JUDGMENT
Ashok Bhan, J.
1. Appellant was appointed as a conductor in the Karnataka State Road Transport Corporation (hereinafter referable as the Corporation) in the year 1980. On March 12, 1992, the bus which was being conducted by him, was checked by the vigilance staff of the Corporation. It was found that he had not issued five tickets having collected fare of Rs. 2 from each of the passengers. He had also failed to issue 5 tickets to the passengers and has also failed to collect the fare from them. A domestic enquiry was ordered and Enquiry Officer was appointed. Domestic enquiry was held against the appellant and the Enquiry Officer reported that the charges were proved. Consequently, the disciplinary authority dismissed the appellant from service with effect from February 28, 1995.
2. Order of dismissal was questioned by the appellant by moving a petition under Section 10(4-A) of the Karnataka Amendment of the Industrial Disputes Act, 1947 (for short, the Act) before the Labour Court, Hubli, in KID No. 49/95. Labour Court held that the charges levelled against the appellant were proved, but the punishment awarded was held to be disproportionate to the charges levelled. Exercising his powers under Section 11-A of the Act, the order of dismissal passed by the disciplinary authority was set aside and the respondent was directed to take the appellant back in service. Continuity in service and grant of back wages was declined. Labour Court also imposed a fine of Rs. 4,000 on the appellant to be payable to the Corporation. The fine was ordered to be recovered from the appellant from his monthly wages at the rate of Rs. 500 per month.
2. Order of dismissal was questioned by the appellant by moving a petition under Section 10(4-A) of the Karnataka Amendment of the Industrial Disputes Act, 1947 (for short, the Act) before the Labour Court, Hubli, in KID No. 49/95. Labour Court held that the charges levelled against the appellant were proved, but the punishment awarded was held to be disproportionate to the charges levelled. Exercising his powers under Section 11-Aof the Act, the order of dismissal passed by the disciplinary authority was set aside and the respondent was directed to take the appellant back in services Continuity in service and grant of back wages was declined. Labour Court also imposed a fine of Rs. 4000 on the appellant to be payable to the Corporation. The fine was ordered to be recovered from the appellant from his monthly wages at the rate of Rs. 500 per month.
3. Appellant being aggrieved, filed the Writ Petition which has been partly accepted by the single Judge. The finding of the Labour Court that the charges stood proved against the appellant has been upheld. Order of reinstatement ordered by the Labour Court has been maintained. In addition, continuity in service is granted. Fine imposed is waived. Back wages have been denied.
4. Aggrieved against the order of the single Judge, present appeal has been filed.
Corporation has accepted the order of the single Judge and has not preferred any appeal.
5. Supreme Court of India in Janatha Bazaar (South Kanara Central Co-operative Wholesale Stores Ltd.) and Ors. v. Secretary, Sahakari Noukara Sangha and Ors., held that it would be unjustified to issue a direction to reinstate an employee against whom the charges of misappropriation have been established. A proven act of misappropriation cannot be taken lightly even though number of such misappropriation cases remain undisclosed and such employees have amassed wealth by such means. Misappropriation cannot be rewarded or legalised by reinstatement with full or part of the back wages. It was observed in para 6 thus: 2000-II-LLJ-1395 at p. 1397:
“6. As stated above, the learned single Judge and the Division Bench in writ appeals confirmed the findings given by the Labour Court that charges against the workmen or breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge sheet had been established. After giving the said findings, in our view the Labour Court materially erred in setting aside the order passed by the management removing the workmen from service and reinstating them with 25% back wages. Once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled-for sympathy and reinstating the employees in service. Law, on this point is well settled. Re: Municipal Committee, Bahadurgarh v. Krishna Behari . In U.P.S.R.T.C. v. Basudeo Chaudhary this Court set aside the judgment passed by the High Court in a case where a conductor serving with U.P. State Road Transport Corporation was removed from service on the ground that the alleged misconduct of the conductor was an attempt to cause loss of Rs. 65 to the Corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35 but recovering at Rs. 5.35 per head and also by making entry in the waybill as having received the amount of Rs. 3.25, which figure was subsequently altered to Rs. 2.85. The Court held that it was not possible to say that the Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly, in Punjab Dairy Development Corporation Ltd. v. Kala Singh 1997-II-LLJ-1041 (SC) Court considered the case of a workman who was working as a Dairy Helper-cum-Cleaner for collecting milk from various centers and was charged for the misconduct that he inflated the quantum of milk supplies in the milk centres and also inflated the quality of fat contents where there were less fat contents. The Court held that in view of the proof of misconduct, a necessary consequence will be that the management had lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11-A of the Industrial Disputes Act to grant relief with minor penalty.”
Further, in para 8 it was observed in 2000-II-LLJ-1395 at 1398:
“8. In case of proved misappropriation, in our view mere is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases.”
6. Counsel for the appellant argued that as there were more than 100 passengers in the bus, the appellant may not have been able to issue tickets to a few passengers and collect the fare. That in any case the Labour Court as well as the single Judge have erred in denying the entire back wages to the workman, it works out to be very hard and harsh on the workman.
7. A somewhat similar contention on behalf of a delinquent was rejected by the Supreme Court in Karnataka State Road Transport Corporation v. B.S. Hullikatti, 2001-I-LLJ-725 (SC). It was held that short charging of fare from as many as 35 passengers to the tune of 50 paise must have been to get financial benefit by the conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.
8. The observation of the Supreme Court, a gist of which has been reproduced above, would apply to the facts of this case as well. Non-issuance of tickets after collecting fare and failure to issue tickets and collect the fare from the passengers has to be attributed to either gross negligence or dishonest intention of the appellant. The charges levelled against the appellant therefore stood proved. In the face of proven charge, the only punishment as per the order of the single Judge suffered by the appellant is denial of back wages. We have our doubts as to whether the denial of back wages by itself would be a punishment in a case where the charge of misappropriation stands proved. We refuse to record a positive finding at this stage as the Corporation has not filed any appeal against the order of the single Judge. Appellant would not be entitled to back wages where the charge of misappropriation is proved. He cannot be rewarded with wages without having worked. It would be like showing a thumb to employer; ‘…although you have proved the charge, but still here I come with the order of reinstatement in service with continuity and back wages’. It would breed indiscipline in the service and the Courts cannot be a party to the breeding of indiscipline amongst the employees. A case for interference with the order of the single Judge at the instance of the appellant in any case is not made out.
9. Dismissed.