Judgment:
Shah, J.
1. Against the award dated April 30, 1989 passed by the Presiding Officer, Labour Court, Ahmcdabad, directing the petitioner to reinstate the respondent Bus Conductor on his original post with continuity of service without back wages, the Gujarat State Road Transport Corporation has filed this petition.
2. By the order dated August 11, 1986 the respondent-Bus Conductor was dismissed from service on the ground that on September 14, 1984 when the respondent was on duty as a Conductor in a bus plying between Himatnagar and Gokalpura, it was found that-
(i) he had issued tickets to 15 passengers for the fare of Rs. 2/- each which were issued by him in his previous trip which started at 13.15 hours between Himatnagar and Gokalpura. That means he has re-issued 15 tickets;
(ii) he had also not issued tickets to passengers even though he had recovered fare from them
(iii) he had issued 3 tickets in such a manner that they can be re-issued in subsequent trip; and
(iv) he had not issued tickets to in all 4 persons.
All the aforesaid charges are proved after holding detailed inquiry against the respondent. The competent authority further took into consideration that from the service record it can be seen that the respondent was involved in 44 default cases and on one occasion he was dismissed from service. In this view of the matter, the competent authority of the State Transport Corporation passed the order dismissing the respondent from service.
3. Against that order the respondent preferred Ref. (LCA) No. 1760 of 1988 before the Labour Court. Before the Labour Court the legality and propriety of the inquiry was not challenged by the respondent. The Labour Court, therefore, held that the respondent has impliedly admitted the misconduct alleged against him. However, the Labour Court considered the question whether lenient view should be taken and punishment should be reduced. It should be noticed that before the Tribunal various judgments were cited including the judgment of this Court in Special Civil Application No. 4556 of 1988 decided on August 17, 1989 wherein this Court has observed as under:
'Ordinarily we think that the contention of Mr. Shelat is well founded that in cases of misappropriation the Labour Court would be slow in interfering with the order of dismissal from service because one cannot expect the employer to retain person who has betrayed the tendency of misappropriating Corporation's funds while in service'.
Inspite of the aforesaid judgment the Labour Court held that this would be a fit case to give one more chance to the workman to correct and reform himself. The Labour Court also noted that record of the respondent was not blotless and that he was dismissed earlier. However, looking to the long service and looking to the fact that he would not be able to do any other work by which he can earn the livelihood, the Labour Court reinstated the respondent on his original post and imposed the penalty of withholding four increments with permanent effect. The Labour Court also directed that the respondent be reinstated in service without back wages.
4. Mr. Shelat, learned Advocate appearing on behalf of the petitioner, submitted that the order passed by the Labour Court is on the face of it perverse and illegal. He submitted that the Labour Court has not taken into consideration the gravity of the misconduct committed by the respondent and by no stretch of imagination it can be said that the order of punishment passed by the departmental authority is in any way harsh, excessive or unjustified.
5. In our view, the submission made by the learned Advocate for the petitioner requires to be accepted. Under Section 11-A of the Industrial Disputes Act the Industrial Tribunal or the Labour Court is not having unguided power to set aside the justified order passed by the management. The power under Section 11-A has to be exercised judicially and the Industrial Tribunal or the Labour Court can interfere with the decision of the management under Section 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. This Court has repeatedly held that misappropriation, if held established, would be a major misconduct and normally dismissal order passed by the competent authority should not be interfered with by the Labour Court or the Industrial Court under Section 11-A of the Industrial Disputes Act. In the case of Gujarat State Road Transport Corporation v. N.M. Desai, 1985 GLH 446, the Court has held as under:
'Misappropriation if held established, would obviously be a major misconduct and unless a very strong case is made out to interfere with the punishment, the Labour Court would not be justified ordinarily in interfering with the discretion of the competent authority to deal with the delinquent concerned. To say that these are hard days for the people to find out jobs or to say that the Conductor is a man with a wife and children are the factor common to all cases, barring a few instances where the Conductor is unmarried or having no children. This can hardly be a ground for any consideration. After all services with such public Corporations are not pasture-grounds always open for the people or they are not brought about for the purpose of furnishing employment to the unemployed in the society'.
6. Similarly, in the case of Sardarsingh Devisingh v. Suptd. of Police, Sabarkantha, 1985 GLH 940, the Court has held that the choice of imposing penalty cannot be arbitrary but must depend on the nature of misconduct established iaa given case. The Court has further observed:
'Just as a road roller cannot be brought to crush a fly, so also the extreme penalty of dismissal cannot be inflicted for misconduct which is not equally grave. The consequences of removal or dismissal from service are severe, sometimes the entire family is ruined because another job or work may not be easy to find and, therefore, it is all the more necessary that the punishment of removal/dismissal should be invoked sparingly and in cases which can be described as gross, such as, receiving illegal gratification, misappropriation or defalcation of public funds, behaviour which is morally reprehensible, gross abuse or misuse of authority, etc'.
7. In the case of Municipal Corporation of Ahmedabad v. Hussainmiya (1986 (2) XXVII (2) GLR 1143), the Division Bench of this Court dealt with a case wherein workmen cheated and collected substantive amount from the poor and innocent persons on a pretext of taking up the matter of procuring for them residential accommodation with the officer of the Estate Department. He was dismissed from service. That order was challenged before the Labour Court The Labour Court set aside the dismissal order and directed reinstatement of the workman. In that case the Court observed that the power under Section 11-A of the Act can be exercised in a case where it is found on facts that dismissal or discharge of a workman is not justified, but in a case where no other order than the order of dismissal can be made on the proved facts, the arbitrary exercise of power under Section 11-A of the Act cannot be overlooked by this Court while exercising its jurisdiction under Article 227 of the Constitution. The Court pertinently observed as under:
'Ordinarily we would be slow in interfering with an order of reinstatement passed under Section 11-A of the Act by way of a substitute for an order of dismissal or discharge, but there are cases where such an arbitrary order cannot be countenanced because it tantamounts to an abuse of the discretionary jurisdiction conferred by Section 11-A of the Act. In cases of gross misconduct such as the present one, the most appropriate punishment would be the termination of service and it would be mockery of justice to brand such an order as 'not justified' and substitute it by another order of the type made by the Labour Court. We are, therefore, of the view that this petition must be allowed and the order passed by the Labour Court must be set aside'.
8. Lastly, we would refer to the decision of the Supreme Court in the case of the State of Punjab and Ors, v. Ram Singh Ex. Constable, (1993-I-LLJ-218) wherein the Court observed while interpreting Rule 16.2(1) of the Punjab Police Manual, 1934, Vol.11, wherein the Court observed that a single act of corruption is sufficient to award an order of dismissal under the Rule as gravest act of misconduct. The relevant observations of the Court are as under: (at p. 220):
Take for instance the delinquent had put in 29 years of continuous length of service and had unblemished record; in 30th year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not he inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension? The answer is obviously No. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct'.
9. In the present case it is apparent that the Labour Court has misdirected itself and has misplaced sympathy though the workman has committed grave misconduct. He has designedly re-issued 15 used tickets. This would indicate that the workman had planned it in advance to collect the tickets from the passengers with view to re-issue the same in the next trip. Not only this, but the workman in the present case has not issued tickets to the two passengers even though be had collected the fare from them. Further, he has not issued tickets to three passengers and lastly he has punched some tickets in such a manner so that they can be re-issued in subsequent trip. This conduct on the part of the workman established beyond any doubt that the act of the workman was pre-planned and well designed to misappropriate the Bus fare amount. Apart from this aspect, there was no reason for the Labour Court to ignore the fact that the workman was involved in 44 default cases and on one occasion he was removed from service. In this view of the matter, in our view, the order passed by the Labour Court is on the face of it unreasonable and unjustified. The Labour Court ought to have held that in the facts and circum-stances of the case this was not a fit case for exercise of jurisdiction under Section 11-A of the Act.
10. In the result, the petition is allowed. The impugned order dated May 31, 1989 passed by the Presiding Officer, Labour Court, Ahme-dabad, in Reference (LCA) No. 1760 of 1988 is quashed and set aside. Rule made absolute with no order as to costs. Ad interim relief stands vacated.