The Municipal Council, Bhandara, through its Chief Officer Vs The Industrial Court, Nagpur, & Anr.
Bench: DIVISON BENCH
Acts Referenced
Judgement Snapshot
Case Number
93 of 09 & 145 of 09
Hon'ble Bench
B.P. Dharmadhikari, Arun D. Upadhye
Advocates
M.I. Dhatrak, N.P. Mehta
Acts Referred
- Code of Criminal Procedure, 1973, Section 110 - Security for good behaviour from habitual offenders
- Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965,
Judgement Text
Translate:
1. Judgment delivered on 29.1.2009 by learned Single Judge in Writ Petition No. 906/01 is questioned by petitioner employer therein in L.P.A. No. 93/09. Employee Ashok has questioned the very same judgment in L.P.A. No. 145/09.
2. The learned Single Judge while partly allowing Writ Petition found that the order of dismissal dated 17.12.1992 passed by employer needed to be maintained but direction given by Labour Court to employer to reinstate employee with full back wages has been set aside. Employer has been given liberty to hold departmental enquiry and to take action as per law afresh.
3. The learned Single Judge has also observed that if within six weeks employer decides to take action, the employee would be deemed to be under suspension. Otherwise, he would be reinstated back in service. In that contingency, employer has been directed to pay back wages at 25% from 7.12.1992 till 27.1.1997 and thereafter at 50% till actual reinstatement. In case decision to hold departmental enquiry was taken, the learned Single Judge directed employer to treat employee under suspension and granted employee liberty to claim subsistence allowance as per Rules.
4. Employer seeks deletion of the later direction to hold enquiry or to reinstate. According to employer, order of termination dated 17.12.1992 must be maintained as it is and no relief can be given to employee.
5. The employee questions the liberty given to employer and seeks relief of reinstatement with full back wages and continuity.
6. L.P.A. No. 145/09 has been filed by employee on 2.3.2009. L.P.A. No. 93/09 came to be filed on 7.3.2009 by employer. In L.P.A. filed by employer on 18.3.2009 while issuing notice Division Bench directed that both L.P.As. should be listed together. On 27.4.2009 the L.P.A. No. 93/09 came to be admitted for final hearing and this Court then granted interim relief in terms of prayer clause in Civil Application No. 163/09. Thus, effect and operation of judgment dated 29.1.2009 delivered by learned Single Judge came to be stayed, with the result, no further decision whether to conduct enquiry or not has been taken till date. Employee admittedly is more than 66 years old as of now.
7. In this backdrop, we have heard Mr. M.I. Dhatrak, learned Advocate for employer and Ms. N.P. Mehta, learned A.G.P. for respondent Industrial Court. Nobody has appeared for employee.
8. Mr. M.I. Dhatrak, learned Advocate for employer, submits that the employee was convicted by Criminal Court and as such, under Section 79(3) of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 holding of departmental enquiry was not necessary. He submits that thus emphasis on resolution of Standing Committee and direction to hold departmental enquiry is unwarranted and erroneous. He further submits that accordingly in fact a departmental enquiry was started, due opportunity was given to employee and when he did not appear, the matter was again placed before the Standing Committee. Standing Committee in view of these developments, on 7.3.1992 permitted Chief Officer to proceed further as per law. Hence, decision to terminate was taken on 17.12.1992. He, therefore, prays for allowing L.P.A. No. 93/09 and for dismissing L.P.A. No. 145/09.
9. The perusal of order of removal dated 17.12.1992 reveals that at that time employee Ashok was already under suspension. The order informs him that pursuant to the Resolution No.1 of Standing Committee dated 7.3.1992 he was retrenched from post of Naka Mohrir with effect from 7.12.1992. Resolution of Standing Committee dated 7.3.1992 and necessary developments are pointed out by an employee in paragraph no. 8 of Written Statement filed before the Labour Court at Bhandara. In that paragraph it is mentioned by employer that various dates were given to employee by Enquiry Officer and employee was also served with notice to remain present on such dates. However, he did not turn up and also did not apply for adjournment. Because of his continuous absence enquiry could not be completed. Matter was, therefore, placed before the Standing Committee as Standing Committee had earlier directed holding of departmental enquiry. This Resolution passed by Standing Committee on 25.3.1991, service of chargesheet dated 13.5.1991 and nonparticipation thereafter by employee is not in dispute. Thus, employer had in obedience to directions issued by Standing Committee attempted to complete the departmental enquiry. When the employee, i.e. complainant before Labour Court did not cooperate, with proper report the matter was again placed before the Standing Committee. Standing Committee then resolved vide Resolution No. 2 on 31.10.1991 that employee should be given one month''s notice before termination. This notice was then served upon him and he replied to it on 24.12.1991. Again the notice and reply was put up before the Standing Committee on 7.3.1992. Standing Committee did not find reply of employee satisfactory and hence, resolved to terminate employee/complainant. The matter was then submitted to Collector, Bhandara and after his approval the order of termination was passed.
10. The order of termination dated 17.12.1992 mentions resolution of Standing Committee dated 7.3.1992.
11. The imposition of fine and conviction by Criminal Court is not in dispute. The learned Single Judge has referred to it in opening paragraph of judgment. Employer Municipal Council received notice from Police Station that three offences under the Prevention of Gambling Act were registered against employee and in one matter he was convicted under Section 12 thereof. He was sentenced to pay fine of Rs.45/and in default, to undergo imprisonment for ten days. Two other cases were pending against him under Sections 4 & 5 of the Gambling Act. Proceedings under Section 110 Criminal Procedure Code were also initiated against him.
12. It is in this backdrop that the Chief Officer of Municipal Council placed a report before the Standing Committee and sought necessary orders. Standing Committee then on 25.3.1991 directed holding of enquiry. Developments after this date are already narrated by us supra.
13. Section 79 of the Maharashtra Municipal Council, Nagar Panchayat and Industrial Township Act, 1965 is about punishment of officers and servants. Section 79(3) prohibits removal or dismissal from service unless employee is given a reasonable opportunity of showing cause against it. The subsection has two provisos and in facts covered by said proviso, such an opportunity is also not necessary. As per proviso (b), if Competent Authority is satisfied that it is not reasonably practicable to give such person an opportunity of showing cause, the opportunity need not be given. We are concerned with proviso (a). Thus, where employee is being reduced, removed or dismissed on the ground of conduct which has led to his conviction on a criminal charge, grant of opportunity is not necessary.
14. In the present matter, employee was caught red handed at his duty place, i.e. at Octroi Naka and for that he has been punished by competent Criminal Court under Section 12A of Prevention of Gambling Act. Thus, it is not only gambling but gambling at duty place which has led to his conviction. On account of this conviction, the Chief Officer of Municipal Council wanted to proceed against employee as per law. In the light of Section 79(3)(a) Municipal Council could have dispensed with requirement of giving opportunity and straightaway passed an order of removal/retrenchment, but members of Standing Committee were benevolent and they decided to give opportunity to employee. Accordingly, opportunity was given to employee and a chargesheet was served upon him. When he did not participate in departmental enquiry, Chief Officer again submitted a report and pointed out his nonparticipation. It is at that juncture that Standing Committee has passed second resolution.
15. It is, therefore, obvious that in present facts when conviction is not in dispute, opportunity granted to employee under Section 79(3) is more than sufficient. Though legally no such opportunity should have been granted, he was given the same and he could not make effective use thereof and as he could not have disproved his conviction.
16. In this situation, the employer Municipal Council has rightly passed an order of removal from service on 17.12.1992.
17. We find that the sequence of events and mandate of Section 79(3)(a) is lost sight of by the learned Single Judge.
18. Accordingly, we maintain the order of dismissal dated 17.12.1992 passed by employer Municipal Council and quash and set aside all other directions issued to it by the learned Single Judge. Thus, Writ Petition No. 906/01 filed by employer Municipal Council is fully allowed.
19. L.P.A. No. 93/09 is accordingly allowed. Consequently, L.P.A. No. 145/09 is dismissed. However, in the circumstances of the case, there shall be no order as to costs.
