ORDER
R.J. Kochar, J.
1. The Petitioners are a statutory authority constituted under the provisions of the Mumbai Municipal Corporation Act, 1888 and is engaged in public utility services of supplying electricity and transport facility to the citizens of Mumbai through its Bombay Electric Supply and Transport Undertaking. It is aggrieved by the Judgment and Order of the Industrial Court, Maharashtra at Mumbai passed in Appeal (IC) No. 160 of 1997 on 17.9.1998 in exercise of its Appellate Jurisdiction of the Bombay Industrial Relations Act, 1946.
2. The Petitioners had employed through its Undertaking the Respondent No. 2 Shri Chandrakant Kashid, as Bus Conductor attached to Colaba Bus Depot. Acting on a Report dated 29.11.1995 submitted by the Asstt. Ticket and Cash Department that the said Conductor had incurred shortage of Rs. 56.75 ps in his cash collection during the month of September, 1995. A charge-sheet was issued to the said Conductor for the misconduct under the Standing Orders viz.
S.O. 20(c) Theft, fraud, or dishonesty, in connection with the
business or property of the Undertaking; and
S.O. 20(j) "Gross negligence".
A full-fledged departmental enquiry was held in the charges in accordance with the principles of natural justice and the Standing Orders. The Respondent No. 2 the delinquent Conductor appears to have expressed his inability to explain the shortage. The fact of shortage however was not disputed. The Enquiry Officer gave his finding holding the delinquent Conductor guilty of the dishonest. He also considered his past record which was found to be very unsatisfactory as he was punished on number of occasions in the past for the similar misconduct of shortages. The Enquiry Officer who is known as “Trying Officer” under the Rules is empowered to impose punishment on the delinquent employee after recording guilt of the delinquent before him. In the present case he ordered the Respondent No. 2 delinquent Conductor to be dismissed from service with effect from 28.2.1996. The Enquiry Officer/Trying Officer reasoned that inspite of reformative and corrective approach adopted by the Undertaking in the past no improvement was shown by him and the Enquiry Officer therefore felt that the delinquent was not fit to be retained in service.
3. The delinquent was aggrieved by the said order of punishment and therefore, he filed first appeal and the second appeal. Both the appellate authorities concurred with the findings recorded by the Trying Officer. The respondent No. 2 therefore, stood finally dismissed from employment. Thereafter the Respondent No. 2 approached the Respondent No. 1, the representative and approved Union for the Undertaking in the local area, complaining against the dismissal order passed by the Petitioner Undertaking. The said Union moved the machinery under the provisions of the B.I.R. Act by approaching the Labour Court under Section 79 read with Sections 78 and 42(4) of the Act questioning the legality and validity of the Order of dismissal and praying for reinstatement with full back wages and continuity of service.
4. As far as the enquiry is concerned there was no grievance about the legality and fairness of the domestic enquiry. The Labour Court, however, decided the question of punishment and held that the punishment of dismissal imposed on the delinquent conductor was shockingly disproportionate and that instead punishment of withholding of two increments with permanent effect was substituted. The Labour Court has found that the conductor had 20 years of service and that as per the rules shortage of Rs. 40/- in a month was permissible while the Respondent No. 2 had shortage of Rs. 56.25 ps. in September, 1995. The Labour Court observed that delinquent conductor had not misappropriated the said amount but it could be said that he was negligent in his duties. Considering the fact that the conductor had put in more than 20 years service and that he had exceeded the permissible shortage by Rs. 16/- in that month and the Labour Court therefore held that the misconduct was not grave nature. The Labour Court thought it fit to give the conductor one more opportunity considering his age and service put by him. The Labour Court therefore directed the Petitioners to reinstate him without back wages but with continuity of service and the order of dismissal was reduced to withholding of two increments with permanent effect. Petitioners carried this matter in appeal before the Industrial Court. The Industrial Court agreed with the view of the Labour Court and dismissed the appeal.
5. The Petitioner being aggrieved by the said Order of the Industrial Court have filed the present Petition under Article 226 of the Constitution of India.
6. Shri Bukhari, the learned Counsel for the Petitioners, has strenuously submitted that it was not the question of an amount of Rs. 56.25 ps shortage in a month or a question of Rs. 16/- excess of the permissible limit of Rs. 40/- in the year 1995. According to him, the Undertaking is employing a large number of conductors to man the transport service in the city. Considering the heavy rush of the passengers throughout the day and particularly in the peak hours some miscalculations and mistake in giving and taking the amount from the passengers the Petitioner have permitted a shortage in cash collection by a conductor. In the year 1995 it was Rs. 40/- and it was increased to Rs. 50/- subsequently. He has pointed out that the management has always considered the aspect of human mistake particularly in the rush hours and therefore, it does not want to take a very strict and harsh view of imposing punishment on every occasion of small shortages. It has always been mindful of the increase in the public commuter sand the human errors in counting money in such situation. At the same time the management cannot allow leniency after certain limit in the interest of revenue. In this background Shri Bukhari has pointed out that the delinquent conductor had an extremely bad past record and therefore, the management was constrained to pass order of dismissal reluctantly. In the past, Shri Bukhari pointed out that the management has taken every time a lenient view to see that there is an improvement in the working of the delinquent conductor. Every time a very minor punishment such as warning etc. was given to him. It appeared to the management that the delinquent conductor was becoming habitual in remitting cash in shortage taking advantage of the permissible limit of the shortage. Shri Bukhari has pointed out that both the Courts below have totally lost sight of the past record of the conductor and also the past treatment meted to him by the management. Shri Bukhari has given the past record of the delinquent conductor as under:
Sr. Punishment/Entry Amount Period of No. of Remarks
No in service record of short- shortage occa-
age sions
during
which
short-
ages
have
been
oc-
curred.
______________________________________________________________________________________________
1. Cautioned Rs. 54.10 1.8.1984 to 18
31.8.1984
2. Cautioned Rs. 45.85 1.5 .1988 to 16
31.5.1988
3. Cautioned Rs. 85.35 1.7.1989 to 17
31.7.1989
4. Cautioned Rs. 48.40 1.8.1989 to 15
31.8.1989
5. Reduction in Grade Rs. 63.70 1.10.1989 to 18 The punishment
by one step for a 31.10.1989 was substituted
period of six months
with warning
in appeal.
6. Reduction in Grade Rs. 60.60 1.5.1990 to 17 The punish-
by one step for pe- 31.5.1990 ment was sub-
riod of one year stituted with
reduction in
grade by one
step for a pe-
riod of six
months in ap-
peal.
7. Reduction in Grade Rs. 66.90 1.1.1991 to 16 The punish-
by two Steps for a 31.1.1991 ment was sub-
period of two years stituted with
reduction in
grade by one
step for two
years in ap-
peal.
8. Reduction in Grade Rs. 58.10 1.12.1991 to 21
by one step perma- 31.12.1991
nently
9. Reduction two steps Rs. 54.50 1.11.1993 to 14
in Grade perma- 30.11.1993
nently
10. Reduction in Grade Rs. 287.75 1.11.1994 to 14 The punish-
by two steps Perma- 30. 11.1994 ment was sub-
nently stituted with
reduction in
grade by two
teps for two
years in ap-
peal.
11. Dismissal Rs. 56.25 1.9.1995 to 16
30.9.1995
____________________________________________________________________________________________
From the above past record I cannot agree with the orders passed by both the Courts below that the punishment of dismissal imposed by the Petitioners Undertaking was shockingly disproportionate. At a point of time I was also inclined to take a sympathetic view of the matter but considering the very bad past record of the conductor and considering the point of the undertaking I am inclined to change and agree with the submissions of Shri Bukhari that how long such an employee should be tolerated by a public undertaking. To do so would be to show a misplaced sympathy at the cost of the public revenue with which the Petitioners Undertaking is concerned. It cannot be said that the Undertaking has taken a decision to dismiss the conductor at the first or second occasion of shortage in the collection. The graph of past record itself is shocking. According to me, both the Lower Courts have not considered the matter in correct perspective and have shown misplaced sympathy ignoring the Say and view point of the management. If every conductor is allowed such shortage every month the figure would be again a shockingly high. We cannot show sympathy or mercy at the cost of the public. Merely because some shortage is permissible it cannot be taken as a privilege by every conductor that he can remit shortage upto the permissible limit. The delinquent conductor in the present case was remitting the cash in shortage shown as above on occasions which are as high as 21 in a month. This cannot be permitted by those who are dealing with public money in particular.
7. In these circumstances I quash and set aside the impugned orders passed by the Courts below and I confirm the order of dismissal passed by the Petitioner Undertaking. Rule is made absolute in terms of prayer Clause (b). No order as to costs.