vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3214 OF 1997 WRIT PETITION NO.3214 OF 1997 WRIT PETITION NO.3214 OF 1997 Vasant Maruti Varute ... Petitioner V/s. The Director Ground Water Survye & Development Agency & Anr. ... Respondents Mr.N.V. Bandiwadekar for Petitioner Ms.P.S. Cardoza, AGP, for Respondent No.1 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: SEPTEMBER 9, 2008 SEPTEMBER 9, 2008 SEPTEMBER 9, 2008 ORAL JUDGEMNT: ORAL JUDGEMNT: ORAL JUDGEMNT: . The petitioner challenges the order of the Industrial Court dated 19.2.1997 passed in Complaint (ULP) No.248 of 1991. The Industrial Court has quashed the order passed by the respondent recovering the amount of Rs.4,030/- from the Petitioner. However, one increment from 13.8.1991 till the date of the Industrial Court’s order has been withheld by the Industrial Court. 2. The petitioner was working as a Junior Engineer with the respondent. He was posted in Sangli and was required to ensure that heavy machinery which was being used in the projects of the respondent was kept in a safe place. On 14.8.1981, there was a theft of some material from the office of the respondent. This : 2 : material was part of the heavy machinery kept in an open space outside the respondent’s office. On instructions from the superiors, the petitioner lodged a complaint with the Market Yard police station, Sangli on 16.8.1981. The police filed a B summary report and the matter was closed. 3. On 3.6.1982, an Assistant Geologist sought an explanation from the petitioner in respect of the theft which has occurred on 14.6.1981. Before the petitioner could submit his explanation, the services of the Assistant Geologist were transferred. 5 years later, i.e. on 9.9.1987, a show-cause notice was issued by the Deputy Director of Respondent No.1. A reply was sent by the petitioner. Not being satisfied with the reply, the petitioner was issued a chargesheet on 23.7.1988 wherein he was informed that a departmental enquiry would be held against him for causing loss to the government on account of his negligence. A departmental enquiry was conducted against him in the year 1991 i.e. 10 years after the theft had taken place. A report was submitted by the enquiry officer and the petitioner was directed to show cause why the punishment proposed should not be imposed on him. A reply was filed by the petitioner to the show-cause notice on 27.2.1991. Respondent No.1 passed an order for recovery of Rs.4,030/- from the petitioner and stoppage of 2 increments with permanent : 3 : effect. This order was passed on 13.8.1991. 4. Being aggrieved by the order, the petitioner filed complaint (ULP) No.248 of 1991 on 4.10.1991. Interim relief was granted to the petitioner by the Industrial Court and parties were directed to maintain status quo in respect of the recovery. After pleadings were filed and evidence was led, the Industrial Court disposed of the complaint and the order for recovery was quashed and the punishment was reduced to stoppage of one increment. The Industrial Court observed that the respondent had not committed any unfair labour practice under Items 5, 9 and 10 of Schedule IV. However, it observed that some punishment should be imposed on the workman and directed withholding of one increment from 13.8.1991 to the date of the industrial court’s order. 5. The learned counsel appearing for the petitioner submits that the Industrial Court has erred in finding that no unfair labour practice had been committed by the respondent. He submits that this finding of the Industrial Court is not borne out from the evidence on record which indicates that it was not a part of the duties of the petitioner to maintain a vigil over the property. He also submits that there was no evidence on record to demonstrate that the petitioner was responsible for their machinery which was kept in open : 4 : space. He points out that on the date of theft, the petitioner was not in Sangli as he was required to go to some other place in the course of his duty. The learned advocate then submits that the chargesheet has been issued after a period of 10 years and that itself vitiates the enquiry held against him. Besides, the learned advocate submits, when the police report indicates that the culprits of the theft are not traceable, the respondent ought not to have chargesheeted him. Furthermore, he submits that the watchman who was expected to guard the machines has only been warned whereas the increments of the petitioner have been stopped. He therefore, submits that the order of the Industrial Court must be set aside. The learned advocate also points out that the petitioner has retired and he has been paid pension and other retiral dues after deducting Rs.7550/- by the respondent towards the penalty imposed on him. 6. The learned AGP has filed an affidavit of a Senior Geophyisicist Incharge Assistant Administrative Officer working in the office of the Director, Ground Water Surveys and Development Agency. The affidavit states that the petitioner was expected to enter the names of the machines and their location into a register maintained by the watchman. The machinery was kept in an open space. The watchman’s signature was also to be : 5 : endorsed on this entry. According to the learned AGP, the petitioner has forged the signature of one Mr.Jarange, who was on leave on 19.8.1981, in the watchman’s register. She submits that there is no evidence on record to show that the petitioner had indicated to the watchman on duty where he had kept the heavy machinery in the open yard. She submits that the petitioner was expected to do so and also make an entry in the watchman’s register in order to avoid theft of the material which was kept in safe custody. She submits that the enquiry officer has found the petitioner guilty of the misconduct alleged against him. She submits that as a Junior Engineer, the petitioner should have been more responsible in following the rules and ensuring the safety of the equipment which was in his charge. She therefore submits that there is no need to interfere with the punishment imposed by the Industrial Court. 7. A perusal of the chargesheet indicates that the first charge levelled against the workman was to the effect that a theft had occurred of the machinery kept in an open space, due to which the government had suffered a loss of Rs.32,700/-, for which the petitioner was responsible. The second charge levelled against the petitioner was that he had not taken any action to keep the heavy machinery in a safe place although he was : 6 : aware of an earlier theft and that he had not lodged a police complaint in respect of that theft. This negligence on the part of the petitioner had led to another theft. 8. There is no evidence on record to establish the location in which the heavy machinery ought to have been kept by the petitioner. Undisputedly, it was maintained in an open yard outside the office premises of the petitioner. There is no material on record to indicate that the machinery was to be kept in some other place and that the petitioner had either negligently or purposely kept the machinery in the open yard in front of his office. Thus, it must be accepted that the place where the machinery was to be maintained was in the open yard. The question, therefore, is whether the petitioner was responsible for the theft which has occurred causing a loss to the Government. There is no material on record to show that the petitioner was expected to keep a vigil over the equipment once it was kept back in the open yard after being used. The submission of the learned AGP is that had the petitioner made an entry in the watchman’s register in respect of the heavy machinery, he would have been absolved of having committed any misconduct even if there was a theft. This submission cannot be accepted. Unless it is shown that the machinery was to be guarded by the : 7 : petitioner or it was to be maintained in a place other than the open yard, the petitioner cannot be held guilty of causing a loss to the government. There is also no dispute that the petitioner was on duty outside Sangli on the day when the theft occurred. Therefore, the question of him being available on the spot for making an entry in the register also does not arise. 9. There is no material at all to connect the petitioner or his duties with the maintainance of the heavy machinery in the open yard. There is also no material to indicate that the equipment ought to have been kept in some other place over which there could have been a better safeguard. In such circumstances, in my view, the charges against the petitioner have not been proved. 10. In fact, when the showcause notice has been issued after six years from the date of which the theft occurred and the chargesheet has been issued nine years after the theft in my view the enquiry itself would be vitiated. There is no material or evidence on record to indicate why there was such a delay in issuing the chargesheet to the petitioner. The learned AGP submits that it was because the petitioner had not replied to the letters issued to him to submit an explanation that no chargesheet was issued to him. This submission must : 8 : be stated only to be rejected. An employer is not expected to wait endlessly for an employee to reply to the show-cause notice or the chargesheet issued against him. There is no explanation why this period of almost 10 years was necessary for initiating the departmental proceedings against him and in this view of the matter, the enquiry must be held to be vitiated. 11. In these circumstances, the petition is allowed. Rule made absolute with no order as to costs. The amount of Rs.7550/- retained by the respondent shall be returned to the petitioner within four weeks from today.