1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2892/1995 Maharashtra State Road Transport Corporation, Jalgaon, Dist.Jalgaon. .. PETITIONER VERSUS Shamrao Shivram Choudhari Swami Vivekanand Chowk At Post & Tq. Raver, Dist.Jalgaon. .. RESPONDENT .... Shri M.K.Goyanka,Adv.for petitioner. Shri V.Y.Patil,Adv.for Respondent. .... CORAM : R.K.DESHPANDE,J. DATE : 19/7/2010. ORAL JUDGMENT: 1] This Writ Petition is preferred by the employer challenging the judgment and order dated 15/7/1994 passed by 2 the Labour Court at Jalgaon answering the Reference (IDA) No.13/1990 in favour of an employee and directing the petitioner-employer to reinstate the respondent-employee with continuity of service but without backwages. 2] The facts leading to the case are as under : The respondent-employee was appointed as Conductor in the service of the petitioner in the year 1962. On 12/3/1987, charge sheet was served upon respondent-employee in respect of certain charges of misconduct, which include (1) Non-issuance of tickets to the passengers after recovery of fare (2) Fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation and (3) Indiscipline. These were the acts of misconduct specified under Rule 7(c), 12(b) and 10 of the Discipline and Appeal Rules of the Corporation. The charges were proved against the respondent-employee. Hence, he was terminated from service by an order dated 6/10/1987. 3] The respondent-employee preferred a departmental Appeal in which the order of termination was converted into one of the fresh appointments by an order dated 4/6/1989 passed by the appellate authority. Accordingly, the respondent- employee was reinstated in service on that day. 3 4] Reference (IDA) No.13/1990 was made to the Labour Court involving the question whether issuance of fresh order of appointment to the respondent-employee was proper or not. Similarly issue was framed by the Labour Court at Jalgaon as to whether the respondent-employee has proved that the enquiry held against him was in utter disregard to the principles of natural justice. It was answered in the negative. So far as issue regarding the findings of enquiry committee were perverse or not, the Labour Court has recorded a finding that it is partly proved. However, the categorical finding is recorded that the charge of ticket-less travel of passengers and excess cash are proved. But the rest of the charges were not proved. This was by first award dated 1/3/1993. 5] Part 2 of the award was passed on 15/7/1994. It was held that the punishment imposed upon the respondent-employee was disproportionate to the charge of misconduct. Such a finding was recorded on the basis that the findings in respect of charges were held to be partly perverse. By second Award dated 15/7/1994, the Labour Court directed reinstatement of the respondent with continuity of service, but without backwages and this is the order which is subject matter of challenge in this Petition. 6] Once the finding in respect of charge of ticket-less travel by passenger and recovery of excess cash from the 4 respondent-employee is established, gravity of the charge is apparent, simply because the Labour Court has held that the findings in respect of other charges were perverse, that itself is not enough to hold that the punishment imposed was disproportionate to the gravity of misconduct. Departmental appellate authority has reduced the punishment of termination to fresh appointment and such a punishment cannot be held to be disproportionate to the charge of misconduct. The Labour Court has therefore, committed an error in interfering with the order of punishment passed by the petitioner employer. The impugned order therefore, cannot be sustained. 7] By way of an interim order dated 11/12/2007, this Court had allowed the application filed by respondent seeking order for grant of provisional retiral benefits as well as pension to the petitioner subject to the final decision of the Writ Petition. This Court had allowed the said application and directed the petitioner employer to grant provisional retiral benefits to the respondent-employee including the Provident Fund and Gratuity etc. It was made clear that this order shall be subject to the result of the petition. It was further directed that the respondent-employee shall furnish an undertaking to the Corporation that he shall refund the amount, if found due at the stage of final hearing of Petition. In view of this order, the petitioner Corporation shall be at liberty to recalculate the amount of Provident Fund and Gratuity payable to the 5 respondent-employee, as if he was reappointed on 4/6/1989 and all other retiral benefits including pension and communicate the ultimate decision to the respondent- employee. If at all any amount is found due from the respondent-employee, the petitioner management shall be at liberty to recover the same in accordance with law. Rule is made absolute in the above terms. No order as to costs. [R. K. DESHPANDE, J.] umg/wp2892-95