C/SCA/10885/2021 ORDER DATED: 20/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10885 of 2021
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HITESH PRAHLADBHAI JOSHI
Versus
THE GENERAL MANAGER, PASCHIM GUJARAT VIJ COMPANY LTD.
================================================================ Appearance:
KRISHNAN M GHAVARIYA(8133) for the Petitioner(s) No. 1 MR DIPAK R DAVE(1232) for the Respondent(s) No. 1 ================================================================
CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 20/10/2021
ORAL ORDER
1. Rule. Learned advocate Mr.Dipak Dave waives service of notice of rule for the respondent.
2. In the present writ petition, the petitioner has questioned the order dated 13.03.2020 passed below application under Exh.18 by the Industrial Tribunal, Rajkot, whereby and wherein the application filed by the respondent has been rejected.
3. Learned advocate Mr.Kishnan Ghavariya appearing for the petitioner has submitted that the petitioner has challenged legality and validity of the departmental inquiry and the same being a preliminary issue, the Tribunal was supposed to decide the same and the Tribunal, without appreciating the illegality committed in holding the departmental proceedings, had rejected this application. It is submitted that since no opportunity would be available to the present petitioner questioning such departmental proceedings, the impugned order passed by the Industrial Tribunal below Exh.18 rejecting the application may be quashed and set aside.
4. In response to the aforesaid submissions, learned advocate Mr.Dipak Dave, while placing reliance on the judgment of the Apex Court in the case of Cooper Engineering Limited vs. P.P.Mundhe, AIR
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1975 SC 1900 and the judgment dated 04.08.2004 passed in Special Civil Application No.8754 of 2006 with allied matters by the Coordinate Bench of this Court has submitted that it is always open for the petitioner to challenge such findings after final adjudication of the dispute and hence, the present writ petition may not be entertained at this stage.
5. In the present case, the petitioner had been imposed a punishment of stoppage of one increment with future effect vide order dated 17.07.2017. The petitioner had filed an application below Exh.18 before the Tribunal in Reference (IT) No.3/2018 questioning the departmental proceedings. The Industrial Tribunal vide order dated 13.03.2020 had rejected the application by observing that the petitioner was granted ample opportunity in the departmental proceedings and hence, at this stage, such application for challenging the departmental proceedings is not required to be entertained.
6. At this stage, it would be apposite to incorporate the observations made in the case of Cooper Engineering (supra):-
"22.We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication."
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Thus, the Supreme Court has clarified that the preliminary issue with regard to questioning the domestic inquiry can also be agitated even after the final award and it will be also legitimate for the High Court to refuse to intervene at this stage so that there may not be any delay in industrial adjudication.
7. The Coordinate Bench of this Court on a similar issue, after considering the judgment of the Apex Court in the case of Cooper Engineering (supra), has observed thus:-
9. From the above decisions and in particular from the decision of the Hon'ble Supreme Court in Cooper Engineering (supra), one thing is clear that whenever the Labour Court or the Industrial Tribunal decides the validity of the departmental inquiry conducted by the employer at the interlocutory stage, writ petition challenging the said order would not be maintainable. The Hon'ble Supreme Court in Cooper Engineering (supra) observed that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision which is at a preliminary issue and the same can be agitated even after the final award. The Hon'ble Supreme Court had also observed that it will be legitimate for the High Court to refuse to intervene at that stage. The Hon'ble Supreme Court had also observed that the above observations are made to ensure that there is no undue delay in industrial adjudication.
Thus, the Coordinate Bench has observed that whenever the Labour Court or the Industrial Tribunal decides the validity of the departmental inquiry conducted by the employer at the interlocutory stage, a writ petition challenging the said order would not be maintainable.
8. Thus, the present writ petition is disposed of with a clarification that it will be open for the petitioner to challenge the legality, validity and findings of domestic inquiry after the final award is passed before the appropriate forum by filing appropriate proceedings in case the award is passed against him. Rule is discharged.
(A. S. SUPEHIA, J)
ABHISHEK
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