1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 3828 OF 1996 *** Maharashtra State Road Transport Corporation, through its Divisional Controller, Nanded. ... PETITIONER. Versus Venkatesh Ganpatrao Hingole, Age: Major, Occ. Ex-Conductor, R/o Degloor, Dist. Nanded. [Dead/ through L.Rs.] i) Rupabai Wd/o Vyankat Hingole, Age: 60 yrs., Occ.: Nil. ii) Sapana D/o Vyankatesh Hingole, Age: 30 yrs., Occu.: Nil. iii) Mahesh S/o Venkatesh Hingole, Age : 40 yrs., Occ.: Labour, All R/o Degloor, Dist. Nanded. ... RESPONDENTS *** Mr. M. K. Goyanka, Advocate for the Petitioner. Mr. Pawan Pawar, Advocate for Respondents. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 26th APRIL, 2011. ORAL JUDGMENT: 1. By this petition, filed under Articles 226 and 227 of Constitution of India, Petitioner/ employer has questioned the concurrent grant of reinstatement to deceased Venkatesh. Venkatesh was 2 dismissed for misconduct under clauses 7 (c), 12 (b) and 22 of Schedule-A of Discipline and Appeal Rules, after giving him a charge sheet dated 3rd March, 1992. Said dismissal dated 21st November, 1992 was then questioned by him before Labour Court, Jalna in Complaint (ULP) No.105 of 1992 under section 28 (1) read with Item 1, clauses (a), (b), (d), (f) and (g) of Schedule-IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act, 1971 (hereinafter referred to as 1971 Act). That complaint was allowed on 25th July, 1995 by granting him relief of reinstatement with continuity and 75% back- wages. Petitioner questioned this judgment of Labour Court in Revision No. 64 of 1995 under section 44 of 1971 Act before Industrial Court at Jalna. Vide order dated 4th June, 1996 Industrial Court partly allowed that revision. It maintained relief of reinstatement with continuity but then forfeited fifty per cent of the back wages. Thus, deceased Venkatesh was directed to be reinstated with continuity and fifty per cent back wages. 2. Petitioners then approached this Court in the matter and on 19th August, 1996, while issuing rule in the matter, interim relief was refused. Because 3 of this refusal, petitioners reinstated deceased Venkatesh and he was again dismissed in other misconduct after departmental enquiry on 16th April, 1998. That dismissal was not challenged by him during pendency of present petition and he expired on 5th February, 2009. His legal heirs are brought on record. 3. I have heard Advocate Mr. Goyanka for the petitioner/ corporation and Mr. Pawar for the Respondents. 4. Mr. Goyanka contends that having found misconduct of grave and serious nature established, the learned Member, Industrial Court could not have granted relief of reinstatement. He further points out the said finding of Industrial Court has not been questioned before this Court by deceased Venkatesh and it has attained finality. He also invites attention to observations of Labour Court to urge that past service record of deceased Venkesh was far from satisfactory. He, therefore, seeks dismissal of ULP complaint filed by deceased Venkatesh. 5. Mr. Pawar, on the other hand, states that past service record was not produced before the Labour Court and its reference in Inquiry report is found 4 to be vague to deserve any credence. He further contends that the Industrial Court has exonerated deceased from misconduct falling under clause 22 of Discipline and Appeal Rules and hence his implication under other two charges by itself was found not sufficient to sustain the punishment. According to learned counsel the bus had started hardly 1.5 to 2.0 Km. back and the deceased was in the process of issuing tickets to a group of 16 passengers at the time of checking. In this situation, the finding that punishment is shockingly disproportionate cannot be labeled as erroneous. He, therefore, prays for dismissal of writ petition. According to him, later dismissal of deceased Venkatesh or then absence of any challenge thereto are not relevant in the present matter. 6. The dismissal is after holding departmental inquiry. A perusal of judgment delivered by Labour Court reveals that Labour Court found conclusions drawn by Inquiry Officer perverse and it has, therefore, interfered in the matter. In revision, the Industrial Court has reversed partly said finding. It found that the material on record was sufficient to sustain implication of deceased for 5 misconduct falling under clause 7(c) and 12(b) of Discipline and Appeal Procedure. It further found that misconduct under clause 22 was not established. This finding of Industrial Court has attained finality and has not been assailed by deceased. Moment misconduct falling under clause 7(c) or 12(b) of Schedule-A of Discipline and Appeal Procedure is shown to be established it is apparent that punishment of dismissal from service can be inflicted for it. The misconduct under clause 7(c) is of recovering fair amount from passengers and of failure to issue tickets to them. Misconduct under clause 12 (b) is a fraud, dishonesty and misappropriation in connection with business or property of Maharashtra State Road Transport Corporation. These misconducts are, therefore, grave and it cannot be said that punishment of dismissal for the same is shockingly disproportionate. The concept of shockingly disproportionate punishment or then of consideration of past service record forms part of unfair labour practice falling under clause "g" of Schedule-IV, Item 1. But, then, it envisages misconduct of minor or technical character. The issue is squarely covered by judgment of Honourable 6 Apex Court in the case of "Colour Chem Limited V/s A. L. Alaspurkar and others" reported in AIR 1998 S.C. 948. 7. The learned Member of Industrial Court, thereafter, after having reached a conclusion that the misconduct of grave and serious nature has been established, could not have interfered with the quantum of punishment only because charge under clause 22 was of vague nature. The charge under clause 22 is of breach of any administrative orders. The administrative order relevant here is rule of "issue and start". It cannot be presumed that a person like deceased, who was working as conductor, was not aware of that rule. No bus can be checked by inspecting squad if rule of issue and start is not followed. Here, admittedly that rule is also breached. 8. In this view of the matter, it is apparent that finding reached by Industrial Court that punishment is shockingly disproportionate is unsustainable and is liable to be quashed and set aside. 9. However, in present situation, when the deceased was already reinstated after rejection of interim orders by this Court sometime in 1996 and 7 has worked till April, 1998 and earned his salary, it is apparent that, that work and salary earned by him needs to be protected. Therefore, though the order of Industrial Court dated 4th June, 1996 is hereby quashed and set aside and judgment of Labour Court dated 25th July, 1995 is also quashed and set aside and Complaint (ULP) No.105 of 1992 filed by deceased is hereby rejected, still the work done by him, after his reinstatement in 1996 till his second termination dated 16th April, 1998 is protected. Petitioner shall not effect any recovery for that work or on that count. 10. Rule is made absolute accordingly. No costs. [B.P.DHARMADHIKARI, J.] Dated:26/04/2011. ans/3828 8 WRIT PETITION NO.: 3828 OF 1996 Date of decision: 26th APRIL, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE