1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1393 OF 2001 Ashok s/o. Sitaram Pathak, Age 45 yrs., Occu. Nil., R/o. A-103, Prabhulila Apartment, Sharadanagar at Bhusawal, Dist. Jalgaon. ....Petitioner. Versus The Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon. ....Respondent. Shri. V.Y. Patil, Advocate for applicant. Shri. Manoj Shinde h/f. Shri. M.K. Goyanka, Advocate for respondent. CORAM : R.K. DESHPANDE, J. DATE : 16th July, 2010. ORAL JUDGMENT : 1. This petition is preferred by the employee, challenging the order dated 26.7.2000, passed in Revision Application (ULP) No. 740/1999 (Old No. 62/99) by the Industrial Court, Jalgaon, setting aside the order dated 3.3.1999, passed by the Labour Court, Jalgaon in Complaint (ULP) No. 82/1998. The Labour Court allowed the complaint filed by the petitioner/employee, challenging his dismissal from service and granted reinstatement without backwages, by holding that the charges against the petitioner were partly proved and hence, he was not entitled for backwages. The Revisional Court has set aside the judgment and order 2 passed by the Labour Court and the Complaint (ULP) No. 82/1998 has been dismissed. Hence, the employee has preferred this writ petition. 2. The charge on the petitioner/employee was regarding the theft of tire and tube, amounting to Rs. 527/-. The incident occurred on 7.5.1997 and this act, according to the Maharashtra State Road Transport Corporation (MSRTC), amounted to misconduct under clauses 10,12,12- A, 12-B, 22 and 28 of Discipline and Appeal Procedure. The inquiry was conducted against the petitioner. The employer examined 6 witnesses (1) L. D. Bharati (2) Mr. M.S. Sahare (3) G.T. Waise 4) V.K. Patil (5) D.H. Narkhde, Security Guard and (6) F.K. Shaikh. The Inquiry Officer recorded a finding that the charge against the employee has been established. The petitioner was awarded punishment of dismissal from service. 3. The petitioner challenged the dismissal from service by filing the complaint (ULP) No. 92/1998. The criminal prosecution was also initiated against the petitioner for alleged theft under section 381 of the Indian Penal Code. He was honourarily acquitted from the Regular Criminal Case No.68/1997 decided on 22.1.1999. The Labour Court decided the Complaint by its judgment and order dated 3.3.1999. It was held that the Inquiry Officer has not considered all the aspects and hence, the charge of theft was not proved beyond doubt. The Labour Court held that the findings of the Inquiry Officer are partly perverse. 3 The petitioner has been acquitted in criminal complaint and weightage is given to the said acquittal. Thus, on the basis of these findings, the order of reinstatement without backwages was passed. 4. In Revision Application No. 740/1997 preferred by the respondent/Corporation, the Industrial Court reversed the findings of the Labour Court, on the ground that it is not based on the evidence and material available on record. It was held that it is not the function of the Labour Court to reappreciate the evidence and to see whether the findings recorded by the Inquiry Officer are correct or not. It was held that the Labour Court has considered the matter, as if it is sitting in appeal as against the findings recorded by the Inquiry Officer. It was further held that the past service record of the concerned employee is very bad and he was punished on several occasions for his proved misconduct. It was further held that on one earlier occasion, he was also dismissed from service, but there was no improvement in his conduct, therefore, the inference drawn by the Labour Court and interference with the findings recorded by the Inquiry Officer, was not warranted. On these findings, the Industrial Court set aside the order of the Labour Court and dismissed the complaint filed by the employer. This is the subject matter of challenge in this petition. 5. Shri. Patil, the learned counsel for the petitioner has urged that the Labour Court has recorded a finding that the Inquiry Officer has 4 failed to consider all the aspects, which are discussed in the judgment and hence, the findings rendered in inquiry, therefore, are perverse. He further submits that the charge of theft was not proved. The petitioner was acquitted from the criminal case honourarily and hence, taking into consideration all these aspects, the Labour Court was right in setting aside the punishment of dismissal. He further pointed out that on all previous occasions, whenever the misconduct was alleged against the petitioner, he was punished for the same and hence, the past record has lost its significance, on the aspect of imposition of punishment of dismissal, which was the subject matter of challenge before the Labour Court in the Complaint. Shri. Patil, the leaned counsel has further urged that the scope of the powers of the Industrial Court under section 44 is very limited. It had no jurisdiction to enter into the findings of facts recorded by the Labour Court. According to him, the Industrial Court has reappreciated the evidence on record and has held that the findings recorded by the Labour Court are perverse. Such an exercise was impermissible under section 44 and hence, he relies upon the decision of the Single Judge of this Court reported in 2009 (1) Mh.L.J. 982 in the case of Kolhapur Zilla Sahakari Dudha Utpadak Sangh Vs. Shivaji Shankar Pharakate and anther. 6. The learned counsel for the respondent/MSRTC has refuted the contentions raised by Shri. Patil. He has urged that the Industrial Court was right in interfering the order of the Labour Court, when it found that 5 the Labour Court has exceeded its jurisdiction in setting aside the findings of the Inquiry Committee. He submits that the Labour Court failed to take into consideration the past service record, which has been taken into consideration by the Industrial Court. According to him, the Industrial Court was right in exercise of its jurisdiction under Section 44 to set aside the judgment and order passed by the Labour Court. He, therefore, supported the findings of the Industrial Court and urged that the order of the Industrial Court is required to be maintained. At any rate, according to him, it is a finding recorded by the Industrial Court, on being found that the Labour Court has exceeded its jurisdiction. 7. It is not in dispute that the incident took place on 7.5.1997. The respondent/corporation examined six witnesses in support of the charge of theft, which was recorded against the petitioner. No doubt that petitioner has been acquitted from the criminal case, however, that does not mean that in inquiry he would be exonerated. The charge is established on the preponderance of probabilities against the employee. On the findings recorded by the Labour Court, it seems that the Labour Court was of the opinion that the charges were required to be established beyond doubt. It has also recorded a finding that though the charges are partly proved, the weightage should be given to the acquittal in the criminal case. It has further failed to take in to consideration the past service record of the petitioner/employee. The Revisional Court has found that the Labour Court has acted virtually as an appellate authority 6 over the findings recorded by the Inquiry Officer. It has further seen that the findings recorded by the Inquiry Officer are supported by the material available on record and there was no justification to interfere with the same. It has further held that the past service record of the petitioner has not been taken into consideration by the Labour Court and on all these grounds, it has been held that the Labour Court has acted beyond the scope of its powers. Accordingly, the judgment and order passed by the Labour Court is rightly set aside. In view of this, no fault can be found with the jurisdiction exercised by the revisional authority. Apart from this, Shri. Patil, the learned counsel has pointed out the past service record of the petitioner. Perusal of it shows that on 16 occasions, the petitioner has been punished. Lastly on 12.10.1998 the petitioner was infact dismissed from service. Hence, the question in respect of disproportionality of punishment, does not arise at all. 8. In the result, there is no substance in the petition. The same is, therefore, dismissed. Rule is discharged. [ R.K. DESHPANDE, J. ] ssc/wp1393.01