JUDGMENT
A.R. Dave, J.
1. Rule. Learned advocate Mr.Jadeja appearing for the respondent waives service of rule. At the request of the learned advocates, the matter is heard finally today.
2. The facts giving rise to the present petition in a nutshell are as under:-
The respondent was working as a Conductor under the petitioner-corporation. By an order dated 28/7/1993, the respondent was dismissed from the service. On 1/5/1992, a bus in which the respondent was performing his duty as a Conductor was checked and at the time of checking, it was found that the respondent had not issued tickets to 36 passengers belonging to different groups. In the circumstances, departmental inquiry was conducted and ultimately by an order dated 1/5/92 the respondent was dismissed from service.
3. The respondent thereafter raised a dispute and ultimately approached the Labour Court, Junagadh and after hearing the concerned parties and after perusal of the evidence, by an award dated 16/10/99, the Labour Court quashed and set aside the order dated 28/7/1993 whereby the respondent was dismissed from the service. It was directed by the Labour Court that the respondent should be reinstated in service with continuity of service and 70% back wages.
4. Learned advocate Mr.Jhaveri, appearing for the petitioner has submitted that the impugned order is not just and proper for the reason that the Labour Court should not have directed the petitioner to award back wages to the extent of 70% ,especially when it was found that the respondent had not issued tickets to 36 passengers. He has also submitted that even in the past, several punishments had been inflicted upon the respondent and, therefore, the Labour Court should not have shown any sympathy to the respondent.
5. On the other hand, learned advocate Mr.Jadeja appearing for the respondent has vehemently submitted that the order of dismissal was unjust and improper and therefore, the Labour Court had rightly set aside the order of dismissal. It has been submitted by him that the respondent was going to issue tickets to the passengers boarded from Bhad, but before tickets can be issued, the bus was checked at Kutiyana. According to the learned advocate, distance between Bhad and Kutiyana is hardly 7 km. and the said distance can be covered within about 7 to 10 minutes and at the time when the bus was checked, the respondent was issuing tickets to the concerned passengers. It has been submitted by him that the respondent had no intention to misappropriate the amount received from the passengers. He has drawn my attention to the fact that the respondent had not received any amount by way of fare from the passengers who were not issued tickets. Had the intention of the respondent been to misappropriate the fund of the petitioner-corporation, the respondent would have recovered the fare and would not have issued the tickets to the concerned passengers. He has further submitted that the punishments inflicted upon the respondent in the past were not of substantial nature because in no case, there was a charge against the respondent with regard to misappropriation of funds of the petitioner. In some cases in the past, he could not issue the tickets but at the same time, he had also not recovered fare from the concerned passengers.
5. In the circumstances, it has been submitted by the learned advocate appearing for the respondent that the petition should be rejected.
6. I have heard learned advocates and have also perused the impugned award. It is not in dispute that the distance between Bhad and Kutiyana is hardly 7 km. It appears that it would have been difficult for the respondent to issue tickets to all the passengers within a very short period of about 5 to 10 minutes. It is also not in dispute that the respondent had not received the fare from the concerned passengers and, therefore, it cannot be said that the respondent had a dishonest intention of misappropriating money of the petitioner.
7. Upon perusal of the default card, it is also clear that even in the past, whenever the respondent was punished, he was not punished for the charge of misappropriation but he was punished because he could not issue tickets to certain passengers.
8. Upon careful consideration, it appears that the order of dismissal was in fact very harsh as observed by the Labour Court. It however, appears that the Labour Court should not have reinstated the respondent with a direction to pay 70% back wages. It is true that the respondent was little slow or negligent becuase he could not complete his work within the time which was available at his disposal. In my opinion, ends of justice will be served if the respondent is reinstated in service with less back wages so that this would set an example not only for him but also for other conductors. In the circumstances, the award is modified so far as the payment of back wages is concerned. It is directed that 30% back wages should be given to the respondent and he should be reinstated in service forthwith.
6. With the above directions, the petition is partly allowed. Rule is made absolute to the above extent. No order as to costs.