1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3142 OF 2001 Eknath s/o. Mango Patil, Age 49 yrs., Occu. Service, R/o. At Post Tornala, Tq. Jamner, Dist. Jalgaon. ....Petitioner. Versus The Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon. ....Respondent. Shri. V.Y. Patil, Advocate for the petitioner. Shri. M.K. Goyanka, Advocate for the respondent. CORAM : R.K. DESHPANDE, J. DATE OF RESERVING THE JUDGMNET: 8th July, 2010. DATE OF PRONOUNCEMENT : 13th July 2010. ORAL JUDGMENT : 1. This writ petition is preferred by the employee, challenging the judgment and order dated 3.8.2001 passed by the Industrial Court, Jalgaon in Revision Application (ULP) No. 773/1999 (Original No. 123/1996). The Industrial Court has set aside the judgment and order dated 5.7.1996, passed by the Labour Court, Jalgaon in Complaint (ULP) 2 No. 204/1993. The Labour Court, by its judgment had set aside the termination of the petitioner/complainant from service as Conductor and had granted reinstatement in service without backwages. The Labour Court also granted liberty to the respondent/employer to impose appropriate punishment against the petitioner for proved misconduct, except dismissal, discharge, termination or removal from service. Since this order of Labour Court is reversed by Industrial Court, this petition by an employee. 2. The facts leading to the case are as under :- The petitioner was employed as Conductor in the service of respondent - Maharashtra State Road Transport Corporation (MSRTC) in the year 1978. While performing his duty in bus No. 6654 on 28.4.1993, on Jamner to Nandura-Haweli road, Flying Squad of respondent MSRTC checked the bus at Nandura-Haweli. The checking officials recorded the statement of the complainant and witnesses, when they found that two lady passengers travelling from Fattepur to Nandura-Haweli paid an amount of Rs. 5.50 ps., but the petitioner did not issue tickets to the said passengers. They also found that 5 lady passengers were travelling from Chincholi to Nandura-Haweli, who paid Rs. 12/- to the petitioner, but the petitioner did not issue any tickets to the said passengers. Hence, they submitted the report. On the basis of this report, a chargesheet was issued to the petitioner on 8.5.1993 levelling the charges as under :- 3 (1) A group of two lady passengers was travelling from Fattepur to Nandura-Haweli, who paid Rs. 5.50 ps. to the petitioner, but the petitioner dishonestly did not issue any tickets to the said passengers. (2) A group of 5 lady passengers was travelling from Chincholi to Nandura-Haweli, who paid Rs. 12/- to the petitioner, but the petitioner dishonestly did not issue any tickets to the said passengers. 3. The inquiry was conducted in respect of aforesaid two charges, as according to the respondent/MSRTC, it amounted to misconduct under clauses 7-c, 7-e and 12-b of Discipline and Appeal Procedure. The reporter and one passenger Smt. Sumanbai were examined in the inquiry. The Inquiry Officer held that the charges were proved against the petitioner. Hence, the petitioner was dismissed from service with effect from 1.9.1993. 4. The petitioner filed Complaint (ULP) No. 204/1993 in the Labour Court at Jalgaon. By an interim order passed under section 13(2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act), the petitioner was permitted to join the duties with effect from 19.12.1993. During the pendency of complaint, the petitioner was also promoted as 'Traffic Controler' by an order dated 13.11.1997. The petitioner retired from service on attending the age of 58 years on 31.5.2010. The Labour Court 4 vide its judgment and order dated 5.7.1996, allowed the Complaint (ULP) No. 204/1993. The order of dismissal with effect from 1.9.1993, was set aside. The petitioner was directed to be reinstated with continuity of service. However, the prayer for backwages was rejected. The Labour Court granted liberty to the respondent/MSRTC to impose an appropriate punishment against the petitioner for proved misconduct, except dismissal, discharge, termination or removal from service. 5. The Labour Court, in its judgment, has held that the petitioner (hereinafter referred to as "the complainant") failed to prove that the inquiry held against him was false, improper and not in accordance with the principles of natural justice. In respect of the issue, as to whether the complainant proved that the findings of the Inquiry Officer are not based on legal and acceptable evidence, the finding is recorded that it is partly proved. The Labour Court has held that the charge of negligence in not issuing the tickets to the passengers was established. However, it was held that there was no misappropriation on the part of the complainant, as the cash in his purse was found to be short by Rs. 58.75 ps. It was held that the charge of dishonesty was not proved. It was also held that the Inquiry Officer wrongly relied upon the statement of one co-passanger Samadhan Tayade, which was recorded by the checking staff at the time when the bus was checked. The Labour Court further recorded a finding that in the absence of proof regarding dishonesty and misappropriation, on the part of complainant, the punishment of 5 dismissal was disproportionate, considering the gravity of misconduct, held to be proved. In short, the finding of the Labour Court was that there was no evidence to establish that non issuance of tickets by the complainant was for some monetary gain or that there was any dishonesty on the part of the complainant. 6. In Revision (ULP) No. 773/1999 preferred by the MSRTC, the Industrial Court, by its judgment and order dated 3.8.2001, set aside the judgment and order passed by the Labour Court and Complaint (ULP) No. 204/1994 was dismissed. The Revisional Court, acting under section 44 of the Industrial Disputes Act, reversed the findings of the Labour Court, essentially for two reasons, as under :- (1) That, the Labour Court has given undue weightage to the fact that the cash with the Conductor was found short by Rs. 58.75 ps., and (2) That, Samadha Tayade, co-passanger, whose statement was recorded at the time of checking the bus, was not examined as witness in the inquiry. In respect of issue of disproportionate punishment, the Revisional Court held that the charges were proved and it cannot be said that the punishment of dismissal was only disproportionate. 7. Shri. Patil, the learned counsel appearing for the petitioner relied upon the following judgments :- 6 (1) 1991 LAB. I. C. 2470, Karnataka State Road Transport Corporation Vs. N. Nagendrappa and another, (2) 2000 III CLR 99, Gajanan s/o. Shamrao Thakre Vs. Maharashtra State Road Transport Corporation, (3) 2000 (4) ALL MR 481, Maharashtra State Road Transport Corporation Vs. M.G. Shetkar, (4) AIR 2001 SUPREME COURT 427, The Management of Shri. Ganpati Bus Service, Thirunelveli vs. Presiding Officer, Labour Court and others, (5) 2003 (1) Mh.L.J. 36, Ramchandra Narayan Rao Vs. Sub-Divisional Officer, M.M. Project and others, (6) 2003 (4) Mh.L.J. 478, V.R. Walvekar and another Vs. Gopal Narayan Marathe and others, and (7) 2004 (3) Mh.L.J. 733, Jayhind Vithoba Mahadik Vs. General Manager, Maharashtra Scooters Ltd. On the basis of aforesaid judgments, he urged that the jurisdiction of the Industrial Court to interfere with the order of the Labour Court is very limited and restricted. It cannot disturb the findings of facts. The reappreciation, reassuring and reassessing of whole evidence is not permissible by the Industrial Court in exercise of his powers under section 44. That the Revisional Court can only ascertain, whether the findings arrived at by the Labour Court were either contrary to the material available on record or disclosed perversity. 7 8. The learned counsel urged that the reversal of findings by the Revisional Court, on the two grounds as aforestated is nothing, but reappreciation of evidence by the Industrial Court. He submits that reversal of findings by the Industrial Court is not on the ground of perversity or irrationality in recording the findings by the Labour Court. Hence, according to him, the Industrial Court exceeded its jurisdiction in setting aside the judgment and order passed by the Labour Court. He further urged that even on merits, the Labour Court was correct in recording finding that there was no material available to substantiate the plea that non issuance of tickets by the complainant was for unlawful gain or with dishonest intention or that there was any misappropriation by the complainant. 8. Shri. Goyanka, the learned counsel appearing for MSRTC, has relied upon the following judgments :- (1) AIR 1977 SUPREME COURT 1512 (1), State of Harayana and another vs. Rattan Singh, (2) AIR 2004 SUPREME COURT 4761 (1), Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane, and (3) AIR 2005 SUPREME COURT 3417, V. Ramana vs. A.P.S.R.T.C. and others. According to him, the Labour Court, without any justification interfered with the findings of the Inquiry Committee to hold that the charge of dishonesty or misappropriation was not established. 8 According to him, the Revisional Court, therefore, was right in setting aside the findings of the Labour Court. On the basis of aforesaid judgments, he has urged that the punishment of dismissal from service for charges of misconduct proved, cannot be held to be disproportionate. He further submits that as per law laid down in said judgment, it is permissible for the employer to rely upon the statements of passengers recorded at the time of checking of bus and it is not necessary to call such passengers while recording evidence before the Inquiry Committee. He further submits that while setting aside the judgment and order of the Labour Court, the Industrial Court has acted within the bounds of its authority under section 44 of the MRTU & PULP Act and hence, the findings of facts recorded by the Industrial Court cannot, therefore, be interfered with by this Court under Articles 226 and 227 of the Constitution of India. 9. As pointed out earlier, the charges so levelled against the complainant, requires a dishonest intention on the part of the complainant, to be proved in non issuance of tickets. The finding recorded by the Labour Court and also confirmed by the Revisional Court that the complainant was negligent in not issuing tickets to 7 passengers, cannot be disturbed. The Labour Court has taken into consideration the fact that at the time of checking of the purse of the complainant, the amount therein was found to be short by Rs. 58.75 ps. The Revisional Court has not reversed the findings of the Labour Court 9 that there was no material available on record to substantiate the charge that the non issuance of tickets was with dishonest intention. The Industrial Court has also not reversed the finding that the purse of the Conductor was found short by Rs. 58.75 ps. Even if, it is assumed that the statement of witnesses recorded on the spot can be considered during the course of inquiry, without calling them as witness, still the evidence on record must establish the dishonest intention on the part of an employee in not issuing tickets. This has not been done. The finding of the Industrial Court that the Labour Court has given undue weightage to the fact that the cash with the Conductor was found short by Rs. 58.75 ps., pertains to realm of appreciation of evidence, which could not have been done in exercise of powers under section 44 of the MRTU and PULP Act. This is supported by the view taken in various judgments relied upon by the learned counsel for the petitioner/complainant. 10. Once the charge of dishonest intention is not established, then certainly the punishment of dismissal imposed upon the petitioner/complainant was disproportionate to the charge of negligence in not issuing tickets to 7 passengers. The case of the Apex Court reported in AIR 2005 SUPREME COURT 3417 cited supra and relied upon by Shri. Goyanka, the learned counsel for the respondent, pertained to dismissal of writ petition by the High Court, challenging the order of dismissal passed by the State Road Transport Corporation on the charge of failure to collect fare, issuance of tickets and to maintain 10 the record of tickets and fare properly. The High Court maintained the order of dismissal, in spite of the fact that employee was acquitted in criminal case of negligence. The Apex Court did not find any infirmity in the order passed by the High Court. It was held that if punishment is found to be disproportionate, matter should be sent back to disciplinary authority to determine appropriate punishment. The said judgment is not applicable to the facts of the present case, for the reason that in the present case, the Court of first instance was the Labour Court, which could go into the question of legality, perversity of findings and procedure of holding inquiry adopted by the employer. On facts, the Labour Court has found absence of evidence regarding dishonesty on the part of the complainant. In fact in the present case the Labour Court has sent back the matter to disciplinary authority to impose proportionate punishment. Hence, to that extent, the view of Labour Court is as per law laid down by Apex Court. Hence, the said judgment is of no avail to the respondent MSRTC. Another judgment reported in AIR 2004 SUPREME COURT 4761 cited supra and relied upon by Shri. Goyanka, the learned counsel for the petitioner, is also of no help, for the reason that the complainant therein was found in possession of unaccounted money of Rs. 93/-, over and above the amount equivalent to the tickets issued by him. In the present case, the position is otherwise, the purse of the conductor was found short by Rs. 58.75 ps. 11. In the result, writ petition is allowed. The judgment and order 11 passed by the Industrial Court on 3.8.2001 in Revision (ULP) No. 773/1999 (Original No. 123/1996) is hereby quashed and set aside and the judgment and order dated 5th of July 1996 passed by the Labour Court at Jalgaon is restored. Rule is made absolute in above terms. There shall be order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp342.01