1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.228 OF 1991. M.S.R.T. Corporation through the Divisional Controller, MSRT Corporation, Aurangabad ... Petitioner. Versus B.D.Chavhan, Age major, Occ. R/o At Post Jalgaon, Tq. Gevrai, Dist.Beed. ... Respondent. ... Mrs.R.D.Reddy, advocate for the petitioner. Mr.N.P.Patil, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 05.01.2010. ORAL JUDGMENT 1. By this petition, the MSRTC challenges award rendered by learned Presiding Officer, Labour Court, Aurangabad in Reference bearing IDA No.36/1985. The impugned award came to be 2 rendered in favour of the Respondent. He was directed to be reinstated by the petitioner with continuity of service and back wages w.e.f. 18.4.1983. 2. The Respondent was working as conductor of a ST Bus which was being plied on Paithan- Vaijapur route, in the noon of 17.11.1982. The ST Bus was stopped near Ghotan stop for the purpose of carrying out verification of tickets and other relevant documents. The concerned authority inspected and checked the tickets issued to the passengers with cross reference to the way bill. It was found that there were 13 female passengers and a child travelling in the ST bus without tickets. It was also found that they had paid the ST fare to the Respondent. However, he had not shown the amounts collected from them in the way bill nor had issued the tickets. The Respondent had further tried to play tantrum. He had thrown away the way bill and cash amount etc. The concerned authority was required to pacify the Respondent. The checking authority made report to the Divisional 3 Controller of the MSRTC. The inquiry was conducted against the Respondent as per the procedure envisaged under the Discipline and Appeal Rules of the MSRTC. The Competent Authority awarded punishment of stoppage of increments for three (3) years without cumulative effect. The Divisional Controller, however, was not satisfied with the quantum of penalty. The Divisional Controller, reviewed the order of punishment after service of show cause notice on the Respondent and giving him opportunity of hearing. Thereafter, the Respondent was dismissed from service w.e.f. 18.4.1983. 3. The Respondent filed Reference Application with office of the Deputy Commissioner of Labour, Aurangabad. The Deputy Commissioner referred his application U/s 10 and 12 of the Industrial Disputes Act. The Presiding Officer of the Labour Court held that the Divisional Controller had no authority to enhance the punishment which was already awarded to the Respondent. The Presiding Officer of the Labour Court held that it was only when appeal is heard 4 under clause 20 of the relevant Rules that the appellate authority would be entitled to enhance the punishment if it was found to be insufficient or inadequate. The Presiding Officer of the Labour Court held that the Divisional Controller could not have suo-motu enhanced the penalty. Hence, the impugned award was rendered. 4. Challenging the award, it is contended that the Divisional Controller is competent to review the order pertaining to penalty in an appropriate case when the penalty is disproportionate to the nature of misconduct. 5. Heard learned counsel. 6. The petition is now restricted to the question of back wages which have been awarded by the Presiding Officer of the Labour Court. For, the Respondent is said to have been dismissed in another similar case. It is stated by learned advocates for the parties that the Respondent is no more in service since 19.8.2004. Obviously, there is no question of his reinstatement in 5 service. The counsel for the petitioner restricted her argument, therefore, only to the extent of the legality of back wages awarded to the Respondent from 18.4.1983 onwards till the date of his reinstatement. 7. What appears from the tenor of the reasoning ascribed by the learned Presiding Officer of the Labour Court is that he laboured under the impression that the Divisional Controller could not have suo-motu enhanced the penalty unless he was required to exercise appellate jurisdiction. The learned Presiding Officer observed that had the appeal been preferred by the Respondent, the power to review the quantum of penalty could have been exercised by the Divisional Controller. The relevant Rule 9 of the Discipline and Appeal Rules would make it amply clear that the Appellate Authority is competent to suo-motu call for the inquiry papers and review the order. Thus, in an appropriate case the Appellate Authority is competent to call for the inquiry papers in order to satisfy itself whether the due procedure was followed and the 6 penalty was properly imposed. The Appellate Authority can undertake suo-motu review in the exercise of such jurisdiction available under Rule 9 without there being any appeal by the delinquent. Needless to say, there is no justification to infer that in absence of separate appeal filed by the Respondent the review power could not have been invoked by the Divisional Controller. The very foundation of the impugned judgment is shaky and unsustainable. 8. Considering the foregoing reasons, it will have to be said that the Divisional Controller was competent to review the order regarding penalty imposed on the Respondent and had followed the relevant procedure. Admittedly, show cause notice was issued and served on the Respondent. He was given opportunity of hearing before passing of the impugned order of dismissal. Needless to say, the principles of natural justice were followed and there was no breach of the relevant Rules. So far as adequacy of the penalty is concerned, the Divisional Controller recorded reasons as to why stoppage of 7 increments could not be the penalty commensurate with the act of misconduct. It is well settled that dishonesty of an employee is a serious misconduct. The ST bus conductor stands in a position of trustee vis-a-vis the MSRTC. The penalty of dismissal could not be regarded as disproportionate to the misconduct of the Respondent when it was proved that he had committed defalcation of the amount of bus fare which was collected from 13 female passengers and a child. He had no compunction about his misdeeds. He attempted to frighten the competent ST bus checker by throwing away the cash amount, ST tickets, way bill etc. and created a scene in presence of the passengers. In this view of the matter, the discretion used by the Divisional Controller could not be regarded as improper. 9. For the reasons aforestated, I have no hesitation in holding that the impugned judgment is unsustainable. Hence,the petition is allowed. The impugned judgment is set aside and the order 8 regarding back wages is quashed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp22891