Divisional Controller Msrtc ... vs Balkrishna Rajaram Thakur
2017 Latest Caselaw 3497 Bom

                                                                  WP/3779/2000
                                        1

                IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                           BENCH AT AURANGABAD

                          WRIT PETITION NO. 3779 OF 2000

 The Divisional Controller,
 Maharashtra State Road
 Transport Corporation,
 Jalgaon Division, Jalgaon.                  ..Petitioner

 Versus

 Balkrishna Rajaram Thakur
 Age major, Occ. Service,
 Conductor (Now dismissed),
 R/o Vaitagwadi, Mohadikar Plot,
 Amalner, Dist. Jalgaon.                     ..Respondent

                                       ...
                   Advocate for Petitioner : Shri M.K.Goyanka
                    Advocate for Respondent : Shri V.Y.Patil
                                       ...
                       CORAM : RAVINDRA V. GHUGE, J.

Dated: June 22, 2017 ...

ORAL JUDGMENT :-

1. The petitioner / Corporation is aggrieved by the judgment and

order dated 13.3.1995, by which, the Labour Court, Jalgaon has

allowed Complaint (ULP) No.36 of 1994, filed by the respondent /

employee and has granted re-employment as a fresh candidate as a

Conductor without continuity and without backwages. The petitioner

is also aggrieved by the judgment of the Industrial Court dated

13.7.2000, by which, Revision (ULP) No.180 of 1999 (Old No. 132 of

1995), filed by the petitioner has been dismissed.

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2. While admitting this petition on 13.9.2000, the impugned

judgments were stayed by way of interim relief.

3. I have considered the submissions of the learned counsel for

the petitioner. Shri Patil, learned Advocate for the respondent has

strenuously defended both the judgments and has prayed that this

petition deserves to be dismissed with heavy costs. He submitted that

when the Courts below have arrived at concurrent findings, this

Court should be extremely slow in causing any interference in the

judgments. He submits that the revisional jurisdiction of this Court is

limited and findings on facts cannot be over turned. He, therefore,

prays for reinstatement and continuity, pursuant to the judgment of

the Labour Court.

4. With the assistance of the learned Advocates I have gone

through the petition paper book. There is no dispute that as the

respondent had challenged the enquiry proceedings and the findings

of the Enquiry Officer before the Labour Court, the relevant two

issues were framed by the Labour Court in the light of the law laid

down by the Honourable Supreme Court in the matter of Workmen of

the Motipur Sugar Factory Private Ltd., Vs. The Motipur Sugar Factory

Private Ltd., [AIR 1965 SCC 1803], Delhi Cloth and General Mills

Company Limited Vs. Ludh Budh Singh - [1972 (1) SCC 595 = AIR 1972

SC 1031] and Bharat Forge Company Ltd., Vs. A.B. Zodge and

WP/3779/2000

another [AIR 1996 SC 1556 = 1996 II CLR 345].

5. The respondent was appointed as a Conductor in 1992. In less

than two years, he was apprehended on 17.1.1994 during the bus

journey from Erandol to Jalgaon by the flying squad, for having

issued used tickets to the passengers and mis-appropriated Rs.171.75.

On this charge, after conducting a full-fledged departmental enquiry,

he was dismissed from service on 21.3.1994, which was subject

matter of Complaint (ULP) No.36 of 1994 before the Labour Court.

By the impugned judgment, the Labour Court concluded that the

charge of mis-appropriation is proved, same is serious and there

cannot be any reinstatement of the respondent. However, it

concluded that he has fairly admitted his mistake and he had no bad

intention of keeping Rs.171.75 with him, since he wanted to purchase

edible oil for the engagement ceremony of his brother. On this

count, the Labour Court granted him appointment as a fresh

candidate. For the same reasons, the Industrial Court has upheld the

judgment of the Labour Court and dismissed the Revision of the

petitioner.

6. The Labour Court concluded that the enquiry was conducted in

a fair and proper manner and the findings of the Enquiry Officer are

not perverse. It is trite law that once the enquiry and the findings

are sustained, no Court can proceed beyond the findings of the

WP/3779/2000

Enquiry Officer and the charges levelled upon the delinquent stand

proved. Neither the Labour Court, nor the Industrial Court could go

into the conclusions of the Enquiry Officer, unless the decision of

sustaining the enquiry and the findings is assailed by the delinquent.

In the instant case, the respondent has not challenged these findings

before any Court.

7. In the light of the above, the only issue that remains to be

considered is the proportionality of the punishment. While

considering the proportionality, the past service record of the

delinquent is to be considered. If the past record is blemished, it

would operate as an aggravating factor and if it is clean and

unblemished over a considerable period of time, it would act as a

mitigating factor, in the light of the judgment of this Court in the

matter of Bajaj Auto Limited Vs. Kalidas Deoram Patil [1999 II CLR

1108].

8. The law on this count has been settled. Charges of mis-

appropriation are per se serious and amount of money mis-

appropriated is not an issue to be considered. The Honourable Apex

Court in the matter of Janatha Bazar (South Kanara Central Co-

operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari

Noukarana Sangha Etc. [(2000) 7 SCC 517], has held that it is

inconsequential that the misappropriated amount is small or large.

WP/3779/2000

Such employees do not deserve to be kept in employment.

9. The learned Division Bench of this Court in the matter of

P.R.Shele Vs. Union of India and others [2008 (2) Mh.L.J. 33], has

concluded that once the charge of mis-appropriation is proved, an

employee ought not to be kept in employment.

10. In the light of the above, the impugned direction of the Labour

Court is not only perverse, erroneous and legally unsustainable, but is

apparently an act of mis-placed sympathy. The Industrial Court

failed to see the perversity and the error in the judgment of the

Labour Court and has sustained the said judgment casually.

11. Learned counsel for the Corporation submits that due to the

status quo order, in the light of the judgment of the Labour Court,

the respondent was reinstated on 9.5.1995. He was again suspended

on 21.1.1997 for having committed the same offence. On 5.5.1999,

he was dismissed from service for having committed another offence

of the same type and is not in employment since then.

12. This Court in the matter of Kalidas Deoram Patil (supra) has

concluded that if the past record is clean over a short period, it

would not operate as a mitigating factor as the clean service record

over a long period would alone indicate the conduct and character of

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an employee. In the instant case, in less than two years, the

respondent was apprehended of having committed an act of

misappropriation which in fact, amounts to moral turpitude.

Misappropriation in itself is a grave and serious misconduct and there

cannot be mitigating factors to reduce the gravity of an act of

misappropriation.

13. Considering the above, this petition is allowed. The direction

of the Labour Court in Clauses (2) and (3) of the impugned judgment

is quashed and set aside. Complaint (ULP) No.36 of 1994 stands

dismissed. Consequentially, the judgment of the Industrial Court

dated 13.7.2000 would not survive and stands set aside.

14. Rule is made absolute in the above terms.

15. Needless to state, the salary paid by the petitioner to the

respondent during the period of litigation, for the period during

which he has worked, would not be recovered.

( RAVINDRA V. GHUGE, J. ) ...

akl/d