1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR WRIT PETITION NO.4584 OF 2008 Deepak Bansod ..vs.. M.S.R.T.C. ================================= CORAM: B.P. DHARMADHIKARI, J. DATE:23.10.2008 Heard Advocate Saboo for petitioner and Advocate Mehadia for respondents. Contention of Advocate Saboo is that Divisional Traffic Officer could not have acted as competent authority and it was for Depot Manager alone or in the absence of Depot Manager for appointing authority i.e. Divisional Controller to issue charge sheet and to issue second show cause notice. He further contends that enquiry is not conducted in accordance with principles of natural justice and the Labour Court has erroneously held it to be fair. He argues that Industrial Court has not considered the challenge to fairness of departmental enquiry at all. Advocate Mehadia on the other hand states that the Industrial Court has considered the challenges to fairness of departmental enquiry and has found the enquiry to be fair and valid. He further states that as Depot Manager himself was claimed to be involved in temporary mis-appropriation, the action of departmental enquiry has been initiated by Divisional Traffic Officer. Advocate Mehadia & Advocate Saboo both want to rely upon the provisions of Discipline and Appeal Rules in support of their respective contentions. In so far as the contention about fairness of the 2 departmental enquiry are concerned, the Industrial Court has applied its mind in paragraph 6 of its judgment to hold that the only grievance was about non supply of documents and it found that there was no pleading or evidence to show as to how the alleged non supply of any document has prejudiced the present petitioner. It also found that no grievance was made in relation to any specific document. It is apparent that mere non supply of document by itself is not sufficient to vitiate the enquiry. In these circumstances I find that fairness of departmental enquiry has been rightly concluded by the Industrial Court. The only remaining question is about the competency of Divisional Traffic Officer to issue a charge sheet and to proceed further in departmental enquiry against present petitioner. It is to be noticed here that in present matter the ULP complaint filed was challenging apprehended dismissal on account of second show cause notice issued by respondent. Thus at the relevant time actual punishment was not inflicted. Period of more than 3 years has gone in the process. The burden to show that authority which initiated action was not competent was upon petitioner. He has failed to discharge it. However, considering the scheme of Regulation No.18 and 19 with Schedule C, I am inclined to keep question open, if the punishment is imposed upon the petitioner by the respondents. The impugned orders passed by Labour Court and Industrial Court are upheld, with clarification that it is open to petitioner to point out to Court after punishment order is passed, 3 that Divisional Traffic Officer was not competent to proceed against him in view of the regulations mentioned above. With this clarification writ petition is disposed of. Petitioner is given time of 15 days to submit his reply to second show cause notice. If such reply is filed within 15 days, respondent to consider the same and to proceed further in accordance with law in the matter. JUDGE smp.