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SCA/4132/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4132 of 2011
=========================================================
M/S
UNITED PHOSPHOROUS LTD - Petitioner(s)
Versus
DALPATBHAI
FATESINGH PATEL - Respondent(s)
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Appearance :
NANAVATI
ASSOCIATES for
Petitioner(s) : 1,
MR DS VASAVADA for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 24/08/2011
ORAL
ORDER
1. Learned
Advocate, Mr.Joshi, for Nanavati Associates for petitioner invited
attention of the Court to a decision of the Hon’ble Apex Court in the
matter of ‘ Shambhu Nath Goyal Vs. Bank of Baroda & Ors.,
reported in (1983) 4 SCC 491’. Learned Advocate invited
attention of the Court to paragraph No.16 of the said judgment which
reads as under:
“16. We
think that the application of the management to seek the permission
of the Labour Court or Industrial Tribunal for availing the right to
adduce further evidence to substantiate the charge or charges framed
against the workman referred to in the above passage is the
application which may be filed by the management during the pendency
of its application made before the Labour Court or Industrial
Tribunal seeking its permission under Section 33 of the Industrial
Disputes Act, 1947 to take a certain action or grant approval of the
action taken by it. The management is made aware of the workman’s
contention regarding the defect in the domestic enquiry by the
written statement of defence filed by him in the application filed by
the management under Section 33 of the Act. Then, if the management
chooses to exercise its right it must make up its mind at the
earliest stage and file the application for that purpose without any
unreasonable delay. But when the question arises in a reference
under Section 10 of the Act after the workman had been punished
pursuant to a finding of guilt recorded against the workman, for the
defect in the domestic enquiry is pointed out by the workman in his
written claim statement filed in the Labour Court or Industrial
Tribunal after the reference had been received and the management has
the opportunity to look into that statement before it files its
written statement of defence in the enquiry before the Labour Court
or Industrial Tribunal and could make the request for the opportunity
in the written statement itself. If it does not choose to do so at
that stage it cannot be allowed to do it at any later stage of the
proceedings by filing any application for the purpose which may
result in delay which may lead to wrecking the morale of the workman
and compel him to surrender which he may not otherwise do.”
1.1 Learned
Advocate for the petitioner submitted that in view of the aforesaid
clear position of law, the award and order passed by the Labour Court
is required to be quashed and set aside and the petitioner is
required to be given an opportunity to prove the misconduct of the
respondent before the Labour Court.
2. Learned
Advocate, Mr.Vasavda, appearing for respondent states that in written
statement, paragraph No.6 only about the departmental inquiry is
mentioned to the effect that in the event if the learned Judge of the
Labour Court comes to the conclusion that the departmental inquiry
was not legal and was not in accordance with the principle of natural
justice then in that case the establishment (petitioner herein) be
given an opportunity to prove the charges levelled against the
respondent before the Court. He submitted that it is not mentioned
in the paragraph No.6 that in the event the Court comes to the
conclusion that the departmental inquiry is legal and is not in
violation of principle of natural justice and the findings recorded
in the departmental inquiry are perverse then also the establishment
be given an opportunity to prove the charges levelled against the
respondent – workman.
2.1 Learned
Advocate, Mr.Vasavda wants time to cite decision/s in support of his
aforesaid submission. Matter to come up for hearing on 26/08/2011.
(RAVI
R TRIPATHI, J.)
sompura
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