1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1162 OF 1993 The Divisional Controller Maharashtra State Road Transport Corporation, Ahmednagar Division, Ahmednagar. ..PETITIONER -VERSUS- Rajendra Sahadeo Nagarkar H.No.4173, Auti Wada, Anandi Bazar, Ahmednagar. ..RESPONDENT ..... Mr.M.K. Goyanka, advocate for petitioner. Mr.V.J. Dixit, Senior Counsel for respondent. ..... (CORAM : V.R.KINGAONKAR,J.) DATE : 11 st August, 2010. ORAL JUDGMENT : 1. By this petition, the petitioner challenges the judgment and order dated 27th August, 1992, rendered by the learned Presiding Officer of 2nd Labour Court, Ahmednagar. By the impugned judgment, the respondent was directed to be reinstated in service w.e.f. 9th November, 1985 with continuity of service and full back wages. 2. Long and short of the case put forth by the petitioner is that the respondent was working on its establishment as Cashier. 2 He was on duty through out the day on July 8th, 1985. On the next day, the cash box was checked by the Accountant, namely, Shri.Nighojkar. He noticed shortfall of Rs.11,000/- when the cash amount was physically verified. The respondent, however, immediately deposited the shortage of the amount. It was alleged that the respondent committed temporary misappropriation of the said amount. A charge sheet was lateron served on him. The respondent denied the truth in the allegations. The respondent asserted that he had not committed misappropriation and that he had recouped the amount in the same morning before the physical verification of the cash amount by Shri.Nighojkar i.e. the Accountant. According to him, there were certain torn currency notes and also some old currency notes, which he wanted to get changed from the concerned bank, but he could not do so in the evening of July 8th and that was done in the morning of July, 9th. The services of the respondent were terminated after the report of the enquiry was adversely made by the Enquiry Officer and after due service of enquiry report on him and obtaining his explanation. He challenged the termination order. The Reference (IDA) No. 20/1987 came to be allowed by the impugned judgment and order and as such, the Petition is filed by petitioner(Employer). 3. Heard learned counsel for the parties. 3 4. Mr.Goyanka submits that the learned Judge of the Labour Court has committed patent error while reappreciating the evidence, which was adduced during the course of disciplinary enquiry. He would further submit that the Labour Court committed error while awarding full back wages during the relevant period when there was no evidence on record to show that the respondent was not gainfully employed from the date of termination of the service till the order of his reinstatement. Mr.Dixit, the learned Senior Counsel, however, supports the impugned judgment and order. 5. So far as the merits of this matter are concerned, it is worthy to be noted that the learned Judge of the Labour Court duly considered the testimony of Mr.Nighojkar. It is pertinent to note that the petitioner did not lodge any report against the respondent with the Police. The respondent was not prosecuted for the alleged offence of temporary misappropriation. The matter regarding verification of the cash and the findings about deficit of the amount was not brought on record for at least first three days. There is no explanation as to why the office staff members of the petitioner acted in hush-hush manner for the relevant three days inspite of the fact that deficit amount was noticed on July, 9th, 1985 and 4 opportunity was available immediately after preparation of memorandum Exh.C-9. The testimony of Mr.Nighojkar indicated that the deficit amount has been deposited by the respondent around 11.30 a.m. and he had drawn memorandum at around 11.55 a.m. i.e. approximately around mid-day. He did not explain as to why the memorandum does not show the fact that deficit amount was immediately deposited by the respondent. Considering the reasons assigned by the Labour Court, it is amply clear that the dismissal order was interfered with on account of attending circumstances and the material placed on record. There does not appear any perversity as such in the view taken by the learned Presiding Officer of the Labour Court. 6. Another aspect of the matter is that even assuming that there was deficit amount and for a short period of overnight the respondent retained that amount of Rs.11,000/-, then also there is no tangible evidence to attribute malafides to him. Secondly, there is no evidence to show that he had committed such mistake in the past. Thirdly, for such a reason of temporary misappropriation, the order of dismissal could be shockingly disproportionate, particularly, when there was no proof regarding malafide intention on the part of the respondent. Under the circumstances, the impugned order to the extent of reinstatement of the respondent 5 can not be regarded as bad in law. Further development appears to be that the respondent has been superannuated and is now pensioner. It will be harsh and inequitable to reverse the finding about the reinstatement. 7. So far as the direction to pay the full back wages to the respondent is concerned, the learned Presiding Officer of the Labour Court only observed that the respondent was entitled to get full back wages because the petitioner did not prove that he was not gainfully employed during the relevant period. The petitioner placed on record the fact that wife of the respondent was in the employment and was earning member of the family. The direction to pay the full back wages need not necessarily follow the relief of reinstatement. It is necessary to establish that the employee was not gainfully employed during the relevant period. Such fact is within the personal knowledge of the employee himself, and therefore, burden is on him under the provisions of Section 106 of the Evidence Act to establish averment that he was not gainfully employed during the relevant period. Considering this aspect of the matter, it would be appropriate and in the interest of justice to direct that the respondent be paid only 50% of the back wages for the relevant period instead of 100% thereof. 6 8. In the result, the Petition is partly allowed. The impugned judgment and order to the extent of grant of full back wages to the respondent is set aside. Instead of full back wages, the respondent will be entitled to receive only 50% of the back wages for the relevant period. 9. Rule is partly made absolute accordingly. No costs. (V.R.KINGAONKAR) JUDGE gas/wp1162.93