1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.7987 of 2006 Maharashtra State Road Transport Corporation Petitioner Vs. Shri Manteshwar Vittal Joshi Respondent Mr.G.S.Hegde for petitioner. Mr.Rahul Oak for respondent. CORAM: B.H.MARLAPALLE, J. February 6, 2008 ORAL JUDGMENT: 1. The respondent came to be employed by the Corporation as a Conductor in the year 1981 and on 13/2/1988 while he was on duty on the Corporation bus from Virar to Vajreshwari, his bus was checked by the Inspectors of the Corporation at Parel Phata. Some passengers were found without tickets even though they had paid the money to the conductor. It was noted by the Inspectors that the passengers found without ticket were required to pay a total fare of Rs.10/- and the conductor by accepting Rs.7/- from them had not issued any tickets. In addition an amount of Rs.8.90 was found short in the way bill upto stage no.6. He was, therefore, charge-sheeted 2 and a Departmental Enquiry was conducted. The Enquiry Officer held that the charges were proved and consequently the respondent was dismissed from service with effect from 4/8/1988. The said dismissal order came to be challenged in Complaint (ULP) No.210 of 1988 filed under Section 28(1) read with Item 1 of Schedule IV of the MRTU and PULP Act, 1971 ("the Act" for Short). The Respondent- Corporation filed its Written Statement and opposed the complaint. By the order dated 10/3/2000 the Labour Court at Thane held that, (a) the enquiry conducted against the complainant was not fair and proper and (b) the findings also were illegal and perverse. The Labour Court directed to adduce evidence to both the parties on the charges levelled against the respondent. An application at Exhibit 25 was filed by the Corporation seeking leave to conduct a de novo enquiry and the said application was opposed by the respondent - workman. However, by an order dated 4/8/2000 the said application at Exhibit 25 was allowed by following the law laid down in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. & anr. [1979 II LLJ 194] [1979 II LLJ 194] [1979 II LLJ 194] and the Corporation was allowed to lead evidence to prove the charges levelled against the workman under the charge sheet 3 issued by the Depot Manager on 19/2/1988. Inspite of the opportunities granted to the Corporation by the Labour Court from time to time, the Corporation failed to conduct a de novo enquiry before the Labour Court and on the other hand by an order dated 6/11/2000 passed below Exhibit C-3 the evidence of the Corporation was treated to be closed. Consequently the respondent - workman did not adduce any evidence and rightly so. The Labour Court, therefore, proceeded to frame and consider the following issues: (a) Are the charges established against the complainant by the Respondent before the Court. (b) Is the punishment of dismissal shockingly disproportionate to the charge established. (c) Whether the respondents have indulged into unfair labour practice while dismissing the complainant from service w.e.f. 4/2/1988. (d) Whether the complainant is entitled for reinstatement with continuity of service and 4 back wages. The first issue was answered in the negative whereas the remaining three issues were answered in the affirmative by the Labour Court vide its judgment and order dated 16/12/2000 and rightly so. Once the Labour Court held that the enquiry was vitiated and the charges were not proved and the Corporation failed to adduce evidence to prove the charges before the Labour Court inspite of opportunities, the order of dismissal was unsustainable. 2. The judgment and order dated 16/12/2000 was challenged before the Industrial Court by filing Revision Application (ULP) No.92 of 2001 and the same was allowed partly by the order dated 14/6/2002. The Complaint (ULP) No.210 of 1988 was remanded to the Labour Court for a fresh trial by giving opportunity to the Corporation to prove the charges. However, on remand the Corporation again failed to adduce any evidence inspite of opportunities and in the second round the Labour Court rendered its judgment and order dated 19/10/2002 and allowed the complaint. The respondent was directed to be reinstated in his original post with continuity of service and 5 backwages with effect from 4/8/1988. In the second round this order was again challenged in Revision (ULP) No.147 of 2003 and the said revision has been dismissed by the learned Member of the Industrial Court at Thane on 7/6/2005. Hence this petition. 3. From the record I have noted that the application at Exhibit 25 was filed by the Corporation seeking leave of the Court to adduce evidence for proving the charges levelled against the workman as per the charge-sheet dated 19/2/1988 and as noted earlier, this application was allowed by the Labour Court by its order dated 4/8/2000 by overruling the objection taken by the respondent - employee. Despite this order dated 4/8/2000 the Corporation did not take any steps to adduce oral and documentary evidence to prove the charges and the complaint came to be allowed in the first round. On 16/12/2000 by allowing Revision Application (ULP) No.92 of 2001 the Industrial Court provided one more opportunity to the Corporation to prove the charges before the Labour Court and Complaint (ULP) No.210 of 1988 was remanded for fresh trial. On remand also despite opportunities having been granted to it, the Corporation did not take any steps to prove the 6 charges by conducting a de novo enquiry before the Labour Court. Consequently the findings of the Labour Court by its order dated 10/3/2000 received finality and having filed the application at Exhibit 25 it would not be permissible for the Corporation to contend before this Court that the charges were proved in the departmental enquiry and the enquiry conducted was fair and proper. Even while allowing Revision Application (ULP) No.92 of 2001, the Industrial Court had considered all the aspects and remanded the complaint for fresh trial so as to provide one more opportunity to the Corporation to conduct a de no enquiry and prove the charges but the Corporation failed to avail of this opportunity as well as is clear from the judgment of the Labour Court rendered on 19/10/2002. The Industrial Court noted in its judgment dated 7/6/2005 that in the complaint on remand the Corporation was granted adjournments on 24/7/2002, 6/8/2002, 3/9/2002, 9/9/2002, 25/9/2002, 1/10/2002, 16/10/2002 and 18/10/2002 and despite these several opportunities having been granted the Corporation failed to adduce any evidence either to prove the charges levelled against the workman or to justify the punishment of dismissal. On 18/10/2002 the Corporation had 7 presented an application for further adjournment to lead evidence and the same was allowed by imposing costs and it was specifically made clear that the last opportunity was being granted to the Corporation. Even thereafter on 19/10/2002 the Corporation did not take any steps to adduce evidence and, therefore, the Labour Court rendered its judgment. An application at Exhibit 36 was filed by the Corporation for issuance of summons to the Checking Inspector Mr.G.R.Patil and the said application was rejected by the Labour Court. The said Mr.Patil was in the employment of the Corporation and even if it is presumed that he had by then retired, nothing stopped the Corporation to produce him as a witness and the application filed at Exhibit 36 was only a ploy to delay the trial of the complaint. 4. In these obtaining circumstances and the utter callous and lethargic attitude shown by the Corporation and its officers dealing with the complaint, which behaviour is required to be deprecated, the concurrent view taken by the Courts below does not call for any interference under Article 227 of the Constitution. 8 5. In the result, this petition fails and the same is hereby dismissed but with costs. Rule discharged. (B.H.MARL