Bombay High Court
Ananda Ramchandra Salunkhe vs Maharashtra State Road Transport ... on 11 February, 2025
2025:BHC-AS:6701
Neeta Sawant WP-8566-2006-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8566 OF 2006
Mr. Ananda Ramchandar Salunkhe
Age 47, Occ. Unemployed
Kavalapur, Taluka : Miraj,
District : Sangli. .... Petitioner
-Versus-
Maharashtra State Road Transport Corpn.
Sangli Division, Sangli (through its
Divisional Traffic Superintendent .... Respondent
Ms. Seema Sarnaik, Senior Advocate i/b Mr. Anant Vadgaonkar, for the
Petitioner.
Ms. Pinky M. Bhansali with Ms. Dharni Jain, for the Respondent-MSRTC.
CORAM : SANDEEP V. MARNE, J.
Reserved On : 30 January 2025.
Pronounced On : 11 February 2025.
JUDGMENT :
1) Petitioner, an ex-conductor of Maharashtra State Road
Transport Corporation has filed this petition challenging the judgment
and order dated 8 March 2001 passed by the Labour Court, Sangli
dismissing Complaint (ULP) No.51/1998, in which he had challenged
the order of his dismissal from service dated 10 March 1998. The order
of the Labour Court has been confirmed by the Industrial Court, Sangli
by dismissing Petitioner's Revision Application (ULP) No.49/2004 vide
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judgment and order dated 11 August 2006, which is also subject matter
of challenge in the present petition.
2) Petitioner was appointed as Conductor in Maharashtra
State Road Transport Corporation (MSRTC) in the year 1989 on daily
wages. He was confirmed in service in the year 1995. On 14 July 1996,
he was deputed to work as Conductor in the bus No. 1059 of MSRTC on
Sangli to Jat route. The bus was checked at Kavathe Mahankal bus
station by the checking squad consisting of three checking officers.
Based on the report submitted by the checking squad, chargesheet was
issued to the Petitioner on 5 August 1996 alleging two charges viz.
(i) that one passenger was detected without ticket from whom the
Petitioner had already collected the fare and (ii) Petitioner was detected
with excess of Rs.30.25/-. Based on the said charges, enquiry was
conducted in which the concerned passenger apparently did not remain
present. MSRTC however examined one of the members of the
checking squad in the enquiry. The witness was cross-examined by the
Petitioner based on the evidence recorded in the enquiry. The Enquiry
Officer submitted report submitting that the charges levelled against the
Petitioner were proved and after considering his past misconduct, he
proposed imposition of penalty of dismissal from service. Accordingly,
Petitioner was served with show cause notice dated 21 February 1998
proposing to impose the penalty of dismissal from service. Petitioner
has submitted his reply to the show cause notice on 26 February 1998.
The Disciplinary Authority thereafter proceeded to pass order dated
10 March 1998 imposing the penalty of dismissal from service on the
Petitioner.
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3) Petitioner filed Complaint (ULP) No. 51/1998 before the
Labour Court, Sangli challenging its dismissal order. In that complaint,
the Labour Court passed interim order dated 14 September 1998
directing MSRTC to reinstate him during pendency of the complaint.
MSRTC preferred Revision Application (ULP) No. 249/1998 before the
Industrial Court, Solapur challenging the interim order dated
14 September 1998. The Revision Application was however dismissed
on 21 December 1998. MSRTC thereafter filed Writ Petition No.
1806/1999 in this Court challenging the orders of the Labour and
Industrial Courts. This Court recorded consent of both the parties by
order dated 6 July 2000 and set aside the interim order of the Labour
Court as confirmed by the Industrial Court and directed the Labour
Court to decide the Complaint (ULP) No. 51/1998 expeditiously within
a period of 6 months.
4) The Labour Court thereafter passed order dated
22 November 2000 answering the preliminary issue relating to fairness
in the enquiry and perversity in the findings of the Enquiry Officer
against the Petitioner by holding that the enquiry was fair and proper
and that there was no perversity in the findings of the Enquiry Officer.
Petitioner challenged order dated 22 November 2000 on preliminary
issue before the Industrial Court, Kolhapur by filing Revision
Application (ULP) No. 211/2000, which came to be dismissed by order
dated 16 January 2001. Petitioner approached this Court by filing
Writ Petition No. 829/2001, which came to be dismissed by order dated
14 February 2001. This Court however observed that all contentions
raised by the Petitioner in the petition about fairness in the enquiry and
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perversity in the findings were left open to be decided if Petitioner still
felt aggrieved by the final order of the Labour and Industrial Courts.
The Labour Court thereafter proceeded to decide the remaining issues
by its final judgment and order dated 8 March 2001 and dismissed
Petitioner's complaint. Petitioner applied for review of the final
judgment and order dated 8 March 2001 by filing Misc. (ULP)
No.3/2001, which came to be dismissed by the Labour Court by order
dated 1 July 2004. Petitioner thereafter filed Revision Application (ULP)
No.49/2004 in Industrial Court, Sangli, which came to be dismissed by
judgment and order dated 11 August 2006. Petitioner has accordingly
filed the present petition being aggrieved by the orders passed by the
Labour and Industrial Courts. By order dated 23 January 2007, this
Court admitted the petition. The petition is called out for final hearing.
5) Ms. Sarnaik, the learned senior advocate appearing for the
Petitioner would submit that the Labour Court has erred in dismissing
Petitioner's complaint without appreciating the fact that there is
absolutely no evidence on record to hold him guilty of the charges. She
would submit that MSRTC did not examine the concerned passenger in
the enquiry and in absence of his deposition, it was impossible to hold
the charge of the said passenger paying the fare to the Petitioner and
the Petitioner not issuing ticket to him. That only the concerned
passenger was the best person to lead evidence in support of the
allegation of payment of fare and failure on the part of the Petitioner to
issue ticket. She would submit that since MSRTC failed to examine the
passenger, Petitioner initially filed Petitioner's Affidavit in the Labour
Court and examined him as a witness before the Labour Court, who
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gave evidence that Petitioner had issued ticket to him and had also
refunded the remaining change amount to him. She would submit that
the evidence led by the passenger before the Labour Court conclusively
disproves the first charge levelled against the Petitioner. Ms. Sarnaik
would submit that this Court had specifically kept open the issue of
fairness in the enquiry while disposing off Writ Petition No. 1806/1999
and that therefore the Petitioner was entitled to lead evidence before
the Labour Court.
6) Ms. Sarnaik would further submit that there is inherent
defect in the enquiry and the dismissal order since the same authority
issued chargesheet and conducted enquiry and issued show cause
notice and passed dismissal order. That it is impermissible for the same
person to perform different roles in the domestic enquiry and on that
count, the findings recorded in the enquiry as well as the dismissal
order are vitiated. In support, she would rely upon judgment of this
Court in Maharashtra State Road Transport Corporation, Wardha Versus.
Rajendra Mohanlal Chhangani1.
7) Ms. Sarnaik would further submit that there is gross
violation of principles of natural justice during the course of conduct of
enquiry. That Petitioner was not provided with copy of the way-bill.
That upon subsequent perusal of the way-bill, it is transpired that both
the charges of failure to issue ticket to the passenger as well as detection
of excess cash is clearly disproved. She would take me through the
concerned way-bill to demonstrate as to how both the charges are
Writ Petition No. 6653/2019 decided on 22 October 2019 (Bench at Nagpur).
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clearly disproved. Ms. Sarnaik would accordingly submit that the
finding of guilt recorded in the enquiry was erroneously upheld by the
Labour and the Industrial Courts, whose findings are clearly perverse
and liable to be set aside. She would accordingly pray for setting aside
the dismissal order of the Petitioner.
8) The petition is opposed by Ms. Bhansali, the learned
counsel appearing for MSRTC. She would submit that the Labour and
Industrial Courts have concurrently upheld the order of dismissal of
Petitioner from service. She would submit that the findings with regard
to fairness in the enquiry and perversity in the findings have also
attained finality on account of dismissal of Writ Petition No. 1806/1999
on 6 July 2000. That therefore it was impermissible for the Petitioner to
lead any evidence in addition to the one appearing before the Enquiry
Officer. That MSRTC earnestly attempted to examine the passenger in
the enquiry by issuing him notice. That the passenger however refused
to participate in the enquiry. That the checker who was part of the
checking squad has been examined in the enquiry, who has given
evidence about all the events occurring at the time of checking the bus.
That the witness has proved the check report reflecting that the
Petitioner had misconducted in not issuing ticket to the passenger
despite collecting the fare as well as possessing excess cash. She would
submit that there are inconsistencies in the version of the passenger in
his various statements recorded at different times and that therefore it
is otherwise dangerous to rely upon such inconsistent evidence of the
passenger. She would submit that the charges levelled against the
Petitioner are of serious nature amounting to corruption and since the
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charges are concurrently proved at three levels of Enquiry Officer,
Labour Court and Industrial Court, this Court would be loathe in
interfering in the said findings by undertaking the exercise of re-
appreciation of evidence. She would submit that the past service record
of the Petitioner was riddled with misconduct on as many as on eight
different occasions. That therefore there is no warrant for interference in
the orders passed by the Labour and the Industrial Courts. She would
pray for dismissal of the Petition.
9) Rival contentions of the parties now fall for my
consideration.
10) Petitioner faced two charges in the domestic enquiry
initiated against him vide chargesheet dated 5 August 1996. The
charges emanate out of the Inspection Report of the checking squad
which checked Petitioner's bus on 14 July 1996. The bus of the Petitioner
was checked at Kavathe Mahankal bus station and the checking squad
found that one passenger was without ticket. The without ticket
passenger, Rangrao Bapurao Kulkarni was travelling from Sangli to
Kavathe Mahankal and informed the checking squad that he had
handed over note of Rs.50/- to the Petitioner for purchase of the ticket
from Sangli to Kavathe Mahankal and that the Petitioner returned to
him the amount of Rs.37.75/-, but did not issue ticket till the bus
reached Kavathe Mahankal. The checking squad therefore collected
unpunched ticket No. 467088 of Rs.12.25/- for excess amount. The
checking squad thereafter counted the cash of the Petitioner and
compared the same with the tickets sold by him and it was found that
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Rs.30.25/- was detected excess with the Petitioner which the checking
team deposited in the S.T. Account by issuing a receipt. Accordingly,
two charges were levelled against the Petitioner of (i) failure to issue
ticket to the passenger-Rangrao Bapurao Kulkarni despite collecting
fare from him and (ii) detection of Rs.30.25/- excess in S.T. cash. It
appears that the checking squad recorded Petitioner's statement on
14 July 1994 in which he stated that he inadvertently did not issue ticket
to the passenger due to rush of passengers in the bus. So far as excess
cash is concerned, he gave explanation of dealing mistake on account of
several passengers presenting the notes of Rs.100/- and Rs.50/- and non-
availability of change to return the balance amounts. It appears that the
checking squad also recorded statement of the passenger-Rangrao
Bapurao Kulkarni on 14 July 1996 in which he emphatically stated that
he had paid amount of Rs.50/- to the Petitioner after boarding the bus
and that the Petitioner had returned amount of Rs.37.75/- to him, but
did not issue him ticket till the bus reached Kavathe Mahankal.
11) In the domestic enquiry, it appears that MSRTC attempted
to examine Rangrao Bapurao Kulkarni by issuing him notice dated
13 March 1997, copy of which has been placed on record by the
Petitioner alongwith his compilation. However, it appears that the
passenger remained absent for enquiry on 19 March 1997. In the
inquiry, Shri. P.S. Deshmukh, Traffic Inspector who headed the checking
squad on 14 July 1996 was examined. Mr. Deshmukh led evidence
about the check report prepared by him, as well as the factum of one
ticketless passenger being detected in the bus in addition to detection of
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Rs.30.25/- excess with the passenger. Mr. Deshmukh has been cross-
examined by the Petitioner.
12) Thus, this is not a case involving total absence of evidence
as the person checking the bus on the relevant date has been examined
in the enquiry. Ms. Sarnaik has contended that the finding of guilt is
vitiated on account of failure to examine the passenger-Rangrao
Bapurao Kulkarni. The law in this regard appears to be well settled by
the judgment of the Apex Court in State of Haryana Versus. Rattan Singh 2.
In the case before the Apex Court, the Respondent therein functioned as
a Conductor on the bus of State Transport Undertaking. The bus was
inspected by the Inspector who detected that several persons in the bus
had alighted without tickets and 11 additional passengers in the bus
were found without tickets. After conduct of the domestic enquiry,
services of the Respondent were terminated which was subject to
challenge in Civil Court. The Trial Court set aside the termination on
the ground of non-examination of 11 passengers who were found
ticketless in the enquiry in the bus. The Appellate Court confirmed the
order of the Trial Court and the High Court dismissed the Second
Appeal. When the proceedings reached the Apex Court, it held that the
strict and sophisticated rules of evidence under the Indian Evidence Act
do not apply to domestic enquiries and all materials which are logically
probative for a prudent mind are permissible. There is no allergy to
hearsay evidence provided it has reasonable nexus and credibility. The
Apex Court accordingly held that that there was 'some evidence' in the
form of deposition of Inspector of the Flying Squad, which was
(1977) 2 SCC 491
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sufficient to sustain the findings of guilt. The Apex Court held in para-4
as under :
4. It is well settled that in a domestic enquiry the strict and
sophisticated rules of evidence under the Indian Evidence Act may
not apply. All materials which are logically probative for a prudent
mind are permissible. There is no allergy to hearsay evidence
provided it has reasonable nexus and credibility. It is true that
departmental authorities and Administrative Tribunals must be
careful in evaluating such material and should not glibly swallow
what is strictly speaking not relevant under the Indian Evidence Act.
For this proposition it is not necessary to cite decisions nor text books,
although we have been taken through case-law and other authorities
by counsel on both sides. The essence of a judicial approach is
objectivity, exclusion of extraneous materials or considerations and
observance of rules of natural justice. Of course, fairplay is the basis
and if perversity or arbitrariness, bias or surrender of independence of
judgment vitiate the conclusions reached, such finding, even though
of a domestic tribunal, cannot be held good. However, the courts
below misdirected themselves, perhaps, in insisting that passengers
who had come in and gone out should be chased and brought before
the tribunal before a valid finding could be recorded. The 'residuum'
rule to which counsel for the respondent referred, based upon certain
passages from American Jurisprudence does not go to that extent nor
does the passage from Halsbury insist on such rigid requirement. The
simple point is, was there some evidence or was there no evidence --
not in the sense of the technical rules governing regular court
proceedings but in a fair commonsense way as men of understanding
and worldly wisdom will accept. Viewed in this way, sufficiency of
evidence in proof of the finding by a domestic tribunal is beyond
scrutiny. Absence of any evidence in support of a finding is certainly
available for the court to look into because it amounts to an error of
law apparent on the record. We find, in this case, that the evidence of
Chamanlal, Inspector of the Flying Squad, is some evidence which has
relevance to the charge levelled against the respondent. Therefore, we
are unable to hold that the order is invalid on that ground.
(emphasis and underlining supplied)
13) In my view, the facts and circumstances of the present case
are almost similar to the one involved in Rattan Singh (supra). The only
difference, which in fact goes against the Petitioner, is that the relevant
rules applicable in the case of Rattan Singh required mandatory
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recording of statements of the passengers which was not done in that
case. In the present case, the Inspector has recorded the statement of
passenger-Rangrao Bapurao Kulkarni. Following the law expounded
by the Apex Court in Rattan Singh, I am unable to hold that non-
examination of the passenger would vitiate the finding of guilt. I have
followed the dictum of the Apex Court judgment in Rattan Singh in
MSRTC Versus. Mr. Raghu Deu Mongal3 which also involved similar facts
where MSRTC had examined only the Inspector of Flying Squad and
not the passenger. Relying on the judgment in Rattan Singh this Court
held in paras-5 and 6 as under :
5. In my view, the Checker who checked the bus has been examined in
the enquiry. He has given evidence about checking the bus and
interception by him of one ticketless passenger in the bus. Therefore,
allegation of permitting a ticketless passenger to travel in the bus is
clearly proved by direct evidence of the Checker. So far as payment of
fare of Rs.3/- by the passenger to Respondent is concerned, the
evidence of the Checker is hearsay. However, the Checker did record
statement of the passenger and produced the same in the enquiry. He
led evidence of recording of the statement. In domestic enquiries,
hearsay evidence is not allergic as held by the Apex Court in State of
Haryana vs. Rattan Singh, 1977 (2) SCC 492 in which it is held in
paragraph 4 as under:
x x x
6. Respondent was given an opportunity to cross-examine the Checker
during the course of enquiry. It transpired during the course of
enquiry that there were only five passengers in the bus, out of whom
one was without ticket. Therefore, this is not a case where Respondent
was unable to issue ticket on account of rush in the bus. It has also
come in evidence that the distance between the point at which the
passenger boarded the bus and the point at which bus was checked
was 6.4 k.m. Thus, Respondent had sufficient time to issue ticket to
the passenger. Considering the nature of evidence available on record,
the charge of permitting ticketless passenger to travel as well as
misappropriation of amount of Rs.3/- is clearly established.
Writ Petition No. 6808/2004 decided on 9 October 2024.
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14) Ms. Sarnaik would then rely upon evidence of the
passenger-Shri. Kulkarni recorded before the Labour Court. Firstly, I
have some serious reservations about permissibility to lead evidence of
the passenger by the Petitioner directly before the Labour Court.
Admittedly, the passenger did not participate in the enquiry and his
deposition was not available for enquiry officer to record his findings.
The findings of the Enquiry officer were held to be not perverse by the
Labour Court while answering the preliminary issues vide order dated
22 November 2000 and the said findings attained finality on account of
dismissal of Revision (ULP) No.211/2002 by Industrial Court on
16 January 2001 and dismissal of Writ Petition No. 829/2001 by this
Court vide order dated 14 February 2001. Ms. Sarnaik has relied upon
order of this Court dated 14 January 2001 in support of her submission
that the point of fairness in the enquiry and perversity in the findings
was left open by this Court and that therefore the Petitioner was
entitled to lead evidence. It would be apposite to reproduce the order
passed by this Court on 14 February 2001 in Writ Petition No. 829/2001
which reads thus :
The Petitioner has approached this Court against the finding of the
Courts below as to (a) whether the enquiry was conducted in terms of
the standing orders, regulations and principles of natural justice and
fair play and (b) in so far as perversity of findings. The two courts
below have held against the Petitioner. The Courts below have yet to
decide as to whether the punishment imposed is proportionate or
disproportionate or any order that the courts below may think fit and
proper. Considering that to my mind, this would not be a proper stage
to interfere with the orders of the court below. Suffice it to say that all
the contentions raised by the Petitioner in the present petition in so far
as fairness of the enquiry and perversity of the findings are concerned,
are left open to be raised in the event Petitioner is still aggrieved by
the orders that may hereafter be passed by the Courts below.
With the above observations, Writ Petition is dismissed.
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In the circumstances of the case, there shall be no order as to costs.
Authorities concerned to act on the ordinary copy of this order
duly authenticated by the P.A.
P.A. to give ordinary copy of this order to the parties concerned.
Certified copy expedited.
15) Thus, Writ Petition No. 829/2001 came to be dismissed by
this Court by not interfering in the findings of the Labour and the
Industrial Court. All that this Court directed is that in the event of the
Labour Court dismissing the complaint and the Industrial Court
upholding the dismissal, Petitioner would be in a position to argue the
point of fairness in the enquiry and perversity in the findings before
this Court. This is clear from the observations of this Court that 'In the
event Petitioner is still aggrieved by the order that may hereafter be passed by
the Courts below'. Thus the points of fairness in the enquiry and
perversity in the findings can be reargued before this Court while
challenging the final orders passed by the Labour and the Industrial
Court. It therefore becomes difficult to believe that Petitioner was at
liberty to lead additional evidence directly before the Labour Court to
disprove the charges levelled against him.
16) However, even if the technical issue of permissibility to
lead evidence of Shri. Kulkarni is to be momentarily ignored, in my
view, the evidence of the passenger led before the Labour Court does
not make the case of the Petitioner any better. The passenger Shri.
Kulkarni gave three different versions at 3 different times. His
statement was recorded on 14 July 1996 in which he emphatically stated
in his statement that Petitioner did not issue him ticket till the bus
reached Kavathe Mahankal. Petitioner produced Affidavit of Shri.
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Kulkarni sworn on 23 July 1998 before the Labour Court wherein he
changed his version and submitted that Petitioner had issued him
ticket, which was kept by him in his diary. He further stated in the
Affidavit that since ticket was not found in his pocket, he was confused
and scared and therefore he made a wrong statement on 14 July 1996.
When examination-in-chief of the passenger Shri. Kulkarni was
recorded before the Labour Court on 7 November 2000, he did not
stand by his changed version of keeping the ticket in his diary and his
inability to trace the same in his pocket. This time, he stated before the
Labour Court that Petitioner issued him ticket and refunded the
remaining amount. He did not state anything about any error in the
statement given by him to the checking squad and while he attributed
the confusion and fear for giving erroneous statement to the checker in
the Affidavit dated 23 July 1998, this time he sought to accuse the
checker for making him give the statement on 14 July 1996. In his
deposition recorded before the Labour Court in which he stated that 'at
that time as per say of the checker I had given a statement to checkers which is
now shown to me'. In the cross-examination, the passenger-Shri. Kulkarni
however stated that he had shown some ticket to the checkers and the
checkers informed him that the said tickets were not of the relevant
journey and thereafter he checked other S.T tickets. It would be
apposite to produce the evidence of Shri. Kulkarni recorded before the
Labour Court which is as under :
In July-1996 I was proceeding from Sangli to K.Mahankal in S.T.Bus,
Immediately when Bus left the S.T.Stand I had given Rs. 50=00 one
Currency note to Complainant and bus fare was Rs. 12=25Ps.
Complainant had issued me a ticket and also refunded me a
remaining amount. & at K. Mahankal S.T.Stand checkers had checked
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said Bus and one of the Checker had taken my Bus ticket & at that
time as per say of the checker I had given a statement to checkers
which is now shown to me. I have filed a Affidavit dt. 23-7-98 in this
complaint and its content are correct.
Cross Exam. By Shri.A.N.Kulkarni, S.T. Law Officer :- For my business
purpose on that day I had gone from Sangli to K. Mahankal & in said
Bus. & I was going to K.Mahankal 7,8 times in a year. The said
checkers have told me that the tickets which I was showing to them
were not of my said journey, then I have checked other S.T. tickets but
they were not with me. I donot now whether the said other old tickets
were taken by the checkers from me. It is not true to say that
Complainant had not issued me my journey tickets. It is not true to
say that I am deposing falsely at the instance of the Complainant as I
am having thick relations with him. It is true that for recording said
my incorrect statement by checkers I have not complained to any
Respondent's officers. It is true that in my Affidavit I have not
mentioned that my earlier statement recorded by checkers is not
correct. It is true that inspite of service of Notice to me in the enquiry
of the Complainants I have not appeared as a witness.
(emphasis and underlining added)
17) Thus, the passenger-Shri. Kulkarni has given following
three versions at three different times:
Signed statement on the Affidavit dated 23-07-1998 Deposition before Labour
date of incident (14-07-1996) Court on 07-11-2000
Petitioner did not issue Petitioner issued ticket to Petitioner issued him
him ticket despite him and he had kept it in ticket and he gave it to
acceptance of fare. his diary and since he the checker. He gave
could not find the ticket statement as directed by
in his pocket, he got the checker.
confused and gave
erroneous statement to
checker about Petitioner
not issuing him ticket.
18) Thus, even while attempting to wriggle out of his
admission, the passenger is inconsistent in his story.
19) It must also be noted that the Petitioner has not alleged
any bias against the checker-Shri. P.S. Deshmukh, who had given
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evidence before the Enquiry Officer about the passenger Shri. Kulkarni
not being detected with the ticket. By applying the test of
preponderance of probabilities, in my view the charge of collecting the
fare from Shri. Kulkarni and not issuing him the ticket appears to be
well supported by the evidence on record before the inquiry officer.
20) In the present case, the Petitioner is already detected with
excess cash of Rs.30.25/- and one of the passengers had made a
statement before the checking squad that he was not issued ticket after
accepting Rs.12.25/- towards the fare. The said passenger was to travel
between Sangli to Kavathe Mahankal and despite arrival of the bus till
his destination, he was not issued ticket. The theory of rush of
passengers cannot be accepted in the light of the fact that only about 20
passengers were found in the bus when the same was checked at
Kavathe Mahankal.
21) Ms. Sarnaik has made strenuous attempts to convince me
that both the allegations of non-issuance of the ticket to Shri. Kulkarni
and excess cash of Rs.30.25/- are disproved on the basis of the Waybill.
While doing so, she expected me to undertake the exercise of tallying
the amount of tickets issued by the Petitioner as reflected in the way bill
with the cash found with him. This exercise has been first undertaken
by the Respondent-employer before issuance of the chargesheet. This
exercise was once again carried out before the Enquiry Officer.
Petitioner has not been able to convince Labour and Industrial Courts
about the entries in the waybills disproving the misconduct alleged
against him. In exercise of extraordinary jurisdiction under Article 227
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of the Constitution of India, this Court is not expected to carry out such
exercise once again. So far as the first charge is concerned, the same
appears to be based on oral evidence of the Inspector of the Checking
squad. The said charge is duly proved based on the oral evidence. The
entries in the waybill cannot disprove the said charge. I am therefore
unable to trace any patent error in the findings recorded by the Labour
and the Industrial Courts about proof of both the charges levelled
against the Petitioner.
22) Ms. Sarnaik has relied upon judgment of this Court in
MSRTC, Wardha Versus. Rajendra Mohanlal Chhangani (supra) in support
of her contention that same officer cannot issue chargesheet, act as
enquiry officer and punish the employee. This Court has held in paras-
3, 4 and 5 as under:
3. Shri Wankhede, learned counsel for the petitioner strenuously contended
that both the Court's below have not applied their mind to the position on
record, apart from which, they could not have entertained the plea regarding
the enquiry being vitiated on account of the same person acting as Enquiry
Officer as well as Presiding Officer as observed by the learned Labour Court,
for the reasons that the Rules as framed in this regard and specifically Rule 18
of the Discipline and Appeal Procedure as framed by the MSRTC, permitted
the same. He further contended that the misconduct on part of the
respondent was on the face of the record and therefore, it was not necessary
for the petitioner to examine any witness in that regard. He therefore, prayed
for setting aside the order passed by the Labour Court as well as the
Industrial Court.
4. Having perused the record and considering the arguments as advanced by
learned counsel for the petitioner I, find that the order on pre-point passed by
the learned Labour Court dated 11.09.2012, holding that the enquiry was
vitiated on account of the fact that the entire process of inquiry including
issuing show cause notice, issuing the charge-sheet, the conduct of the
departmental enquiry, the report or conclusion of the departmental inquiry
and lastly show cause notice of punishment are done by one and the same
person, whereby, the competent authority had acted in multiple roles while
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conducting inquiry against the complainant is clearly sustainable in law, as
there is no warrant for such a procedure. The reliance placed by learned
counsel Mr. Wankhede on Rule 18 of the Discipline and Appeal Procedure of
MSRTC, does not help him in any manner, as it does not permit, what has
been done by the inquiry officer in the present matter, as found by the
learned Labour Court in paras 7 and 8 of its order on pre-point dated
11.09.2012, which read as under:-
"No doubt, the procedure followed by the enquiry officer on face
appears to be proper but, the most fatal thing that has came to my
notice is that all the process of enquiry including issuing show cause
notice, issuing the chargesheet, the conduction of the departmental
enquiry, the report or conclusion of the departmental enquiry, and
lastly the show cause notice of punishment are done by one and the
same person. It is therefore, clear that the competent authority has
acted into multiple roles while conducting the enquiry against the
complainant."
"It is therefore, though the proper procedure was followed
during the course of departmental enquiry, but the fact remains that
all the roles are discharged by one and the same person. This fact itself
goes to the root of the enquiry and turn it into unfair, illegal
unwarranted."
5. It is material to note that the above position is not being denied by the
petitioner, rather on the other hand, the same is being sought to be justified
on the basis of Rule 18 referred to above, which itself does not contemplate
such a procedure being permissible. Thus, no fault can be found with the
order on pre-point as passed by the learned Labour Court.
23) However, perusal of Rule 18 of the Discipline & Appeal
Procedure formulated by MSRTC would indicate that the Appointing
Authority is competent not only to initiate department proceedings but
also hold an enquiry and award punishment. Rule 18 of the Discipline
& Appeal Procedure provides thus :
18. As a general rule, the Appointing Authority or any authority
higher than the Appointing Authority is competent to initiate
departmental proceedings and to hold enquiry against the employee
concerned and to award punishment. The Appointing Authority or
any higher authority than the Appointing Authority or the Competent
Authority prescribed in Clause 19 may appoint an Enquiry Officer to
conduct an enquiry and on the recommendation of the Enquiry
Officer/ the Appointing Authority or the higher authority than the
11 February 2025
Neeta Sawant WP-8566-2006-FC
Appointing Authority or the Competent Authority prescribed in
Clause 19 of this procedure may award punishment or otherwise to
give a decision within six months as far as possible prescribed in
Clause 19 as the case maybe, may decide the case, as far as possible
within six months.
24) Even otherwise, I do not see any defect in the disciplinary
authority performing the dual role of punishing authority as well as
enquiring authority. Though usually the disciplinary authorities prefer
delegating the power of conducting enquiry to enquiry officers, there is
nothing in law that prevents or bars the disciplinary authority from
himself conducting the enquiry. Therefore, the judgment in MSRTC,
Wardha Versus. Rajendra Mohanlal Chhangani cannot be read in support of
an absolute proposition that in any case, the competent disciplinary
authority is barred conducting the inquiry himself. Also, I have
distinguished the said judgment in Sandip Vasant Bhole Versus. Divisional
Traffic Superintendent4 in which it is held as under :
8. I have already dealt with the similar case in Namdeo Tukaram
Mokashe v. Maharashtra State Road Transport Corporation, through its
Divisional Controller, Writ Petition No. 11502 of 2022 decided on 22-
11-2022, in which it is held as under:
7. Mr. Shahane has placed on record copy of the Discipline and
Appeal Rules formulated by the respondent-Corporation. Rule
18 provides that the appointing authority or authority above
him is competent to initiate disciplinary enquiry, to conduct
enquiry and to impose punishment. Thus, the Rules
specifically permit the disciplinary authority to conduct
enquiry against an employee. Therefore, no error is committed
by the disciplinary authority by acting as an Enquiry Officer in
the present case. Even otherwise, there is settled law that the
disciplinary authority may delegate the power to hold
disciplinary enquiry to an Enquiry Officer. However, this does
not mean that the disciplinary authority cannot himself act as
an Enquiry Officer. So far as the disciplinary authority acting
in the capacity of Presenting Officer is concerned, no serious
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Neeta Sawant WP-8566-2006-FC
infirmity can be said to have been committed. No grievance
was raised by petitioner during the course of enquiry in that
regard. No prejudice is caused to him by that action.
8. Coming to the issue of competency of disciplinary authority,
Mr. Shahane has sought to raise this issue for the first time
before this Court after I called upon him to produce copy of
the Discipline and Appeal Rulesfor examining whether the
disciplinary authority could act as an Enquiry Officer After
noticing provisions of Rule 18 Mr. Shahane sought to press
into service the submissions that in the respondent-
Corporation, the Divisional Controller is an appointing
authority whereas the proceedings have been initiated by the
Divisional Traffic Officer. He would therefore contend that the
Divisional Traffic Officer was not competent to conduct the
disciplinary enquiry against petitioner.
9. I have perused the statement of the claim filed by petitioner
before the Labour Court and find that no contention with
regard to the competency of disciplinary authority was raised
therein. If petitioner was to make out the case of incompetency
of the disciplinary authority to initiate disciplinary
proceedings, he ought to have made specific averments in the
statement of claim and demonstrate before the Labour Court
as to how the Divisional Controller had appointed him and not
the Divisional Traffic Officer. Neither any pleading was raised
much less in evidence led. Petitioner therefore, cannot be
permitted to raise the issue of competency of disciplinary
authority directly before this Court in the present case. The
contention is therefore rejected.
9. What remains now is to deal with the judgment cited by Mr. Shinde
in Maharashtra State Road Transport Corporation,
Wardha v. Rajendra Mohanlal Chhangani (supra). The decision is
rendered in the facts of that case. Furthermore, Rule 18 specifically
permits the Disciplinary Authority to himself conduct disciplinary
enquiry. Therefore, reliance of Mr. Shinde on the judgment of this
Court in Maharashtra State Road Transport Corporation,
Wardha v. Rajendra Mohanlal Chhangani (supra) would be of no
avail.
25) Considering the overall conspectus of the case, I am of the
view that the Petitioner is unable to point out any patent error in the
findings of facts recorded by the Labour and the Industrial Court for
this Court to interfere in the same in exercise of jurisdiction under
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Neeta Sawant WP-8566-2006-FC
Article 227 of the Constitution of India. Petitioner faced grave charge of
misappropriating the monies of the Corporation by pocketing the fare.
His past service record is also riddled with as many as eight
punishments. I am therefore not inclined to interfere in the impugned
orders passed by the Labour and the Industrial Courts. Writ Petition is
devoid of merits. It is accordingly dismissed without any order as to
costs. Rule is discharged.
NEETA
SHAILESH [SANDEEP V. MARNE, J.]
SAWANT
11 February 2025
