Baban Balkurshna Kadam vs Maharashtra State Road Transport ...
2016 Latest Caselaw 6457 Bom

                                                    *1*                          23.wp.7651.16


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD




                                                                                  
                                 WRIT PETITION NO. 7651 OF 2016




                                                          
    Baban Balkurshna Kadam,
    Age : 58 years, Occupation : Nil,
    R/o At Post Bhanashivre,




                                                         
    Tq.Newasa, District Ahmednagar.
                                                      ...PETITIONER

              -VERSUS-




                                               
    1         Maharashtra State Road Transport
              Corporation, Ahmednagar Division,
                                     
              Sarjepura, Kotla, Ahmednagar.
              Through its Divisional Controller.
                                    
    2         Divisional Traffic Officer,
              Maharashtra State Corporation,
              Ahmednagar Division,
              Sarjepura, Kotla, Ahmednagar.
       

                                                      ...RESPONDENTS
    



                                             ...
                      Advocate for Petitioner : Shri Barde Parag Vijay.
                  Advocate for Respondents : Shri Deshmukh Bhausaheb S.
                                             ...





                                           CORAM:  RAVINDRA V. GHUGE, J.

DATE :- 15th November, 2016

Oral Judgment :

1 Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

                                                         *2*                           23.wp.7651.16


    2               The Petitioner is aggrieved by the judgments of the Labour 




                                                                                       

Court dated 30.12.2010 and 17.09.2011 thereby, dismissing his Complaint

(ULP) No.36/2009 and the judgment of the Industrial Court dated

16.12.2015 by which Revision (ULP) No.79/2011 has been dismissed.

3 Shri Barde, learned Advocate for the Petitioner, has

strenuously submitted that the enquiry conducted against the Petitioner

with regard to the charge of allegedly allowing four passengers to travel

ticket-less thereby, resulting into loss of Rs.200/- to the Respondent/

MSRTC, suffers from non observance of the principles of natural justice.

He further submits that evidence recorded in the departmental enquiry

cannot be said to be sufficient to hold the Petitioner guilty of the alleged

misconduct under the various clauses of Schedule-A of the Discipline and

Appeal procedure of the Respondent Corporation.

4 Shri Barde submits that the Petitioner joined in 1979 as a Bus

Conductor with the Respondent Corporation. He was dismissed from

service on 18.09.2009. He challenged his dismissal before the Labour

Court vide Complaint (ULP) No.36/2009. By the part-1 judgment dated

30.12.2010, the enquiry was held to be fair, legal and proper and the

findings of the Enquiry Officer were sustained. This judgment is perverse

and deserves to be quashed and set aside.

                                                          *3*                            23.wp.7651.16




                                                                                         
    5               He  further submits that the  judgment dated 17.09.2011 by 

which the Labour Court has dismissed the complaint is perverse and

unsustainable. The punishment of dismissal from service amounts to civil

death and cannot be sustained on the ground of alleged misappropriation

of Rs.200/-. The Industrial Court lost sight of the error and perversity in

both the judgments of the Labour Court and has erroneously dismissed the

revision petition without proper application of mind.

6 Shri Barde has taken me through the facts of the case in much

details and has vehemently prayed that this petition deserves to be

allowed and the Petitioner deserves to be granted continuity in service

with full back wages from the date of dismissal till the date of his

attaining the age of superannuation.

7 Shri Deshmukh, learned Advocate for the Respondent/

MSRTC, has supported the impugned judgments.

8 With the assistance of both the learned Advocates, I have

gone through the petition paper book and the impugned judgments.

    9               Insofar   as   the   challenge   of   the   Petitioner   to   the   part-1 





                                                        *4*                           23.wp.7651.16

judgment dated 30.12.2010 is concerned, the Labour Court has noted

from the record and proceedings of the enquiry that the Petitioner was

granted a reasonable opportunity to defend himself in the enquiry. The

documents placed on record in the enquiry were supplied to him. The

Petitioner was assisted by his defence representative. In the entire enquiry,

the Petitioner has not raised any grievance of failure on the part of the

Enquiry Officer in giving him an opportunity to defend himself. These

findings were considered by the Industrial Court and which concluded

that there is no perversity. As such, the enquiry cannot be said to have

been conducted in violation of the principles of natural justice.

10 Insofar as the evidence on record is concerned, it is settled

law that there should be some material before the Enquiry Officer by

which he can reasonably conclude that the charges levelled upon the

delinquent are proved. In the instant case, the Labour Court has

considered the entire evidence recorded in the enquiry from paragraph 6

onwards. It was also taken into account that the defence representative of

the Petitioner, who was said to be experienced in defending the

delinquents in departmental enquiries, has fully participated in the

enquiry. The Labour Court also considered that the Petitioner had

admitted that two passengers travelling in a group from Newasa to

Pandharpur, had made a statement that the Petitioner had collected an

*5* 23.wp.7651.16

amount of Rs.326/-, but had failed in issuing tickets for an amount of

Rs.200/-. In this backdrop, the Labour Court concluded that there was

evidence before the Enquiry Officer to hold the Petitioner guilty of having

misappropriated Rs.200/-.

11 The Honourable Supreme Court has crystallized the law in

the matters of Karnataka SRTC vs. B.S.Hullikatti, AIR 2001 SC 930 : 2001

(2) SCC 574 and Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane,

(2005) 3 SCC 254, that passengers who have made a statement at the

time of the spot inspection of the bus, need not be examined in the

departmental enquiry and their non appearance would not, in any

manner, affect the result of the enquiry. As such, in my view, the Labour

Court has rightly concluded that the enquiry was conducted in a fair

manner and the findings of the Enquiry Officer are not perverse. The

Industrial Court has, therefore, rightly rejected the contention of the

Petitioner on this count.

12 It is settled law that once the enquiry is sustained, the charges

stand proved before the Court. The issue that remains for adjudication of

the Labour Court would be as regards the proportionality of the

punishment. The Honourable Supreme Court in the matter of Janatha

*6* 23.wp.7651.16

Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) vs.

Secretary, Sahakari Noukarara Sangha, 2000(7) SCC 517 : AIR 2000 SC

3129 and the Honourable Division Bench of this Court in P.R.Shele vs.

Union of India and others reported in 2008 (2) Mh.L.J. 33, have laid

down the law that quantum of misappropriated amount would have no

bearing on the charge of misappropriation having been proved. Whether,

the amount is small or large would not make any dent on the decision of

the employer to dismiss an employee for having indulged in

misappropriation. In the instant case, the charge of misappropriating

Rs.200/- has been proved.

13 It has come on record before the Labour Court and the

Industrial Court that the past service record of the Petitioner is

substantially blemished. He was guilty of misappropriation on a few

occasions and was given an opportunity to improve his conduct. Despite

several opportunities, the Petitioner was apprehended in the act at issue

which occurred on 20.10.2007 and the charge of misappropriation was

proved.

14 In the light of the above, I do not find that the Labour Court

or the Industrial Court have committed any error in concluding that the

punishment awarded to the Petitioner is commensurate to the gravity and

*7* 23.wp.7651.16

seriousness of the misconduct proved. This Writ Petition being devoid of

merit is, therefore, dismissed. Rule is discharged.

    kps                                                 (RAVINDRA V. GHUGE, J.)