wp5935.11.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.5935/2011 Sanjay Dayaram Shende -vs- M/s. A. K. Gandhi and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri U. A. Gosavi, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : 02.12.2011. By this petition, the petitioner impugns the order passed by the First Labour Court, Nagpur on 30/11/2009 so far as it denies fifty per cent back wages to the petitioner as also the judgment passed by the Industrial Court on 8th of March, 2011 dismissing the revision filed by the petitioner and allowing the revision filed by the respondent and setting aside the order of the Labour Court directing the reinstatement of petitioner in service with continuity of service and fifty per cent back wages. It is submitted on behalf of the petitioner that there was no evidence whatsoever for holding that the charge levelled against the petitioner was proved. According to the learned counsel for the petitioner, even assuming that the charge is proved, the misconduct is of such a nature that it was rightly held by the Labour Court, Nagpur that the punishment of dismissal was shockingly disproportionate to the act of wp5935.11.odt 2/5 misconduct committed by the petitioner. The learned counsel for the petitioner relied on the judgment reported in (1978) 3 Supreme Court Cases 366 to substantiate his submission that it is necessary for the authorities to examine the record and satisfy themselves that the findings of the enquiry officer are based on some evidence. The learned counsel for the petitioner relied on the judgments reported in (2009) 2 Supreme Court Cases 570 and AIR 1969 Supreme Court 983 to substantiate the same submission. The petitioner was working as a mechanic with the respondent. It was the case of the respondent, that the petitioner, without the permission of the respondent drove a moped which was brought for servicing by a customer, on the road and he and one Mr.Dudhmogare were caught by the Police when they were proceeding on the moped and the Police found a bottle of liquor in possession of Mr.Dudhmogare. It is not in dispute that the moped was seized by the Police and had to be released on suptratnama. Though the petitioner was tried for offences punishable under Sections 66 (1) (b) and 83 of the Bombay Prohibition Act, the petitioner was acquitted in the said case. Since the services of the petitioner were terminated, he filed a complaint before the Labour Court. The Labour Court, on an appreciation of the evidence on record, by a cryptic judgment dated 30/11/2009 partly allowed the complaint and directed the respondent to reinstate the petitioner in service with continuity of service and fifty per cent back wages. The wp5935.11.odt 3/5 Labour Court, however, held that the enquiry conducted by the respondent was fair and proper and in accordance with the principles of natural justice. The Labour Court further held that the findings of the enquiry officer were also not perverse. However, according to the Labour Court, the punishment inflicted on the petitioner was shockingly disproportionate to the act of misconduct committed by the petitioner. The Labour Court held that the past service record of the petitioner was good and in such a case no prudent person could have dismissed the petitioner for taking a vehicle without the permission of the employer and permitting any other person to ride the same. The petitioner filed a revision against the denial of fifty per cent back wages to the petitioner and the respondent also filed a revision against the order granting reinstatement of the petitioner in service with continuity and fifty per cent back wages. The Industrial Court, on an appreciation of the material on record held that the punishment inflicted on the petitioner was not shockingly disproportionate to the act of misconduct committed by him. The Industrial Court found that this case was surely not a case of no evidence, as the petitioner had himself admitted that he and Mr.Dudhmogare were caught by the Police when they were proceeding on the moped and the Police found a bottle of liquor with Mr.Dudhmogare. It was also admitted by the petitioner in his statement that when any vehicle is taken on trial, no outsider should be allowed to wp5935.11.odt 4/5 occupy it. It was admitted that the moped seized by the Police and taken out of the custody of the respondent belonged to a customer and the vehicle could not be returned to the customer within time. The Industrial Court gave thoughtful consideration to the act committed by the petitioner to hold that the act was serious enough for inflicting the punishment of termination of services. The Industrial Court rightly held that the Labour Court had ignored the fact that it was not a simple case where a vehicle of a customer was taken out of the workshop during the lunch hours but it was a case where the petitioner had permitted a third party, Mr. Dudhmogare to ride the same, the vehicle was seized by the Police and charges were levelled against the petitioner and Mr.Dudhmogare for offences punishable under the Bombay Prohibition Act. Merely because the petitioner was acquitted in the criminal case, according to the Industrial Court, it could not be said that the findings of the enquiry officer were perverse as even on the admitted facts of the case an act of grave misconduct was made out. There is nothing wrong with the order of the Industrial Court allowing the revision filed by the respondent and dismissing the revision filed by the petitioner. The judgments reported in (1978) 3 Supreme Court Cases 366, (2009) 2 Supreme Court Cases 570 and AIR 1969 Supreme Court 983 and relied on by the counsel for the petitioner cannot be applied to the facts of this case. In this case both the Courts have observed that the enquiry was fair and the findings of the enquiry officer were not wp5935.11.odt 5/5 perverse. Even on the facts admitted by the petitioner, it was clear that the petitioner had committed misconduct which was serious enough to remove him from employment. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE