Full Judgment
Dharmadhikari B.P., J.
1. Heard Shri Wankhede, learned Counsel for the petitioner and Shri Khan, learned Counsel for the respondent.
2. By this writ petition, the petitioner State Road Transport Corporation is challenging the order dated 17.4.1995 passed by the Industrial Court, Amravati, in Revision under Section 44 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, (hereinafter referred to as MRTU & PULP Act). The Labour Court dismissed Complaint (ULP) No. 393 of 1989 filed by present respondent challenging the order of dismissal of his service after departmental enquiry on 16.8.1989. The Industrial Court has not disturbed that order but on humanitarian ground the petitioner has been directed to withdraw the dismissal and reinstate the respondent as fresh employee. This direction of Industrial Court is stayed by this Court on 12.3.1997.
3. Shri Wankhede, learned Counsel for the petitioner, by placing reliance upon the judgment of the Hon'ble Apex Court in the case of Divisional Controller, N.E.K.R.T.C. v. H. Amaresh reported at : (2006)IIILLJ232SC , contends that once a misconduct of grave and serious nature was proved against the employee, the Industrial Court could not have exercised revisional jurisdiction and shown any mercy to him. He contends that in these circumstances, maintenance of standard of discipline and therefore quantum of punishment are the domain of employer and the Industrial Court has acted without jurisdiction by directing reinstatement of such an employee. He has also invited attention to discussion in this respect as done by the Labour Court in its judgment dated 19.9.1990 and also to past service record of the respondent.
4. Shri Khan, learned Counsel for the respondent has contended that the Industrial Court has in fact acted upon the mute consent expressed by the present petitioner. He contends that in view of said consent, present writ petition itself is not tenable. He has taken this Court through the relevant part of order of Industrial Court for that purpose. He has also invited attention to Division Bench judgment of this Court in the case of Lalit Kumar v. Official Liquidator reported at : 2004(5)BomCR223 , to substantiate his contention.
5. The perusal of judgment on which Shri Khan, learned Counsel has placed reliance, particularly paragraphs 21 and 22 shows that the Division Bench found that the appellant before it was in fact party to order passed by learned Company Judge and invited said order. In view of this finding, the Division Bench found that it was consent order. In present case, the Industrial Court has reproduced the arguments of Shri Borde, Counsel for M.S.R.T. in paragraph 3 of its order and in paragraph 4, it has recorded that Counsel for revisional applicant. Employee did not deny the arguments advanced by the Counsel for the Maharashtra State Road Transport Corporation in revision. The Industrial Court has then reproduced the poor and pathetic condition of respondent by narrating the arguments advanced before it by his Advocate. The Industrial Court has found that said Counsel for the respondent. Employee argued that employee was about 45 years old at that time and admitted in Medical College for treatment of serious diseases like diabetic and Tuberculosis. The Counsel for the employee stated that employee needed huge amount for his medical treatment and his family members were not in a position to defray those expenses. He further argued that if employee was dismissed, all his family members would be thrown on streets and the Counsel therefore requested the Industrial Court to give last chance to the employee for amending his behaviour. The Industrial Court has thereafter recorded that 'learned Counsel Shri Borde also has not disputed these submissions of Shri Nawlani'.
This line has been relied upon by Shri Khan to contend that Borde, Counsel for MSRTC mutely consented to the orders of the Industrial Court. It is difficult to draw any such an inference from this line. The paragraph 3 of the impugned order reveals the arguments advanced by Shri Borde in support of his defence before the Industrial Court. The Industrial Court has also recorded that his arguments were not countered on merit by Advocate Nawlani, who represented the employee. The pathetic or poor condition of employee was not on record and there was no question of Advocate Borde disputing the said condition. Advocate Borde had already argued his case on merits. The respondent represented by him before the Industrial Court was a statutory Corporation and as such he was not in a position to give any consent either expressly or even indirectly on its behalf to any arrangement as is sought to be contended by Shri Khan. The contention is, therefore, misconceived and unsustainable.
6. The perusal of judgment on which Shri Wankhede, learned Counsel for the petitioner has placed reliance viz., Divisional Controller, N.E.K.R.T.C. v. H. Amaresh (supra) shows that punishment is the domain of employer and Industrial Court therefore could not have interfered in the matter in such circumstances. The earlier judgments of the Hon'ble Apex Court are also considered by the Hon'ble Apex Court in this judgment. It is to be noticed that the Hon'ble Apex Court has in unequivocal terms stated that when misconduct of such a nature is proved against the Bus Conductor, there is no scope for showing any leniency or mercy. The facts in present case demonstrate that there were total 40 passengers in his bus when bus was checked and out of them total 24 adults and 2 children were found travelling without ticket. The respondent. Employee had collected fare from those passengers at various places at which they boarded the bus but had not issued tickets to them till the place of checking. He refused to sign the statements of passengers recorded by the checking staff and he also did not permit M.S.R.T.C. cash with him to be checked and he removed the cash from his cash bag and threw it in the bus and when the checking staff asked him to collect the cash and hand it over to them, he refused to do so and ran away from the bus. All this misconduct is held to be proved by the Labour Court. The Industrial Court has not touched this aspect at all and has shown mercy in the matter. It is, therefore, apparent that the Industrial Court has not exercised jurisdiction available to it in accordance with law and the mercy shown by it is not proper and cannot be sustained.
7. Shri Wankhede, learned Counsel has invited attention to Past Service Record of the respondent in the matter. Apart from the present misconduct, there are total earlier 10 misconducts in his service and out of them six are on similar lines and they show financial irregularity or misappropriation. It is, therefore, apparent that even on this count also, the employee could not have been shown mercy by the Industrial Court. The Industrial Court has taken into consideration totally irrelevant material and leniency shown by it is unwarranted and arbitrary. The order of Industrial Court dated 17.4.1995 is, therefore, quashed and set aside. The judgment of the Labour Court dated 19.9.1990 is restored. Writ Petition is allowed. Rule is made absolute accordingly. However, in the circumstances of the case, there shall be no order as to costs.