Maharashtra State Road Transport Corporation & Anr. vs Ganesh Arjun Wankhede

Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.

By this Petition, the petitioners challenge the preliminary judgment and order (Part-01) dated 02.12.2023 and the final judgment and order dated 26^th July 2024 passed by the learned Member, Industrial Court, Chandrapur, in Comp (ULP) No.71/2019, whereby the learned Industrial Court held the departmental enquiry to be unfair and perverse and subsequently allowed the respondent's complaint, setting aside the punishment imposed by the petitioners.

The facts in brief of the present case are that the respondent has been working as a ‘Conductor’ with the petitioners since 1997. On 28.11.2015, while the respondent was discharging his duties on bus bearing No.MH-40-Y-5593 plying on the Akola to Chandrapur route, the bus was intercepted and checked by the checking squad. During the inspection, it was found that out of 21 passengers on board, 05 passengers were traveling without tickets. The petitioners note that the past record of the respondent is not clean and unblemished.

Consequently, a charge-sheet dated 16.01.2016 was issued to the respondent under clauses 7(a), 7(c), 7(d), 12(b), and 10 of Schedule A of the Discipline and Appeal (D & A) Procedure. A departmental enquiry was duly conducted wherein the respondent was found guilty. Based on the enquiry report, the competent Authority passed a punishment order dated 24.10.2019 whereby the basic pay of the respondent was reduced by three stages with cumulative effect.

Being aggrieved by the punishment and its implementation, the respondent challenged the order by filing Complaint (ULP) No.71/2019 on 29.11.2019 before the learned Industrial Court, Chandrapur. The petitioner appeared and filed their written statement on 22^nd June 2021.

The learned Industrial Court, vide its preliminary judgment and order (Part-01) dated 02.12.2024, decided the preliminary issues regarding the fairness and perversity of the enquiry. The Court held that the enquiry was not fair and proper, and categorized the findings as perverse. Following this preliminary finding, the learned Industrial Court ultimately allowed Complaint (ULP) No.71/2019 vide its final judgment and order dated 26^th July 2024.

I have heard learned counsel for both the parties. Learned counsel for the petitioners submits that the impugned judgments and orders are illegal, perverse and contrary to settled principles of law. He submits that the Industrial Court erroneously held against the petitioners for not examining the ticketless passengers. It is a well-settled proposition of law by the Hon'ble Apex Court and this Court that it is not mandatory to examine passengers in such departmental enquiries. Hearsay evidence of the reporting officer who recorded the statements is permissible and sufficient to prove guilt.

He further submits that the Industrial Court misplaced its reliance on judgments that are distinguishable on facts; in the present case, the D & A Procedure explicitly permits the authority to discharge all functions, and the preliminary investigation was independently conducted by the reporting officer.

Learned counsel for the petitioners has relied on the following judgments in support of his submissions:

Officer, Labour Court, 1970 (1) MLJ 473.

Nagsen Ramteke vs MSRTC Nagpur, W.P. No. 6927 of 2022.

Per contra, learned counsel for the respondent has vehemently opposed the petition submitting that the impugned judgments are well-reasoned and do not warrant interference of this Court. He contends that the Industrial Court correctly held the departmental enquiry to be vitiated, as the Enquiry Officer unlawfully assumed the roles of investigator, prosecutor, and judge without appointing an independent Presenting Officer. Furthermore, it is submitted that the specific nature of the charge that the respondent collected fares but deliberately withheld tickets made the direct examination of the ticketless passengers absolutely essential. Relying solely on the uncorroborated documentary evidence of the reporting officer severely prejudiced the respondent by denying him a real opportunity for cross-examination.

It is further submitted on behalf of the respondent that, even after the preliminary issues were decided against the petitioners they were granted a full opportunity to prove the misconduct de novo before the Industrial Court but miserably failed to do so. The Petitioner's sole witness (RW-1) presented untrustworthy testimony, admitting in cross-examination that a ticket had indeed been issued and sought to introduce new allegations alien to the original charge-sheet. Crucially, the petitioners once again failed to examine the actual passengers to substantiate the charges. Consequently, the Industrial Court correctly held that the unproved charges and the subsequent penal action amounted to an unfair labour practice.

In backdrop of the facts, material adduced, and the arguments canvassed by the learned counsel for both parties,

Having heard the learned counsels for the parties, it is apparent that the issue raised in the present petition by the petitioners is no more res integra and has been decided by this Court on occasions more than one. In the judgment of Gajendra Ghodhkar Vs. MSRTC (referred supra) the issue was omission of by the employer i.e. the very petitioner herein to examine the ticketless passengers. In para 11 of the said judgment this Court recorded a finding that in view of judgment reported in KSRTC Vs. B.S. Hullikatti, (2001) 2 SCC 574, Divisional Controller, KSRTC Vs. A.T. Mane, 2005 (1) Bom.LC 80 (S.C.) and State of Haryana and another Vs. Rattan Singh, (1977) 2 SCC 491, only because the ticketless passengers are not examined cannot vitiate the entire inquiry.

Furthermore, as has been rightly pointed out by the learned counsel for the petitioner this Court in Writ Petition No.7036/2022 (Divisional Controller, M.S.R.T.C. Vs. Avejkarni Ahmed Abdul Rahim) has held that only because the Inquiry Officer records the examination-in-chief of the prosecution witnesses or conducts the cross-examination of defence witnesses in a disciplinary inquiry, the inquiry cannot be said to be vitiated. This Court has relied on the judgment of the Hon’ble Apex Court in Pravin Kumar Vs. Union of India and others, (2020) 9 SCC 471 in that regard. Interestingly, in a judgment of Mahadeo Naik Vs. M.S.R.T.C., 2017(5) Mh.L.J. 348, it is held that the service regulations of the petitioner Corporation does not prohibit for a disciplinary Authority to act as an Inquiry Officer. Thus, the contentions of the respondent in that regard are all negated in view of the authoritative pronouncement of this Court from time to time.

In that view of the matter, the petition needs to be allowed and as such following order is passed :