Bombay High Court
Sanjay Devram Guruv vs Maharashtra State Road Transport ... on 6 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:22378
Neeta Sawant 24-WP-16480-2023-FC.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 16480 OF 2023
Sanjay Devram Gurav } ..Petitioner
: Versus :
Maharashtra State Road Transport
Corporation } ..Respondent
___________________________________________________
Mr. Jaydeep Deo a/w. Mr. Sanjay Gunjkar, for the Petitioner.
Mr. Yashodeep Deshmukh a/w. Ms. Vaidehi Pradeep, for the Respondent.
CORAM : SANDEEP V. MARNE, J.
Dated : 6 May 2024.
ORAL JUDGMENT:
1) Rule. Rule made returnable forthwith. With the consent of the
learned counsel appearing for parties, petition is taken up for fnal disposal.
2) By this petition, Petitioner challenges judgment and order dated
24 March 2023 passed by the Member, Industrial Court, Pune dismissing
Revision Application (ULP) No. 29/2021 fled by the Petitioner, in which he
had challenged the Judgment and order dated 27 April 2021 passed by the
Judge, Labour Court-4, Pune dismissing Petitioner's Complaint (ULP) No.
9/2008.
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3) Petitioner was employed in the services of Respondent-State
Transport Corporation on the post of Conductor. He was served with
Memorandum of Chargesheet dated 20 December 2004 alleging two
charges. The frst charge related to failure to deposit an amount of Rs.150/-
in respect of the tickets sold by him on 10 April 2004. The second charge
related to showing false sale of 63 tickets of denomination of Rs.1/- on 10
December 2004 without sale of any corresponding ticket of higher
denomination. It was alleged that the said tickets of Rs.1/- were actually sold
by Petitioner on previous day and the amount thereof was misappropriated by
him and subsequently Petitioner falsely showed sale of those said 63 tickets of
Rs.1/- on 10 December 2004. After conducting disciplinary enquiry, penalty
of dismissal from service came to be imposed on him by Order dated 30
March 2007. Petitioner fled Complaint (ULP) No. 9/2008, in which Part-I
Award was delivered by the Labour Court on preliminary issues of fairness in
the enquiry and perversity in the fndings of the Enquiry Ofcer. By Order
dated 18 January 2017 on preliminary issues, the Labour Court held that the
enquiry was not fair and proper and that the fndings of the Enquiry Ofcer
were not based on material evidence produced before him. The Respondent-
employer was therefore given an opportunity to prove the charges before the
Labour Court in support of the charges. The Labour Court has proceeded to
dismiss the complaint by Judgment and Order dated 27 April 2021. In
Revision fled under the provisions of Section 44 of the Maharashtra
Recognition of Trade Unions and Prevention of Unfair Labour Practices Act,
1971 (MRTU & PULP Act), the Industrial Court has proceeded to dismiss
Revision Application (ULP) No.29/2021 fled by Petitioner by Judgment and
Order dated 24 March 2023.
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4) I have heard Mr. Deo, the learned counsel appearing for
Petitioner who would submit that Petitioner has been erroneously implicated
in respect of the incident when infact the transaction does not show even
semblance of misappropriation on the part of Petitioner. That in respect of
the frst charge, Petitioner had correctly deposited the entire amount of
tickets sold and it was the mistake of the clerk who erroneously showed
shortage of Rs.150/-. That therefore there is no question of any
misappropriation on the part of the Petitioner. He would submit that the
charge erroneously alleges shortage of Rs.150/- when infact the amount
which the Petitioner was asked to deposit towards shortage was only Rs. 81/-,
which he actually deposited under protest.
5) So far as the second charge is concerned, Mr. Deo would submit
that during the course of performance of his duties on 8 December 2004, the
entire bunch of 100 tickets of denomination of Rs.1/- remained unsold and
Petitioner carried the very same bunch of 100 tickets of Rs.1/- on 10
December 2004 and has factually sold 63 tickets to the passengers. He would
submit that the very assumption that every ticket of Rs.1/- must be sold in
conjunction with tickets of other denomination, is factually incorrect. That
when required, it is permissible for a Conductor to issue multiple tickets of
Rs.1/- and that there is no prohibition in that regard. He would submit that
Petitioner has deposited the entire amount in respect of sale of those three
tickets on 10 December 2004 and that therefore there is no question of any
misappropriation in that regard.
6) Per-contra, Mr. Deshmukh the learned counsel appearing for the
Respondent-Corporation would oppose the petition and submit that the
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Labour and the Industrial Court have recorded fndings of facts and that
therefore this Court would be loathe in interfering with those fndings in
exercise of jurisdiction under Article 227 of the Constitution of India. He
would submit that misappropriation on the part of Petitioner is writ large in
that it is proved that he has misappropriated Rs.150/- by not depositing the
same in respect of the tickets sold by him on 10 December 2004.
Additionally, it was found that Petitioner falsely showed sale of 63 tickets of
denomination of Rs.1/- in order to cover up the misappropriation earlier
committed by him. He would submit that Petitioner has virtually admitted
Charge no.1 during the course of statement given by him on 12 December
2004. Mr. Deshmukh would submit that the past record of Petitioner is
riddled with as many as 13 penalties and that therefore penalty of dismissal
from service imposed on proof charge of misappropriation does not warrant
any interference. He would pray for dismissal of the petition.
7) After having considered the submissions canvassed by the
learned counsel appearing for the parties, it is seen that there is no clarity in
the charges levelled against the Petitioner. So far as the frst charge is
concerned, all that can be deciphered from the chargesheet dated 20
December 2004 is sale of total tickets of Rs.2350/- and deposit of only
Rs.2200/-. On the basis of amount of sale of tickets and deposit of amount by
Petitioner, it is sought to be inferred that Petitioner deposited Rs.150/- short.
However, the Account Statement prepared by the concerned clerk on the
basis of waybill shows shortage of only Rs. 81/-. Even Petitioner's statement
dated 17 December 2004 indicates shortage of Rs.81/-. The said amount of
shortage is deposited by Petitioner with the Respondent-Corporation.
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8) Without delving further into the exact amount of shortage, it is
must be observed here that a conductor performing duty in a crowded bus
and selling several tickets is likely to commit dealing mistake. From the past
record sought to be relied upon by Mr. Deshmukh, it appears that short
amount was deposited on various occasions by Petitioner himself for which
he was penalised with fne. Occurrence of shortage in cash by ticket checking
staff/conductors is not uncommon. In my view, therefore mere shortage in
deposit of cash would not ipso-facto lead to a presumption that there is
misappropriation by Petitioner.
9) So far as the second charge is concerned, it must be observed
that the same is extremely vague. In the chargesheet, it is sought to be alleged
in respect of the second charge that Petitioner was issued with a bunch of 100
tickets of denomination of Rs.1/- and the Waybill dated 9 December 2004
showed sale of said tickets. However, upon checking the Waybill for 9
December 2004 it is inferred that he had misappropriated the amount of sale
of those tickets, which he tried to cover up by showing sale of 63 tickets on 10
December 2004.
10) Upon bare reading of the charge, the same is bit difcult to
comprehend. In any case, I do not see as to how the said conduct alleged
against the Petitioner would constitute misappropriation. At the highest,
what it can indicate is showing sale of tickets on 10 December 2004 which
was already sold on 9 December 2004.
11) Thus, both the charges against the Petitioner do appear to be
grave and I do not see any reason why serious allegation of misappropriation
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could have been attached to the conduct of the Petitioner. He may have been
negligent in performance of his duties when he deposited lesser amount, as
well as showed sale of 63 tickets on 10 December 2004 which was already
sold on 9 December 2004. However, to allege that such a conduct would
amount to misappropriation is something which is inconceivable. In my view,
both Labour and Industrial Court have not correctly appreciated the above
aspects. The fndings recorded by the Labour and the Industrial Court thus
suffer from the vice of perversity.
12) At the same time it is clear that Petitioner has committed some
misconduct, though not of misappropriation and he must be visited with
some penalty. However, penalty of dismissal from service for the nature of
charges leveled and proved against him is shockingly disproportionate. In my
view, therefore the penalty of dismissal from service imposed on Respondent
is required to be set aside and is required to be substituted with some other
lesser punishment.
13) I am informed that the Petitioner is now on the verge of his
retirement and is due for superannuation on 30 June 2025.
14) Petitioner has been dismissed from service w.e.f. 30 March 2007.
As a result of setting aside the penalty of dismissal, he will have to be
reinstated in service. However, considering the facts and circumstances of
the present case, particularly the fact that he did commit some misconduct,
albeit not of misappropriation, it would not be proper to award him
backwages during the intervening period. However, the entire intervening
period will have to be counted as duty for the purpose of retiral benefts.
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15) I accordingly proceed to pass the following order:
(i) Judgment and Order dated 27 April 2021 passed by the Labour
Court in Complaint (ULP) No.9/2008, as well as Judgment and Order
dated 24 March 2023 passed by the Industrial Court in Revision
Application (ULP) No. 29/2021 are set aside. The penalty of dismissal
from service dated 30 March 2007 imposed on Petitioner is set aside.
Respondent shall impose penalty other than dismissal from service on
Petitioner.
(ii) Petitioner shall be reinstated in service w.e.f. 30 March 2007 within
two months from today. He shall however not be entitled to any
backwages in respect of the intervening period from 30 March 2007 till
the date of reinstatement. The intervening period shall however be
counted for the purpose of retiral benefts.
16) With the above directions, the Writ Petition is partly allowed.
Rule is made partly absolute.
[SANDEEP V. MARNE, J.]
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6 May 2024
