:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6346 OF 1997 WRIT PETITION NO. 6346 OF 1997 WRIT PETITION NO. 6346 OF 1997 The Divisional Controller, Maharashtra State Road Transport Corporation, Pune ..Petitioner versus Namdeo Sitaram Hagavane & Ors. ..Respondents Mr. G. S. Hegde for the Petitioner. None for the Respondents. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 16TH MARCH, 2009 DATE : 16TH MARCH, 2009 DATE : 16TH MARCH, 2009 P.C. : P.C. : P.C. : . The petitioner has challenged the Orders of the Courts below declaring that the petitioner is engaged in unfair labour practices and directing that the respondent be reinstated in service in his original post with continuity and full back wages. 2. The respondent was a bus driver with the petitioner. He was charged on 15.11.1989 for having consumed alcohol while reporting for duty. Charges were found proved in an enquiry and he was dismissed from service. Against his dismissal, he approached :2: the Labour Court under the MRTU & PULP Act. The Labour Court after permitting evidence to be led and hearing the parties came to the conclusion that the petitioner had conducted an enquiry properly. On the question of consumption of alcohol, however the Labour Court condoned the misconduct by holding that the medical analysis from the J.J. Hospital indicates that the respondent had consumed the alcohol but was not under the influence of alcohol when he was taken to the police station. Having regard to other factors such as the fact that the petitioner did not lodge a complaint with the police, the Labour Court came to the conclusion that the charge that the petitioner had consumed alcohol cannot held / proved beyond reasonable doubt and therefore set aside the punishment and directed reinstatement with back wages. 3. The Industrial Court dismissed the petitioner’s revision, making the same observation that the report indicates that the respondent had consumed alcohol but was not under the influence of alcohol. The Industrial Court has opined that such a smell can come from a person even if he has consumed snuff, which is a tobacco product. :3: 4. The learned counsel for the petitioner submitted that the Courts below failed to take into account the relevant Clause 42 of the Acts of Misconducts under Schedule ’A’ of the Discipline and Appeal Procedure for employees of the Maharashtra State Road Transport Corporation, which provides that mere consumption of alcohol amounts to an act of misconduct. It is not necessary for delinquent to have been under the influence of alcohol or to have committed rash or negligent driving after having consumed alcohol. The said Clause 42 reads as follows: "Found to have consumed or being alcohol, liquor, intoxicants or any type of drug while on duty and/or outside the duty hours within the premises or vehicles of the Corporation". It is therefore obvious that the respondent was found guilty as charged. It was not open for the Labour Court or the Industrial Court to condone the misconduct by holding that the respondent may have consumed alcohol but was not under the influence of liquor and therefore the punishment awarded was shockingly disproportionate. It is not for a Court to amend or alter the penal provision especially :4: which deals with discipline. Had the Courts below applied their minds to the said Clause 42, they would have realised that the same prohibits the consumption of alcohol on duty and that such an act itself constitutes a misconduct. The Courts below ought to have seen that the consumption of alcohol is a serious misconduct and when committed by a bus driver endangers not only his life but the life of the passengers and also others on the road. This is also the view taken by this Court in Writ Petition Writ Petition Writ Petition No. 6113 of 1997 Maharashtra State Road Transport No. 6113 of 1997 Maharashtra State Road Transport No. 6113 of 1997 Maharashtra State Road Transport Corporation vs. Manikrao Sahebrao Chavan & Anr. Corporation vs. Manikrao Sahebrao Chavan & Anr. Corporation vs. Manikrao Sahebrao Chavan & Anr. decided on 21st January, 2009, decided on 21st January, 2009, decided on 21st January, 2009, where this Court observed as follows : "......The proportionality of a punishment is best left to the employer in such cases. Indeed, it is the employer who knows how to best assess the possible consequences of a particular misconduct and, where the safety and lives of passengers is concerned, the employer would be the best judge to determine whether the present misconduct warrants the punishment of dismissal having regard to its gravity and the possibility of it endangering more lives in the future. This, of course, does not mean that the employer is entitled to form such an opinion without adequate record......" In a case such as the present an employer would be entitled to view the misconduct seriously even if it :5: is a single misconduct. 5. In this view of the matter, the impugned orders are set aside. If there are any legal and permissible dues, the petitioner shall release to the respondent within four weeks of his approaching them. 6. Rule is made absolute in the above terms. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)