JUDGMENT Nishita Mhatre, J.
1. The petition challenges the order of the Labour Court dated 11.11.1994 passed on an application filed by the respondent-workman Under Section 78(1)A(a)(i) and D) of the Bombay Industrial Relations Act. The petition also challenges the order dated 27.6.1995 of the Industrial Court in appeal. Both the Courts below have held that the respondent workman has committed a misconduct. The appellate Court has observed that the respondent workman together with some other workmen employed with the petitioner had defrauded the bank of Rs. 2,500/-. Although the misconduct was proved, both the Courts below have held that the punishment of dismissal was shockingly disproportionate. The propriety of the punishment imposed has been considered by the Courts below and the petitioner bank is directed to reinstate the workman with continuity of service and 75% backwages, calculated at the rate of the last drawn wages.
2. The workman was employed with the bank as a clerk. His last drawn wages were Rs. 1,500/- per month. The workman was issued a chargesheet on 5.9.1985 alleging that he had committed a fraud on 12.12.1981. It was alleged that although an amount of Rs. 2,500/- was deposited by a customer of the bank, the workman had failed to make entries in the relevant registers. The bank thus, alleged that the workman had misappropriated this amount in connivance with other employees of the bank. An enquiry was instituted against the workman. The enquiry officer found the workman guilty of the charges levelled against him. The workman was therefore, dismissed from service on 14.5.1988. Aggrieved by the decision of the bank, the workman approached the Labour Court Under Section 78(1)A(a)(i) and D of the BIR Act.
3. The Labour Court had held that the enquiry instituted against the workman was fair and proper and the findings of the enquiry Officer were perverse. The Labour Court therefore, permitted the bank to lead evidence in Court in support of its allegations against the workman. Accordingly, the bank examined its witnesses. The workman was also examined. On the basis of the evidence on record, the Labour Court was of the view that the workman was negligent in performing his duty. The Labour Court observed that the workman had no control over the amount which was deposited by the customer. The Labour Court considered the fact that once a customer deposited the amount, the counterfoil of the pay in slip was to be stamped and initialled. The voucher was then sent to the agent for scrolling the entry. Thereafter an entry is made in the scroll register and sent to the clerk who maintained the ledger book. This clerk was expected to make a corresponding entry in the passbook of the account holder. Once this entry was made it was sent to the agent for verification. It was for this reason that the Labour Court was of the view that the workman had no control over the amount which was deposited by the customer. The Labour Court also considered the fact that except for stamping the counterfoil of the pay in slip and the entry made in the passbook, there were no other entries made in any other register maintained by the bank. Thus, the Labour Court was of the view that it was not just the petitioner who was involved but several others. The Labour Court finally held that since only the act of negligence on the part of the workman was proved, he was entitled to reinstatement with continuity of service and 75% of the backwages at the rate of the last drawn wages.
4. The appellate Court has considered the evidence on record and concluded that the workman had committed the misconduct alleged against him in connivance with others. The Industrial Court took note of the procedure and adopted in the regular course of business for accepting a deposit from a customer and making an entry in the relevant ledger book and passbook of the customer. The Industrial Court has found that the workman had committed a misconduct since he had not made the relevant entry in the ledger book. However, it was observed that the workman had made the necessary entry in the passbook of the customer showing that Rs. 2,500/ was deposited with the bank by him. Thus, although the misconduct against the workman was held to be proved. The Industrial Court considered the fact that the punishment of dismissal was too harsh. The Industrial Court noted that the bank had not prosecuted the workman for misappropriation while all the others in the chain were prosecuted. The Industrial Court also observed that despite the charges levelled against the workman on 12.12.1981. He was transferred to Lonavla branch of the bank and thereafter the enquiry was started only in the year 1985. The Industrial Court also noted that the enquiry officer has submitted his report in 1986 but the dismissal order was issued by the bank on 14.5.1988. On this basis, the Industrial Court confirmed the findings of the Labour Court and dismissed the appeals filed by both the workman and the bank.
5. The learned Advocate for the bank has submitted that although the bank has reinstated the workman soon after the order of the Industrial Court i.e., in 1995 itself, the misconduct committed by him is so severe that the backwages ought not to have been awarded by both the Courts below. He submits that by directing payment of 75% backwages at the last drawn rates amounts to putting a premium on the misconduct committed by the workman. Deprivation of 25% backwages is not a punishment commensurate with the misconduct proved, submits the learned advocate. He therefore, submits that in the circumstances of the case, no backwages ought to have been awarded to the workman. He also submits that misappropriation is a grave misconduct which warrants a severe punishment. The bank has obeyed the orders of both the Courts below by reinstating the workman. However, the bank would still have a right to contend that no backwages ought to be paid to the workman.
6. There is no doubt that the workman has committed a misconduct as found by the Industrial Court: that of misappropriation of Rs. 2500/-. This misconduct was committed in collusion with other workmen against whom the bank had lodged police complaints. However, it is obvious that the bank did not find that the workman was equally guilty in misappropriating the amount as it chose not to file a police complaint against the workman. Although it is always the discretion of the management to consider whether a police complaint should be filed in respect of such a misconduct or a domestic enquiry would serve the purpose, the attitude of the bank can be ascertained from the action it took against the workman. The bank obviously did not consider that the misconduct committed by the workman to be very serious and therefore continued him in service even after the fraud was discovered in 1981. He was transferred to the Lonavla branch and an enquiry was instituted against him only n 1985. His services came to be terminated in 1988, although the enquiry report was submitted in 1986. Thus, the bank permitted the workman to continue in service for 7 years after the misappropriation was discovered. However as stated earlier, the misconduct of misappropriation has been proved. In such a case, the appellate Court, having held that the workman was equally guilty in misappropriating the amount, ought not to have concurred with the order of the Labour Court and granted 75% of the backwages at the rate last drawn.
7. In my opinion, considering the facts and circumstances of the case, the backwages ought to be reduced. The punishment imposed of deprivation of 25% backwages, is not commensurate with the gravity of the misconduct proved against the workman.
8. Thus, the orders of the Labour Court and the Industrial Court are modified in the following manner: The workman is entitled to reinstatement with continuity of service. However, the backwages to be paid to the workman would be Rs. 50,000/ only.
9. Petition allowed, with the above modification. Rule made partly absolute. No costs.