- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION No. 2293 OF 2007 Sheikh Mohd. Asif ) Havaldar Chawl, Room ) No. 15, Mograpada, ) Andheri, Mumbai 400069 .. Petitioner Vs. 1. M/s. Grey World (I) ) Pvt. Ltd.,Grey House,) 28, Dr. E. Borges ) Road, Opp. Dr. ) Shridhar High School ) Parel, Mumbai-012. ) 2. V. M. Kekade, ) Presiding Officer. ) 12th Labour Court, ) Bandra, Mumbai ) ... Respondents Mr. Ashok D. Shetty, Advocate for the petitioner. CORAM : A. M. KHANWILKAR, J. DATE : FEBRUARY 6, 2008. PC : . Heard counsel for the petitioner. I find no reason to entertain this Writ Petition. The arguments on behalf of the petitioner at best is to pursuade the court to take another view on the basis of the self same record, which cannot be the scope of writ jurisdiction. Suffice to observe - 2 - that the view taken by the court below on material issues is a possible view on the basis of evidence available on record. On this finding, no interference is warranted. 2. Nevertheless, I shall advert to the arguments canvassed on behalf of the petitioner. The first argument is that, the material witness to establish the guilt is only Mr. Bharat Shah, was not sufficient. The argument though attractive overlooks the approach of the Court below. In respect of this argument, as can be discerned from the discussion in paragraph 31 onwards till paragraph 38 of the award, Part-I, the Court below has analysed the evidence of Bharat Shah and has found as of fact that the evidence of Bharat Shah has remained unshaken. The evidence of Bharat Shah discloses the details as to what transpired in presence of the petitioner, as the discussion between Bharat Shah and Manoj Patel, the proprietor of DVER reveals the modality adopted in submitting over invoiced bills to the respondent company at the behest of the petitioner. The court below has also found that the documents at Exhibits 8, 9, 10 and 11 were not seriously challenged by the petitioner. - 3 - In relation to the episode, deposed by Bharat Shah, the document Exhibit 9 is of some significance. The court went on to observe that, surprisingly the workman availed remedy of cross-examination of the Management witnesses. The said material documents were not challenged by the workman either in cross examination of Management witness or in his own examination-in-chief. The court below proceeded to hold that evidence of Bharat Shah which is supported by the unchallenged documentary evidence was sufficient to bring home the guilt against the petitioner. The finding of fact reached by the lower Court in this context has not been challenged at all. 3. The counsel of the petitioner would however, contend that finding of fact reached by the Court below in paragraphs 31 and 34 and in particular 38 of Award Part-I has been specifically challenged. However, in my opinion, even if the said two grounds were to be read liberally, it is nowhere suggested that the finding of fact recorded by lower court is either perverse or error apparent on the face of the record. The grievance in the said two grounds at - 4 - best is that the court ought not to have relied upon the opinion recorded by the inquiry officer which finds the petitioner guilty solely on the evidence of Bharat Shah without any other evidence either oral or documentary, despite being aware of the severe consequences of finding of respondent. 4. It is also submitted that the respondent No.2 failed to appreciate the fact that Bharat Shah was not a direct witness to the incident but was merely a carrier of Exhibit 8, 9 at the inquiry proceedings. This is the only ground raised in the petition by the petitioner. The Court below has carefully analysed evidence of Bharat Shah, examined by the Management as witness and the events unfolded in the said evidence having remained unchallenged were sufficient to bring home the charge against the petitioner. No further material was required. The view taken by the Court below, particularly with reference to the decisions referred in paragraph 31 of the order, is a possible view and no interference in that behalf is warranted, in exercise of writ jurisdiction. 5. The counsel for the petitioner would - 5 - further argue that the punishment imposed is disproportionate and the opinion recorded in the Part II of the Award while upholding the punishment, is inappropriate. According to the learned counsel, the management has failed to establish the fact that the petitioner had actually received the benefit on account of excessive invoicing. In the absence of such evidence and finding, it would be inappropriate to impose such serious punishment on the petitioner. Besides, it is contended that the past conduct of the petitioner has been totally ignored and not taken into account while imposing punsihment. It is the case of the petitioner that petitioner was commended with best performance by the management in the past and that aspect ought to have been considered while imposing punishment. Once again this argument only deserves to be stated to be rejected. The court below in Part II of Award has elaborately considered all aspects from paragraphs 34 to 40 of the judgment, and held that no fault can be found with the punishment imposed by the management. For the charge proved against the petitioner is grave and of serious nature. The charge as proved against the petitioner was one of theft, fraud, dishonesty, gratification, - 6 - subversive behaviour and refusal to accept memos. The said opinion recorded by the lower court, in my opinion is unexceptional. Having regard to the nature of charge, which has been proved during the inquiry and which inquiry has been found to be fair and proper by the Court, it necessarily follows that it is a case of loss of confidence against the petitioner on account of his serious misconduct. In such a case the order of dismissal cannot be said to be excesive or unreasonable as such. 6. Besides above contention, with regard to the correctness of Part-I of Award the learned counsel argued on the other incidental issues. For the reason already recorded earlier, it is not necessary to incorporate those issues in the present order, so as to burden this order. Suffice to observe that having regard to the facts and circumstances of the present case, no interference in exercise of writ jurisdiction is warranted. Hence, the petition is dismissed. Sd/- [ A.M. KHANWILKAR, J.]