1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 3529 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 3529 OF 2011 *** 1. Heard Mr. Goyanka for the Petitioner and Mr. Barde for Respondent/ sole finally. 2. The Labour Court had dismissed the complaint of Respondent/ Conductor after holding departmental inquiry to be valid, findings to be good. Respondent then filed ULP Revision under section 44 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practice Act before Industrial Court. Industrial Court found misappropriation established but of temporary nature and then it noted that in long span of about 18 years there was no similar incident. It, therefore, invoked the provisions of Item-1 (g) of Scheduled-IV of MRTU & Pulp Act and found punishment shockingly disproportionate. Therefore, it granted Respondent relief of reinstatement with 30% 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 3529 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. wages. Balance 70% wages were denied by way of punishment. 3. According to Advocate Mr. Goyanka when misconduct of grave and serious nature is found established the learned Member of Industrial Court ought to have upheld the exercise of powers of employer to dismiss employee. He further contends that recourse to Schedule-IV, Item-1 (g) in this circumstance is unwarranted. 4. Advocate Mr. Barde on the other hand states that Industrial Court has found misappropriation of Rs.40/- only of temporary nature and no loss is caused to the M.S.R.T.C. He further contends that way bill was not closed and hence there was no misconduct at all. At the most non-issuance of ticket can be viewed as a mistake. Lastly without prejudice to these arguments, he also points out that the Respondent is due for retirement on superannuation on 1st June, 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 3529 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 2012. 5. The facts considered by Industrial Court clearly show that fare amount of Rs.40/- was accepted by Respondent but tickets were not issued. The checking party, therefore, after noticing this, has collected unpunched ticket from ticket tray of Respondent. What they have collected is an evidence and it is not with intention to save M.S.R.T.C. from loss. The act of misconduct in not issuing tickets has been established by collecting those tickets. The cash in cash box has tallied thereafter. Had cash not tallied even thereafter and had found in excess or short, a further misconduct could have been looked into by the petitioners. 6. Similarly, not closing way bill does not constitute to any extenuating circumstance in this situation. Had bus not been checked the Respondent would not have sold those tickets and could have pocketed amount of Rs.40/- as 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 3529 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. it was not necessary for him to reflect it at that time. Because the bus was checked the misconduct came to light. This also shows that rule of issue and start has not been followed. 7. In this circumstances when misconduct of grave and serious nature is established, learned Member of Industrial Court has erred in resorting to Item 1 (g) of Schedule-IV. That unfair labour practice requires a misconduct of minor or technical nature. When employer, for misconduct of such minor and technical nature, imposes a punishment without looking to past service record and that punishment is found to be grave and shocking, the provisions of Item 1 (g) are attracted. If past service record is not looked into for misconduct of grave and serious nature that item is not attracted. The issue is settled in the case of "Colour Chem Limited V/s A. L. Alaspurkar and others" 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 3529 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. reported in AIR 1998 S.C. 948. 8. I, therefore, find the exercise of jurisdiction and interference by Industrial Court in the matter unsustainable. The judgment of Industrial Court dated 24th February, 2011 in Revision (ULP) No. 69 of 2005 is therefore quashed and set aside. The Judgment of Labour Court dated 24th November, 2004 in Complaint (ULP) No.65 of 1997 is hereby restored. Rule is made absolute accordingly. No costs. [B.P.DHARMADHIKARI, J.] Dated:05/05/2011. ans/3529