1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.209 OF 2006 IN WRIT PETITION NO.148 OF 2006 ... Mr.Ravindra Pol Jolly ..Appellant v/s. Indian Airlines Ltd.& anr. ..Respondents ... Mr.N.M.Ganguli for the Appellant. Mr.S.M.Dixit i/b Abhay Kulkarni for the Respondent No.1. ... CORAM: D.K.DESHMUKH & V.R.KINGAONKAR,JJ DATED: 13th April, 2010 P.C.: 1. By this appeal, the Appellant challenges the order dated 7th February, 2006 passed by the learned single Judge of this Court rejecting the Writ Petition filed by the Petitioner in limine. 2. The relevant facts are that the 2 Petitioner was in the employment of the Respondent No.1. On 19-02-1990 he was arrested by the Custom Authority as he was found in possession of smuggled goods while coming back from Hongkong. A departmental inquiry was held against the Appellant. In the departmental inquiry it was an admitted position that on 19-2-1990 the Custom authority found the Appellant in possession of smuggled goods. The only defence of the Appellant was that the suitcase in which the goods were found did not belong to him and it belonged to his friend. In the departmental inquiry, he did not file any affidavit of the alleged friend saying that the goods belonged to him. He also did not examine him as a witness. The inquiry officer, therefore, held that the misconduct is proved and the punishment was imposed. In the Reference, the Court held that the inquiry was fair and 3 proper. It also held that the finding recorded by the inquiry officer was also proper and no interference is called for with the punishment. Against that award, Writ Petition was preferred by the Appellant in this Court. That Writ Petition was rejected in limine. Hence, this Appeal. 3. We have heard the learned Counsel for the Appellant. The learned Counsel for the Appellant submits that in the departmental inquiry the entire burden was on the employer to show that the Appellant had smuggled the goods. The learned Counsel submits that in the criminal court the Custom authority did not prosecute the proceedings. The learned Counsel submits that as there was no criminal prosecution, Appellant s release be taken into consideration. 4 4. We have heard the learned Counsel for the Respondent. The misconduct alleged against the Appellant was that while coming from Hongkong he tried to smuggle foreign goods into India. He was caught raid handed. These facts were admitted by the Appellant. He admitted that he had gone to Hongkong. He admitted that while coming back from the Hongkong at the airport he was found in possession of smuggled goods. His only defence was that the goods did not belong to him. The goods were entrusted to him by his friend, and therefore, it cannot be said that he is guilty of any unbecoming conduct. In view of this admitted position the entire burden was on the Appellant to show that the goods which he was found in possession, which were smuggled goods, did not belong to him. In order to prove this, he could have examined his friend as a witness in the 5 inquiry. If his friend was not able to be examined, he could have filed his affidavit before the Inquiry Officer. Even if that was not possible he could have produced a letter from his friend that the goods belonged to him. Nothing was done, and there is no explanation given why it was not done. In our opinion, this shows that the Appellant himself tried to smuggle the goods. What happened in the criminal court is totally irrelevant while considering finding in the departmental inquiry. That the custom authority did not launch the prosecution, will not mean that the employer cannot punish his employee, if he is found guilty of any unbecoming conduct. We do not find any substance in the Appeal. Appeal is, therefore, dismissed. (D.K.DESHMUKH, J.) (V.R.KINGAONKAR, J.)