Judgment

VAIDIALINGAM, J. :- In these two appeals, by special leave, the common question that arises for consideration is the proper interpretation to be placed on Section 78 (1) (D) of the Bombay Industrial Relations Act, 1946 (Bombay Act No. XI of 1947) hereinafter referred to as the Act.

2. The appellant in both the appeals, the Municipal Corporation of Greater Bombay, is a body corporate constituted under the Bombay Municipal Corporation Act 1888. For the purposes of providing and operating motor transport and for supplying electricity to the consumers in the City of Bombay, the appellant has established under the provisions of the Bombay Municipal Corporation Act, an undertaking called the Bombay Electric Supply and Transport Undertaking. The affairs of the said Undertaking are managed by a committee called the Bombay Electric Supply and Transport Committee, as per the provisions of the Bombay Municipal Corporation Act. The workman, Shri U. R. Naik, was employed as Assistant Fitter in the Transportation Engineering Department at Dadar workshop of the appellant. Similarly, Shri E. Menezes was employed under the appellant as Line Mechanic. It is common ground that on July 18, 1969, when the Sub-Inspector of Police attached to the V. P. Road Police Station, was on patrol duty with his other staff, at about 9.30 p.m., he came across Shri U. R. Naik along with another person, Kundaikar, and found each of them carrying a gunny bag in their hands. As the bags appeared to be rather very heavy, the movement of the said persons arose the suspicion of the Police officials, who stopped the said persons and searched the bags. On a search of the bags, it was found that each bag contained 22 brass bearings. As Shri U. R. Naik and his companion, Kundaikar, were not able to offer any satisfactory explanation as to how they came to be in possession of the articles found in the bags, they were taken into custody. On further investigation and from the statements given by Shri Naik, it was found that the latter was an employee under the appellant as Assistant Fitter and that the brass bearings found in his possession had been removed from the appellant s workshop with the active help and co-operation of another employee, E Menezes, who was at the material time employed under the appellant as a Line Mechanic. In consequence Shri E Menezes was also arrested shortly thereafter. After further enquiries, the brass bearings were identified by the concerned officers as properites belonging to the appellant. Ultimately on July 20, 1969, the appellant lodged a complaint of theft against the two workmen, U.R.Naik and E.Menezes.

3. The appellant also charge-sheeted the two workmen on 18/19th August, 1969. Shri U R Naik was charge-sheeted under Standing Order 20(C) for fraud or dishonesty in connestion with the business of the undertaking. Shri E Menezes was charge-sheeted under Standing Order 20(C) and Standing Order 20 (1) for having committed an act subversive of discipline . An enquiry was conducted by Shri Talpade, Assistant Labour Officer (Transportation) of the appellant. At first it was a common enquiry against both the workmen in which the evidence son to be retained in service. On this of the Police officers and certain officers of the appellant were examined. Later on, the enquiry was seperated against each employee and further witnesses, both on behalf of the appellant as well as the workmen concerned, were examined. The Enquiry Officer found Shri Naik guilty of the offence with which he was charged and it was found that the offence proved against this workman was of a very grave and serious nature and as such the workman was not a fit perfinding an order dismissing Shri Naik Assistant Fitter, from the services of the appellant was passed on February 11, 1970. An appeal by Shri Naik to the executive Engineer and a further appeal to the Assistant General Manager were all dismissed. Similarly, Shri E Menezes was also found guilty of the offence