1 wp-5976-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION W.P. NO. 5976 OF 2009 Shri.Bhimrao Khanderao Bhendale ..Petitioner Vs. Huzaifa Furniture Industries Pvt.Ltd. ..Respondent .... Mr. M.S.Karnik Adv. for Petitioner Mr. V.P.Vaidya Adv. for Respondent .... CORAM : SMT.V.K.TAHILRAMANI,J. DATE : AUGUST 21, 2009 P.C.: 1. Heard the learned counsel for the petitioner-original complainant and the learned counsel for the respondent-company. 2. The case of the petitioner-complainant that he was in the employment of the respondent-company from the year 1991 initially as a contract labour. Thereafter he was made permanent from 1.10.2000. At that time, he was working as a Machinist. On 27.3.2003 the respondent- company suspended the petitioner and issued charge sheet and placed 2 wp-5976-09 him under suspension. Thereafter, he came to be discharged from service on 8.2.2003. Being aggrieved thereby, the petitioner preferred complaint ULP No.175 of 2003 before the Labour Court Nasik challenging the order dated 8.2.2003 under Item 1 Schedule IV of the M.R.T.U. and P.U.L.P. Act. 3. The case of the respondent company is that the complainant was working as production incharge in the company. He was responsible for the raw material being used in the company. It was noticed by the company that raw material was being misused and being used for unauthorized purpose in the department of the complainant. Material of the company was used for making a temple and speaker boxes for which no permission was taken from the company. These products were made without permission of the company. It is their case that complainant had admitted that he was aware that the material was being misused and he failed to intimate the same to the Management. After conducting the inquiry, the respondent-company did not dismiss the complainant but instead they imposed punishment of discharge and also paid his legal dues which is not disputed. 4. The Labour Court by judgment and order dated 12th February, 2009 held that there was no evidence on record to show that the misuse of the material was done by the complainant with intention to defraud the Management or misappropriate the property of the company or to 3 wp-5976-09 commit theft being production incharge in the company and that there was no possibility of taking away any material from the company without it being noticed by anybody and on this ground, the Labour Court granted relief of reinstatement with continuity of service but without back wages. The said order was challenged by the respondent-company by filing Revision (ULP) No. 14 of 2009 before the Industrial Court. The Industrial Court by judgment and order dated 22nd June, 2009 allowed the said revision filed by the respondent-company and judgment and order of the Labour Court came to be set aside. Being aggrieved by the said judgment and order of the Industrial Court, this writ petition has been preferred by the original complainant. 5. The evidence on record shows that the complainant was incharge of production and he was responsible for raw material being used in the company. It was noticed by the company that raw material was being misused in the department of the complainant for unauthorized purposes. The complainant workman has committed misconduct i.e. unauthorisedly using company ’s raw material for preparing small temples (Devhara) and speaker boxes without obtaining the permission of the company. In reply to the show cause in the enquiry, the complainant workman has admitted that he had not intimated to superior regarding the unauthorized use of raw material of the company. He has also admitted in reply to show cause notice dated 4 wp-5976-09 23.7.2003 vide Exh.12 that he has misused the raw material of the company and he had not intimated to his superior. 6. From the evidence on record, the Industrial Court was right in observing that the Labour Court has taken wrong view and granted the reinstatement in service on the ground that misconduct or fraud, misappropriation and dishonesty was not proved and only negligence was proved. The Labour Court has failed to notice that the strict rules are not followed in the Departmental Enquiry and charge in the Departmental Enquiry need not be proved beyond doubt like in criminal cases, before a criminal Court and infact, in Departmental Enquiry, hearsay evidence is also admissible to prove the charge of misconduct. In my opinion, the charge is grave and serious nature which evidence shows, was committed by the workman. The complainant was project incharge of the company and several employees were working under his supervision. The failure to intimate the superior officer regarding misuse of raw material, clearly indicates that the complainant was involved in the misconduct. The complainant has not explained why he failed to intimate the superiors about the misuse of raw material. The company has not dismissed the complainant but it has discharged him and it has also paid him all the legal dues. It cannot be said that in the facts and circumstances of the case, the punishment is disproportionate to the misconduct proved in the enquiry, hence, no case is made out for 5 wp-5976-09 interference in the order of the Industrial Court dated 22nd June, 2009. 7. Writ Petition is dismissed. [ SMT.V.K.TAHILRAMANI,J.]