Act is a supplemental legislation insofar as the Industrial Disputes Act is concerned. The question, therefore of reading of powers under Section 11A of the Industrial Disputes Act and/or invocation of the same by the Authorities created under MRTU and PULP Act would not arise. Section 11-A also is not incorporated into the MRTU and PULP Act either by reference or legislative incorporation to invoke the said provisions. In Writ Petition No. 94 of 1996 in the case Divisional Controller, M.S.R.T.C. v. Syed Shabir Jani, I had occasion to consider the question whether Section 17-B of the Industrial Disputes Act has been incorporated into the MRTU and PULP Act by reference or legislative incorporation. I have held it not to be so. The same reasoning has to follow in the case of Section 11-A also."

Regarding Contention No. 3 :--

13. Now we will refer to judgment of this Court reported in 1995(1) Mh.L.J page 774, Satish Ganesh Saphtarshi and Ors. v. Kirloskar Oil Engines Ltd. and Anr., which deals with this aspect, (we made brief reference to this case earlier). The facts of the case were that the "employees of the Kirloskar Oil Engines Ltd. who were the petitioners before the High Court were served with the charge sheet by the employer on 30th May, 1982. Pursuant to the said charge sheet, the domestic enquiry was held by the Enquiry Officer. The employees took part in the enquiry. The Enquiry Officer after conducting the enquiry, found the charges proved against the workmen relying on the enquiry report the employer dismissed the workmen. The workmen filed complaint under the Provisions of Section 28 read with item No. 1(a), (b), (d) (f) and (g) of Schedule IV of the Act of 1971 before the Labour Court, Pune. The workmen contended before the Labour Court that their services were terminated hurriedly and in utter disregard of the principles of natural justice in conducting the domestic enquiry and that their hurried removal from service was a gross case of victimisation. The Labour Court after completion of trial upheld the order of dismissal and dismissed the complaint holding that there was no unfair labour practice made out. The order passed by the Labour Court was the subject matter of the Writ Petition. It was contended before the Labour Court that the enquiry was in consonance of the principles of natural justice and that there was no unfair labour practice. It was contended that the workmen were dismissed in order to victimise them for being active members of the association. It was pointed out that the enquiry officer during the course of enquiry directed the employer to produce report/complaint and statements recorded on which the charges were based. This request was turned down by the management on the ground that decision of the enquiry would not depend on the said report. During the enquiry the employees also requested the enquiry officer to direct the management to supply concerned documents to them. The enquiry officer passed an order directing the said documents to be supplied to the employees. However, the management refused to supply. In spite of this the enquiry officer held that the charges made against the employees were proved. On the report of the enquiry officer the employees approached the Labour Court challenging the action of employer by filing complaint under Act of 1971. The Labour Court, Pune dismissed the said complaint. Feeling aggrieved by the order of Labour Court, the employees approached this court under Article 226 of the Constitution of India. Before this Court the employer placed reliance on 2 judgments of this court reported in 1984 Mh.L.J. 983 Maharashtra State Road Transport Corporation v. Niranjan Sridhar Gade and Anr. and 1982 Mh.LJ. page 434, Amravati District Central Co-operative Bank Ltd. Amravati v. Shamrao Tanbaji Ladavikar and Ors.. The judgment of Amravati Bank's, case was relied by the employer. The learned judge in Satish's case supra has considered the said judgments and approved the view taken by the learned single judge in Amravati Bank's case. This court in Satish's case has observed thus :

"14. The last question, which needs to be considered, is about the relief to be granted to the Petitioners. Mr. Talsania, learned Counsel appearing for the First Respondent, cited the judgment of a learned Single Judge of this Court in Amravati District Central Cooperative Bank Ltd. v. Shamrao Tanaji Ladavikar and Ors., 1982 Mh.L.J. 434, and contended that, even if the Court holds that there was an unfair labour practice because the inquiry was vitiated, the Court is not without recourse and need not direct an order of reinstatement with full backwages. In fact, Mr. Talsania contends that the jurisdiction of the Court under Section 30 of the Act is much wider in that, after declaring that there is an unfair labour practice on the part of any person, the Court can direct all such persons to cease and desist from such unfair labour practice and take such affirmative action, including payment of reasonable compensation to the 'employee affected by the impugned labour practice,' 'or reinstatement of the employee with or without backwages or the payment of reasonable compensation as may, in the opinion of the Court, be necessary to effectuate the policy of the Act. Reinstatement of the employee with or without backwages and continuity of backwages is only one of the reliefs which the Court is empowered to grant under the statute. Such relief must of course be granted only if the judicial conscience of the Court is satisfied that, apart from the fact that there was utter disregard of the principles of natural justice in the conduct of the domestic inquiry, the employee is without blemish or if there is a case of vicitimization. Unless the Court is satisfied on these aspects of the case, the Court should be slow to award reinstatement on the plea that there is an 'unfair labour practice' within the meaning of Item 1(f) of Schedule IV, is the submission of the learned Counsel. In my view, there is substance in the submission, both on principle and precedent. As has been pointed out by the learned Judge in Ladavikar's case (supra), it would be necessary to take on record all material facts which would indicate to the satisfaction of the Court whether the employee was or was not guilty of the charges alleged against him. Merely because the inquiry was held to be vitiated on account of an unfair labour practice falling within Clause (f) of Item 1 of Schedule IV, the Court cannot abdicate its jurisdiction of being satisfied on this vital aspect of the matter before ordering relief. As pointed out in Ladavikar's case, the Court has the choice of either permitting the employer to hold an inquiry afresh or hold the inquiry itself, and it would be preferable to hold the inquiry itself instead of permitting an unscrupulous employer to conduct a sham inquiry to fortify a decision which he had already taken. It is for this reason that this Court pointed out in Ladavikar's case that, even after the Labour Court's recording of finding of unfair labour practice, if there is disregard of principles of natural justice, an opportunity must be given to the parties to establish their respective cases as to the charge that was levelled against the employee.

15. Mr. Deshmukh, on the other hand, vehemently contends that the jurisdictional difference between the provisions of the Industrial Disputes Act and the Unfair Labour Practices Act has not been kept in mind while arriving at the conclusion in Ladavikar (supra) and submits that the judgment needs reconsideration. He also contends that the situation ought to be no difference from a situation wherein the High Court would have struck down an order passed against a Government servant as violative of Article 311(2) of the Constitution of India, and further that, if there is a finding that the inquiry is bad, the parties must be put in a position of status quo ante the inquiry, and all reliefs consequent thereupon should immediately be made available. Speaking for myself, I do not consider that the reasoning advanced in Ladavikar's case needs to be reconsidered, as I am respectfully in agreement with the reasons advanced therein. I, therefore, propose to follow the principle laid down in Ladavikar's case."

14. We are in agreement with the view taken by the two learned Single Judges of this court in Amravati Bank's case and Satish's case supra. We hold that Amravati Bank's case lays down correct law which we approve.

15. In view of the abovesaid observation of the learned Single Judge and the Apex Court, we hold that in deciding complaint under the Act of 1971, the procedure that is formulated by the Apex Court will equally applicable. The trial of industrial dispute either under Act of 1971, or the Act of 1947 by the court/tribunal cannot make any difference as by now the procedure as approved by the Apex Court in respect of industrial dispute will have to follow.

16. In the light of the law declared by the Apex Court and in the light of Satish's case (supra) we are of the view that the view taken by this court in Amravati Bank's case lays down correct principle. The Amravati Bank's case is followed by the another learned Single Judge in Satish's case and considering the long standing precedence and applying principles of stare decisis, we find that the view taken by the learned single judge in Amravati Bank's case following the law declared by Apex Court in Ritz Theatre, which still is a good law, we feel that the long standing view of Amravati Bank's case, for nearly 20 years, that, there are no sound and strong grounds to differ from it. According to us, the view needs to be confirmed. Accordingly, we approve the view taken by the learned Single Judge in Amravati Bank's case and Satish's case supra. The employer/management can lead evidence in the court to prove misconduct against the workman/employee, on failure in domestic enquiry but the request for such opportunity must be made by the employer/management at a proper stage as stated in Laxmideomma (supra) case. Accordingly, we answer the reference.

17. The registry is now directed to place the Writ Petition before the learned Single Judge for final disposal, as the Writ Petition pertains to the jurisdiction of Single Judge.

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