Holding

When an employee is proved guilty of pilferage or misappropriation, the proper punishment is dismissal; reinstatement with back‑wages is contrary to law.

Summary

The respondent, H. Amresh, a conductor with the Karnataka State Road Transport Corporation, was charged with several offences including consumption of alcohol while on duty and short‑remittance of cash. An internal inquiry found all charges proved and dismissed him. He raised an industrial dispute under Section 10(4) of the Industrial Disputes Act before the Labour Court, which held that only the pilferage charge was proved and ordered his reinstatement with 75 % back‑wages. The Karnataka High Court upheld reinstatement (modifying back‑wages) and the Division Bench affirmed that order. The Supreme Court held that when pilferage or misappropriation is proved, dismissal is the appropriate punishment; courts cannot substitute their own view for the domestic tribunal’s finding. Consequently, the order of reinstatement was set aside, the dismissal restored, and the salary paid during the period of reinstatement was not to be recovered. The appeal filed by the corporation was allowed.

Issues considered

Whether an employee found guilty of pilferage/misappropriation can be reinstated with back‑wages under the Industrial Disputes Act.
Whether the Labour Court and High Court erred in interfering with the dismissal order despite the grave nature of the misconduct.
Whether back‑wages are payable to an employee whose dismissal is upheld.

Legislation cited

Industrial Disputes Act, 1947s. 10(4)

Subjects

industrial disputepilferagemisappropriationdismissalreinstatementlabour courtback wagesconduct and discipline regulationspublic transportfiduciary duty

Judgment

DIVISIONAL CONTROLLER, N.E.K.R.T.C. A
v.
H.AMARESH

JULY 17, 2006

[DR. AR. LAKSHMANAN AND LOKESHWAR SINGH PANTA, JJ.] B

Labour Laws:

Industrial Disputes Act, 1947; Section 10(4)/Conduct and Discipline
Regulations: C
Conductor-Charges of misconduct and misappr1Jpriation-Enquiry-
Dismissal from service-Industrial dispute-Only the charge of pilferage
proved against the errant workman-Labour Court ordering his reinstatement
in service with 75% back-wages-Affirmed by appellate Court reducing the D
back-wages !o 25'Yo--Affirmed by Division Bench of the High Court setting
aside the findings of the Courts below on back-wages-On appeal, Held: Any
dereliction of duty by the workman is highly detrimental to the financial
well-being of the Corporation, thus, against public interest-Charges are
grave and have the effect of disrupting the transport services-In such a case,
there is no place for generosity or misplaced sympathy on the part of the E
judicial forum-Once a domestic tribunal, on the basis of an evidence, comes
to a particular conclusion, normally it is not open to a Tribunal/Court to
substitute its subjective opinion in place thereof-Since charges of pilferage
proved, which is grave in nature, interference by the Labour Court not
justified-High Court erred in reinstating him in· service-Order of
reinstatement is against the settled law-Hence order of dismissal of the F
workman from service restored-Since the workman has no legal right to
continue in service, employer is directed to discharge the errant workman
from service-However, emoluments paid since his reinstatement in service
should not be recovered.
G
The respondent was working as a conductor in the appellant-
Corporation. A disciplinary proceeding was initiated against him charging
him for consuming alcohol while on duty; not performing scheduled duty;
unauthorised absence from duty and pilferage. The Corporation conducted
....
585 H
586 SUPREME COURT REPORTS [20061 SUPP. 3 S.C.R.

A an inquiry against him in accordance with the principles of natural justice
and 'Conduct & Discipline' Regulations. The Inquiry Officer found the
charges levelled against him proved. The errant workman was dismissed from
service. Aggrieved, he raised an industrial dispute under Section 10(4) of
the Industrial Disputes Act, 1947 before the Labour Court.

B The Labour Court observed that out of 4 charges levelled against him,
only the charge of pilferage stood proved, hence, passed an award directing
his reinstatement in scn'ice with 75% back wages. Aggrieved, the appellant-
Corporation filed a writ petition before the High Court. The Single Judge of
the High Court upheld the findings of the Labour Court but modified the order
C on payment of back-wages by reducing it to 25%. The Corporation filed an
appeal before the High Court. The Division Bench of the High Court, by the
impugned judgment, affirmed the findings of the Labour Court and of the
Single Judge with regard to reinstatement; however, it set aside their findings
on back wages. Hence the present appeal.

D Allowing the appeal, the Court

HELD: I. I. There is absolutely no precision in regard to the factual
aspects and findings rendered by the Labour Court. The Labour Court
directed reinstatement of the respondent-workman despite holding him guilty
of the charge of pilferage levelled against him and directed his reinstatement
E in service with back wages. Any dereliction of duty by the workman is highly
detrimental to the financial well being of the Corporation and is also against
public interest. 1591-G-H; 592-AI

1.2. Since the charges of pilferage were established against the
workman, such misconduct is grave and has the effect of disrupting the
F services of a public transport system. Both the Courts failed to consider all
the cogent evidence and documents produced by the Corporation before them.
The Labour Court has miserably erred by not considering that the respondent
was in a drunken condition when there was no denial on the part of the
workman to that effect. By not considering this, the High Court has also
G erred. The order of reinstatement passed by the Labour Court and its
affirmation by the High Court is contrary to the settled law on the subject.
1592-C; G, HI

Regional Manager, RSRTC '" Ghanshyam Sharma, 120021 IO SCC 330
and Karnataka SRTC v. B.S. H11/lika11i, 120011 2 SCC 574, relied on.
H
DIVISIONAL CONTROLLER. N.E.K.R.TC ,- H. A MARESH 587
1.3. When an employee is found guilty of pilferage or of mis- A
appropriating a Corporation's funds, there is nothing wrong in the
Corporation losing confidence or faith in such an employee and awarding him
punishment of dismissal. In such cases, there is no place for generosity or
misplaced sympathy on the part of the judicial forums and interfering therefore
with the quantum of punishment. Possession of the excess sum of money on
the part of the workman, a fact proved, is itself a mis-conduct and hence the B
Labour Court and the High Court misdirected themselves in insisting on the
evidence of the passengers which is wholly not essential. This apart, the
workman did not have any explanation for having carried the said excess
amount. This omission was sufficient to hold him guilty. This act was so
grossly negligent that he was not fit to be retained as a conductor because C
such action or inaction of his was bound to result in financial loss to the
appellant-Corporation irrespective of the quantum. (593-C-D; E-FJ

Karnataka State Road Transport Corpn. v. B.S. Hullikatti, (2001] 2
sec 574, relied on.
D
1.4. The Inquiry Officer, on a careful consideration of all aspects of the
case, unhesitantly held that the delinquent was guilty of the charges and that
all the charges have been proved. Once a domestic Tribunal based on evidence
comes to a particular conclusion normally it is not open to the tribunal and
courts to substitute their subjective opinion in place of the one arrived at by
the domestic tribunal. The jurisdiction vested with the Labour Court has been E
exercised capriciously and arbitrarily by it in spite of the finding that charge
with regard to the pilferage has been proved beyond any doubt The conclusion
arrived at by the High Court in ordering reinstatement was shockingly
disproportionate in the nature of charge of pilferage found proved. When the
charge is proved which is grave in nature, interference with the punishment p
of dismissal cannot be justified. (594-A-B; F-G(

Divisional Controller, KSRTC (NWKRTC) v. A. T Mane, (2005] 3 SCC
254, MP. Electricity Board v. Jagdish Chandra Sharma, (2005] 7 SCC 447
and Rajasthan State Road Transport Corpn. and Ors. v. Zakir Hussain, (2005(
7 sec 447, relied on. G
2.1. Having accepted all the facts that the charges of short remittance
was proved and yet the Single Judge and the Judges of the Division Bench
proceeded to pass an order ordering reinstatement which clearly goes against
the mandate of the various judgments of this Court. Even short remittance
amounts to mis-conduct and, therefore, applying the rulings of this Court, H
588 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A the impugned order ought not to have been passed by the Division Bench
ordering reinstatement. Hence, the order passed by the Division Bench of
the High Court is set aside and the order of dismissal of the respondent from
service is restored. 1596-B-C-DI

2.2. Pursuant to the order of the Labour Court the respondent was
B reinstated in service. Since there was no stay granted by this Court the
respondent had continued in service of the Corporation. In view of the law
laid down by this Court and of the facts and circumstances of this case, the
respondent has no legal right to continue in service any further.1596-D-EI

C 2.3. It is clarified that the salary and other emoluments paid to the
respondent-workman during this period shall not be recovered from him. It
is further clarified that in view of the order of dismissal he shall not be entitled
to any further emoluments.1596-E-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7993 of2004.
D From the Judgment and Order dated 22.7.2003 of the High Court of
Karnataka at Bangalore in Writ Appeal No. 6439/2000 (LK-KSRTC).

Anitha Shenoy for the Appellant.

The Judgment of the Court was delivered by
E
DR. AR. LAKSHMANAN, J. This appeal is directed against the final
judgment and order dated 22.07 .2003 passed by the High Court of Karnataka
at Bangalore in Writ Appeal No. 6439 of 2000. By the impugned judgment,
the Division Bench, while disposing off the appeal, confirmed the findings of
F the Labour Court and of the learned Single Judge with regard to reinstatement
and set aside the findings on back-wages. Though the respondent has been
served and the affidavit and proof of service stating therein that the show
cause notice was received by the sole respondent on 04.11.2004, there was
no response or representation on behalf of the respondent. The respondent
was also called abs~nt. We, therefore, decided to hear the appeal on merits
G and also carefully perused the pleadings, the order of the Labour Court,
judgment of the Single Judge and of the Division Bench of the High Court
and other relevant records. c
We also heard the learned argument of Ms. Anitha Shenoy, learned
counsel for the appellant-Corporation.
H ...
DIVISIONAL CONTROLLER, N.EKRT.C. v. H. AMAR.ESH [LAKSHMANAN, J.] 589
BACKGROUND FACTS: A
The respondent joined the Corporation as a conductor. While he was
on duty, the appellant-Corporation noticed that he was under the influence
of alcohol and did not issue tickets to the passengers. The appellant-
Corporation issued Articles of Charge to the respondent-conductor and he
replied to the same. The charges, which are grave in nature, are enumerated B
as below:

I. That it is reported that you are in a habit of consuming alcohol
while on duty and created bad scene of the Corporation among
the public by spoiling the image of the Corporation apart from
financial loss to the Corporation. (not proved) c
2. That on 27.12.90 you were booked on Devadurga Hosur N/o
Schedule No.16/B. 16 along with Sri. Allapa driver No. 2022 but
you were not able to discharge duties due to intoxication and
after having consumed alcohol and you are not able to perform
the schedule duty. In place another conductor had to be arranged D
inspite of acute shortage of conductor. (not proved)
3. Further the passenger of schedule No. 47 B/Hospet, 16B, Hosur
N/o. were unnecessarily detained at bus stand from 21-15 hours
to 22-30 hours, and you went away without getting dispatched
., . from the controller. (not proved) E
4. That on 28.12.90 after completion of the above said duties at
about 14 hours, the KSRTC cash held by you was checked and
found Rs. 360-95 as short and you were found in drunken
condition. (proved)
F
Not satisfied with the reply, the appellant-Corporation conducted the
enquiry in accordance with the principles of natural justice and 'Conduct &
Discipline' Regulations. The Inquiry Officer found the charges levelled against
the respondent proved. A true copy of the Inquiry Report dated 11.12.1991
has been filed and marked as Annexure-PI. It is useful to reproduce the
Inquiry Officer's report in paras 4 and 5 : G
.r "4. That act of mis-appropriation noticed after checking the way bill
and many irregularities, namely failed to show the sale of tickets and
over writing. Several places not shown the number of passengers and
trip wise collection not mentioned target of revenue was Rs. l{SO/-
but the delinquent deposit sum of Rs. 638175 paise. Lastly cash was H
590 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A remitted very late; hence these are the imputations of statement. The
M.W.I has given the detail as to the manner how he notices the
irregularities as violations and misconduct having found in drunken
state on duty.

In support he has got marked Ex. M. I to 4, the documents which
B have not been refuted nor tested the veracity of witness. I have
carefully examined the evidence of M. W. I and the documents marked
fully reveals that the delinquent has committed not only misconduct
but misappropriated the cash by short remittance. I see no reason why
the testimony of M.W. I should be discarded when delinquent has
failed to test the statement by cross examination.
c
5. In reply by way of written in defense the delinquent has simply
denied the charges saying as baseless.

On case full consideration of all the aspect~ of case unhesitantly
I can say that the delinquent has not created a doubt of evidence led
D by management and I hold that management has fully brought home
the charges. There is no reason to discard the testimony of M. W. l,
accordingly I hold that all the charges have been proved by the
management. Hence this report."

The Disci;ilinary Authority, after perusing the details of the inquiry
E proceedings, replied to the respondent to the Articles of Charge and other
available material, agreed with the findings of the Inquiry Officer and dismissed
the respondent from service. Aggrieved by the order of dismissal, the
respondent raised an industrial dispute under Section 10(4) of the Industrial
Disputes Act, 1947 before the Labour Court, Gulbarga to which the Corporation
p replied.

The Presiding Officer, Labour Court, by his order dated 30.08.1996, while
deciding the preliminary issue regarding the validity of inquiry proceedings
held the same to be illegal and invalid in view of the denial of reasonable
opportunity to the respondem.
G
The Labour Court, by its Award dated 17.12.1996, held that out of 4
charges levelled against the respondent, the 4th charge regarding pilferage
against the respondent stood proved. As regards punishment, dismissal from
service was substituted with reinstatement and 75% backwages. Aggrieved
by the award dated 17.12.1996, the appellant-Corporation filed the writ petition
H before the High Court of Karnataka at Bangalore. The learned Single Judge,
DIVISIONAL CONTROLLER, N.EK RT.C. r. H. AMARESH lLAKSHMANAN, l] 59 J
by his order dated 11.09.2000, upheld the findings of the Labour Court but A
modified the back-wages and reduced it to 25%.

Aggrieved by the order of the learned Single Judge, the Corporation
filed an appeal before the Division Bench of the Karnataka High Court. The
Division Bench, by the impugned judgment and order, affirmed the findings
of the Labour Court and of the learned Single Judge with regard to B
reinstatement and set aside the findings on back wages. Hence the special
leave petition was filed by the Corporation and notice was ordered on
17 .11.2003. On 03.12.2004, none appeared on behalf of the respondent and
leave was granted.

We heard Ms. Anitha Shenoy, learned counsel appearing for the C
appellant-Corporation. We have been taken through the pleadings, two orders
passed by the Labour Court, order of learned Single Judge and of the learned
Judges of the Division Bench. We have carefully perused those orders. A
careful perusal of the order date<l 17 .12.1996 of the Labour Court would only
reveal the total non-application of the mind by the Presiding Officer of the D
Labour Court Gulbarga and the inconsistent findings rendered by the said
Court. There are lot of discrepancies and mistakes in the award of the Labour
Court on factual as well as legal aspects of the matter. The Labour Court at
one place has observed as follows:-

"Ex.M. l goes to show that the claimant was negligent in remitting the E
amount. But no inference can be drawn against him that he was under
the influence of intoxication, and there was shortage of fund with the
claimant. The shortage of fund could be due to so many reasons.
Therefore the claimant has committed some misconduct which is not
a simple in nature."
F
Jn another place, the Labour Court in para 22 has observed as under:-

"I have already stated above that the Respondent has not proved
charges I to 3. But he has proved charge No.4. I have also stated
above that the charge No.4 is grave in nature and as such some
reasonable punishment is necessary." G
There is absolutely no precision in regard to the factual aspects and
findings rendered by the Labour Court. In the said award, the Labour Court
directed reinstatement of the respondent despite holding him guilty of the
charge of pilferage levelled against him and directed reinstatement with back
wages. In our view and as rightly pointed out by learned counsel for the H
592 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A appellant any dereliction of duty in this regard is highly detrimental to its
financial well being and against public interest.

We shall now consider the judgment of the High Court. The High Court,
in our view, has erred in affirming the award of the Labour Court insofar as
the award of reinstatement is concerned. As rightly urged by Ms. Anitha
B Shenoy that the charges of pilferage was established against the respondent-
workman such misconduct is grave and has the effect of disrupting the
services of a public transport system.

This Court in the judgment reported in [2002] I0 SCC 330 Regional
C Manager, RSRTC v. Ghanshyam Sharma (3 Judges) held that the proved acts
of misconduct either to a case of dishonesty or of gross negligence and bus
conductors who by their actions and inactions cause financial loss to the
Corporation ought not to be retained in service.

The judgment in Karnataka SRTC v. B.S. Hullikatti reported in [200 l]
D 2 sec 574 (2 Judges) wa:; also referred to and reliPd on by the 3 Judges Bench
in the above judgment.

This Court in [2001] 2 SCC 574 (2 Judges) has held in para 6 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
E 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
F would be a case of gross misconduct if knowingly they do not collect
any fare or the correct amount of fare."

The High Court and the Labour Court failed to consider all the cogent
evidence and documents produced by the Corporation before them. The
Labour Court has miserably erred by not considering that the respondent was
G in a drunken condition when there was no denial on the part of the workmen
to that effect. By not considering this, the High Court has also erred.

The order of reinstatement passed by the Labour Court and its affirmation
by the High Court is contrary to the law declared by this Court in (2001) 2
sec 574 wherein it was held that it is misplaced sympathy by courts in
H awarding lesser punishments where on checking it is found that the bus
DIVISIONAL CONTROLLER, N.E.K.R.T.C. v. H. AMARESH [LAKSHMANAN, l] 593

conductors have either not issued tickets to a large number of passengers A
and deposit the same with the Corporation. 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. It was finally held that the order of
-. dismissal should not have been set aside. As already noticed, this view was
reiterated by a 3 Judges Bench of this Court in the Regional Manager, RSRTC B
case (supra).

In the instant case, the mis-appropriation of the funds by the delinquent
employee was only Rs. 360.95. This Court has considered the punishment that
may be awarded to the delinquent employees who mis-appropriated funds of
the Corporation and the factors to be considered. This Court in a catena of C
judgments held that the loss of confidence as the primary factor and not the
amount of money mis-appropriated and that the sympathy or generosity
cannot be a factor which is impermissible in law. When an employee is found
guilty of pilferage or of mis-appropriating a Corporation's funds, there is
nothing wrong in the Corporation losing confidence or faith in such an
employee and awarding punishment of dismissal. In such cases, there is no D
place for generosity or misplaced sympathy on the part of the judicial forums
and interfering therefore with the quantum of punishment. The judgment in
Karnataka State Road Transport Corpn. v. B.S. Hullikatti, [2001] 2 SCC 574
was also relied on in this judgment among others. Examination of passengers
of vehicle from whom the said sum was collected was also not essential. In E
our view, possession of the said excess sum of money on the part of the
respondent, a fact proved, is itself a mis-conduct and hence the Labour Court
and the learned Judges of the High Court misdirected themselves in insisting
on the evidence of the passengers which is wholly not essential. This apart,
the respondent did not have any explanation for having carried the said
excess amount. This omission was sufficient to hold him guilty. This act was F
so grossly negligent that the respondent was not fit to be retained as a
conductor because such action or inaction of his was bound to result in
financial loss to the appellant irrespective of the quantum.

In this context, it is useful to refer to the findings of the domestic
tribunal which has already been extracted above in paragraph (supra). Before G
the Inquiry Officer Exh. Ml-M4 were marked, which have not been refuted nor
was the veracity of witness decided. The Inquiry Officer has stated that he
has carefully examined the evidence of MW. I and the documents marked
which fully reveals that the delinquent has committed not only misconduct
but misappropriated the cash. MW I was not <;ross exainined by the delinquent H
. ""
594 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A employee. In reply, the delinquent has simply denied the charges stating it
baseless. The Inquiry Officer, on a careful consideration of all aspects of the
case, unhesitantly held that the delinquent was guilty of the charges and that
all the charges have been proved.

Once a domestic Tribunal based on evidence comes to a particular
B conclusion normally it is not open to the tribunal and courts to substitute
their subjective opinion in place of the one arrived at by the domestic tribunal.

Coming to the question of quantum of punishment, this Court in
Divisional Controller, KSRTC (NWKRTC) v. A. T. Mane, (2005) 3 SCC 254 has
held as under:-
C
"Coming to the question of quantum of punishment, one should bear
in mind the fact that it is not the amount of money misappropriated
that becomes a primary factor for awarding punishment; on the contrary,
it is the loss of confidence which is th.: primary factor to be taken into
consideration. In our opinion, when a person is found guilty of
D misappropriating the Corporation's funds, there is nothing wrong in
the Corporation losing confidence or faith in such a person and
awarding a punishment of dismissal."

We may also beneficially refer to a judgment - rendered by a 3 Judges
E Bench of this Court reported in (2005) 3 SCC 401; M.P. Electricity Board v.
Jagdish Chandra Sharma. This Court held that the tribunals would not sit
in appeal over the decision of the employer unless there exists a statutory
provision in this behalf. Moreover, Labour Courts must act within the four
comers of the statute concerned, in terms of the provisions thereof. When
the Labour Court having held that charge No.4 stood proved, no int('rference
F by the learned Single Judge or by the Division Bench was called for. In the
instant case, the jurisdiction vested with the Labour Court has been exercised
capriciously and arbitrarily in spite of the finding that Charge No.4, with
regard to the pilferage, has been proved beyond any doubt. In our opinion,
the conclusion arrived at by the High Court in ordering reinstatement was
G shockingly disproportionate in the nature of charge No.4 found proved.
When charge No.4 is proved, which is grave in nature, interference with the
punishment of dismissal cannot be justified. Similarly, the High Court gets
jurisdiction to interfere with the punishment in the exercise of its jurisdiction
under Article 226 of the Constitution only when it finds that the punishment
imposed is shockingly disproportionate to the charges proved.
H
DIVISIONAL CONfROLLER, N.E.KRTC. v. H. AMARESH [LAKSHMANAN, J] 595
Ms. Anitha Shenoy also cited a recent decision of this Court reported A
in (2005] 7 SCC 447 - Rajasthan State Road Transport Corpn. and Ors. v.
Zakir Hussain (Ruma Pal and Dr. AR. Lakshmanan, JJ). The respondent
therein was also a conductor of the appellant-Corporation. He challenged the
termination of his service as being in violation of the provisions of the
Standing Order. However, without availing the remedy available to him under
the Industrial Disputes Act, 194 7 he approached the Civil Courts and obtained B
decrees in his favour. It was challenged by the management before the High
Court. The High Court declined to interfere with the orders passed by the
lower Court since there is concurrent finding on fact by both the Courts
below and that no substantial question of law arises, the appellant-Corporation
preferred the special leave petition before this Court questioning the C
correctness of the orders passed by the courts below and of the High Court
particularly on the question of jurisdiction of civil couf\s to entertain and try
the suit instead of an industrial dispute. This Court held that the civil court
has no jurisdiction and that the jurisdiction cannot be conferred by any order
of the court and that where an act creates an obligation and enforces the
performance in a specified manner the performance cannot be enforced in any D
other manner. It was held that the employees of the State Road Transport
Corporation are not civil servants and, therefore, they are not entitled to
protection under Article 311 of the Constitution and that their terms of
appointment are governed by the letter of appointment and, therefore, the
management was well within its right to terminate the services of the respondent E
during the period of probation if their services were not found to be satisfactory
during the said period and in such an event the appellant-Corporation was
not obliged to hold an enquiry before terminating the services. In the
concluding part of the judgment, this Court has observed that since the
respondent-workman has not acted bona fide in instituting the suit, the
respondent was not entitled to any back wages and having regard to the facts F
and circumstances of the said case, it would not be appropriate to order
refund of the back wages paid to him and that he shall not be allowed to
continue in service any further and shall be discharged forthwith.

In the instant case, even though charge No.4 has been proved beyond
any doubt, the Labour Court taking a lenient and sympathetic view, passed G
certain directions which were modified by the learned Single Judge and of the
Division Bench. While entertaining this special leave petition, this Court has
only ordered notice to the respondent. The order of the High Court and of
the Division Bench has not been stayed even though the Division Bench
observed that having regard to the gravity of the charges proved against the H
596 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A respondent, it would be in the interest of justice to modify the order passed
by the learned Single Judge to the extent he has directed the appellant-
Corporation to pay 25% back wages. The Division Bench deleted the direction
in regard to the payment of back wages but retained the order in regard to
the reinstatement. The said order is ex-facie illegal and contrary to the
B principles laid down by the various decisions of this Court which have been
referred to in paragraphs supra and also on the proved facts and circumstances
of the case. Having accepted all the facts that the charges of short remittance
was proved and yet the learned single Judge and the learned Judges of the
Division Bench proceeded to pass an order ordering reinstatement which
clearly goes against the mandate of the various judgments of this Court.
c In our view, even short remittance amounts to mis-conduct and, therefore,
applying the rulings of this Court, the impugned order ought not to have been
passed by the Division Bench ordering reinstatement. We, therefore, have no
hesitation to set aside the order passed by the learned Judges of the Division
Bench and restore the order of dismissal of the respondent from service. It
D is stated that pursuant to the order of the Labour Court the respondent was
reinstated in service. Since there was no stay granted by this Court the
respondent had continued in service of the Corporation. In view of the law
laid down by this Court and of the facts and circumstances of this case, the
respondent, in our opinion, has no legal right to continue in service any
E further. We, therefore, direct the appellant-Corporation to immediately discharge
the respondent from service. However, we make it clear that the salary paid
to the respondent and other emoluments during this period shall not be
recovered from the respondent. We also make it further clear that in view of
the order of dismissal the respondent shall not be entitled to any further
emoluments.
F
For the foregoing reasons, we allow the appeal filed by the appellant-
Corporation and set aside the orders passed by the Labour Court, learned
Single Judge and also of the Division Bench as perverse and are against the
proved facts and circumstances of the case. No costs.

G We place on record our appreciation for the able assistance rendered
by Ms. Anitha Shenoy, learned counsel for the appellant at the time of
hearing.

S.K.S. Appeal allowed.