:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2633 OF 1995 1. Maharashtra State Road Transport Corporation, Vahatuk Bhavan, Bombay Central, Bombay - 400 008. 2. The Divisional Controller, Maharashtra State Road Transport Corporation, Solapur ..Petitioners Vs. Hari Sadashiv Mali Age 46 years, Occ: Unemployed Resident of 3584, Sant Peth, Pandharpur, Dist. Solapur ..Respondents Mr. G.S. Hegde for petitioners. Mr. Hari Sadashiv Mali, party-in-person, present. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : March 28, 2008. Date : March 28, 2008. Date : March 28, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This petition filed by the employer - Corporation arises from the Judgment and Order dated 3/2/1995 rendered by the Industrial Court at Solapur thereby allowing Revision Application (ULP) No. 39 of 1987 against the order of dismissal dated 17/1/1983. The complainant had approached the Labour Court in :2: Complaint (ULP) No. 8 of 1984 and the said complaint was dismissed as per the Judgment and Order dated 3/4/1987. By the impugned Judgment and Order, while allowing the revision application, the Judgment and Order dated 3/4/1987 rendered by the Labour Court has been quashed and set aside, the complaint came to be allowed partly by directing the Corporation to reinstate the respondent-complainant in its employment in his original post with continuity of service and 25% backwages. Civil Application No. 5223 of 1996 was disposed off by directing the Corporation to pay the monthly wages of the respondent no.1 (last drawn wages), in case the Corporation did not reinstate him and this order was sought to be challenged in L.P.A. No. 211 of 1996. On 9/11/1996 the L.P.A. was partly allowed by recording the undertaking of the Corporation that the respnodent-conductor would be reinstated in service on or before 15/11/1996. 2. Though the respondent has not been represented, I have perused the affidavit-in-reply filed by him. The respondent, party-in-person, stated before the court that he reported for duty at the :3: Pandharpur Depot of the petitioner-Corporation on 27/11/1996 and on attaining the age of superannuation he retired from the employment of the Corporation on 31/5/2002. He further submitted that on account of pendency of this petition, his retiral dues have not been cleared, save and except a lump sum of Rs.10,000/- which was paid to him on the date of retirement by the Corporation. Thus, the only issue that remains for consideration is, whether the order passed by the Industrial Court directing payment of 25% backwages is legal, just and proper. 3. The petitioner is a statutory Corporation established by the State Government under the Road Transport Corporation Act, 1950 with its registered office at Bombay and Divisional offices at various districts in the State of Maharashtra. The respondent - employee joined the Corporation as Conductor sometimes in the year 1970 and in the year 1973 he came to be transferred from Akluj to Pandharpur Depot. While he was on duty on the Corporation Bus from Pandharpur to Puluj via Penur on 27/8/1982, the Inspection Squad checked the said Bus and the Bus was :4: checked between Penur and Takali and the Inspector Shri Katkar found two passengers, namely, Dhavane and Vavade with separate tickects in the denomination of Rs.1.50 only and these were the tickets which were re-sold to the said passengers. On 29/8/1982 again the Bus was checked at Vakilvasti and passengers were found who were issued the used tickets. He was chargesheeted on 28/8/1982 for the incident that had taken place on 27/8/1982 and, therefore, for the incident that had taken place on 29/8/1982 he was not proceeded against. A departmental enquiry was conducted and he was held to be guilty of issuing used tickets, causing financial loss to the Corporation and misappropriation of the Corporation money. The Enquiry Officer held that the charges were proved and the said findings were accepted and finally by way of punishment the respondent was dismissed from service as per the order dated 17/1/1983. 4. Both the courts below have held that the enquiry was conducted in keeping with the principles of natural justice and the charges levelled against the respondent were proved. However, the Industrial :5: Court did not agree with the Labour Court on the quantum of punishment and as per the Industrial Court the punishment of dismissal was grossly disproportionate to the charges proved against the respondent. Consequently, the Industrial Court held that the Corporation was guilty of unfair labour practice within the meaning of Item 1(g) of Schedule IV of the Act. As per the Industrial Court the misappropriation proved against the respondent involved a sum of Rs.3/- only and, therefore, it would be appropriate that he was denied 75% of the backwages by way of punishment. 5. Mr. Hegde the learned counsel for the Corporation submitted that the Industrial Court was in error in recording the finding that the respondent was guilty of misappropriation only to the tune of Rs.3/- and that the amount involved is inconsequential when it comes to the charge of misappropriation or dishonesty in connection with the employer business. He also submitted that the complainant had sold used tickets to the said two passengers and this was an additional serious misconduct which was again repeated :6: on 29/8/1982, but no disciplinary proceedings were instituted on account of the charge-sheet having been issued on 28/8/1982 in respect of the incident that had taken place on 27/8/1982. He relied upon the decision rendered by the Supreme Court in the case of U.P.S.R.T.C. vs. Mahendra Nath Tiwari and anr. [2005(7) Supreme 664] [2005(7) Supreme 664] [2005(7) Supreme 664] and in the said case as well, the amount involved was only Rs.1.50, for which ticket had not been issued and there were 12 used tickets in the possession of the delinquent, which in fact were not issued, while there was only a lone passenger in the Bus. 6. When the Bus of the complainant was checked, admittedly, as held by both the courts below, two passengers as named hereinabove were found with tickets which were issued to them by the complainant and these were already used tickets. He had thus re-issued the used tickets. He was a public servant and, therefore, the misappropriation, even if of Rs.3/-, was a grave misconduct indicating that the complainant was unfit to be in the employment. However, as noted earlier, the complainant was already :7: reinstated and he has retired on reaching the age of superannuation. The learned Member of the Industrial Court was in manifest errors in directing payment of 25% backwages and, therefore, I have no hesitation to hold that the complainant is not entitled for any backwages, though the Corporation has not agitated against the continuity in service. Mr. Hegde the learned counsel for the Corporation also submitted that while giving him the benefit of continuity of service, the Corporation has reinstated him on the last drawn wages and subsequent thereafter in case he has not been given annual increment or the benefits of revision in salary by way of settlement/award etc., he shall be given the same. 7. In the premises, this petition succeeds partly and the impugned order passed by the Industrial Court to the extent of directing 25% backwages for the intervening period is hereby quashed and set aside. However, the Corporation has accepted to give the benefit of continuity in service. In case the retiral benefits of the complainant have not been settled on account of the pendency of this petition, the :8: Corporation shall take steps to pay all the dues within a period of six weeks from today. 8. Rule is made absolute accordingly. No costs. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)