: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2285 OF 2008 Municipal Corporation of Greater Bombay ..Petitioners. Vs. General Secretary, BEST Workers’ Union, Mumbai 400 004 ..Respodnents. Mr.Sudhir Talsania with Ms.Kavita Anchan i/b.M/s.M.V.Kini & Co. for the Petitioners. Mr.P.K.Cheulkar with Mr. P.W.Joglekar for the Respondents. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : DATED : DATED : 12TH JANUARY, 2009 12TH JANUARY, 2009 12TH JANUARY, 2009 P.C. : P.C. : P.C. : This Writ Petition challenges an order passed by the Labour Court and the order passed by the Industrial Court, Mumbai, confirming the same in an Appeal filed under Section 84 of The Bombay Industrial Relations Act, 1946. By the said orders, the order of dismissal in respect of Respondent no.2 is set aside and Respondent no.2 has been directed to be reinstated in service with continuity of service, but without back wages. 2. The impugned orders warrant no interference. The workman was served with a charge-sheet alleging : 2 : that he had committed acts of theft, fraud or dishonesty in connection with the business/property of the Petitioners. 3. It is pertinent to note at the outset that essentially, the allegation was against one Parab. Even the enquiry and the charge-sheet essentially indicated the offence as against one Parab. The main allegation against the Respondent was that he had not reported to his superiors Parab’s failure to maintain a proper account in respect of the cloth. 4. Mr.Talsania, the learned senior counsel appearing on behalf of the Petitioners however submitted that there was, during the proceedings, though not in the charge-sheet, an allegation that Respondent no.2 had also sold cloth at a discount of Rs.200/- on one occasion. Mr.Talsania submitted that though the charge-sheet and the enquiry report itself did not refer to this incident, the Petitioner proved the same in the Part-II proceedings before the Labour Court. 5. The Labour Court and the Industrial Court however found in the Part-II proceedings that there was no material on record to establish this offence. : 3 : The Industrial Court, for instance, after considering the evidence, observed that neither the report of the Senior Security Officer of the Petitioners nor the charge-sheet given to Respondent no.2 indicated the offence qua Respondent no.2 and that the only offence against him was that he had not pointed out to his superiors that the said Parab was not maintaining a proper account of the cloth. This, it was held was also the main evidence of the Petitioner’s witness. There is nothing to indicate that the evidence has not been properly appreciated. I see no warrant to interfere with these findings of fact in exercise of powers under Article 226. 6. Faced with this, Mr.Talsania submitted that the Industrial Court in the Part-I proceedings had in the operative part of the order observed that the enquiry is fair and proper and that the findings are proper. 7. It is pertinent to note that in the Part-I proceedings, there is not one sentence which even considers the evidence in support of the observation that the findings are proper. Mr.Talsania was unable to controvert this aspect. He however submitted that the observation having been made, : 4 : that ends the matter as far as the merits of the matter are concerned. I do not agree 8. In the Part-II proceedings, the merits of this aspect have in fact been discussed while coming to the conclusion that there was no direct evidence to show that Respondent no.2 had himself misappropriated and wrongly sold the cloth. In this view of the matter, it would be unfair to set aside the impugned orders merely because in Part-I proceedings there is an observation that the findings are proper. 9. In view of the judgment of a learned Single Judge of this Court in Devraj Chandrabali Rai v. National Textile Corproation (S.M.) Ltd. & Anr., 2005 I CLR, 61, even if the Labour Court finds that the order in the disciplinary proceedings is not perverse while considering the proprity of the order, if the Labour Court finds that it was based on insufficient evidence, it is entitled to set aside the same. 10. In the cirumstances, Writ Petition is dismissed. Stay to continue upto and inclusive of : 5 : 15.2.2009. ***