1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO.1982 OF 2009 The Manager, Kavathe Mahankal Taluka Shetkari Sahakari Kharedi Vikri Sangh Ltd., Kavathe Mahankal, Dist. - Sangli. ..Petitioner. [Orig. Respondent ] Versus Shri Bapusaheb Pandurang Bhosale since deceased by his heirs 1. Nagesh Bapusaheb Bhosale, 2. Ganesh Bapusaheb Bhosale, 3. Smt.Padmini Bapusaheb Bhosale. ..Respondents. [Orig. Complainant ] ---- Mr.M.L. Patil, Advocate for the petitioner. Mr.Umesh R. Mankapure, Advocate for Respondent Nos.1 to 3. ---- CORAM : SMT.V.K.TAHILRAMANI, J. DATED : 21st July, 2009 P.C.: 1. Heard learned Counsel for the petitioner and the learned Counsel for the respondents. 2. Respondent – Shri Bapsaheb Pandurang Bhosale was appointed as a Clerk with the petitioner Society on 1.2.1971. Thereafter he came to be promoted to the post of Section In-charge. The audit of the petitioner society took place and some irregularities were detected by the Auditor. 3. The case of the petitioner Society is that respondent had committed misappropriation of approximately Rs.1,55,000/-. According to the 2 petitioner the misconduct committed by the respondent was of very serious nature, hence it was not possible to continue him in service. Therefore, he came to be terminated on 11.3.1993. 4. Being aggrieved by the termination, respondent preferred Complaint before the Labour Court, Sangli. By judgment and order dated 25.5.2005 the complaint filed by the respondent came to be allowed. It was declared that respondent Society engaged in unfair labour practice under Item 1(b)(d)(f) of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 and they were directed to cease and desist from engaging in such unfair labour practice. The Society was directed to reinstate the respondent with continuity of service and full back wages within one month. Being aggrieved by the said judgment and order, the petitioner preferred Revision Application before the Industrial Court. By judgment and order dated 6.10.2008 the said Revision Application came to be dismissed. Hence, this Petition. 5. It is an admitted fact that the respondent was appointed as a Clerk with the petitioner society on 1.2.1971. It is also an admitted fact that he came to be terminated on 11.3.1993 on account of misappropriation of funds approximately Rs.1,55,000/- of the petitioner society. It is also an admitted fact that no show-cause notice was issued to the respondent nor was any inquiry conducted before he came to be terminated. The case of the petitioner Society is that as the respondent had 3 misappropriated the amount of the petitioner society, hence he came to be terminated. The categorical case of the petitioner society is that the respondent came to be terminated only on the ground that he had misappropriated the said amount of the society. The case of the petitioner is that this misappropriation came to their notice in the audit which was conducted in the year, 1993. It is pertinent to note that the respondent was terminated on 11.3.1993. It is an admitted fact that the audit of the petitioner society was conducted on 7.8.1993. This clearly shows that on the date when the respondent came to be terminated, at that time the audit report was not with the petitioner Society. The case of the petitioner society is that the misappropriation committed by the respondent was noticed from the audit report and, therefore, he was terminated. But, the material on record clearly shows that at the time of termination, the audit report was not with the petitioner society. When the audit report was not with the petitioner society on the date when the respondent came to be terminated, it not understood on what basis the petitioner society is stating that the respondent had committed misappropriation of the funds of the petitioner society, hence he came to be terminated on 11.3.1993. 6. It is an admitted fact that no show cause notice was issued to the respondent, no enquiry was held before he was terminated. As far as this aspect is concerned, the learned Counsel for the petitioner submitted 4 that the respondent had admitted his guilt in a letter dated 30.7.1993 given by respondent to the management. The date of the letter, which is relied upon, shows that this letter is subsequent to the termination letter and the resolution passed by the society to terminate the respondent. The letter is dated 19.7.1993 which fact shows that this letter was not with the petitioner society on the date when they terminated the respondent on 11.3.1993. All these facts show that on the date of termination of the services of the respondent, there was nothing with the petitioner society to prove the alleged charge of misappropriation against the respondent. In such case, both the Courts below, were right in holding that the petitioner society failed to prove that the respondent had misappropriated the amount of the petitioner society and due to this he came to be terminated on 11.3.1993. Moreover it is an admitted fact that the respondent came to be terminated without conducting any inquiry and without giving him an opportunity of being heard. 7. All these facts were considered by both the Courts below and it has been rightly held that respondent has engaged in unfair labour practice under Item 1(b)(d)(f) of Schedule IV of M.R.T.U. & P.U.L.P. Act, 1971 while terminating the respondent. 8. It may be stated here that the respondent has expired on 21.1.2006 and thereafter the heirs have been brought on record, hence there is no question of reinstatement and only issue is backwages and other retiral 5 benefits. 9. Additional affidavit has been filed on behalf of the petitioner wherein it is stated that the respondent – Shri Bapusaheb was born on 1.6.1949 and he was appointed as a Clerk on 1.2.1971. He placed reliance on Service Rules and contended that the respondent would have retired on completion of 25 years of service. Thus, he submitted that upon completion of 25 years of service, the respondent would have retired on 31.1.1996. Hence, he submits that the backwages should be restricted only to the period from 11.3.1993 i.e. the date of his termination to 31.1.1996 i.e. the date when he would have retired as per the Service Rules. 10. I have perused the said Service Rules. The said Service Rule state that the person would retire on completion of 25 years of service or on attaining the age of 58 years. So, it is seen that the criterion is not only the completion of 25 years of service for a person to retire, but, it can also be upon completion of 58 years of age. The respondent would have attained the age of 58 years on 1.6.2007. However, it is seen that he died on 23.1.2006. Hence, as far as the issue of backwages is concerned, it shall be paid from 11.3.1993 to 23.1.2006. So also the pensionery benefits including gratuity the same shall be calculated and paid, as if, he had retired on 23.1.2006. 11.In view of the above facts, no case is made out by the petitioner. Writ 6 Petition is rejected. No order as to costs. [SMT.V.K.TAHILRAMANI, J.]