1 kambli/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.896 OF 2010 IN APPEAL NO.427 OF 2009 IN WRIT PETITION NO.486 OF 2009 ... Municipal Corporation of Greater Mumbai ...Appellant v/s. Hanmant Rajaram Ghadge ...Respondent ... Mr.S.K.Talsania, Sr.Advocate i/b M.V.Kini & Co. for the Appellant. Mr.R.V.Sankpal for the Respondent. ... CORAM: D.K.Deshmukh & SMT.R.P.SondurBaldota,JJ DATED: 21 st June, 2010 P.C.: Notice of Motion is granted in terms of prayer clause (a). Motion disposed of. (D.K.Deshmukh, J.) (R.P.SondurBaldota J.) 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.427 OF 2009 IN WRIT PETITION NO.486 OF 2009 ... Municipal Corporation of Greater Mumbai, through General Manager, Brihan Mumbai Electricity Supply & Transport Undertaking, having its office at BEST Bhavan,Mumbai ...Appellant v/s. Hanmant Rajaram Ghadge ...Respondent ... Mr.S.K.Talsania, Sr.Advocate i/b M.V.Kini & Co. for the Appellant. Mr.R.V.Sankpal for the Respondent. ... CORAM: D.K.Deshmukh & SMT.R.P.SondurBaldota,JJ DATED: 21 st June, 2010 P.C.: Admit. Heard finally by consent of parties. 2. The relevant facts are, the Respondent was serving as a Bus-Conductor in 3 the Appellant-Undertaking. A cash-bag was allotted to the Respondent for collecting the amount throughout the day. At the end of the day, as per the system adopted by the undertaking cash-bag was to be dropped by every Conductor in a safe, which was sealed and was tamper proof. Next day in the morning the safe was opened and the cash bags brought by all the Conductors were opened and counted. On 21-12-1994 when the Safe was opened, the cash bag of the Respondent was missing from the Safe. That cash bag could not be traced. Therefore, departmental inquiry was initiated against the Respondent. In the inquiry he was held guilty and he was dismissed from service. Conciliation proceedings were initiated under B.I.R.Act, which was registered as BIR-R No.32 of 1997. The Labour Court held that the inquiry was fair and proper. The Labour Court also held 4 that on the basis of the material produced before the Inquiry Officer, the Inquiry Officer was justified in holding that the charge has been proved. The Labour Court, therefore, disposed off the application holding that the punishment has been properly imposed. Against that order, an appeal was filed before the Industrial Court. That Appeal was decided by order dated 19 th July, 2008. The Industrial Court set aside the orer passed by the Labour Court as also the order imposing the punishment of dismissal and directed reinstatement of the Respondent in service with 50% back wages. That order was challenged in Writ Petition, being Writ Petition No.486 of 2009, before this Court. The learned single Judge by his order dated 1 st April, 2009 rejected the petition. Therefore, the present Appeal is preferred by the Employer challenging the order of the 5 Industrial Court and the learned single Judge. 3. We have heard the learned Counsel for both sides in detail. The facts in this case are not in dispute. It is an admitted position that on 21-12-1994 when the Safe was opened the cash bag allotted to the Respondent was not found. It is also admitted position that the Safe was opened in the presence of the representatives of the Conductors and the Superintendent of the Undertaking. There is no challenge in the inquiry to the process of opening of Safe and integrity of the persons in whose presence the Safe was opened. Therefore, the fact that the cash bag belonging to the Respondent was not found in the Safe is not in dispute. There does not appear to be any dispute at least from the evidence on record that the Safe in which cash bag is to be dropped by 6 the conductors is tamper-proof. Perusal of the order of the Industrial Court, however, shows that the only reason for which the Industrial Court has interfered with the finding of the Inquiry Officer as also the Labour Court is that the finding of guilty has been recorded against the Respondent by drawing an inference from the fact that his cash bag was not found in the Safe on the morning of 21-12-1994. According to the Industrial Court, it was possible that the cash bag could have been stolen from the Safe after the cash bag was put in the Safe of the Appellant. Now, it is a settled law that unless there is supporting material , a finding of guilt cannot be recorded only on the basis of an inference, if it is possible to draw more than one inference from the admitted facts; but if from the admitted facts there is only one inference possible, a 7 finding of guilt can definitely be recorded on the basis of inference. If the Safe is tamper-proof, there is no dispute raised about the process of opening of the Safe, then in our opinion, only one inference from these admitted facts were possible that the Respondent did not put his cash-bag in the Safe, and therefore, the finding of guilt could have been recorded on the basis of this inference. In our opinion, therefore, the Industrial Court was not at all justified in interfering with the finding recorded. The Industrial Court in paragraph 16 of its order has observed that the Inquiry Officer did not take into account the possibility of theft or mischief by somebody after dropping the cash bag in the Safe. In our opinion, this observation of the Industrial Court is totally uncalled for. The Inquiry Officer could have taken into account the possibility 8 of theft or mischief, had it been suggested by the Respondent while cross-examining the witnesses examined on behalf of the employer. We have perused the evidence. There is not even a suggestion made that it is possible to steal a bag which is dropped in the Safe or that somebody can play mischief and remove the bag which is dropped in the Safe before it is opened in the morning. In our opinion, the Industrial Court was not at all justified in interfering with the finding recorded by the Labour Court. Similarly, in our opinion, the learned single Judge should have interfered with the order of the Industrial Court, because there is an error apparent on the face of the record. 4. The learned Counsel appearing for the Respondent urged before us that considering the record of service of the Respondent, 9 especially the fact that it was the first time that he was found, punishment of dismissal is excessive and therefore, we should not interfere with the order of the Industrial court. 5. In our opinion, the conductor who collects money on behalf of the employer is in a position of trust, and therefore, when the misappropriation is proved, the employer is justified in imposing the highest punishment. What is further to be noted is that the cash which was admittedly in the cash bag, which the Respondent was supposed to drop in the Safe is still missing and has not been accounted for. It is, thus, clear that the Respondent has misappropriated the money of his employer. Taking overall view of the matter, therefore, in our opinion, following order would meet the ends of justice. 10 O R D E R (i)The order dated 1 st April, 2009 passed by the learned single Judge in Writ Petition No.486 of 2009 is set aside. That Writ Petition is allowed. Rule in that Writ Petition is made absolute in terms of prayer clause (a). No order as to costs. (D.K.Deshmukh, J.) (R.P.SondurBaldota J.)