1 wp 5567.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5567 OF 2011 1. Divisional Controller, M.S.R.T.C. Osmanabad. 2. Osmanabad Traffic Superintendent, M.S.R.T.C. Osmanabad .. .. Petitioners Versus Manohar S/o Yeshwantrao Pawar, Age : 56 Years, Occu. : Service, R/o Mauli Nagar, Tuljapur, Tq. Tuljapur, Dist. Osmanabad. .. .. Respondents Shri B. B. Yenge, Advocate for Petitioners. Shri P. P. Shahane, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 01ST AUGUST, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent was terminated from service after 2 wp 5567.11 conducting an enquiry on account of misappropriation in respect of provident fund amount. The present respondent challenged the said termination before the Labour Court. The Labour Court allowed the said complaint and granted reinstatement with continuity in service with full backwages. The present petitioners preferred revision before the Industrial Court. The Industrial Court dismissed the revision. Aggrieved thereby the present petition is filed. 3. Shri Yenge, the learned counsel for petitioners submits that the Courts below have not properly appreciated the evidence on record. The enquiry was conducted in fair manner, principles of natural justice were followed and thereby conscious decision was taken by the management after considering the enquiry report which states that the charges against the present responent were proved. The respondent is guilty of grave and serious charges that of misappropriation. He has committed defalcation of the amount of the provident fund of employees. The Courts could not have embarked on the judicial review of the decision taken. At the most they could have taken into consideration the decision making process. The learned counsel further contends that the respondent has nowhere shown that he 3 wp 5567.11 was not gainfully employed during the relevant period and so full backwages ought not have been awarded. The initial burden lies upon the employee to show that he was not gainfully employed and that burden itself is not discharged. 4. Shri Shahane, the learned counsel for the respondent submits that both the Courts on appreciation of the evidence have concurrently come to the conclusion that the charges against the respondent were not proved. There is no independent evidence in this regard. Even it was not the duty of the respondent to maintain the schedule of the provident fund and that was the duty and responsibility of the Division Office. No error can be found in the judgments passed by the Courts below. Shri Shahane, the learned counsel on instructions of the respondent, who is present in the Court submits that the respondent is ready to forgo the total backwages, if he is been reinstated with continuity of service. A pursis to that effect is also filed by the respondent in this Court. 5. With the assistance of learned counsel I have gone through the judgments. Both the Courts on appreciation of evidence have come to the conclusion that the charges against the respondent 4 wp 5567.11 are not proved. Even the difference in the amount is nominal i. e. of Rs. 1, 2, 3 or 5. It has also come on record from the evidence of petitioners' witness that the duty to maintain the schedule of payment of provident fund is of Division Office and not of present respondent. In such circumstances, it cannot be said that the respondent is guilty of the charges leveled against him. 6. Regarding the payment of full backwages, same need not be dilated as, the respondent has agreed to waive the total backwages. 7. In the light of the above, the impugned order is modified to the extent of payment of backwages i. e. respondent is not entitled for backwages and is maintained in respect of reinstatement of the respondent with continuity in service. 8. The Rule is accordingly made absolute in view of above observations and the order. [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11