K.S. Jhaveri, J.@mdashThis appeal is filed against the judgment and order dated 17.09.2012 passed by the learned single Judge in the captioned petition.
2. The main contention raised on behalf of the appellant-Company is that though the Labour Court had decided the reference u/s. 11A of the Industrial Disputes Act, no penalty was imposed while substituting the order of dismissal, particularly, when the departmental proceedings were admitted by the responded However, learned counsel Mr. Shah appearing with Mr. Songara for the respondent submitted that the findings of the enquiry officer were not admitted by the respondent, which is apparent from the application (Exh. 20) tendered by the respondent.
3. We have heard learned counsel for both the sides. It appears from the award passed by the Labour Court that the proceedings were decided u/s. 11A of the said Act. We find substance in the submission advanced by learned counsel for the appellant inasmuch as while substituting the order of dismissal, no penalty was imposed. The Labour Court partly allowed the reference by ordering reinstatement with 20% back wages. Section 11A of the Act requires that some penalty be imposed while substituting major penalty like dismissal. Considering the above aspect, the impugned orders passed by both the labour Court as also the learned single Judge are erroneous and the matters deserves reconsideration.
4. In view of the above, the award dated 18.06.2007 passed by the Labour Court in Reference (LCV) No. 912/2000 as also the impugned order dated 17.09.2012 passed by the learned single Judge are quashed and set aside. Learned counsel Mr. Shah appearing for the respondent sought permission to withdraw application (Exh. 20) filed before the Labour Court (At annexure-G to the petition), which is granted.
4.1 The matter is remanded to the Labour Court concerned for consideration the stage where application (Exh. 20) was filed by the respondent. Since application (Exh. 20) has been withdrawn, orders which have been passed by the Labour Court on the basis of the proceedings being u/s. 11A of the Act, will not survive. The Labour Court concerned will proceed further from the stage where application (Exh. 20) was filed and which now stands withdrawn. The Labour Court will hear and consider all legal submissions/contentions that shall be raised by both sides and it shall not be influenced by the observations made by it in the earlier award dated 17.09.2012 nor by the observations made by this Court in the order of learned single Judge as also in the present order. This Court has not expressed any opinion on the merits of the case since application (Exh. 20) u/s. 11A of the Act has been withdrawn.
4.2 It is hoped that the Registry of the Labour Court concerned will not assign the Reference to the same Judge who had decided the matter earlier. With the above observations and direction, the appeal stands disposed of.
