IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD ..WRIT PETITION NO. 1235 OF 1998.. Baburao Vithalrao Wagh, Age 48 Years, Occ. Service, R/o Sarafa Road, Near Dr. Jain, Tq.Sillod, Dist. Aurangabad. ..Petitioner Versus 1. The Maharashtra State Road Transport Corporation, Through its Divisional Controller, Aurangabad. 2.Divisional Traffic Superintendent, MSRTC, Aurangabad. 3.The State of Maharashtra, Mantralaya, Mumbai. ..Respondents ... Shri B.R.Warma, Advocate for petitioner, Smt. R.D.Reddy, Advocate for respondents 1 and 2 and Shri V.G.Shelke, AGP for respondent No.3. ... CORAM : B.P. DHARMADHIKARI,J. Dated : April 15, 2011 ORAL JUDGMENT:- 1. Heard learned counsel for the respective parties. 2. The petitioner was working as a Conductor in MSRTC - respondents 1 and 2. 3. Shri Warma, learned Advocate contends that the petitioner has proved his bonafides by stopping the bus immediately after noticing that there were some without ticket passengers and when he was in the 2 WP/1235/1998 process of issuing the tickets the bus came to be checked. According to him, the process of issuing the tickets was still going on and hence the alleged misconduct was not complete. His contention is that misconduct could have been treated as complete only after the passengers got down of the bus at their destinations. In the alternative and without prejudice he contends that the Enquiry Officer has himself issued the charge sheet, recoreded evidence and thereafter has also prepared enquiry report. This is in breach of the principles of natural justice. Without ticket passengers, whose statements were allegedly recorded on the spot, were not examined before the Enquiry Officer by MSRTC and the only evidence of checking staff, therefore, was not sufficient to hold that the misconduct was established. He points out that some of these without ticket passengers were examined by the petitioner as his witnesses and they have deposed that under the threat of police action their signatures were obtained and that they had neither paid the fare amount nor they had received the tickets. It is his contention that in such circumstances, perusal of enquiry report reveals a negative burden cast upon the petitioner. The misconduct ought to have been proved by an employer and Enquiry Officer has concluded that the petitioner has not proved his innocence. He, therefore, prays for allowing the Writ Petition. 4. Learned AGP for the State Government supports the order. 3 WP/1235/1998 5. Perusal of the judgment dated 13.10.1995 delivered by the Labour Court Aurangabad in Complaint (ULP) No.372 of 1990 reveals that it found enquiry fair and valid and findings of Enquiry Officer not perverse. It then also found that the petitioner was not entitled to grant of reinstatement but altered his punishment from dismissal to discharge so that he becomes entitled to receive terminal benefits. This judgment of the Labour Court was then questioned by the petitioner in Revision (ULP) No.71 of 1997 and by employer in Revision (ULP) No.2 of 1996 before the Industrial Court. These revisions under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act have been decided by a common judgment on 3.3.1998 by the Industrial Court, Aurangabad. The Industrial Court found the inference by the Labour Court unwarranted. It, therefore, restored the punishment for dismissal. Thus, it allowed the revision by the employer and dismissed the revision filed by employee/petitioner. 6. It is obvious that in so far as findings of misconduct are concerned or even findings about validity of Departmental enquiry are concerned, both Courts are concurrent. They found the departmental enquiry proper and findings of Enquiry Officer not perverse. With the result, this Court cannot look into the evidence on record unless and until it is shown that the findings are perverse or erroneous. 4 WP/1235/1998 7. The defence of the petitioner was of false implication by the checking staff. Member of the Checking Staff has entered the witness box before the Enquiry Officer but the petitioner has chosen not to cross examine him. It is to be noted that during enquiry the petitioner was assisted by Union Representative. It is, therefore, apparent that defence of false implication is not established in the matter. 8. The evidence of without ticket passengers is not necessary before the Enquiry Officer as has been held by the Honourable Supreme Court in the case of Divisional Controller, KSRTC Vs. A.T.Mane [(2005) 3 SCC 254]. Here, the present petitioner has produced some of the without ticket passengers. Without ticket passengers have, in fact deposed in his favour. Their evidence recorded before the Enquiry Officer reveals that they had not paid the fare amount and that they had also not received the tickets. In this background when the defence of the petitioner is looked into, he has urged that when he started the bus, he did not notice any without ticket passenger because nobody came to him to take the ticket. After the bus started some passengers came to him and began demanding tickets. He, therefore, stopped the vehicle, started issuing the tickets and at that time, the checking staff entered the bus. It is, therefore, obvious that the petitioner is aware of the rule of “Issue and start”. It is also shows that when he had started the bus from the previous stage, he has not verified whether all passengers were having tickets. In this background, if the statements of without ticket passengers 5 WP/1235/1998 recorded before the Enquiry Officer are looked into, it is clear that they had neither paid amount nor received the tickets. The misconduct alleged against the petitioner is of carrying a group of five person without ticket from Ambhai to Shekhpur. The charge sheet shows that he had recovered fare amount of Rs.00.70 Ps.from all these passengers and did not issue tickets to them till the checking staff entered the bus. Similarly, other group of five passengers was found travelling without tickets from Ambhai to Shirsala and from them also the fare amount of Rs.7/- was collected. From two passengers travelling from Ambhai to Shirsala, total amount of Rs.2.20 was collected but they were not given any tickets. MSRTC cash found with him was extra by Rs.10.10. The statements of without ticket passengers recorded on spot reveal that they had given necessary amount to the petitioner but tickets were not issued to them. The reply given by the petitioner to the charge sheet shows that he started the vehicle because of his feeling that all passengers were with the tickets. 9. This entire material is looked into not only by the Enquiry Officer but by the Labour Court and thereafter by the Industrial Court. The conclusions drawn on its strength cannot be labelled as either erroneous or perverse. 10. Though the breach of principles of natural justice is alleged, it is apparent that no such challenge was there either before the Enquiry Officer or before the Labour Court. Even before this Court, any provision 6 WP/1235/1998 as contained in the Discipline and Appeal Rules is not being pressed into service to urge that the charge sheet should have been issued by any particular authority, enquiry should have been conducted by any another authority and that the third authority should have acted as a disciplinary authority. 11. The past service record of the petitioner reveals that there were similar fourteen instances in which he was punished. On eleven occasions, he was fined and on three occasions his increments were withheld. It was, therefore, obvious that the petitioner was not a new person, ignorant of the procedure to be followed either by checking staff and/or in departmental enquiry. 12. I do not find anything wrong with the concurrent judgments. The Writ Petition is accordingly dismissed. Rule discharged. No order as to costs. ( B.P. DHARMADHIKARI, J.) ... akl