1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3354 OF 1997 Yeshwant S/o Tanaji Gunjal, Age : Major, Occ : service, R/o Kopergaon, Tq. Kopargaon, District Ahmednagar. PETITIONER -VERSUS- The Divisional Controller, Maharashtra State Road Transport Corporation, Ahmednagar Division, Ahmednagar. RESPONDENT ..... Mr. N.P. Patil-Jamalpurkar, Advocate for petitioner. Mr. M.K. Goyanka, Advocate for respondent. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 1st April, 2011. ORAL JUDGMENT : By this Petition filed under Article 227 of the Constitution of India, the petitioner-employee has challenged the Award Part-II delivered on 26.05.1995 by the Presiding Officer and Judge IInd Labour Court, Ahmednagar, in Reference (IDA) No. 74 of 1987. 2. The petitioner was chargesheeted and after departmental enquiry, he was dismissed from service from 09.10.1985. The reference about its legality or otherwise was then 2 made by appropriate Government. Labour Court on 06.03.1994 found enquiry vitiated, therefore, opportunity was given to respondent-employer to prove misconduct. Accordingly, respondent examined one Hari Nivruti Aher to prove misconduct. The petitioner-employee entered in witness box and he was cross examined. Labour Court thereafter found that punishment of termination was not proper. It therefore granted petitioner relief of reinstatement without back wages but with continuity. Accordingly, the respondent reinstated the petitioner and he has retired after reaching age of superannuation. In this Petition, he is challenging the denial of back wages. 3. Advocate Mr. N.P. Patil has contended that the matter has remained pending before the Labour Court from 1985 to 1995 and during checking of bus and or during departmental enquiry, the petitioner has co-operated with employer. He also contends that there is no bad past service record and thus for solitary act, the back wages for the period of about 10 years are denied to petitioner. According to him, this is very cruel. While concluding arguments, the learned Counsel urged that this Court may consider grant of some back wages to the retired employee. 4. Advocate Mr. Goyanka on the other hand has invited 3 attention of this Court to nature of misconduct, to urge that considering that nature of misconduct the relief of reinstatement itself could not have been granted. According to him, M.S.R.T.C. then did not find it proper to challenge the award and hence the respondent came to be reinstated, and therefore, superannuated also. He therefore seeks dismissal of Writ Petition. 5. Perusal of the impugned award reveals that the petitioner was working as conductor on M.S.R.T.C. bus proceedings from Kopargaon to Lasalgaon. He therefore should have mentioned punching from Sr. No.1 onwards while proceedings towards Lasalgaon. He issued five tickets to passengers travelling from Kopargaon to Vinchur but punched the same in reverse fashion i.e. from Sr. No. 9 to 1 and from Sr. no. 10 to 1. This was also found in relation to two passengers travelling from Kopargaon to Lasalgaon where instead of taking punching entries from Sr. Nos. 1 to 10, he has done punching from Sr. no. 10 to Sr.no. 1. He was caught while collecting these tickets back from passengers. Not only this, cash of Rs. 7.30 was found in excess with him. This material is looked into by the Labour Court to hold that the misconduct is established. 6. It is apparent that reverse entries were made only to 4 facilitate sale of those tickets when M.S.R.T.C. bus returned from Lasalgaon to Kopargaon. The tickets were collected back only with that aim in view. Thus sale of tickets to passengers from Kopargaon to Lasalgaon was to be suppressed. Obvious result was loss to M.S.R.T. C.. had bus not been checked. 7. In his cross examination the petitioner accepted that in his spot statement, the admission of misconduct is recorded but then he explained that he signed it as per say of checking officers and its contents were not explained to him. He also accepted reverse punching. 8. It is therefore apparent that misconduct of grave and serious nature has been established before the Labour Court. In this back ground the Labour Court found that though the misconduct was proved, it was misconduct of gross negligence and not of dishonesty and misappropriation. It therefore found the punishment of dismissal disproportionate. It has relied upon the judgment in the case of "Raghuvir Bhanwarlalji Pandye V/s Industrial Court of M.P. reported at "1989(1) C.LR. 556" where Madhya Pradesh High Court found that when gross negligence was proved on the part of conductor, the punishment of dismissal was not warranted. In view of the subsequent judgments of the 5 Hon'ble Apex Court, it is apparent that in present matter, the finding that it was act of gross negligence is unsustainable. Collecting tickets with reverse entry back from passengers and M.S.R.T.C. cash in excess could not have been treated as negligence only. However, as M.S.R.T.C. has not questioned this finding, it is not necessary for this Court to observe anything more. 9. In the circumstances, I do not find any case made out warranting interference in writ jurisdiction. Therefore, the Petition is dismissed. Rule discharged. No costs. 10. Advocate Mr. Patil states that because of pendency of Writ Petition, the terminal benefits of the petitioner were withheld. According to Mr. Goyanka the same have already been released. Again it is not necessary for this Court to go into that controversy but in case the terminal benefits of the petitioner are withheld because of the pending Writ Petition, same shall be released within four months from today. (B.P. DHARMADHIKARI) JUDGE gas/wp3354.97