JUDGMENT :

1. Rule. Learned advocate Mr. Manan Shah waives service of rule for the respondent.

2. This petition under Articles 226 and 227 of the Constitution of India is filed with following prayer(s):-

“8 (A) Be pleased to admit this petition.

(B) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, quashing and setting aside the order passed by the Presiding Officer, Labour Court No.2, Surat, in Reference (T) Case No.390 of 2002 dated 26.09.2017.

(C) …

(D) …”

3. The impugned award was passed by the Labour Court by setting aside the order of dismissal of respondent by the petitioner-corporation. The respondent was dismissed after being found guilty of misconduct upon due inquiry.

4. It is a case where respondent No.1 was working as Mukadam (Supervisor) in Fileria Malaria Department of the petitioner-Corporation from 11.06.1991. Vide order dated 29.10.2001, the petitioner has terminated the service of the respondent-employee after following departmental inquiry.

4.1 It is a case where the termination order passed u/s.56(1) & 56 (2)(h) of the BPMC Act, 1949, the termination order passed on the ground that the respondent-employees has caused financial damage to petitioner corporation.

4.2 The departmental inquiry has been initiated, during departmental inquiry. it was found that wife of the respondent-employee holding the firm in the name of B.C.Trading Company and supplying medicines to petitioner-corporation, which amounts to violation of provision of section 59 of the BPMC Act,1949 as the said provisions disqualified the person being officer or servant of corporation, if has any share or interest in any contract with, by, or on behalf of the corporation.

4.3 On basis of inquiry report dtd. 17.11.2000, wherein the charge proved against the respondent, the show-cause notice dated 27.11.2000 for punishment has been issued, opportunity of hearing also accorded to respondent, and thereafter, vide order dated 29.10.2001 the service of the respondent employee has been terminated.

4.4 Learned advocate for the petitioner submits that the aggrieved by the termination order, the respondent filed reference before the Labour Court, Surat and challenged the findings of inquiry report.

4.5 The Labour Court, the Labour Court was pleased to partly allow the reference mainly on the ground that the inquiry has been initiated by the Corporation is not proper, vital issues are not considered during the inquiry, the inquiry is defective to arrive such findings and partly allowed the reference with directions to the Corporation to reinstate the employee along with the continuity of service without backwages and also to give the benefit of seniority.

4.6 Learned advocate for the petitioner has argued that the Labour Court ought to have considered statement made by the respondent-employee during the departmental inquiry. It is argued that the petitioner led the evidence, which clearly proves that the respondent has committed misappropriation of the funds, and thereby, he caused loss to the petitioner-Corporation. It is argued that Labour Court ought to have considered that in the inquiry it has been proved that the wife of respondent employee i.e. Shilpa Chandresh Patel is proprietor of B.C.Trading co. and holding the bank account in Dena bank, Gelmandi Branch.

5. Learned advocate for the respondent submits that there is no base for the findings of the Investigation Officer and the same are based on doubts and assumptions. There are no documentary evidences or any other substantial evidences in this regard.

5.1 Learned advocate for the respondent submits that in this case, witness Vinaybhai Pathak, on whose instruction respondent withdrew the money and returned it to him, has not been examined as a witness on behalf of the organization. Therefore, no facts regarding the cheque, its money and as to who received it at last and as to who accepted it, have been proved. Then also, the Investigation Officer has assumed that the ac