1 wp 1296.11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION K WRIT PETITION NO.1296 OF 2011 Mr. Dattatray Pandurang Khartode .. Petitioner. Vs. The Divisional Traffic Superintendent .. Respondent. Mr. Jaydeep S. Deo for the Petitioner. Mr. G.S.Hegde for Respondent. CORAM : K.K. TATED, J. RESERVED ON : 20TH JULY, 2011. PRONOUNCED ON: 12TH AUGUST, 2011. P.C. 1. Heard the learned counsel for the parties. 2. This Petition under Articles 226 and 227 of the Constitution of India is directed against the decision of the Industrial Court, Pune dated 3rd January, 2011 in Revision Application (ULP) No.96 of 2010 dismissing the Revision against the order dated 9th August, 2010 of the Third Labour Court, Pune below Exhibit - 2 in Complaint (ULP) No.46 of 2010 dismissing the Complaint of the Petitioner. 2 wp 1296.11.doc 3. The facts giving rise to the Petition are that the Petitioner is in service of the Respondent as Conductor. The Petitioner was conductor with the bus which was on route from Baramati to Indapur on 9th August, 2009. The bus was checked by checking squad at Indapur. It was found that 35 passengers were travelling in the bus and one passenger was travelling from Baramati to Indapur and the Petitioner recovered a ticket fare of Rs.35/- from him and issued ticket of Rs. 35/- but there was wrong punching on the said ticket and when other tickets were verified from the weigh bill of the Petitioner it was found that those tickets were not from the ticket tray of the Petitioner. Thus, the allegations made against the Petitioner for reissue of the tickets and thereby misappropriation of the amount. For these allegations and other allegations made in the charge-sheet the charges as per clause 7 (e), 9, 10, 12 (b), 22 and 32 of Discipline and Appeal Procedure were levelled against the Petitioner and thereafter, Enquiry was held. The Petitioner was found guilty and was served with a notice dated 26th April, 2010 to show cause against the proposed punishment of dismissal. 4. The Petitioner challenges the show cause notice issued to him by filing the Complaint (ULP) No. 46 of 2010 before the Labour Court 3 wp 1296.11.doc under section 28 (1) read with Item no.1(a), (b), (d) (f) and (g) of Schedule IV of the Maharashtra Recognition of Trade Practices and Unfair Labour Practices Act, 1971. The First Labour Court, Pune rejected that application by order dated 1st August, 2010 and Revision Application (ULP) No. 96 of 2010 filed by the Petitioner was also dismissed by the learned Member of the Industrial Court, Pune by order dated 3rd January, 2010. 5. Feeling aggrieved the Petitioner has preferred this Petition challenging the decisions of the Labour Court, Pune and decision of the Industrial Court, Pune. 6. The learned counsel for the Petitioner contended that there was no fair and proper enquiry and the Petitioner was not given opportunity to defend himself. Secondly, he contended that the charge levelled against the Petitioner was not proved and the punishment of dismissal was disproportionate to the charge levelled against the Petitioner. According to him, both the Labour Court and Industrial Court erred in dismissing her Complaint. 7. In support of his submission he relies on the judgments in the matter of Shantilal Motilal Marwadi vs. Lipton Tea (India) Ltd. & Ors. 4 wp 1296.11.doc reported in 1991 II CLR 225, Biecco Lawrie Limited and Another vs. State of West Bengal and Another reported in (2009) 10 SCC 32, Chandra Prakash Singh and Others vs. Chairman, Purvanchal Gramin Bank and others reported in (2008) 12 SCC 292 and P. Sreeramulu and another vs. State of Andhra Pradesh represented by Asstt. Collector, Cuddapah reported in AIR 1970 AP 114. 8. On the other hand, the learned counsel appearing on behalf of Respondent vehemently opposed the present Petition. He submits that the Respondent carried out enquiry against the Petitioner according to law and therefore, there is no question of entertaining the present Petition. He further submits that the Officer-in-charge of Checking Squad recorded the statement of Petitioner as well as the passenger Mr. Vikas Suryawanshi. It is crystal clear from the enquiry report and statement made by the passengers that Petitioner misappropriated the Respondent’s funds. He further submits that the Apex Court in the matter of Karnataka State Transport Corporation held that once the conductor is found misappropriating the money, such person is not fit to be retained as a Conductor because such action or inaction is bound to result into the financial loss to the Corporation. In support of his contention he relies on following Judgments: 5 wp 1296.11.doc Karnataka State Road Transport Corporation vs. B.S. Hullikatti reported in AIR 2001 SC 930, Brihanmumbai Municipal Corporation vs. General Secretary, Best Workers’ Union and another reported in 2005 (1) Mh.L.J. 1013, State Transport Co-op. Bank Ltd. & Anr. vs. Shankar Gopal Pagire & Ors. reported in 2004 III CLR 1034 and Dawn Mills Co. Ltd. vs. Sukhdev Prasad Dhaneshwar & Anr. reported in 1989 (1) CLR 79. 9. I have gone through the judgment of Labour Court and Industrial Court and also the proceedings on record. Both the courts have considered the evidence on record and they found that the Petitioner was given sufficient opportunity to cross-examine the witnesses. On going through the proceedings on record, the Checking Officer while checking bus found that one passenger was travelling from Baramati to Indapur and the Petition recovered ticket fare of Rs.35/- from him and issued ticket. On the said ticket there was wrong punching as 245 to 295, therefore, the tickets were verified from the weigh bill of the Petitioner and it was found that those tickets were not from the ticket tray of the Petitioner. Thus, the Petitioner has reissued the tickets and thereby misappropriated the amount. Those facts have been found duly proved by both the courts below on considering and 6 wp 1296.11.doc appreciating the evidence on record. Those findings of facts cannot be interfered with by this court in the Petition under Articles 226 and 227 of the Constitution of India. 10. The learned counsel contended that the Enquiry Officer while conducting the enquiry put certain questions to the witnesses which are of the nature of cross-examination. It is well settled that in the domestic enquiry the detailed procedure of recording the evidence as followed in courts need not be strictly followed. In this connection, the learned counsel for the Respondent relied on the decision of this court in the matter of State Transport Co-op. Bank Ltd. & another vs. Shanker Gopal Pagire and others (supra). It fully supports the submissions of the learned counsel for the Respondent. 11. The learned counsel for the Petitioner in support of his case that enquiry was vitiated as certain questions to the witnesses were put by the Enquiry Officer relied on the decision in the matter of Shantilal Motilal Marwadi (supra). 12.I have gone through that decision. That decision is distinguishable on facts. It is not applicable to the facts of the present case. 7 wp 1296.11.doc Consequently, I find that the Departmental Enquiry in this case is not vitiated on the ground that some questions were put by the Enquiry Officer to the witnesses. It is also not vitiated on the ground that the Petitioner was not allowed to cross-examine the witnesses or was not allowed to lead defence evidence. 13.As regards the satisfactory proof of the charge levelled against the Petitioner, both the courts on considering and appreciating the evidence on record found that the charge levelled against the Petitioner was duly proved. This court cannot interfere in the findings of facts arrived at by the courts below by re-appreciating the evidence on record. Therefore, the contention of the learned counsel that the charge levelled against the Petitioner was not proved, cannot be accepted. 14.As regards the contention of the learned counsel appearing on behalf of the Petitioner that the penalty of the dismissal from the service was disproportionate to the charge established cannot be accepted. On the facts and circumstances of the present case, it cannot be held that the punishment of dismissal is disproportionate to the charges established against him. 8 wp 1296.11.doc 15.In the result, there is no substance in the writ petition and which is stands dismissed. 16.No order as to costs. (K.K. TATED, J.)