Tukaram V.Desai vs The Railway Goods Clearing & ...
2017 Latest Caselaw 5583 Bom

                                                                        WP 430-01.doc

DDR

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        ORDINARY ORIGINAL CIVIL JURISDICTION
                              WRIT PETITION NO. 430 OF 2001


       Tukaram Vishnu Desai
       Indian Inhabitant of Bombay
       residing at Mohammed Kedia Chawl,
       Kaju Tekadi, Parshiwadi,
       Pipe Line, Ghatkopar (West),
       Mumbai 400 084.                               ...Petitioner

                        versus

       1. The Railway Goods Clearing and
       Forwarding Establishment Labour
       Board for Greater Bombay and
       Authority Constituted under
       Section (91) of the Mathadi, Act
       1969 having its office at
       84-A Broach Sadan, Devji
       Ratansey Marg, Danabunder,
       Mumbai 400 009.

       2. The Secretary,
       Labour & Industry Department,
       Mantralaya, Mumbai to be served
       on Asst. Government Pleader,
       Original Side, Mumbai.                        ...Respondents


                                          ..........
       Mr. V.P. Vaidya, for the Petitioner.
       Mr. Sanjay Prabhakar Shinde, for Respondent no.1.
       Mr. Kaushal Trivedi, AGP for Respondent no.2.
                                          ..........



                                                                                    1/13



      ::: Uploaded on - 04/08/2017                   ::: Downloaded on - 06/08/2017 00:51:59 :::
                                                                              WP 430-01.doc

                                   CORAM                            : A.A.SAYED AND
                                                                     M.S.KARNIK, JJ.

RESERVED ON : 26th July, 2017.

PRONOUNCED ON : 4th August, 2017

JUDGMENT (PER M.S. KARNIK, J.) :-

The challenge in this petition is to an order dated 7th

January, 2000 passed by the Deputy Labour Commissioner and

President of the Respondent no.1 Board, terminating services of the

petitioner from 7/1/2000.

2. The petitioner joined employment of respondent Board

on 20th March, 1978. He was working as a Table Clerk at Mulund

Yard for the period from April, 1989 to December, 1991. There were

two employees working as Table Clerks at Mulund Yard i.e. Shri

Shankar Vithal Jadhav and the petitioner. It is the case of the

petitioner that the work of both the clerks were identical wherein

they were required to take wages and levy deposited by the

registered employers, maintain registers to that effect and distribute

wages to the Mathadi workers concerned with the work of registered

employers. The work was divided into two tables i.e. Table No.12 and

WP 430-01.doc

Table No.13. The registered employers allotted to Table no.12 were

(a) Kapoor & Sons and (b) Farooque Ajju & Co. etc. It is the

petitioner's case that all allegations pertain to the non-payment of

wages and levy by the said two registered employers who are

concerned with Table no.12. There are no allegations against the

registered employers allotted to Table no.13.

3. On 26/6/1995, the petitioner was charge-sheeted on the

following charges :-

CHARGE NO.1

Adopted improper procedure, adopted pressurizing

tactics upon the colleagues and provoke them to disburse payment to

the worker and other financially beneficial amounts and cause

financial loss to the Board.

CHARGE NO.2

Preparing document / undertaking illegally and

collusively and deceive the Board and cause financial loss to it.

CHARGE NO.3

Not maintaining, intentionally the check muster

(documents) required to be maintain while working as Table Clerk

and deceive the Board.

WP 430-01.doc

CHARGE NO.4

Violate Board's Code of Conduct.

CHARGE NO.5

Lose the trust of the Board.

4. An inquiry was held against the petitioner in respect of

the charges levelled against him. Two witnesses i.e. Mr. Pednekar

Accountant and Mr. Shankar Vithal Jadhav were examined by the

Board to support the charges. The Inquiry Officer considering the

documents, the evidence, written statement submitted by both the

parties, analysis of each of the charge in the report held that the

charges levelled against the petitioner are proved. This eventually

led to the passing of the order of dismissal by the disciplinary

authority.

5. Learned Counsel for the petitioner assails the findings of

the Inquiry Officer in as much as according to him none of the

charges can be said to be proved. The inquiry officer's finding is

perverse as conclusion is not based on any material. Learned Counsel

for the petitioner was at pains to point out that all the allegations

were in respect of the registers maintained in respect of Table no.12.

WP 430-01.doc

The petitioner was working on Table no.13 and therefore, the

initiation of the inquiry itself was without any basis. According to

him, the evidence on record is sufficient to indicate that the

petitioner was working on Table no.13 and if that is so none of the

charges levelled against the petitioner can be said to be proved. It is

further submitted that the witness Shri Pednekar joined the Railway

Board in 1994 and had no personal knowledge in respect of the

events alleged in the charge-sheet which have taken place between

the period April, 1989 to December, 1991. It is further submitted that

Charge no.1 is based on the letter dated 4/6/1994 from Shri Shankar

Vithal Jadhav to the Chairman of the Board levelling certain

allegations against the petitioner. It is submitted that Shri Shankar

Vithal Jadhav was working on the Table no.12 and therefore, on the

basis of the letter dated 4/6/1994, Shri Jadhav tried to implicate the

petitioner and shift the blame on him. An inquiry was conducted

against Shri Jadhav. Shri Jadhav was terminated but he has not

challenged his termination.

6. Learned Counsel for the petitioner submits that no

reliance can be placed on the evidence of Shri Pednekar as he was

not working at the relevant period in respect of which the allegations

WP 430-01.doc

are made. Shri Jadhav was the concerned table clerk working on

Table no.12, in respect of the work of which table all the allegations

are made, Shri Jadhav was proceeded against with departmentally as

well as criminal proceedings are initiated against him, the evidence of

Shri Jadhav cannot be relied upon. In the submission learned Counsel

for the petitioner if the testimony of both these witnesses is

discarded, no evidence remains on record, in which case the findings

of the Inquiry Officer can be said to be based on no evidence and

hence perverse. Learned Counsel for the petitioner submits that the

findings of the Inquiry Officer is based on mere conjectures and not

on the materials on record. Learned Counsel further invited our

attention to the examination of Shri Pednekar particularly in respect

of question nos. 18,25,26,34,35,63,83,84,108,114 and 118. In his

submission though in cross examination Shri Pednekar has deposed

in favour of the petitioner, this part of the evidence is completely

ignored and the Inquiry Officer has arbitrarily come to the conclusion

that the petitioner is guilty of the allegations made against him. Even

as regards the alleged undertakings given by the petitioner which is

alleged to be made in 1991, it is submitted that the petitioner had

signed a blank stamp paper in respect of some tenancy / leave and

license for room in the neighbourhood where the petitioner was

WP 430-01.doc

living and that Shri Shankar Vithal Jadhav took advantage of his

signature on blank stamp paper.

7. Learned Counsel for the respondent on the other hand

supported the findings and conclusion of the Inquiry Officer.

According to him, the findings are based on the materials on record.

In his submission there is ample documentary evidence on record to

support the finding. Even Shri Pednekar is competent to depose as

witness. In his submission Shri Jadhav has deposed about the

working in respect of the Table no.12 and in this regard has admitted

that he was also a party to the illegal procedure adopted at the

instance of the petitioner which resulted in loss to the respondent. In

his submission inquiry officer on appreciation of the materials on

record has arrived at the findings that the charges are proved. He

submits that the inquiry is conducted in accordance with the

principles of natural justice and every possible opportunity is given to

the petitioner to defend himself. The petitioner has cross examined

the witnesses at length.

8. We have considered the submissions advanced by the

learned Counsel for the parties. We have gone through the inquiry

WP 430-01.doc

proceedings and the report of the inquiry officer. The Inquiry Officer

took into consideration the various documents produced by the

respondent Board during the course of the inquiry as well as the

documents submitted by the petitioner. Based on the evidence on

record the Inquiry Officer has arrived at the finding that the

petitioner was working as a table clerk on Table no.12 in Mulund

Railway Yard Branch during the relevant period. Although a sum of

Rs.1,91,842.03 was due from the employer to the Board, he

pressurised his then colleague Shri Shankar V. Jadhav, Table Clerk,

and forced him to distribute the wages of the workers and other

amounts. The Inquiry Officer has taken into consideration the letter

signed by the Table Clerk Shri Shankar Vithal Jadhav to the Board on

4/6/1994. The prevailing procedure of the Board is that if the

payment of labour charges and levy for more than one month

remains in arrears from the registered owner then in such a case, the

wages of the workers are disbursed generally with the prior

permission of superior officers of the Board. Neither the petitioner

obtained the permission of the superiors nor submitted the

particulars of the amount due and without informing his superiors

the petitioner took the decision of disbursement of payments to the

workers and thus the Board had to suffer heavy loss for which the

WP 430-01.doc

petitioner was liable. The Inquiry Officer took into consideration the

various registers, account statement of various Tolis and the

deposition of the witnesses. The Inquiry Officer took into

consideration that by a letter dated 25/4/1991, the petitioner was

asked to look after the work of Table No.12 and Shri Jadhav was

asked to look after the work of Table no.13 during the year 1990-91

and 1991-92. The original copy of this order is at Exh.125. During

the year 1990-91 to 1991-92 the Tolis working for M/s.Kapoor and

Sons and M/s. Farooque Ajju & Co. were concerned with Table No.12.

Even Shri Jadhav in his deposition stated that the petitioner was

working prior to him and that Shri Jadhav was doing the work of

Table No.13 and the petitioner was assigned Table no.12. It is at the

instance of petitioner that he was disbursing the payments to Tolis

attached to Table no.12. Though the Board has issued orders

assigning Table no.13 to Shri Jadhav but at the instance of the

petitioner he was disbursing payments to Tolis attached to Table

no.12. The petitioner was looking after the work of disbursement of

the amount of labour charges and levy from the owner and

contractor and whether the same has been received in Mulund Yard.

Shri Jadhav has clearly stated that besides himself and the petitioner

no one else was working in Mulund Yard during the period from

WP 430-01.doc

1990 to 1992 and that the registers of both their tables was one. It is

the petitioner who was pressuring and forcing Shri Jadhav to

disburse the payment.

9. The Inquiry Officer considered the objection of the

delinquent that Shri Pednekar joined Board on deputation from

16/9/1994 and as he was not in service during the concerned period

and therefore, it was not possible for him to know the then procedure

of work. According to the Inquiry Officer, Shri Pednekar who has

deposed in the inquiry was working as Accountant in the Board and

the clarification which he has made regarding the documents, is in

respect of those documents which are part of the record. The said

Shri Pednekar had information in that regard and could give

clarification. In these circumstances the Inquiry Officer was of the

opinion that it is not necessary that Shri Pednekar should have

actually worked at the said place during the relevant period and

hence relied upon the evidence of said Shri Pednekar. We do not find

the approach of the Inquiry Officer unreasonable or perverse.

10. As regards the contention of the learned Counsel for the

petitioner that Shri Jadhav while giving evidence and defending

WP 430-01.doc

himself was trying to shift the charges on the petitioner, the Inquiry

Officer has taken into consideration that the charges framed against

Shri Jadhav and the petitioner are near-about same. Both of them

were serving in Mulund Yard during the relevant period and both are

liable for the financial loss caused to the Board. Shri Jadhav in his

evidence categorically stated that the registers of both their tables

was one and both of them used to disburse payment to workers of

both the tables and prepare summary statements.

11. The Inquiry Officer based on the materials on record

came to the conclusion that the petitioner and Shri Jadhav both were

aware about the amounts due from the owners and therefore

although the amount was due from the owners, payment was being

made to the workers. In fact the petitioner undertook on the stamp

papers of Rs.10/- that the petitioner shall be liable for the concerned

amount and he has signed on the stamp paper. The petitioner in his

evidence has admitted that the signature on the stamp paper is his.

The Inquiry Officer has rejected the contention of the petitioner that

for transaction of the room at Ghatkopar, Shri Jadhav had obtained

signature of the petitioner on blank stamp paper and that he had

misused the same. According to the Inquiry Officer an educated

WP 430-01.doc

person will not sign on a blank stamp paper. Moreover the petitioner

submitted that both of them belong to the same village and since they

were in opposite groups, animosity between them had increased. The

Inquiry Officer in this background did not find it possible that the

petitioner would have signed blank stamp paper. Upon appreciation

of the evidence, the Inquiry Officer has come to the conclusion that

the purpose behind executing the agreement appears to be that both

were aware of the amount due from the owners. The agreement is

illegal. In these circumstances, the Inquiry Officer came to the

conclusion that the petitioner without informing the Board about the

amount due from the owners, the petitioner as well as Shri Jadhav

collusively executed an agreement and therefore held the charges as

proved.

12. Even as regard 3rd Charge, the Inquiry Officer concluded

that cheque musters for the concerned period were not maintained.

Without sending them to the Head Office, it was contended that the

same were sent and thus the Board was deceived. The Inquiry

Officer found that cheque musters were not prepared and were not

submitted to the Head Office of the Board.

WP 430-01.doc

13. Upon appreciation of the evidence on record, the Inquiry

Officer has returned the finding that the charges levelled against the

petitioner stand proved. It is not open for us to re-appreciate the

evidence on record in the exercise of writ jurisdiction. We do not find

that the findings of the Inquiry Officer are in any manner perverse as

the same are based on the materials on record. The inquiry has been

conducted in consonance with the principles of natural justice after

giving due opportunity to the petitioner. In these circumstances, we

do not find any reason to interfere with the order of dismissal passed

by the Disciplinary Authority. The Writ Petition is accordingly

dismissed with no order as to costs.

14. Rule to stand discharged.

 ( M.S.KARNIK, J.)                                        (A.A.SAYED, J.)