Maharashtra State Road Transport ... vs Bhimrao S/O Kashinath Dhole And ...
2023 Latest Caselaw 3481 Bom

                                                        1                                    18.WP.6940-2017.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO. 6940 OF 2017
   ( Maharashtra State Road Transport Corporation, Thr. Its Divisional
                         Controller, Bhandara
                                  Vs.
                 Bhimrao S/o Kashinath Dhole & Anr. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. V.H. Kedar, Advocate for the Petitioner.
                                  Mr. D.C.R. Mishra, Advocate for the Respondent No.1.
                                  Ms. Tajwar Khan, AGP for the Respondent Nos. 2 & 3/State.




                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 10th APRIL, 2023

Heard Mr. Kedar, learned counsel for the petitioner, Mr. Mishra, learned counsel for the respondent No.1 and Ms. Khan, learned AGP for the respondent Nos. 2 and 3/State.

2. The petition challenges the judgment dated 26.09.2014 passed by the learned Labour Court Bhandara allowing the complaint filed by the respondent No.1/complainant directing reinstatement of the respondent No.1/complainant on his former post with continuity of service and full backwages (page 149) and the dismissal of the Revision there against by the learned Industrial Court Bhandara by the judgment dated 15.03.2017 (page 157).

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3. It is contended by Mr. Kedar, learned counsel for the petitioner, that the guilt of the respondent No.1 stood established by the examination of Mr. Sole as the witness for the petitioner on the basis of documents which were exhibited, and therefore, the Courts below were not justified in granting the complaint directing reinstatement.

4. Mr. Mishra, learned counsel for the respondent No.1/original complainant supports the impugned judgments contending that mere marking of the documents do not dispense with its proof and considering the nature of the allegations, the independent witnesses were necessary to have been examined.

5. The nature of the incident, is reflected in para 2 of the judgment of the learned Labour Court, Bhandara (page 108) which indicates, that the respondent No.1 was driver of the vehicle and was charge-sheeted on 30.03.2002 alleging that he was guilty of forging police warrants alongwith the conductor namely Shri Nakul Kulkarni, and therefore, was guilty of misconduct. The departmental inquiry conducted against him has found him guilty. It is also not in dispute, that Shri Nakul Kulkarni the conductor passed away during the appeal proceedings, as a result of which, the complaint was only by the respondent No.1. The learned Labour Court, Bhandara had framed preliminary issues regarding to the fairness of the inquiry and perversity of

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the findings which were decided by the order dated 18.01.2011 holding that the inquiry was not fair and proper, and the findings were perverse. The petitioner was thereafter permitted to lead evidence to prove the charge. What is material to note, is that though the copies of the police warrants Exhs. C-43 to C-72 and certain other correspondence between the police officials, jail officials and the Divisional Controller M.S.R.T.C. Akola were exhibited as Exhs. C-73 to C-76, however since it is alleged, that certain police warrants, were seized from the residence of the respondent No.1/complainant, it was necessary to establish the seizure on record, by examining the panch witness to the seizure. Admittedly, the panch witness has not been examined, as a result of which, the seizure memo does not stand proved. It is the settled position of law, that mere marking of the document as an exhibit does not dispense with the proof of the same, in view of which, since the seizure memo was not proved, the seizure obviously cannot be relied upon. It is not in dispute, that only one witness was examined namely Mr. Sole by the respondents therein at Exh. C-29 who was the Divisional Traffic Officer, S.T. Bhandara, who admittedly was not the person who had witnessed the seizure memo/panchnama. Since, the linkage of the respondent No.1/complainant to the alleged misconduct was not established, in my considered opinion, the Courts below were justified in holding against the petitioner. That being the position, I do not see any reason to interfere in the impugned judgments which were well reasoned and

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considering all the material brought on record in their proper prospective, the Petition is therefore without any merit and it is accordingly dismissed. No costs.

JUDGE SD. Bhimte