1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5321 OF 2009 (Abdullakha Rahimkha Pathan vs. M.S.R.T.C. & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 06, 2010. Heard Shri Jagdale, learned counsel for the petitioner and Shri Mehadia, learned counsel for the respondents. For misconduct of misbehaving – throwing some files and records here and there and abusing the person who tried to obstruct the petitioner and doing all this under the influence of Alcohol, a charge sheet was issued and thereafter a second Show-cause notice dated 08.04.2005 was served along with Enquiry report. The petitioner approached the Labour Court, Yavatmal, in Complaint ULP No. 17 of 2005 contending that the proposed punishment of dismissal constituted unfair labour practice under item 1 (b), (d), (e) (f) (g) of Schedule IV of MRTU & PULP Act. The Labour Court vide judgment dated 23.04.2009 dismissed the complaint after recording a finding that finding of Enquiry Officer was not perverse and it had held D.E. to be valid and fair. It also recorded a finding that the punishment was not shockingly disproportionate. The 2 petitioner then approached the Industrial Court in Revision (ULP) No. 12 of 2009 and the Industrial Court has vide impugned judgment dated 27.10.2009 maintained these findings of Labour Court. Shri Jagdale, learned counsel has argued that in past service record of employee, there was no misconduct of this nature and there was no express charge of being under influence of Alcohol at the time of alleged misconduct. He further argues that the alleged misconduct is also not proved because the witness examined by the prosecution viz., Shri Mishra and Shri Sayyed Muzaffar Sayyed Afzalkha have not spoken about unauthorized change in the duty register by the petitioner. He has invited attention to the charge sheet as also evidence in this respect. He also states that leading questions were put by the Enquiry Officer to bring necessary material on record. Shri Mehadia, learned counsel, on the other hand, states that all these aspects are still open and the petitioner can take appropriate pleas in his reply to show cause notice. The reply can be suitably considered by the Competent Authority before imposing the punishment. He further states that as the petitioner invited certain findings, the Labour Court and Industrial Court have considered those facts and the findings cannot be labeled as erroneous or perverse at this stage. He also points out that in alleged leading questions put by the Enquiry Officer, no new material has been brought on record. He further states that the fact of the 3 petitioner being under influence of alcohol was there on record right from the beginning and the petitioner was aware of the same. With the assistance of both learned counsel, I have perused the record. It appears that one Shri Kumbhare has submitted a report about change of duty and he was examined in enquiry and he was also allowed to be cross examined. In his chief, he stated that after abusing and misbehaving, the petitioner changed his duty on 19.08.2004 and himself changed it Yavatmal – Jalna, but remained absent on scheduled date. The other person Mishra has stated that the petitioner came in enquiry section and looked at duty register and then threw envelops here and there, started shouting and abusing. He further stated that his speaking and walking i.e. gait disclosed that he was under the influence of alcohol. The question put by the Enquiry Officer to which objection was taken by Shri Jagdale only state that the Enquiry Offficer put a question to find out whether Shri Mishra tried to pacify the petitioner to protect and preserve the image of MSRTC. The next question put is why Shri Mishra did not lodge police complaint. Even if both these questions are ignored, the material showing the position of the petitioner at the relevant time has already come on record. The evidence of Shri Sayyed Muzaffar Sayyed Afzalkha also reveals this position. In view of this material, the findings reached 4 by the Labour Court and Industrial Court cannot be labeled as erroneous or perverse. The stage is only of submission of reply by the petitioner to second show cause notice and the matter cannot be concluded finally at this stage. The petitioner has to file necessary reply to second show cause notice and is free to raise all grievances therein. It is apparent that the Competent Authority is duty bound to consider said pleas and after recording necessary satisfaction, it can proceed to impose appropriate punishment in the matter. The other argument about inconsistency in evidence on the point of getting duty changed or about going to police station is irrelevant in view of the findings recorded above. Shri Jagdale, learned counsel now states that the petitioner will file his reply to second show cause notice within a period of eight days from today. Shri Mehadia, learned counsel states that he has no instructions in this respect. If reply is filed by the petitioner by 14th January 2010, the same shall be taken into consideration by the Competent Authority in accordance with law before proceeding further with departmental enquiry. No case is made out warranting any interference in writ jurisdiction at this stage. No order as to costs. JUDGE *GS.