:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5775 OF 1997 WRIT PETITION NO. 5775 OF 1997 WRIT PETITION NO. 5775 OF 1997 R. S. Choudhary ..Petitioner versus The General Manager, BEST Undertaking, Mumbai & Ors. ..Respondents Mrs. Neeta Karnik for the Petitioner. Mr. S. K. Talsania, Sr. Counsel with Mr. S. K. Chari and Mr. Sunil Chavan i/b. M/s. M.V. Kini & Co. for the Respondent No. 1. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 27TH JANUARY, 2009. DATE : 27TH JANUARY, 2009. DATE : 27TH JANUARY, 2009. P.C. P.C. P.C. . Heard the learned counsel for the parties. 2. The petitioner has challenged the order of the Industrial Court dated 24.7.1997 dismissing the appeal preferred by the petitioner against the order dated 4.6.1996 of the Labour Court upholding the punishment of dismissal imposed upon him by the respondent employer for misconduct after holding an enquiry under Standing Order 20(j). 3. On 5.1.1993 when the petitioner was driving :2: a bus from Antop Hill to Worli Dairy, the bus dashed against a cyclist from the front. The cyclist was a child of about 14 years and succumbed to injury. The petitioner was charged with gross negligence, which was proved. He challenged the dismissal order before the Labour Court by an application under Sections 78 and 79 of the BIR Act. 3. The Labour Court held that the enquiry was fair and proper and the punishment was neither harsh nor shockingly disproportionate. Thereafter the petitioner preferred an Appeal before the Industrial court. It was dismissed. 4. Mrs. Karnik, the learned counsel for the petitioner submitted that the orders of the courts below suffer from an error of law apparent on the face of the record, in that, they failed to notice that the cycle of the deceased was said to have been in tact and without any blood marks; this would not have been so if really the bus driven by the petitioner had collided against it. Further according to the learned counsel, there is a defect in the evidence led by the Respondents, in that, it is deposed that the brake marks of the bus were 36 ft. According to the learned counsel if the bus :3: itself was 30 ft., the brake marks could not have been more than 6 ft., which would show that the bus was indeed slow and there was no negligence on the part of the driver. In my view, each of the above contentions are essentially matters of fact. These arguments cannot be considered without sufficient foundation laid in the cross examination of the witnesses. There is no dispute that no expert has been examined nor has any foundation been laid for submitting that the brake marks only indicated that the bus had stopped at 6 ft. only. The question of the length of the brake marks and speed is indeed a matter of expert’s opinion and would also depend on the way the measurements were made. This argument cannot be accepted at this stage. Similarly, the condition of the cycle or whether there were blood marks on it, are also matters for which apparently no foundation is laid in evidence. These are all essential matters of fact which this court would not go into in exercise of its extra ordinary jurisdiction under Article 226 and 227 of the Constitution of India. There is thus no merit in the petition which is hereby dismissed. Rule disposed of. :4: (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)