: 1 : app.381.2011 vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.381 OF 2011 IN WRIT PETITION NO.2491 OF 2010 Bhau Ganpat Patil .. Appellant V/s. Municipal Corporation of Greater Mumbai & Anr. .. Respondents Ms.Neeta P. Karnik for the Appellant Mr.S.K. Talsania, Sr. Counsel with Ms.Kavita Anchan I/b M.V. Kini & Co. for the Respondent CORAM: B.H. MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: SEPTEMBER 2, 2011 ORDER (PER SMT.NISHITA MHATRE, J.).: 1. Admit. Print dispensed with. Appeal heard finally by consent of the parties. 2. The appeal is directed against the judgment and order of the learned Single Judge dated 25.11.2009 by which the petition filed by the Respondent Undertaking has been allowed. The judgement and order of the Labour Court and of the Industrial Court granting the : 2 : app.381.2011 appellant reinstatement in service with continuity have been set aside. 3. The brief facts giving rise to the present appeal are as follows: The appellant was employed as a Conductor with Respondent No.1 in its transport Undertaking. He incurred a shortage of `119.25 in the cash collection in August 2000. Therefore, the appellant was chargesheeted under Standing Order 20(c) and (j) of the Certified Standing Orders applicable to the Respondent Undertaking. After conducting an enquiry against him, the respondent Undertaking dismissed the appellant from service on 29.11.2000. The two internal departmental appeals preferred by the appellant were rejected by the respondent undertaking. The appellant then filed an application before the Labour Court under sections 78 and 79 of the Bombay Industrial Relations Act, after sending an approach letter, challenging the legality and propriety of the dismissal order issued against him. The respondent undertaking resisted that application. Parties led evidence before the Labour Court. By the order dated 1.12.2005, the application preferred by the appellant was allowed partly. The Labour court granted the appellant reinstatement with continuity of service but without backwages. : 3 : app.381.2011 4. Being aggrieved by the decision of the Labour Court, both the appellant as well as the respondent Undertaking preferred appeals under sections 84 and 85 of the BIR Act before the Industrial Court. The Industrial Court concurred with the view of the Labout Court and dismissed both the appeals. 5. The respondent undertaking then filed a writ petition challenging the orders of the Labour Court and the Industrial Court. The learned Single Judge held that the appellant had committed an act of gross negligence within the meaning of Standing Order 20(j). It was held that the shortage in the daily collections by a conductor affects the revenue and property of the undertaking and therefore the charge against the appellant was serious. In the impugned order the learned Single Judge has held that considering the past service record of the appellant, the conduct of the appellant did not warrant the exercise of any judicial discretion in his favour. The learned Single Judge was of the view that the Labour Court and the Industrial Court were not justified in granting one more opportunity to the appellant to improve himself. 6. Mrs.Karnik, learned Counsel appearing for the appellant has : 4 : app.381.2011 criticised the judgment of the learned Single Judge by contending that the judgment does not take into consideration the fact that the respondent undertaking had issued circulars from time to time condoning the shortfall in the cash collections made each month by a bus conductor, to a certain extent. A cumulative shortage in the cash collected in a calendar month for the purposes of taking disciplinary action against a bus conductor was increased from `40 to `50/- w.e.f. 13.3.1995. The imprest cash to be maintained by the conductors with the Respondent undertaking was increased from `15 to `25 p.m. w.e.f. 5.11.1994. The quantum of cumulative shortages in the calendar month was further increased to `100 from `50 w.e.f. 1.7.2000 by the circular issued on 5.7.2000 by the Traffic Department. The circular directed the authorities concerned to take a stricter view in case shortages exceeded `100/-. Ms.Karnik has argued before us that, in fact, considering the shortages in the month July 2000, the appellant should not have been chargesheeted at all. She has pointed out that the cumulative shortfall which occurred in August 2000 for which the appellant was chargesheeted was `119.25. The imprest cash available with the Undertaking on the account of the appellant if deducted from the cumulative shortfall would reduce the shortfall in the collection in the month of August 2000 to less than `100/-. She submitted that these : 5 : app.381.2011 issues have been raised by the appellant in his memo of appeal filed before the departmental authorities under the service rules as well as before the Labour Court. According to her, the Labour Court has rightly taken into account the amount of `65.25 which was deposited by the appellant with the Undertaking as advance and therefore he was not guilty of a misconduct warranting dismissal and in fact there was no occasion to chargesheet the appellant. Mrs.Karnik urged that the learned Single Judge has not considered this argument at all which, in her submission, goes to the root of the matter. 7. Mr.Talsania appearing for the Respondent undertaking submitted that the impugned decision is a well reasoned judgement which requires no interference from this Court. According to him, it is impossible to believe that a Conductor would deposit any amount with the Undertaking as credit and, therefore, the question of deducting that amount from the cumulative shortfall for the month of August, 2000 did not arise. He further urged that there is a revenue loss to the Undertaking because of the gross negligence of the appellant. The learned Counsel pointed out that over the years from 1992 till 1999, the appellant has been guilty of misconduct as there was a shortfall in the cash collections on several occasions for which he had either been : 6 : app.381.2011 warned or suspended for a day. In these circumstances, according to Mr.Talsania, there was no need to disturb the findings of the learned Single Judge. 8. The appeal memo submitted by the appellant for his departmental appeal has been produced before us which clearly indicates that he had contended that an amount of `65.25 which was deposited by him with the respondent undertaking as imprest cash should be deducted from the cumulative shortfall for the month of August 2000. That contention was not accepted by the respondent undertaking. The second Departmental appeal filed by the appellant also raises the same issue. The second appellant authority has rejected that contention. We have perused the circulars issued by the respondent undertaking and they clearly indicate that the imprest cash of the conductors is an amount which is deposited by the conductors with the respondent undertaking. The imprest cash to be maintained as mentioned in the circular of 1995 is `25/-. Even assuming this amount has not been increased over the years, if the amount of `25/- is deducted from the actual cumulative shortage found against the appellant it would mean that the shortfall was less than `100 in the month of August 2000. Therefore, the appellant ought not have been : 7 : app.381.2011 chargesheeted in the first place. 9. The second Appellate Authority in his order dated 9.2.2001 has observed: “It is true that the conductor who incurred less than Rs.100/- shortage is not usually issued with a charge-sheet in the undertaking, but when he cross the limit of Rs.100/- he is being issued a charge-sheet and an enquiry is conducted and necessary disciplinary action is taken against him.” Referring to these findings of the second Appellate Authority, the Industrial Court has observed, “In this case, admittedly the shortage amount was more than Rs.100/-, but if the earlier excess amount of Rs.65.25 is adjusted, then the shortage will become to Rs.24/-.” It appears that these findings of the Industrial Court have escaped the attention of the learned Single Judge which has resulted in the miscarriage of justice. 10. In our opinion, when the Labour Court and the Industrial Court had taken a possible view regarding the propriety of the punishment imposed on the appellant it was not necessary for the learned Single Judge to interfere with the orders under Article 227 of the : 8 : app.381.2011 Constitution of India. It is now well settled that u/s 78 of the Bombay Industrial Relations Act, the Labour Court is empowered to consider not only the legality of the action of the employer but also its propriety. Both the Labour Court and the Industrial Court did not find that the extreme punishment of dismissal imposed on the appellant was proper and found that the appellant was guilty of misconduct of negligence. They had granted reinstatement with continuity of service but without backwages. 11. In our opinion, the submission of Mrs.Karnik that the chargesheet itself ought not to have been issued to the appellant is sustainable and deserves to be accepted. However, the Appellant has not challenged the order of the Industrial Court, denying him backwages and therefore no relief with regard to backwages can be granted to the appellant. 12. The appeal is allowed. The impugned order passed by the learned Single Judge is set aside. The orders of the Labour Court and Industrial Court are confirmed. No order as to costs. (SMT.NISHITA MHATRE, J.) (B.H. MARLAPALLE, J.)