Dagadu Vasant Mudgal vs Maharashtra State Road Transport ...
2023 Latest Caselaw 3614 Bom

2023:BHC-AS:11187
                                                                          16-WP4572-2023.DOC

                                                                                             Santosh
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION


                                    WRIT PETITION NO. 4572 OF 2023

               Dagadu Vasant Mudgal                                                ...Petitioner
                                   Versus
               Maharashtra State Road Transport
               Coporation                                                       ...Respondent

               Mr. Shrikrishna Ganbawale, a/w Kush Lahankar, for the
                    Petitioner.


                                                       CORAM:       N. J. JAMADAR, J.

                                                       DATED :      12th APRIL, 2023
               ORDER:-

1. Heard Mr. Ganbawale, the learned Counsel for the

petitioner.

2. The petitioner assails legality, propriety and correctness of

the judgment and order dated 8th February, 2023 passed by the

learned Member, Industrial Court at Kolhapur in Revision

Application (ULP) No.59 of 2018, whereby the revision

application preferred by the petitioner assailing the order dated

1st January, 2018 passed by the Labour Court in Complaint

(ULP) No.38 of 2011 holding that the enquiry initiated against

the petitioner was legal and the findings recorded by the

Enquiry Officer were not perverse, came to be dismissed by

affirming the order of the Labour Court.

16-WP4572-2023.DOC

3. Petitioner was working as a Conductor with the

respondent - Corporation. On 31 st May, 2009, an Inspector

inspected the tickets and cash at hand with the petitioner. It

was found that the petitioner had reissued already punched

tickets. Tickets for excess amount were issued to the

passengers. The cash at hand was found short by Rs.212/-.

The petitioner thus allegedly committed misconduct under

Clauses 7(e), 10 and 22 of the Service Rules. Eventually enquiry

was conducted and a show cause notice as to why the petitioner

be not dismissed from service came to be issued.

4. The petitioner filed Complaint (ULP) No.38 of 2011 alleging

unfair labour practice under Item 1(a), (b), (d), (f) and (g) of

Schedule IV of the Maharashtra Recognition of Trade Union and

Prevention of Unfair Labour Practice Act, 1971 ("the Act, 1971").

By a judgment and award Part-I dated 1 st January, 2018, the

learned Judge, Labour Court, was persuaded to decide the

preliminary issues of the enquiry being legal and findings not

being perverse against the petitioner. The matter was carried in

revision. By the impugned order the revision application came

to be dismissed.

5. Mr. Ganbawale, the learned Counsel for the petitioner,

urged two ground to assail the impugned orders. There was no

16-WP4572-2023.DOC

charge of misappropriation. However, the Courts below

misdirected themselves in observing that the petitioner was

guilty of misconduct on the premise that the petitioner

misappropriated the amount. Attention of the Court was invited

to the charge-sheet (Exhibit-A) wherein the petitioner was not

charged with misappropriation of the amount. Second, the

petitioner was deprived of an effective opportunity of hearing as

the passengers whose statements were recorded during the

course of initial enquiry were not offered to the petitioner for

cross-examination.

6. On the first count, the Labour Court was of the view that

it was not imperative to examine the passengers whose

statements were recorded during the course of inspection.

Moreover, the petitioner never sought the examination of those

passengers during the course of enquiry. In any event,

according to the Labour Court, the non-examination of the

passengers was not fatal in a disciplinary proceedings.

7. No fault can be found with the aforesaid approach of the

Labour Court. It is not the case that the passengers were

examined during the course of disciplinary enquiry and no

opportunity to cross-examine them was availed to the petitioner.

It does not seem that the petitioner, during the course of

16-WP4572-2023.DOC

enquiry, urged that he be given an opportunity to either

examine those passengers or cross-examine them with regard to

the statements made by them during the course of inspection.

Non-examination of passengers, in the backdrop of the charge,

even otherwise, does not seem to be such a lacuna as to render

the enquiry illegal.

8. The challenge to the impugned orders on the aspect of the

alleged perversity of the findings based on absence of charge of

misappropriation also does not carry much substance. There

was material to indicate that the petitioner had reissued already

punched tickets and an explanation was sought to be offered

that he was required to reissue the tickets as he had refunded

the amount to one of the passengers. That explanation did not

find favour with the Enquiry Officer. Implicit in the said

explanation was the admission that the already punched tickets

were reissued in the breach of the Rule. Likewise, the finding

that the cash at hand was found short by Rs.212/- was based

on cogent material. In the circumstances, the findings recorded

by the Enquiry Officer cannot be termed as perverse.

9. So far as the contention of Mr. Ganbawale that the Courts

below unjustifiably observed that there was misappropriation by

the petitioner, it would be suffice to clarify that the Labour

16-WP4572-2023.DOC

Court while passing the Part-II award would proceed on the

premise that Part-I award was restricted to the consideration of

the legality of the enquiry and perversity of the findings and

shall not be influenced by the observations in respect of the

alleged misappropriation.

10. The petition thus stands dismissed subject to the

aforesaid clarification.

[N. J. JAMADAR, J.]