Full Judgment Text
2006:BHC-OS:10445
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION NO.2193 OF 2002
Brihanmumbai Municipal Corporation. ...Petitioner.
Vs.
Dattatraya B. Sonawane & Anr. ...Respondents.
....
Mr. S.K. Talsania with Ms. Reeta Vora i/b. Crawford Bayley & Co.
for the Petitioner.
.....
CORAM : DR.D.Y.CHANDRACHUD, J.
September 4, 2006 .
ORAL JUDGMENT :
The First Respondent was employed as a Conductor by
the Brihanmumbai Electric Supply and Transport Undertaking on
th
9 May 1978. At the material time, the First Respondent was
working as a Conductor on the Ferry service which was plying
between Manori and Marve. Acting on information that the First
Respondent had been collecting the fare without issuing tickets to
th
travelling passengers, a check was carried out on 19 November
1987. The check of alighting passengers revealed that eight out of
fourteen passengers had no tickets. The passengers stated that
they had paid the fare to the First Respondent, but that he had not
issued tickets although demanded. When the inspectorial staff
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2
questioned the First Respondent, it is alleged that he did not offer
any reply. Signed statements of some of the passengers were
recorded in the presence of the First Respondent. The “bag check”
of the First Respondent revealed that he was carrying an excess
amount of Rs. 11.05.
th
2. The First Respondent was chargesheeted on 16
December 1987 under Standing Order 20(c) (“Dishonesty in
connection with the business of the Undertaking”); Standing Order
20(j) (“Gross neglect of work”); and Standing Order 20(k) (“Breach
of rules, regulations and instructions for the maintenance and
running of any department”). A departmental enquiry was
convened in which the First Respondent was represented by a
Union Representative. The Enquiry Officer came to the
conclusion that the charge of misconduct stood established. The
past record of the First Respondent showed that punishments
were imposed upon him for misconduct during the course of his
service, some of them being of a similar nature. The First
th
Respondent was dismissed from service on 4 May 1988. The
departmental appeal that was filed by the First Respondent having
failed, he moved the Labour Court in an application under
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3
Sections 78 and 79 of the Bombay Industrial Relations Act, 1946.
th
3. By an order dated 26 April 1993, the Labour Court
allowed the application and granted reinstatement with back wages
to the First Respondent. The order of the Labour Court was
challenged by the management in appeal (Appeal (IC) No.28 of
1993). The Industrial Court set aside the order of the Labour
Court and held that the finding of misconduct that was recorded in
the disciplinary enquiry was not perverse. However, the
proceedings were remanded back to the Labour Court to decide
as to whether the punishment was disproportionate. On remand
th
the Labour Court, by an order dated 29 December 1993, came to
the conclusion that the imposition of a punishment of dismissal
was disproportionate. An order of reinstatement with full back
wages and continuity of service was passed. The Undertaking
carried the matter in appeal. The Industrial Court by its order
th
dated 7 August 2001, modified the order of the Labour Court.
While confirming the order of reinstatement with continuity of
service, the Industrial Court reduced the quantum of back wages
to 50%.
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4
4. Counsel appearing on behalf of the Petitioner submitted
that each of the reasons that weighed with the Labour Court was
specious. The charge upon which the finding of misconduct
rested was a serious charge involving the finances of the
Undertaking. Counsel submitted that in view of the settled position
of law laid down by the Supreme Court, the interference of the
Labour Court in the disciplinary jurisdiction was clearly not
warranted. The Industrial Court having found an error on the part
of the Labour Court ought to have set aside the order of
reinstatement and back wages in its entirety.
5. The First Respondent has not appeared in these
proceedings. The application before the Labour Court was filed by
the Second Respondent on behalf of the First Respondent. The
report of the Bailiff shows that the Second Respondent has been
served.
6. There is merit in the submission that has been urged on
behalf of the Petitioner that the judgment of the Labour Court
suffers from a clear and patent perversity. The Labour Court
noted in the course of the order on remand that the misconduct
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5
was proved. The only question which remained for the Labour
Court was to determine on remand whether the punishment of
dismissal was disproportionate. The Labour Court has adverted to
several punishments that were imposed on the First Respondent
in the past. However, the Labour Court found fault with the
Undertaking on the ground that for similar misconduct in the past, a
'lighter' punishment had been imposed. According to the Labour
Court, the dismissal of an employee on account of a defalcation of
an amount of Rs.11/- was not justified. The Labour Court held
that the misconduct was not so grave as to warrant a dismissal
from service. Exfacie the reasons which weighed with the Labour
Court were unfounded and specious. A charge against a
Conductor of a transport Undertaking of collecting fares from
passengers without issuing tickets is grave and serious. The
Conductor in the present case was also found with an excess of
cash in his possession. The Undertaking was justified in drawing
an inference that since passengers from whom fares were
collected were not issued tickets, the charge of misconduct was
duly established in the enquiry. That being the position, it would
not be possible to hold that the punishment was disproportionate.
The Industrial Court in the course of its judgment was of the view
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6
that the punishment had been set aside on a “flimsy ground”. But,
the Industrial Court also proceeded to re-evaluate the merits of
the charge in the disciplinary proceedings and held that the
Enquiry Officer had not “concentrated on the point of wrong
collection of the fare”. Similarly, the Industrial Court observed that
the “procedural aspect regarding awarding Identity Card to the
employees had not been taken into consideration” and the “raiding
staff themselves were not knowing the exact procedure for
collecting the fare”. The Industrial Court was patently in error in
reopening the merits of the finding of misconduct which was
already settled by the Industrial Court in its earlier order. The
remand of the earlier proceedings was on the question of
disproportionality of the punishment. In these circumstances,
there is merit in the submission which has been urged on behalf of
the Petitioner that the Industrial Court was in error in declining to
set aside the judgment of the Labour Court.
7. The Supreme Court has considered issues similar to
those which are raised in the present proceedings. In Karnataka
1
State Road Transport Corpn. vs. B.S. Hullikatti
, a Bus
1 (2001) 2 SCC 574
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7
Conductor engaged by a Transport Undertaking was found to have
collected fare at a particular trip at the rate of Rs. 2.25, but had
issued tickets of a denomination of Rs. 1.75. The Labour Court
set aside the punishment of dismissal which order was confirmed
by the High Court. The Supreme Court held that the principle of
res ipsa loquitur was applicable. The Supreme Court held that
charging 50 paise per ticket more from as many as 35 passengers
could only be to obtain financial benefits by the Conductor. The act
was held to be either dishonest or to be so grossly negligent that
the Conductor was not fit to be retained in service. The Supreme
Court cautioned against misplaced sympathy by the Labour Courts
in such cases when, on checking, it is found that a Bus Conductor
has either not issued tickets to a large number of passengers or
has issued tickets of a lower denomination knowing fully well the
correct fare to be charged. The Court has held as follows :
“It is misplaced sympathy by the Labour Courts in such
cases when on checking it is found that the Bus
Conductors have either not issued tickets to a large
number of passengers, though they should have, or have
issued tickets of a lower denomination knowing fully well
the correct fare to be charged. It is the responsibility of
the Bus Conductors to collect the correct fare from the
passengers and deposit the same with the company.
They act in a fiduciary capacity and it would be a case of
gross misconduct if knowingly they do not collect any
.
fare or the correct amount of fare.” (emphasis supplied)
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8
Regional Manager, UPSRTC
The same view has been reiterated in
2
Etawah vs. Hoti Lal
, wherein the Supreme Court held as
follows:
“It needs to be emphasised that the court or tribunal
while dealing with the quantum of punishment has to
record reasons as to why it is felt that the punishment is
not commensurate with the proved charges. As has
been highlighted in several cases to which reference has
been made above, the scope for interference is very
limited and restricted to exceptional cases in the
indicated circumstances. Unfortunately, in the present
case as the quoted extracts of the High Court's order
would go to show, no reasons whatsoever have been
indicated as to why the punishment was considered
disproportionate. Reasons are live links between the
mind of the decision taken to the controversy in question
and the decision or conclusion arrived at. Failure to give
reasons amounts to denial of justice. (see Alexander
Machinery Dudley Ltd. v. Crabtree (1974 LCR 120)). A
mere statement that it is disproportionate would not
suffice. ... It is not only the amount involved but the
mental set up, the type of duty performed and similar
relevant circumstances which go into the decision
making process while considering whether the
punishment is proportionate or disproportionate. If
the charged employee holds a position of trust where
honesty and integrity are inbuilt requirements of
functioning, it would not be proper to deal with the
matter leniently. Misconduct in such cases has to be
dealt with iron hands. Where the person deals with
public money or is engaged in financial transactions
or acts in a fiduciary capacity, highest degree of
integrity and trustworthiness is must and
unexceptionable .” (emphasis supplied).
2 2003 I CLR 712
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9
8. Having regard to these settled principles of law, the
orders passed by the Courts below are clearly unsustainable. The
charge of misconduct has been duly held to be established. The
charge is grave and serious. The past record of the workman was
not free from taint. On numerous occasions in the past
Janata Bazar v. Secretary,
punishments were imposed. In fact, in
3
Sahakari Noukarara Sangha Etc. , the Supreme Court held that
in case of proved misappropriation, there is no question of
considering past record. However, in this case, even the past
record was not clean.
9. In these circumstances, this petition has to be allowed
and is accordingly allowed. Rule is made absolute in terms of
th
prayer clause (B). The orders of the Labour Court dated 29
th
December 1993 and of the Industrial Court dated 7 August 2001
are quashed and set aside. The Petition is disposed of in the
aforesaid terms. There shall be no order as to costs.
......
3 2000 II CLR 568
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION NO.2193 OF 2002
Brihanmumbai Municipal Corporation. ...Petitioner.
Vs.
Dattatraya B. Sonawane & Anr. ...Respondents.
....
Mr. S.K. Talsania with Ms. Reeta Vora i/b. Crawford Bayley & Co.
for the Petitioner.
.....
CORAM : DR.D.Y.CHANDRACHUD, J.
September 4, 2006 .
ORAL JUDGMENT :
The First Respondent was employed as a Conductor by
the Brihanmumbai Electric Supply and Transport Undertaking on
th
9 May 1978. At the material time, the First Respondent was
working as a Conductor on the Ferry service which was plying
between Manori and Marve. Acting on information that the First
Respondent had been collecting the fare without issuing tickets to
th
travelling passengers, a check was carried out on 19 November
1987. The check of alighting passengers revealed that eight out of
fourteen passengers had no tickets. The passengers stated that
they had paid the fare to the First Respondent, but that he had not
issued tickets although demanded. When the inspectorial staff
::: Downloaded on - 31/03/2026 20:35:03 :::
2
questioned the First Respondent, it is alleged that he did not offer
any reply. Signed statements of some of the passengers were
recorded in the presence of the First Respondent. The “bag check”
of the First Respondent revealed that he was carrying an excess
amount of Rs. 11.05.
th
2. The First Respondent was chargesheeted on 16
December 1987 under Standing Order 20(c) (“Dishonesty in
connection with the business of the Undertaking”); Standing Order
20(j) (“Gross neglect of work”); and Standing Order 20(k) (“Breach
of rules, regulations and instructions for the maintenance and
running of any department”). A departmental enquiry was
convened in which the First Respondent was represented by a
Union Representative. The Enquiry Officer came to the
conclusion that the charge of misconduct stood established. The
past record of the First Respondent showed that punishments
were imposed upon him for misconduct during the course of his
service, some of them being of a similar nature. The First
th
Respondent was dismissed from service on 4 May 1988. The
departmental appeal that was filed by the First Respondent having
failed, he moved the Labour Court in an application under
::: Downloaded on - 31/03/2026 20:35:03 :::
3
Sections 78 and 79 of the Bombay Industrial Relations Act, 1946.
th
3. By an order dated 26 April 1993, the Labour Court
allowed the application and granted reinstatement with back wages
to the First Respondent. The order of the Labour Court was
challenged by the management in appeal (Appeal (IC) No.28 of
1993). The Industrial Court set aside the order of the Labour
Court and held that the finding of misconduct that was recorded in
the disciplinary enquiry was not perverse. However, the
proceedings were remanded back to the Labour Court to decide
as to whether the punishment was disproportionate. On remand
th
the Labour Court, by an order dated 29 December 1993, came to
the conclusion that the imposition of a punishment of dismissal
was disproportionate. An order of reinstatement with full back
wages and continuity of service was passed. The Undertaking
carried the matter in appeal. The Industrial Court by its order
th
dated 7 August 2001, modified the order of the Labour Court.
While confirming the order of reinstatement with continuity of
service, the Industrial Court reduced the quantum of back wages
to 50%.
::: Downloaded on - 31/03/2026 20:35:03 :::
4
4. Counsel appearing on behalf of the Petitioner submitted
that each of the reasons that weighed with the Labour Court was
specious. The charge upon which the finding of misconduct
rested was a serious charge involving the finances of the
Undertaking. Counsel submitted that in view of the settled position
of law laid down by the Supreme Court, the interference of the
Labour Court in the disciplinary jurisdiction was clearly not
warranted. The Industrial Court having found an error on the part
of the Labour Court ought to have set aside the order of
reinstatement and back wages in its entirety.
5. The First Respondent has not appeared in these
proceedings. The application before the Labour Court was filed by
the Second Respondent on behalf of the First Respondent. The
report of the Bailiff shows that the Second Respondent has been
served.
6. There is merit in the submission that has been urged on
behalf of the Petitioner that the judgment of the Labour Court
suffers from a clear and patent perversity. The Labour Court
noted in the course of the order on remand that the misconduct
::: Downloaded on - 31/03/2026 20:35:03 :::
5
was proved. The only question which remained for the Labour
Court was to determine on remand whether the punishment of
dismissal was disproportionate. The Labour Court has adverted to
several punishments that were imposed on the First Respondent
in the past. However, the Labour Court found fault with the
Undertaking on the ground that for similar misconduct in the past, a
'lighter' punishment had been imposed. According to the Labour
Court, the dismissal of an employee on account of a defalcation of
an amount of Rs.11/- was not justified. The Labour Court held
that the misconduct was not so grave as to warrant a dismissal
from service. Exfacie the reasons which weighed with the Labour
Court were unfounded and specious. A charge against a
Conductor of a transport Undertaking of collecting fares from
passengers without issuing tickets is grave and serious. The
Conductor in the present case was also found with an excess of
cash in his possession. The Undertaking was justified in drawing
an inference that since passengers from whom fares were
collected were not issued tickets, the charge of misconduct was
duly established in the enquiry. That being the position, it would
not be possible to hold that the punishment was disproportionate.
The Industrial Court in the course of its judgment was of the view
::: Downloaded on - 31/03/2026 20:35:03 :::
6
that the punishment had been set aside on a “flimsy ground”. But,
the Industrial Court also proceeded to re-evaluate the merits of
the charge in the disciplinary proceedings and held that the
Enquiry Officer had not “concentrated on the point of wrong
collection of the fare”. Similarly, the Industrial Court observed that
the “procedural aspect regarding awarding Identity Card to the
employees had not been taken into consideration” and the “raiding
staff themselves were not knowing the exact procedure for
collecting the fare”. The Industrial Court was patently in error in
reopening the merits of the finding of misconduct which was
already settled by the Industrial Court in its earlier order. The
remand of the earlier proceedings was on the question of
disproportionality of the punishment. In these circumstances,
there is merit in the submission which has been urged on behalf of
the Petitioner that the Industrial Court was in error in declining to
set aside the judgment of the Labour Court.
7. The Supreme Court has considered issues similar to
those which are raised in the present proceedings. In Karnataka
1
State Road Transport Corpn. vs. B.S. Hullikatti
, a Bus
1 (2001) 2 SCC 574
::: Downloaded on - 31/03/2026 20:35:03 :::
7
Conductor engaged by a Transport Undertaking was found to have
collected fare at a particular trip at the rate of Rs. 2.25, but had
issued tickets of a denomination of Rs. 1.75. The Labour Court
set aside the punishment of dismissal which order was confirmed
by the High Court. The Supreme Court held that the principle of
res ipsa loquitur was applicable. The Supreme Court held that
charging 50 paise per ticket more from as many as 35 passengers
could only be to obtain financial benefits by the Conductor. The act
was held to be either dishonest or to be so grossly negligent that
the Conductor was not fit to be retained in service. The Supreme
Court cautioned against misplaced sympathy by the Labour Courts
in such cases when, on checking, it is found that a Bus Conductor
has either not issued tickets to a large number of passengers or
has issued tickets of a lower denomination knowing fully well the
correct fare to be charged. The Court has held as follows :
“It is misplaced sympathy by the Labour Courts in such
cases when on checking it is found that the Bus
Conductors have either not issued tickets to a large
number of passengers, though they should have, or have
issued tickets of a lower denomination knowing fully well
the correct fare to be charged. It is the responsibility of
the Bus Conductors to collect the correct fare from the
passengers and deposit the same with the company.
They act in a fiduciary capacity and it would be a case of
gross misconduct if knowingly they do not collect any
.
fare or the correct amount of fare.” (emphasis supplied)
::: Downloaded on - 31/03/2026 20:35:03 :::
8
Regional Manager, UPSRTC
The same view has been reiterated in
2
Etawah vs. Hoti Lal
, wherein the Supreme Court held as
follows:
“It needs to be emphasised that the court or tribunal
while dealing with the quantum of punishment has to
record reasons as to why it is felt that the punishment is
not commensurate with the proved charges. As has
been highlighted in several cases to which reference has
been made above, the scope for interference is very
limited and restricted to exceptional cases in the
indicated circumstances. Unfortunately, in the present
case as the quoted extracts of the High Court's order
would go to show, no reasons whatsoever have been
indicated as to why the punishment was considered
disproportionate. Reasons are live links between the
mind of the decision taken to the controversy in question
and the decision or conclusion arrived at. Failure to give
reasons amounts to denial of justice. (see Alexander
Machinery Dudley Ltd. v. Crabtree (1974 LCR 120)). A
mere statement that it is disproportionate would not
suffice. ... It is not only the amount involved but the
mental set up, the type of duty performed and similar
relevant circumstances which go into the decision
making process while considering whether the
punishment is proportionate or disproportionate. If
the charged employee holds a position of trust where
honesty and integrity are inbuilt requirements of
functioning, it would not be proper to deal with the
matter leniently. Misconduct in such cases has to be
dealt with iron hands. Where the person deals with
public money or is engaged in financial transactions
or acts in a fiduciary capacity, highest degree of
integrity and trustworthiness is must and
unexceptionable .” (emphasis supplied).
2 2003 I CLR 712
::: Downloaded on - 31/03/2026 20:35:03 :::
9
8. Having regard to these settled principles of law, the
orders passed by the Courts below are clearly unsustainable. The
charge of misconduct has been duly held to be established. The
charge is grave and serious. The past record of the workman was
not free from taint. On numerous occasions in the past
Janata Bazar v. Secretary,
punishments were imposed. In fact, in
3
Sahakari Noukarara Sangha Etc. , the Supreme Court held that
in case of proved misappropriation, there is no question of
considering past record. However, in this case, even the past
record was not clean.
9. In these circumstances, this petition has to be allowed
and is accordingly allowed. Rule is made absolute in terms of
th
prayer clause (B). The orders of the Labour Court dated 29
th
December 1993 and of the Industrial Court dated 7 August 2001
are quashed and set aside. The Petition is disposed of in the
aforesaid terms. There shall be no order as to costs.
......
3 2000 II CLR 568
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