1 wp 1295.11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION K WRIT PETITION NO.1295 OF 2011 Shri Shivaji Namdeo Ahire .. Petitioner. Vs. The Divisional Traffic Superintendent .. Respondent. Mr. Jaydeep S. Deo for the Petitioner. Mr. G.S.Hegde for Respondent. CORAM : K.K. TATED, J. RESERVED ON : 20TH JULY, 2011. PRONOUNCED ON: 12TH AUGUST, 2011. P.C. 1. Heard the learned counsel for the parties. 2. This Petition under Articles 226 and 227 of the Constitution of India is directed against the decision of the Industrial Court, Pune dated 29th October, 2010 in Revision Application (ULP) No.100 of 2010 dismissing the Revision against the order dated 17th August, 2010 of the Third Labour Court, Pune below Exhibit U-2 in Complaint (ULP) No. 50 of 2010 dismissing the Complaint of the Petitioner. 2 wp 1295.11.doc 3. The facts giving rise to the Petition are that the Petitioner is in service of the Respondent as Conductor. The Petitioner was conductor with the bus which was on route from Narayangaon – Ozhar – Otur and the bus was checked by the Checking Squad at Thikekarwadi. At that time it was found that 44 passengers were travelling from the bus i.e. wife and husband from Narayangaon to Thikekarwadi. From them the Petitioner recovered ticket fare and luggage fare of Rs. 50/- and issued ticket of Rs. 36/- only. Those tickets were verified by the Checking Squad and it was found that ticket of Rs. 10/- was already sold on previous route from Narayangaon to Otur which is seen from the weigh bill no. 288171. Checking Officer recorded the statement of Petitioner. The Petitioner has given a spot statement in his own hand writing. The passengers also have given the statements which is counter signed by the Petitioner. Therefore, the Petitioner was charge- sheeted on 7th March, 2009 under clause 7 (c), 9, 10, 12 (b) and 22 of the Schedule ‘A’ of Discipline and Appeal Procedure of the Respondent – Corporation which is applicable to its employees as service conditions. Thereafter, the Enquiry was conducted according to law. The Petitioner was found guilty and was served with a notice dated 12nd May, 2010 to show cause against the proposed punishment of dismissal. 3 wp 1295.11.doc 4. The Petitioner challenges the show cause notice issued to him by filing the Complaint (ULP) No. 50 of 2010 before the Labour Court under section 28 (1) read with Item no.1(a), (b), (d) (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Practices and Unfair Labour Practices Act, 1971. The Third Labour Court, Pune rejected that application by order dated 17th August, 2010 and Revision Application (ULP) No. 100 of 2010 filed by the Petitioner was also dismissed by the learned Member of the Industrial Court, Pune by order dated 29th October, 2010. 5. Feeling aggrieved the Petitioner has preferred this Petition challenging the decisions of the Labour Court, Pune and decision of the Industrial Court, Pune. 6. The learned counsel for the Petitioner contended that there was no fair and proper enquiry and the Petitioner was not given opportunity to defend himself. Secondly, he contended that the charge levelled against the Petitioner was not proved and the punishment of dismissal was disproportionate to the charge levelled against the Petitioner. According to him, both the Labour Court and Industrial Court erred in dismissing her Complaint. 4 wp 1295.11.doc 7. In support of his submission he relies on the judgments in the matter of Shantilal Motilal Marwadi vs. Lipton Tea (India) Ltd. & Ors. reported in 1991 II CLR 225, Biecco Lawrie Limited and Another vs. State of West Bengal and Another reported in (2009) 10 SCC 32, Chandra Prakash Singh and Others vs. Chairman, Purvanchal Gramin Bank and others reported in (2008) 12 SCC 292 and P. Sreeramulu and another vs. State of Andhra Pradesh represented by Asstt. Collector, Cuddapah reported in AIR 1970 AP 114. 8. On the other hand, the learned counsel appearing on behalf of Respondent vehemently opposed the present Petition. He submits that the Respondent carried out enquiry against the Petitioner according to law and therefore, there is no question of entertaining the present Petition. He further submits that the Officer-in-charge of Checking Squad recorded the statement of Petitioner as well as other passengers. It is crystal clear from the enquiry report and statement made by the passengers that Petitioner misappropriated the Respondent’s funds. He further submits that the Apex Court in the matter of Karnataka State Transport Corporation held that once the conductor is found misappropriating the money, such person is not fit 5 wp 1295.11.doc to be retained as a Conductor because such action or inaction is bound to result into the financial loss to the Corporation. In support of his contention he relies on following Judgments: Karnataka State Road Transport Corporation vs. B.S. Hullikatti reported in AIR 2001 SC 930, Brihanmumbai Municipal Corporation vs. General Secretary, Best Workers’ Union and another reported in 2005 (1) Mh.L.J. 1013, State Transport Co-op. Bank Ltd. & Anr. vs. Shankar Gopal Pagire & Ors. reported in 2004 III CLR 1034 and Dawn Mills Co. Ltd. vs. Sukhdev Prasad Dhaneshwar & Anr. reported in 1989 (1) CLR 79. 9. I have gone through the judgment of Labour Court and Industrial Court and also the proceedings on record. Both the courts have considered the evidence on record and they found that the Petitioner was given sufficient opportunity to cross-examine the witnesses. On going through the proceedings on record, the Checking Officer while checking bus found that two passengers were travelling from Narayangaon to Thikekarwadi and the Petitioner recovered ticket fare and luggage fare of Rs.50/- from the passengers and issued ticket of Rs.36/- only. The Checking Squad also on verification of the tickets found that the ticket of Rs.10/- was already sold on previous route 6 wp 1295.11.doc from Narayangaon to Otur which seems from weigh bill no.188 and 171. Those facts have been found duly proved by both the courts below on considering and appreciating the evidence on record. Those findings of facts cannot be interfered with by this court in the Petition under Articles 226 and 227 of the Constitution of India. 10. The learned counsel contended that the Enquiry Officer while conducting the enquiry put certain questions to the witnesses which are of the nature of cross-examination. It is well settled that in the domestic enquiry the detailed procedure of recording the evidence as followed in courts need not be strictly followed. In this connection, the learned counsel for the Respondent relied on the decision of this court in the matter of State Transport Co-op. Bank Ltd. & another vs. Shanker Gopal Pagire and others (supra). It fully supports the submissions of the learned counsel for the Respondent. 11. The learned counsel for the Petitioner in support of his case that enquiry was vitiated as certain questions to the witnesses were put by the Enquiry Officer relied on the decision in the matter of Shantilal Motilal Marwadi (supra). 7 wp 1295.11.doc 12.I have gone through that decision. That decision is distinguishable on facts. It is not applicable to the facts of the present case. Consequently, I find that the Departmental Enquiry in this case is not vitiated on the ground that some questions were put by the Enquiry Officer to the witnesses. It is also not vitiated on the ground that the Petitioner was not allowed to cross-examine the witnesses or was not allowed to lead defence evidence. 13.As regards the satisfactory proof of the charge levelled against the Petitioner, both the courts on considering and appreciating the evidence on record found that the charge levelled against the Petitioner was duly proved. This court cannot interfere in the findings of facts arrived at by the courts below by re-appreciating the evidence on record. Therefore, the contention of the learned counsel that the charge levelled against the Petitioner was not proved, cannot be accepted. 14.As regards the contention of the learned counsel appearing on behalf of the Petitioner that the penalty of the dismissal from the service was disproportionate to the charge established cannot be accepted. This is not the first incident in which the Petitioner was found guilty. 8 wp 1295.11.doc Previously, the Petitioner was given lesser punishment for misconduct and thereby given an opportunity to improve himself but he did not improve and again committed misconduct. On the facts and circumstances of the present case, it cannot be held that the punishment of dismissal is disproportionate to the charges established against him. 15.In the result, there is no substance in the writ petition and which is stands dismissed. 16.No order as to costs. (K.K. TATED, J.)