:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4201 OF 2006 Shri Vilas Kashinath Sonawane ..Petitioner Vs. The Maharashtra State Board Transport Corporation, Solapur Division, Solapur and ors. ..Respondents Mr. J.D. Khairnar i/by Mr. Rajendra Kadu for petitioner. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date : January 15, 2008. : January 15, 2008. : January 15, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Khairnar h/f Mr. Kadu the learned counsel for the petitioner who was working as an Assistant Art with the respondent-Corporation which is an undertaking of the Government of Maharashtra. he was employed since 1986 and while he was on duty in the second shift on 7/8/1990 at about 7.30 p.m. he was seen inside the ST depot at Kurduwadi and Shri Rohidas Kashinath Janrao who was working as a security guard was on his usual round. The said watchman had noticed the petitioner throwing motor tubes, rear springs out of the compound and the said watchman had caught him read-handed. He was immediately taken by :2: the watchman to the Depot Manager. Two actions were simultaneously initiated against the petitioner, namely, C.R. No.56 of 1990 was registered for an offence under Section 381 of IPC with the Kurduwadi Police Station and the chargesheet was issued on 8/8/1990 under the Disciplinary and Appeal procedure which are service Rules applicable to the employees of the Corporation in the matter of discipline and appeal action. He was arrested on 7/8/1990 at about 11 p.m. and after obtaining remand was released on bail. The learned JMFC at Madha was pleased to acquit the petitioner as per his Judgment and Order dated 23/6/1995. In the meanwhile on issuance of the chargesheet on 8/8/90, the petitioner was placed under suspension and departmental enquiry was also instituted. The petitioner participated in the enquiry and the Enquiry Officer submitted his report which was accepted by the Corporation and Enquiry Officer has held that the charges of theft and dishonesty were proved against the petitioner. He was, therefore, dismissed from service by order dated 3/11/1990. About five years later, on receipt of the order of acquittal passed by the learned JMFC, the petitioner made a representation to the Corporation :3: for reinstatement in service on the ground that he was acquitted and that order of acquittal was obviously not challenged by the Corporation. This representation was submitted on or about 3/7/1995, but there was no response and, therefore, he issued a reminder on 20/7/1995 which also met with the same fate. He, therefore, submitted a notice on 4/10/1995 to the Assistant Labour Commissioner, Solapur raising demand for reinstatement in the employment of the Corporation. Reference was made to the Labour Court on the said demand and it came to be registered as Reference (IDA) No.16 of 1997 and by the impugned award dated 17/8/2005 the Reference came to be dismissed. 2. It needs to be noted at the threshold that on the preliminary point of the legality of the domestic enquiry held into the charges levelled against the petitioner by the resopndent-corporation, the Labour Court by its order dated 16/4/2002 held that the enquiry was not in keeping with the principles of natural justice and, therefore, it was vitiated. Consequently, the Corporation conducted a fresh enquiry before the Labour Court by examining three :4: witnesses, namely, Shri S.P. Jagtap, Asst. Traffic Inspector (ATI) (Exh.C-18), Shri A.B. Ghodake (Exh.C-20) and Shri R.K. Janrao (Exh.C-22). The petitioner submitted his affidavit at Exh.U-22 in the examination-in-chief and on the same he was cross-examined. On the basis of this evidence, the Labour Court in the impugned award held that the charges of theft and breach of lawful orders were proved against the petitioner and consequently, the Labour Court did not find any reason to cause interference with the punishment awarded to the petitioner. 3. Mr. Khairnar the learned counsel for the petitioner submitted that even before the Labour Court the evidence adduced by the Corporation could not prove the charges and, in fact, the first witness of the Corporation Shri Jagtap clearly admitted that his testimony was based on the hear-say evidence i.e. the information he had received from the security guard Mr. Janrao. It is pertinent to note that the Labour Court has not relied upon the evidence of Shri Jagtap and on the contrary the star witness of the Corporation was Mr. Janrao and supported by the :5: testimony of Mr. Ghodake. Mr. Janrao clearly stated before the Labour Court in his examination-in-chief that there was 19 workers in the shift and the recess timing of the workers was 7.15 p.m. to 7.45 p.m. 18 workers had left the work place for recess and only one workman i.e. the petitioner remained at the work place in the workshop and on the usual round he heard a noise and, therefore, he run to the place and noticed that the second party workman had thrown 5 tubes spring plates out side the compound and, therefore, he caught hold of the petitioner and phoned the Depot Manager Shri Badeghar. He further stated that as per the valuation done, the material thrown out by the petitioner was of Rs.1575/- and it was thrown out of the premises across the compound wall with an intention to commit theft of the said articles. He was cross-examined about his depositions before the JMFC and he also stated that he had taken the round after he had searched 18 workmen going out of the depot during the recess time. Shri Ghodake the second witness stated before the Labour Court that on 7/8/90 all the employees had gone for the tea break and while he was returning to work place, he noticed that Shri Janrao had held the petitioner by his hand :6: inside the compound of the workshop and there were steel plates and tubes outside the compound wall. Panchanama was recorded by A.T.I. Shri Jagtap. In his cross-examination he reiterated that he had seen watchman Janrao holding the petitioner by his hands as he had committed theft. The evidence of Ghodake and Janrao thus relied upon by the Labour Court in holding that the charges of theft and breach of lawful orders were proved cannot be said to be hear-say or unreliable evidence in a domestic enquiry. In their cross-examination nothing was brought out to impeach their testimony and, therefore, the Labour Court rightly held that the charges were proved against the petitioner. The Labour Court also noted that in a domestic enquiry conducted before the Labour Court, the standard of proof in proving the charges set out in the chargesheet issued under the disciplinary and appeal Rules cannot be compared with the standard of proof required in a criminal trial. Before a Criminal Court the charges are required to be proved beyond any reasonable doubt, whereas in a departmental enquiry initiated as per the Discipline and Appeal Rules, the enquiry proceeds on the basis of preponderance of probabilities and the rules of evidence required to be :7: followed in a criminal trial are not applicable for the departmental enquiries and the same thing applies for enquiry to be conducted before the Labour Court in a reference under the Industrial Disputes Act, 1947. 4. On the issue of quantum of punishment, there could be no doubt that the charges proved against the petitioner are of grave nature and he was a public servant. Against the order of dismissal he had also submitted an appeal as well as second appeal before the competent authorities and the same were dismissed. Under these circumstances, the Labour Court rightly held that the punishment of dismissal could not be termed as grossly disproportionate to the nature of the charges proved against the petitioner. The Labour Court noted that the petitioner did not deserve any sympathetic view and he was not fit to be retained in service in a public undertaking. This reasoning of the Labour Court can neither be termed as erroneous or unwarranted. I am, therefore, satisfied that the impugned award passed by the Labour Court does not call for any interference under Article 227 of the Constitution and the petition must, therefore, fail at the threshold. :8: 5. Hence, the petition is hereby rejected summarily. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)