1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7567 OF 2008 Raveendra S. Sheety ..Petitioner. Vs. Bombay Chamber of Commerce & Industry ..Respondent. .... Mr. A.K. Jalisatgi and Mr. Amol B. Desai for the Petitioner. None for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 19th November, 2008. P.C. : 1. The Petitioner was a typist – clerk with the Respondent. A charge-sheet was issued to him on 23rd October, 1996 in pursuance of which a disciplinary enquiry was conducted. There were three articles of charge. The first article was that between July 1994 and September 1996 he had come late to work on as many as 185 occasions. The second article of charge was that the Petitioner was working as an insurance agent of the Life Insurance Corporation of India in Branch No.898 and this conduct amounted to a breach of condition 7 of his letter of appointment dated 30th December, 1988 2 which prohibited the Petitioner during the course of his employment from engaging in or being interested in any other business or profession. The third article of charge was that though he was asked to maintain a worksheet like other members of the staff from 1st January, 1996, the Petitioner had not done so until 13th February, 1996; and that when he started writing the worksheet he had not done so properly despite being required to do so. The charge was therefore under the Model Standing Orders of willful insubordination or disobedience of a lawful or reasonable order; late attendance on not less than four occasions within a month and commission of an act subversive to discipline or good behaviour. 2. The Enquiry Officer found that the charges were duly established and submitted his report on 28th December, 1997. The Petitioner participated in the enquiry. The Petitioner was dismissed from service on 24th February, 1998. An industrial dispute was raised and a reference was made to adjudication. The Labour Court by its award dated 27th August, 2004 held that the enquiry was fair and proper. On 27th September, 2006 the Labour Court held that the 3 findings of the Enquiry Officer were not perverse. Finally by an award dated 26th June, 2007 the Labour Court held that the punishment that was imposed was not disproportionate and dismissed the reference. The Petitioner was, however, held to be entitled to receive his legal dues as admissible in law. 3. On behalf of the Petitioner three submissions have been urged. Firstly, it has been stated that other employees were also coming late to work. Secondly, it was urged that it was in July 1996 that the Petitioner changed his union affiliation and a charge sheet was issued soon thereafter in October 1996 and thirdly, it was submitted that the Petitioner had been acting as an LIC agent since 1992 which must have been within the knowledge of the employer and that hence, there would be an acquiescence to the activities of the Petitioner. 4. Insofar as the first submission is concerned, the findings of the Enquiry Officer will show that the charge was proved on the basis of the endorsements which were made by the Petitioner himself 4 together with his signatures on the muster roll. The fact that the Petitioner had come late to work on as many as 185 occasions during the period of July 1994 and September 1996 cannot therefore be and has not been disputed. The fact that certain other employees have been coming late to work is a purely hypothetical and conjectural submission. The number of occasions on which the Petitioner reported late for work shows a habitual course of conduct. The Petitioner cannot seek to excuse his own misconduct by pointing out that this was also done by certain others. There is absolutely no merit in the submission. Insofar as the second submission is concerned, there is absolutely no evidence of victimization. The mere fact that the Petitioner changed union affiliation in July 1996 cannot be a ground to excuse the misconduct which is duly proved. Apart from the fact that there is no evidence of victimization, it is also a settled principle of law that a misconduct duly proved on the basis of legally acceptable evidence negates a plea of victimization. Insofar as the third submission is concerned, the Petitioner admits that he was an LIC agent, The Petitioner had in fact 5 received commission against the collection of premiums. This was in clear breach of the terms of appointment which precluded him from engaging in a business or profession other than the business of the employer. The Enquiry Officer has disbelieved the submission that the Petitioner had informed certain other officers of the employer. Even before this Court it is not the contention of the Petitioner that he had taken written permission of the employer. There is a clear breach on the part of the Petitioner of the governing terms of his appointment and the misconduct was therefore established. For these reasons, the conclusions of the Labour Court and the dismissal of the reference are in order. No other submissions apart from the aforesaid three which have been recorded herein above have been urged. The Petition is accordingly dismissed. *****