Suresh Shamrao Kapgate vs Divisional Traffic Superintendent, Competent Authority, S.T. Bhandara

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

By way of this Writ Petition, the Petitioner seeks to quash and set aside the judgment and order dated 15.09.2018 passed by the learned Industrial Court, Bhandara, in Revision Application (ULP) No. 70 of 2015. By the impugned judgment, the Industrial Court upheld the judgment and order dated 17.06.2015 passed by the learned Labour Court, Bhandara, which had validated the Petitioner's dismissal from service. The Petitioner consequently seeks reinstatement with continuity of service, back wages, and other benefits, as originally prayed for in Complaint (ULP) No. 12 of 2007.

The brief facts leading to the present Petition are that the Petitioner was employed as a Conductor with the Respondent-Corporation. On 04.02.2007, the Line Checking Staff checked the bus and submitted a report to Respondent No. 2 thereby recommending appropriate disciplinary action against the Petitioner. Based on the said report, Respondent No. 1 suo motu took cognizance of the incident and placed the Petitioner under suspension vide order dated 06.02.2007.

Assailing the said suspension, the Petitioner preferred several representations before Respondent No. 2, the Appellate Authority, and instituted a complaint before the Industrial Court, Bhandara. During the pendency of the said proceedings, Respondent No. 2 dismissed the Petitioner from service, thereby constraining the Petitioner to file complaint before the Labour Court, Bhandara, registered as Complaint (ULP) No. 12 of 2007. The learned Labour Court dismissed the said complaint vide judgment and order dated 17.06.2015. Being dissatisfied therewith, the Petitioner preferred a Revision Application, which also came to be dismissed vide the impugned order dated 15.09.2018, thereby constraining the Petitioner to invoke the extraordinary writ jurisdiction of this Court.

I have heard Mr. P.P. Kothari, learned counsel for the petitioner, and Mr. S. R. Charpe, learned counsel for the respondents.

Learned counsel for the Petitioner submits that the learned Labour Court failed to appreciate the documentary evidence adduced on record. He further contends that the lower courts completely overlooked Clause 5A of the Discipline and Appeal (D & A) Procedure as well as binding judicial precedents, proceeding instead on mere presumptions without a proper evaluation of facts. To buttress his submissions, the learned counsel has placed reliance on the judgments of this Court in Ananda R. Salunkhe v. Maharashtra State Road Transport Corporation, [2025 DGLS (Bom.) 425] and Maharashtra State Road Transport Corporation v. Arun V. Kapade, [2013 (7) Bom. C.R. 628].

Per Contra, the learned counsel for the Respondents vehemently supports the impugned orders. He submits that the Petitioner possesses a highly blemished service record, with as many as 17 prior misconducts incident marking his tainted service history. He further asserts that the courts below have recorded concurrent findings of fact establishing the Petitioner's misconduct, arrived at after duly examining the witnesses and correctly appreciating the documentary evidence on record, which warrants no interference in writ jurisdiction.

Learned counsel for the respondents relied on the following judgments:

I have gone through the contentions canvassed by the learned counsel for the respective parties and also gone through the record of the matter, which includes the entire evidence of the enquiry held against the petitioner. As can be seen from the charge sheet, wherein a statement of allegations was made, the primary charge was with respect to non-issuance of tickets to 40 passengers.

I have carefully perused the judgment of the Labour Court. In paragraph 30 onwards, the Labour Court has elaborately discussed and negated each of the contentions raised by the petitioner herein. As far as the decision of the D.T.O. Bhandara to issue the charge sheet on 05.02.2007, when he was not formally appointed as the competent authority, is concerned, the Labour Court has rightly arrived at a conclusion that even though the decision was taken on 05.02.2007, he was appointed as competent authority immediately on the next day, i.e., 06.02.2007. Admittedly, the charge sheet and the suspension order came to be specifically issued only on 06.02.2007. The said reasoning, according to me, is logical and, furthermore, no prejudice of whatsoever nature is caused to the delinquent employee.

The next contention, which is rightly negated by the Labour Court, is regarding the charge sheet being illegal on account of having been prepared by the clerk, Shri Dhakate, and only signed by the competent authority, Shri Dabalse. This contention raised by the employee has also not found favour, since the charge sheet issued to the employee was prepared under the directions of the competent authority. It has rightly observed that no specific evidence on this point has been led by the employee. As far as the aspect of one co-employee, Shri Bansod's suspension, is concerned, the Labour Court has correctly stated that it has jurisdiction to determine the legality or otherwise of the discharge or dismissal on the grounds as enumerated under the Act and cannot go into the question of discrimination, if any.

The contention of the employee regarding the departmental enquiry being proceeded with in a predetermined manner, only to harass him, has also not found favour with the Labour Court, on the sound reasoning that there is no evidence to that effect. As far as the issue of a preliminary enquiry being proceeded with is concerned, the Labour Court has rightly observed that the D.A.P., as applicable to the M.S.R.T.C., does not specify a preliminary inquiry. The Labour Court has also rightly observed that Clauses 5(a), (a-i), (e), (f), 6(b) and 7 of the D.A.P., which are pressed into service by the employee, also cannot take his case further, since those clauses pertain to the procedure to be followed while conducting an enquiry, as also to the manner in which the punishment, as prescribed for various misconducts, should be imposed. It is, therefore, correct to say, and as has been observed by the Labour Court, that failure to follow the said procedure cannot adversely reflect upon the issuance of the charge sheet.

As far as the suspension order is concerned, the Labour Court has rightly held that a clear and specific order passed by the then competent authority on the report about the complainant being required to be suspended is sufficient compliance regarding the same. In fact, it is a settled principle of law that a prima facie and subjective satisfaction of the employer is enough while suspending the employee pending departmental enquiry. While answering Issue No. 9 as framed by it, which pertained to the respondents proving the misconduct of the complainant before the Court, the Labour Court has clinically deciphered the various admissions as stated by the complainant and has negated them one by one. As far as the admissions in the cross-examination of the witnesses of the respondents are concerned, the Labour Court, after appreciation of the entire depositions, including the cross-examination, has held that even though the alleged admissions in the cross-examinations are taken on their face value, the same cannot materially help the complainant in establishing that he was not guilty of the charges levelled against him. It has correctly held that only because one of the witnesses, Shri Dubey, is a member of the Labour Union, the same cannot ipso facto be a pointer to the fact that he holds a grudge against the present petitioner. The Labour Court, in paragraphs 59, 60, 61 and 62, has narrated each and every admission and has given logical and cogent reasoning for disbelieving the same or to be interpreted in a manner as has been sought to be interpreted by the petitioner herein.

The Labour Court, in paragraph 63 of the impugned judgment, has also taken note of the fact that a pick-and-choose policy in respect of the depositions, (and more particularly the cross-examination of the witnesses,) cannot be resorted to, since reading the said evidence in totality makes out a case against the present petitioner. Even though the Labour Court records that there is no uniformity amongst the witnesses examined by the respondent, it has found that the petitioner herein is also unsure about the exact number of passengers travelling in the bus. On the basis of this cogent finding, it has recorded that the complainant has not made out a case which would warrant interference.

In the light of this evidence, if the judgment of the Labour Court is seen, it has framed issues, and Issue No. 9 pertains to the misconduct of the complainant, i.e., the respondent. As far as the finding on the said issue is concerned, the same is found in paragraph 57 onwards. The Labour Court, after scrutinizing the testimonies of the witnesses examined by the rival parties, has come to a conclusion that even though the material admissions, as alleged by the petitioner herein, are considered, they cannot materially help him in establishing the fact that he is not guilty. It has further went on to record that there is nothing on record to show that there is any mala fide action due to the rivalry in the union. It has also recorded a finding of fact that the so-called admissions of witness Shri Dubey are not being recorded by the advocate for the petitioner in its true facts. It has given cogent reasoning in the judgment for not relying on the complainant's statement, since admittedly the said statement was recorded on the spot on 4.02.2007 and was written by the complainant himself. Even though much emphasis has been laid by the learned counsel for the petitioner on the fact that there were no corrections in the statement, the said argument has not found favour with the Labour Court. By carefully scrutinizing the said document, it has recorded a finding that the defence of the petitioner cannot be relied upon. The Labour Court further has recorded a finding that there is no uniformity in the evidence, but this is not the case of "no evidence", which is required to exonerate the employee.

As far as the Industrial Court is concerned, it has confirmed the findings of the Labour Court in view of the limited jurisdiction under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the "MRTU and PULP Act"). It has concurred with the findings of the Labour Court in that regard.

The Industrial Court, in its judgment, has recorded a finding which is against the present petitioner in paragraph 8 of the judgment of the Industrial Court. The Industrial Court has recorded that the findings of the Labour Court are based on some evidence and, therefore, cannot be interfered with in revisional jurisdiction under Section 44 of the MRTU & PULP Act. In my considered opinion, the concurrent findings of fact are based on the evidence and material on record, and the same are not shown to be perverse.

It is a settled principle of law that, while exercising jurisdiction under Article 227 of the Constitution of India, this Court has to keep in mind that the exercise of power under this Article involves a duty on the High Court to keep inferior Courts and Tribunals within the bounds of their authority and to see that they do the duty expected or required of them in the legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or Tribunals. Exercise of this power and interfering with the order of the Courts or Tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law and justice, where, if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court, while acting under this Article, cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error which is not apparent on the face of record. The High Court can set aside or ignore the findings of facts of an inferior Court or Tribunal if there is no evidence at all to justify or the finding is so perverse that no reasonable person can possibly come to such a conclusion which the Court or Tribunal has come to. Thus, the High Court, in exercising its jurisdiction under Article 227 cannot convert itself into a Court of appeal when the legislature has not conferred a right of appeal. If the judgment of the Labour Court and the Industrial Court is tested on this principle, there was material on record for the Labour Court to arrive at such a finding.

One more fact which dissuades me from exercising the supervisory power is the service record of the petitioner herein. He has been found guilty of misconduct and punished 19 times, which is grave enough for the respondent employer on its own volition decided that he would be unfit to continue with his duties. It is, therefore, apparent that no case is made out for interference in supervisory jurisdiction. This Court cannot be oblivious of the fact that the present petitioner has been charged on about 18 occasions for various misconducts and has been awarded punishment. A chart to that effect is filed along with the reply of the respondent at page 288. Various punishments, ranging from imposition of penalty to stoppage of increment, have been imposed upon him.

As has been rightly pointed out by the learned counsel for the respondents, the judgment in Maharashtra State Road Transport Corporation Vs. Arun Vinayak Kapade, reported in 2012 (4) All. M.R. 765, the Hon'ble Apex Court has clearly stated that the act of charging even 50 paise more from 35 passengers would disentitle a person to be retained as a conductor, since it is bound to result in financial loss to the Corporation. In another judgment referred to by the learned counsel for the respondents, in the case of Ananda Ramchandar Salunkhe Vs. Maharashtra State Road Transport Corporation, reported in 2025 DGLS (Bom) 425, this Court, reiterating the settled law in that regard, has stated that in service jurisprudence, and more particularly in writ jurisdiction, interference would be called for only when the case is of total absence of evidence and not a case of some evidence. It has further went on to held that in domestic enquiries, the strict and sophisticated rules of evidence under the Indian Evidence Act do not apply. All material which is logically probative for a prudent mind is permissible.

The learned counsel for the petitioner has tried to differentiate these judgments, and more particularly the judgment of Karnataka State Road Transport Corporation Vs. B. S. Hullikatti, reported in 2001 (2) SCC 574, on a fact that in the said case there was misappropriation. However, I am hardly impressed by the said argument. In that view of the matter, I do not find this to be a fit case to exercise the supervisory jurisdiction. There is no jurisdictional error, and the findings are, in my view, not perverse. The judgment of the Labour Court, as confirmed by the Industrial Court, being based on the material on record, is not liable to be interfered with. The petition is without any merit and is liable to be rejected.

The petition is accordingly rejected.

Rule is discharged.