THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.305 OF 2004 DATED 8TH SEPTEMBER, 2011 BETWEEN The Depot Manager, APSRTC, Hyderabad-II Depot, Dilshuknagar, Hyderabad and another. …Appellants And The Presiding Officer, Labour Court-I, Chandravihar, M.J.Road, Hyderabad another. …Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.305 OF 2004 JUDGMENT: (Per GM,J) This writ appeal is directed against the order dated 07.11.2003 passed by a learned single Judge of this Court in Writ Petition No.36400 of 1998 whereby except reducing the payment of back wages from 75% to 50%, the Award dated 29.07.1998 passed by the Labour Court-I, Hyderabad, in I.D.No.82 of 1995 was upheld. The second respondent herein was working as a Conductor in the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) and was removed from service in connection with certain cash and ticket irregularities allegedly committed by him which were established upon due enquiry. His appeal against this punishment resulted in failure. However, in the review filed by him thereagainst, he was directed to be re-appointed as a fresh Conductor. Aggrieved thereby, he approached the Labour Court by way of the subject I.D. under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity ‘the Act of 1947’). As the second respondent admitted the validity of the domestic enquiry, the Labour Court examined the material placed on record and found that the punishment imposed was disproportionate to the misconduct exhibited by the second respondent duly taking into account the fact that the mistakes committed by him should be considered as misconduct of lesser magnitude. It accordingly set aside the order of removal and directed reinstatement of the second respondent in service withholding 25% of the back wages but with continuity of service and attendant benefits. Challenging the said Award dated 29.07.1998 passed by the Labour Court-I, Hyderabad, the APSRTC filed the subject writ petition. The learned single Judge, while agreeing with the findings recorded by the Labour Court, reduced the payment of back wages from 75% to 50% and disposed of the writ petition. Aggrieved thereby, the present writ appeal is preferred. Heard the learned standing counsel for the appellant-APSRTC and the learned counsel for the second respondent/ Conductor. The learned standing counsel for the appellant-APSRTC submitted that the Labour Court, while recording a finding that non- punching of three tickets of Rs.30/- denomination; wrong mentioning of ticket No.660 at stage Nos.16 and 17; and non-mentioning of the number of tickets relating to Rs.30/- denomination are certainly mistakes on the part of the Conductor; erroneously directed his reinstatement with 75% back wages with continuity of service and attendant benefits. He also submitted that the second respondent was re-appointed as a fresh Conductor upon the order passed by the review authority. He pointed out that once the second respondent was re-appointed, he was not entitled to approach the Labour Court under Section 2-A(2) of the Act of 1947. He contended that the learned single Judge, while agreeing with the findings recorded by the Labour Court, erroneously granted 50% back wages. He therefore prayed that the writ appeal be allowed. On the other hand, the learned counsel for the second respondent submitted that the learned single Judge of this Court, considering the facts and circumstances of the case, disposed of the writ petition filed by the APSRTC reducing the payment of back wages from 75% to 50% while upholding all other findings recorded by the Labour Court, which do not warrant interference under the present appeal. As regards the contention of the learned standing counsel for the APSRTC that in view of the re-appointment of the second respondent as a fresh Conductor upon the order passed by the review authority, he is not entitled to approach the Labour Court under Section 2-A(2) of the Act, 1947, it is no longer res integra in view of the decision of a Full Bench of this Court holding to the effect that in such circumstances, the workman could raise an industrial dispute before the Labour Court challenging such punishment imposed upon him. Perusal of the Award passed by the Labour Court reflects that while directing reinstatement of the second respondent with 75% back wages, continuity of service and attendant benefits, it observed as follows: “……… There is no doubt true that the number of tickets of Rs.30/- denomination were not shown right from the beginning is suspicious circumstances, but it cannot be said that the same is done with a view to cause loss of revenue to the Corporation and to enrich the Conductor himself. The fact that there is fault at stage No.17 for the statistical return may be a circumstance for not correctly mentioning the last ticket sold. ……… ……… However the non-punching of the three tickets of Rs.30/- denomination, the wrong mention of ticket No.660 at stage No.16 and 17 and also non-mentioning of the number of tickets relating to Rs.30/- denomination are certainly mistakes on the part of the petitioner and these mistakes have given chance to the Department to misunderstand his case and giving proper relief.” [Emphasis added] The learned single Judge observed in the impugned order thus: “From a perusal of the record coupled with the arguments advanced by both the counsel, this Court is of the view that the charges against the respondent definitely attracts the definition of misconduct. But, however, this Court is also of the view that it does not warrant removal of the respondent from out of service. Hence, I agree with the findings of the Labour Court. However, granting of 75% back wages appears to be not proper and the ends of justice would be met by reducing the same to 50%. Accordingly, I hold that the respondent is entitled to 50% back wages. ………” [Emphasis added] From the above, it is apparent that the second respondent committed misconduct in not properly discharging his fiduciary obligation towards the APSRTC and thereby misappropriated the amount as alleged. It is now well settled that in cases involving misappropriation of funds the doctrine of proportionality would have no role to play. Whatever be the quantum of the amount misappropriated, the inevitable result would be loss of confidence of the employer in such an employee. In this regard, the observations of the Supreme Court in REGIONAL MANAGER, UPSRTC v. HOTI LAL[1] are apposite: “10. ……… If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. ………” In the case on hand, the Labour Court was rather liberal in granting the relief to the second respondent considering the facts and circumstances of the case. In the light of the above, we find some force in the contention of the learned standing counsel that the learned single Judge should not have granted payment of 50% back wages to the second respondent. Accordingly, we hereby set aside that part of the impugned order whereby payment of 50% back wages to the second respondent was ordered and uphold the rest of the impugned order. In the result, the Writ Appeal is allowed to the extent indicated above. No order as to costs. __________________________ GHULAM MOHAMMED, J. ____________________ SANJAY KUMAR, J. 8TH SEPTEMBER, 2011. PGS/VGSR [1] (2003) 3 SCC 605