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3. The order of dismissal came to be challenged by the respondent/employee by way of the complaint under the provisions of section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. (hereinafter referred to 'as the MRPU & PULP Act') It was alleged by the employee in his complaint that unfair labour practices were committed by the school management. His contention was that though he was in continuous employment and had become permanent, he could not have been dismissed without holding any Departmental Enquiry,. His further contention was that though he was not expected to work both at day and night, he was asked to so work and his working hours exceeded fifty hours per week. His further contented that he had approached Praja Sattak Shikshan Sanstha, Maharashtra Rajya, Nagpur, complaining about he illegal heavy work-load given to him, which irked the management. He also contended that the misconduct alleged in the letter dated 1.2.1981 was nothing but an eyewash and that his dismissal bristled against the principles of natural justice. It is amply seen that he has made a specific grievance that Principal Bajaj had asked him to work at his (Principal) place as a domestic servant, and on his refusal, the Principal had taken such adverse stand against him which was false, In short, the respondent No. 1 employee complained of the unfair labour practices on the part of the petitioners, under clauses (a) (b) (d) (f) & (g) of Item 1 of the Schedule IV to the MRTU & PULP Act. It will not be out of place here it mention that he management, with the dismissal order, had sent a cheque for Rs. 2736.90 which amount was equal to six months salary. In keeping with the dictates of rule 28 (2) of the Rules, the respondent No. 1/employee claimed in the complaint that he had accepted this cheque, deposited the same in the bank, but only under protest.

5. The Labour Court framed certain issues on the basis of the rival contentions of the parties. The issues related to the constitutionality of the action, the jurisdiction of the Labour Court to entertain the complaint as also whether the management could be said to be an industry. All these issues are of no consequence here. The other issues only related to the removal/termination of the complainant/respondent No. 1 form the service with effect from 15.21982, and whether such termination comes under the mischief of any clauses of items 1 of Schedule IV to the MRTU & PULP Act. Surprisingly enough, the Labour Court did not frame the issue which would have been the most germane issue. However, that question will be dealt with later on in this judgment. The employee examined himself and also some witnesses before the Labour Court only to show that everything was alright with the school and no activities, as alleged, ever took place in the school. On behalf of the petitioners, the Principal himself entered the witness-box and some persons, who wrote the letters, also came to be examined. All the correspondence, including the letters, the notices sent to the respondent No. 1/employee and the replies given by the respondent No. 1/employees were produced in the Labour Court record. The Labour Court came to the conclusion that rule 28 (2) of the Rules was not of any avail to the management. It came to the conclusion that the termination order, dated 15.21982 which was impugned in the complaint which was purported to be under rule 28 (2) of the Rules, was nothing but the colourable exercise of power. It was, in fact an order of the dismissal for misconduct of the respondent No. 1/ employee. It recorded a positive finding that the suspension order and the show-cause - notice which were sent to the employee, clearly showed that this was not a termination simpliciter and was, in fact, a penal order. The Labour Court came to the conclusion that since this penal order was passed without holding any enquiry, it amounted to an unfair labour practice as per clause (f) of item 1 of the Schedule IV to the MRTU & PULP Act. It came to the conclusion that on the ground alone the dismissal could be straightway quashed. It also came to the conclusion that he such enquiry was a sine qua non for the dismissal or termination, as the case may be and if the enquiry was not held, the termination could be deemed to the have been done in undue haste. The Labour Court adversely commented upon the evidence of the Principal and the two letter-writers, namely Shri Sadhwani and Shri Manwani, and came to the conclusion that after exraying the impugned termination order, it was of the opinion that it amounted to an unfair labour practice even under clause (f) thereof. The employer had relied upon a decision of the Supreme Court in Air India Corporation v. Rebello and it was pointed out that the holding of the domestic inquiry is not a must in each and every case, and particularly by recourse to rule 28 (2) of the Rules, the said enquiry could be dispensed with. The Labour Court did not agree with his contention,. It termed it as a malafide order and a penal order which was with undue haste. It took the stock of the witnesses examined on behalf of the respondent No. 1/employee and gave a finding on facts that the misconduct as alleged by the management against the complainant/respondent No. 1/employee was not proved at all. It also adversely commented on the letters written by the witnesses in fact the Labour Court has devoted goods deal of the space to this appreciation of the evidence of the purposes of the recording a finding that, In fact, the misconduct on the part of the employee was not proved at all. It is in view the finding that the misconduct itself was not proved that the Labour Court further went on to hold that the order of dismissal was nothing but a colourable exercise of power. It proceeded to hold that the merely because the management has lost confidence, the management could not dismiss the employee without holding any domestic enquiry. In this view of the matter, the Labour Court set aside the order of dismissal and directed the employee to the reinstated with full back wages.

This case may not support Mr. Manohar fully to the extent that he is canvassing. However, where the question of behaviour of an employee with the lady-folk is concerned, even the apex Court has been extremely sensitive in the matter. This case undoubtedly goes on to show that where the employer was not certain about the behaviour of the employee with the lady-flok, it had good reason to discontinue the services of the employee on the theory of loss of confidence.

20. The provisions of the Maharashtra Employees of Private schools (Conditions of Service) Regulations Act, 1997 vis-a-vis the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 fell for consideration before this Court in Write Petition No. 2442 of 1981 Panchsheel High School v. Shamrao, decided by Jamdar, J. on 16.12.1981. In that petition also, the workman was an employee of a school, being its Head Master. He questioned his termination, not by way of an appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (hereinafter referred to as 'the' Act of 1977), but by way of a complaint under the MRTU & PULP Act. The Court had ordered his re-instatement, holding that the employer, the Head Master and the Secretary of the Society had engaged themselves in unfair labour practice in terminating the services of the said Laboratory Attendant. The interim application under sub-section (2) of section 30 of the MRTU & PULP Act by the complainant in that case was allowed by the Labour Court, which order was challenged in the said writ petition by the employer/education society. What was contended in that writ petition was that in view of he provisions of sections 8 to 15 of the Regulations At, 1971, which had come into force on 15.7.1981, the jurisdiction of the Labour Court constituted under section 6 of the MRTU & PULP Act was necessarily barred, and whether the order passed by the Labour Court under provisions of the MRTU & PULP Act was a good order in law. The facts are pretty similar to the facts in our case, where also the employee, who has been terminated has, instead of approaching the School Tribunal by way of Appeal under section 9 of the Act of 1977, chosen to proceed under the provisions of the MRTU & PULP Act. After taking resume of the provisions of section 28 of the MRTU & PULP Act as also sections 8 to 15 of the Act of 1977, this Court came to the conclusion that after promulgation of the Act of 1977, the provisions of the General Act ceased to apply to the worker because of the legal principle Generalia Specialabus Non Derogant. The Court, in that case, firstly, held that the school was an industry and the laboratory attendant, who was pursuing his remedy, was a workman. It then proceeded to hold that the provisions of the MRTU & PULP Act were applicable to the whole industry and as such it would cover all kinds of industries, generally. It is pointed out thereafter that out of the general gamut of industries, the Act of 1977 provided for the service conditions of he teaching and non-teaching staff of the private schools. The Court, thus, came to a conclusion that the Act of 1977 operated in a restricted field of the workers working in private schools. In that view of the mater, following the Supreme Court judgments on the subject, this Court held that, in fact, in the wake of the Orders passed in 1981, the workers in the school had to proceed under the Act of 1977 and not under the general Act, like MRTU & PULP Act. This is how the Court proceeded :

The situation is no different in our case. On the date when the present complaint was filed, admittedly, the School Tribunal was not constituted and no appointment of the Presiding Officer was made on the same. Under the circumstances, there was nothing wrong if the employee, in the present case, proceeded under the provisions of the MRTU & PULP Act. The question, however, was as to whether, while proceeding under that Act, could he still be governed by the provision of the Act of 1971. The answer to this question will have to be in the affirmative, because even if the workman proceeded under the provision of section 28 of the MRTU & PULP Act, it did not automatically extricate himself from the operation of the Act of 1977 which had become promulgated because of he provision contained therein, right from the date on which it came into existence, i.e. on 15.7.1981. It can not, therefore, be said that the provisions of the Act of 1977 and the Rules made there under were not applicable, and on that count, the recourse could not be had to rule 28 (2) by the employee. The employee had every right to proceed under rule 28 (2) because on the date when the present complaint was filed, the Act of 1977 had already come into force and it was already made applicable to the private schools, like the petitioner school, and the employees working therein. Indeed, even if the employee proceeded under the provisions of the MRTU & PULP Act, nothing very different was to be decided even under the provisions of that Act. For that matter, it is clearly observed by Jamdar, J., that the powers of the school Tribunal, as envisaged in the Act of 1977, were really no different or distinct from the powers of the Labour Court mentioned in clauses (a) to (g) of Item 1 of Schedule IV of the MRTU & PULP Act. This is how Shri Jamdar, J. proceeded to hold :