Judgment:
D.Y. Chandrachud, J.
1. The workman in the present case was employed as a bus conductor by the BEST undertaking. For the period between 1st August 2000 and 31st August 2000, a shortage of Rs. 119.24 was noticed in the daily collections. A report in that respect was submitted by Shri Kharade, Assistant Ticket and Cash, Prateeksha Nagar Depot. On 25th September 2009, the BEST undertaking issued a charge sheet for misconduct under Standing Order 20(C) and Standing Order 20(J). Standing Order 20(C) deals with dishonesty in connection with the business of the undertaking. Standing Order 20(J) deals with gross negligence. A disciplinary inquiry was conducted. The inquiry officer after allowing an opportunity to the workman, who was defended by a Defence representative, came to the conclusion that the charge under Standing Order 22(J) was proved, but not the charge under Standing Order 22(C). The workman was dismissed from service. The departmental Appeals having failed, the workman filed an Application under Sections 78 and 79 of the Bombay Industrial Relations Act 1946 before the Labour Court.
2. The Labour Court by its Judgment dated 1st December 2005, came to the conclusion that the inquiry was fair and proper and that the findings of the inquiry officer were not perverse. The Labour Court, however, held that since the charge of dishonesty in connection with the business of the undertaking was not proved and, though the charge of gross negligence was proved, 'there is no loss or misuse of the property of the undertaking'. The workman had stated that he was not tallying the account of tickets sold on a daily basis. The Labour Court noted that this statement of the workman amounted to an admission of his negligence, but for his act of negligence, it was not necessary to impose the penalty of dismissal. The Labour Court noted that on 13 occasions, various punishments were handed to the workman and on 6 occasions he had been penalised for gross negligence. The workman was granted reinstatement without any back wages.
3. Both the workman and the Undertaking filed Cross Appeals. The Appeals have been dismissed by the Industrial Court on 20th March 2009.
4. Counsel appearing on behalf of the Petitioner submitted that the order of reinstatement is exfacie perverse. Once the inquiry is held to be fair and proper and the findings of the inquiry officer were found not to suffer from perversity no interference was warranted. Counsel submitted that the charge of gross negligence was serious enough to award a penalty of dismissal, even though the charge of dishonesty had not been established. Reliance was sought to be placed on the record of the workman since he had been penalised on as many as 13 occasions in the past including for shortage of money.
5. On behalf of the Respondent, it was submitted that the penalty of dismissal is disproportionate and the Award of reinstatement by depriving the workman of back wages would meet the ends of justice. Reliance was sought to be placed on the Judgment of Learned Single Judges of this Court in Brihan Mumbai Municipal Corporation v. The General Secretary, BEST Workers' Union and Ors. 2001 1 CLR 855 and in Rupee Cooperative Bank Ltd., Pune v. Shailesh V. Vaidya and Ors. : 2008-I-LLJ-351 (Bom).
6. The charge against the workman, which has been found to be established after a disciplinary inquiry, is of gross negligence within the meaning of Standing Order 20(J). The inquiry has been held to be fair and proper. The Labour Court noted that the statement of the workman that he was not taking a daily tally of the tickets sold is an admission of negligence. Having held this, the Labour Court was patently incorrect, when it held that it was not necessary to dismiss the workman 'only' for negligence. For one thing, the charge established was not of negligence alone, but of gross negligence. Even a charge of negligence is a serious charge. A charge of gross negligence is a fortiorari a serious charge. A shortage in the daily collections by a conductor does as a matter of fact, affect the revenues and property of the undertaking. Hence, the Labour Court was manifestly in error in holding that there was no loss or misuse of the property of the undertaking. The Industrial Court observed that considering the past service and the gravity of misconduct, one more opportunity should be given to the workman to improve himself and that the Labour Court was justified in its view. The Industrial Court has fallen into the same error as the Labour Court. Both the Courts have completely failed to appreciate that, the charge of gross negligence was serious in itself to sustain the penalty of dismissal from service. In the present case, even the past record of the workman is to the following effect.
-----------------------------------------------------------------------------------Sr. No. Date Standing Order Misconduct Punishment given1. 2. 3. 4. 5.-----------------------------------------------------------------------------------1. 5.11.1992 S.O.20(j) Shortage report Suspension for one day-----------------------------------------------------------------------------------2. 6.4.1992 S.O.20(j) ' '-----------------------------------------------------------------------------------3. 30.6.1994 ' ' Reduction in grade byone step for threemonths-----------------------------------------------------------------------------------4. 20.1.1995 S.O.20(f) Habitual absence Suspension for one month-----------------------------------------------------------------------------------5. 4.4.1997 S.O. 20(j) Shortage Strict Warning-----------------------------------------------------------------------------------6. 21.8.1997 ' ' '-----------------------------------------------------------------------------------7. 22.9.1997 S.O. 20(j) Shortage report Reduction in grade by& (c) one step permanently-----------------------------------------------------------------------------------8. 29.9.1997 S.O. 20(r) Indecent behaviour Reduction in grade byone step for two years-----------------------------------------------------------------------------------9. 20.1.1998 S.O. 20(j) Habitual absence Reduction in grade byone step for two years-----------------------------------------------------------------------------------10. 14.7.1998 S.O. 20(j) Shortage Strict warning-----------------------------------------------------------------------------------11. 25.8.1998 S.O. 20(k) Breach of rules Strict warning-----------------------------------------------------------------------------------12. 30.7.1999 S.O.20(j) Shortage Reduction in grade byone step permanently-----------------------------------------------------------------------------------13. 30.11.1999 S.O. 20(f) Habitual absence Suspension for 45 days-----------------------------------------------------------------------------------
7. In view of the past record, the conduct of the workman in the present case did not warrant the exercise of any judicial discretion in his favour.
8. The Judgment of the Single Judge in BMC v. The General Secretary, BEST Worker's Union 2001 I CLR 855, would as a matter of fact, not support the Respondent at all. The Learned Single Judge, as a matter of fact, held that the past record of the workman in that case was not free of blemish and if a conductor is allowed shortages repeatedly, that would result in misplaced sympathy at the cost of the public revenue. The Judgment of the Single Judge in Rupee Cooperative Bank Ltd v. Shailesh Vaidya and Ors. : 2008 I LLJ 351 (Bom) involved a case where this Court was of the view that the appreciation of the evidence by the Industrial Court did not require interference under Article 227. The facts are clearly distinguishable.
9. For all these reasons, the Petition will have to be allowed and is accordingly allowed. Rule is made absolute in terms of prayer Clause (a).
10. The Judgment of the Industrial Court dated 20th March 2009, is set aside. The Application filed by the workman shall stand dismissed.