1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9236 OF 2005 WITH CIVIL APPLICATION NO.2586 OF 2006 Badrinath P. Rathod ..Petitioner. Vs. The Divisional Controller, M. S. R. T.C., Thane and another ..Respondents. .... Mr. R.S. Apte, Senior Advocate with Mr. A.A. Garge for the Petitioner. Mr. G.S. Hegde for the Respondents. .... CORAM: DR. D.Y. CHANDRACHUD, J. 8th December, 2008. P.C. : 1. Civil Application 2586 of 2006 is for an expeditious hearing of the Petition. The Civil Application has been allowed and the Petition has been set down for hearing. On the request of Counsel appearing for the Petitioner an adjournment was granted so as to enable the parties to prepare for the hearing and final disposal. The Petition has been heard by consent. 2. The Petitioner was engaged in the M. S. R. T. C. as a 2 conductor. A charge–sheet was issued to him on 22nd September, 1999 on the allegation that he was guilty of misappropriation. A departmental enquiry was held. Upon the conclusion of the enquiry, the Petitioner came to be terminated from service. The Petitioner instituted a complaint of unfair labour practices. The Labour Court held that the misconduct was established but nonetheless awarded reinstatement though without backwages and with continuity of service. The past record of the workman showed that on four occasions in the past he had been dismissed from service but subsequently came to be reinstated either in appeal or in proceedings before the Labour Court. The Labour Court noted that the “past record is not proper” but, “the present misconduct is a mere misconduct for a meager amount”and that “one more mercy chance to be given to the complainant to improve himself as a last chance”. The Corporation carried the matter in revision. The Industrial Court allowed the revision application, set aside the judgment of the Labour Court and dismissed the complaint of unfair labour practices. 3. In assailing the judgment of the Industrial Court, Counsel 3 appearing for the Petitioner submitted that the Industrial Court has exceeded the limitations on its revisional jurisdiction under Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. Secondly, it was submitted that the charge of misappropriation was held not to have been established in the report of the Enquiry Officer. Thirdly, it was submitted that the past record was not such as would justify the imposition of the penalty of dismissal from service. These submissions can be considered. 4. Initially by an order dated 5th March, 2003 the Labour Court had held that the enquiry was not fair and proper and that the findings were perverse. In view of the settled position in law the employer was furnished with an opportunity to prove the misconduct before the Court and to establish that the punishment was just and proper. The employer availed of the opportunity of establishing misconduct by leading evidence before the Court. Evidence was adduced of Shri C.P. Mhatre, an inspector in the inspecting squad. The Labour Court noted from the evidence that two persons were found travelling in the bus on tickets worth Rs.2/- each. The two passengers had boarded 4 the bus at Shahapur and were proceeding to Lenad village. The two passengers had paid an amount of Rs.10/- to the conductor at the place of boarding. The Petitioner retained an amount of Rs.8/- and returned an amount of Rs.2/-. However, instead of issuing tickets worth Rs.4/ each to the passengers, the workman issued tickets of Rs.2/- each, that is of the total sum of Rs.4/-. The Petitioner made an endorsement on statement of the passengers to the effect that the statement had been recorded in his presence and was correct. The workman also made a statement to the effect that though he had received an amount of Rs.10/- , he had returned an amount of Rs.2/- to the passengers; and though the fare for the journey from Shahapur to Lenad was Rs.4/-, he had issued tickets worth Rs.2/- each. The Labour Court noted that though in the spot statement the Petitioner had stated that the two passengers were to travel upto Lenad, he had changed his case during the course of his deposition in Court. The Labour Court noted that the bus was not overloaded and it was not difficult for the conductor to locate such passengers who may have been travelling beyond the point for which the fare had been paid. The misconduct has been held to be established on the basis of the 5 evidence adduced before the Labour Court. The Labour Court noted that the past record of the Petitioner was not free of blame and that on four occasions though he was dismissed, he came to be reinstated thereafter either in appeal or in proceedings before the Labour Court. The Labour Court interfered with the penalty holding that the misconduct was for a meager amount and that one last chance should be given to the Petitioner by way of mercy. The approach of the Labour Court is manifestly in error. The Industrial Court was justified in exercising its revisional power to correct a manifest failure of justice that would have occurred on account of an error apparent in the approach of the Labour Court. A finding of misconduct in a case involving misappropriation cannot be regarded as meager. Once the finding is established the employer is entitled to take a serious view of the matter even to the point of awarding the penalty of dismissal from service. Once an act of misappropriation is established involving the funds of the Undertaking, the quantum of misappropriation would not be of significance in determining whether the misconduct is proved. In Divisional Controller, N.E.K.R.T.C. v. H. Amaresh1 the Supreme Court held as follows : 1 (2006) 6 SCC 187. 6 “In the instant case, the misappropriation of the funds by the delinquent employee was only Rs.360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B. S. Hullikatti2 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential.” This judgment was followed by the Supreme Court in U.P. State Road Transport Corporation v. Vinod Kumar3 and the Supreme Court held thus : “This Court in a number of judgments has held that the punishment of removal / dismissal is the appropriate 2 (2001) 2 SCC 574. 3 (2008) 1 SCC 115. 7 punishment for an employee found guilty of misappropriation of funds; and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment.” 5. The Supreme Court has held that misappropriation by a bus conductor, of any amount cannot be overlooked. Once the charge is established, misappropriation is a matter of serious concern for the employer. The charge of misappropriation is a serious charge which would warrant the imposition of the penalty of dismissal from service. 6. In these circumstances, no case for interference has been made out. The Industrial Court has interfered with the judgment of the Labour Court for cogent reasons. The Petition shall accordingly stand dismissed. In view of the dismissal of the Petition, the Civil Application has also been disposed of. 8 *****