N.K Jain, J.:— The Special Appeal No. 180/90 has been filed u/s. 18 of the Rajasthan High Court Ordinance, 1949 against the order of the learned Single Judge dated 21.8.1990 dismissing the writ petition filed by the appellant against the award dt. 20.4.90 passed by the learned Judge, Labour Court, Jodhpur.

2. The writ petition No. 148/91 has been filed under Article 226 of the Constitution of India by the workman Mool Singh against the award of the leearned Judge, Labour Court, Jodhpur dated, 20.4.1990 whereby while holding the workman Mool Singh guilty of the charge of misconduct he has reinstated the workman in service.

3. Since both these matters are arising out of the same award, they are being disposed of by this common judgment.

4. The facts which are necessary to be noticed for the disposal of the said mailers are that the workman Mool Singh was working under the employment of the appellant Rajasthan State Road Transport Corporation (hereinafter referred to as the appellant Corporation) as Conductor since 12.1.1980 On a sudden checking made by the officers of the appellant Corporation on 27.10.1983, Fourteen fourteen passengers were found travelling without ticket in the bus. As alleged by the Corporation, from 12 passengers out of 14 without tickat passengers, the workman Mool Singh had already recovered fare but did not issue tickets and from two passengers even fare was got recovered by the Traffic Inspectors. A charge-sheet was served upon the workman and departmental enquiry was also held. In the departmental enquiry, the charge Levelled against the workman was found to be proved and the workman was removed from service on 20.9.1984 A dispute was raised by the workman which was referred to the Labour Court and the Labour Court after considering the material on record came to the conclusion that the domestic enquiry was not fair and that finding arrived at in the enquiry was not sustainable as enquiry report was not furnished to the workman Mool Singh and quashed the enquiry proceedings vide Anx. 6 dt. 27.3.1989 Thereafter vide Anx. 11.dt 2.4.1990, the learned Judge, Labour Court, Udaipur passed the award holding the workman Mool Singh guilty of the charge that in the checking made on 27.10.1983, 14 passengers were found without ticket but concidering the punishment of removal from service excessive reinstated him in service. Dissatisfied with the award, the Cor-poration filed a writ petition challenging the reinstatement which was dismissed by the learned Single Judge vide order dt. 21.8.1990 Hence, the Corporation has come up in special appeal before us. On the other hand the workman Mool Singh also filed a writ petition No. 148/91 on 19.12.1990 challenging the award to the extent of holding him guilty of the charge and the same is pending admission.

5. The Special Appeal No. 180/90 has been filed on 6.10.1990 and this court while admitting the same stayed the operation of the award dt. 2.4.1990 so also the operation of the order of the learned Single Judge till further orders. Thereafter on 25.7.1994, the workman Mool Singh moved an application u/s. 17-B of the Industrial Disputes Act, 1947 stating that in compliance of the award, he was taken back on duty on 22.5.1990 and he was removed from service on 15.7.1994 and thereafter he is not employed anywhere. The applicant prayed that the appellant may be directed either to reinstate the petitioner in service and/or to make him payment of full wages last drawn inclusive of maintenance allowance. The case came up on 27.7.1994 before a Division Bench of this court and it was ordered that cross S.B.C Writ Petition No. 148/91 may also be listed for hearing. Thus, both these matters have come up before us on the application u/s. 17-B of the I.D Act and as agreed by the learned counsel for the parties they are heard finally and, therefore, it is not necessary to pass any order on the application u/s. 17-B.

6. Mr. Sangect Lodha, learned counsel for the petitioner workman Mool Singh has submitted that the findings arrived at by the learned Labour Court is based on no evidence and the evidence produced by the employee has not been discussed. He has submitted that the Traffic Inspectors did not choose to check the ticket book containing tickets of more than Rs. 15/-. He has relied on Scooter India Limited, Lucknow v. Labour Court, Lucknow (1), Jitendra Singh Rathore v. B.A Bhawan Ltd. (2), Management of Hindustan Machine Tools Ltd. Bangalore v. Mohd. Usman (3) and Baldeo Singh v. Presiding Officer, Labour Court, Patiala (4).

7. On the other hand Mr. Munshi, learned counsel for the appellant Corporation has submitted that the learned Judge, Labour Court has found that the charge levelled against the workman stands fully proved but despite that he has reinstated the workman on the basis of unsound reasons which is arbitrary looking to the nature of the charge. He has submitted that earlier also the workman had been punished for committing misconduct. He has also submitted that the cases cited by the counsel for the workman that are not applicable in the facts of given case. He has relied on Rajasthan State Road Transport Corporation v. Habib Khan (5), Christian Medical College Hospital Employee's Union v. Christian Medical College (6) & R.S.R.T.C, Alwar v. Kailash Chand Sharma (7).

8. We have heard learned counsel for the parties and perused the material on record as well as the case law cited at the Bar. We need not discuss the case law in detail as the law on the point is well settled and each case depends upon the facts of its own.

9. First of all we proceed to examine the contention of Mr. Lodha, learned counsel for the workman that the learned Judge without discussing the evidence of the petitioner has arrived at a finding that the charge of misconduct stands proved. The workman's case though is that the ticket books of Rs. 15/- denomination was not checked. We do not find any substance in the contention of Mr. Lodha for the reason that the petitioner in his cross-examination has admitted that at the time of checking he was completing the “waybill” (osfcy) which according to the rules a Conductor is requied to complete before a bus leaves the Bus Stop. Moreso he did not produce the alleged ticket book of Rs. 15/- denomination before the Checking Party as that ticket book did not bear any signature of the Traffic Inspector. That apart had the conductor Mool Singh issued tickets even from the ticket book of Rs. 15/- denomination as suggested by him, there would not have been any passenger in the bus without ticket whereas 14 passengers were found without ticket in the Bus. Therefore, the finding of the Labour Court that the charge levelled against the workman stands proved cannot be said to be arrived at without considering the evidence produced by the workman or that the same is perverse. Under these circumstances, in our opinion, there is no good ground to disturb the finding arrived at by the learned Judge, Labour Court about the guilt of the workman and no interference is called for in the writ petition which was filed on 19.12.1990 i.e after passing of the ad-interim order dt. 11.10.1990 staying the operation of the award in the special appeal by this Court.

10. Now, it brings us to the second aspect of the matter i.e with regard to the challenge of the appellant Corporation to the award reinstating the workman.

11. The main contention of the learned counsel for the appellant Mr. Munshi is that even when the charge of misconduct has been found to be proved, the learned Judge, Labour Court while exercising power u/s. 11A of the I.D Act, 1947 has erred in ordering reinstatement of the workman, which is liable to be set aside.

12. There cannot be any dispute that after insertion of Section 11-A of the Industrial Disputes Act, 1947 w.e.f 15.12.1971, if the discharge or dismissal is unjustified then the Labour Court under the facts and circumstances of given case can award lesser punishment. In other words, by introduction of Sectionll-A, the Labour Court has been vested with a power to award lesser punishment. At the same time under Section 11-A, the discretion exercised by the Labour Court should not be unguided or unchannelised or arbitrary.

12. In order to appreciate the controversy raised by the learned counsel for the appellant Corporation, as to whether the learned Judge, Labour Court has exercised the discretion rightly or not in the facts of the given case, it would be useful to mention the relevant portion of the impugned award, which is as follows:—

13. It is worthwhile to mention here that power under Sectionll-A is exercised by the Labour Court when it is satisfied that the punishment imposed is grossly disappropriate to the degree of guilt of the workman concerned for which the Labour Court has to record reasons, which of course are subject to judicial review by the High Court or the Supreme Court. In the instant case, after perusing the impugned award carefully and having given our earnest consideration to the rival contentions advanced at the Bar, we are of the view, that the learned Judge, Labour Court has committed error in reinstating the workman as the reasons on the basis of which he has reinstated the workman even when he has himself found the workman guilty of the charge of misconduct are not convincing. It is true that in writ jurisdiction the award passed by the Labour Court cannot be interferred with unless there is any error apparent on the face of record or the findings arrived at are perverse and arbitrary. It may be noted in the present case that the Labour Court has found the workman guilty of the charge of misconduct levelled against him which has been upheld by us as discussed above but still the learned Judge has reinstated the workman which should not have been granted under the peculiar facts and circumstances of the given case as the charge of misconduct and misappropriation stands on a different footing. The only reason which has been assigned by the learned Judge, Labour Court is that of rising unemployment and to give one more chance to the workman to improve but there are no reason particularly when the workman earlier on two occasions was punished for misconduct. In view of this, in our oppnion, the workman deserves no sympathy and the impugned order to the learned Single Judge dismissing the writ petition of the appellant Corporation on the ground that the lenient view taken by the Labour Court calls for no interference, is not sustainable. The cases cited by Mr. Lodha are not helpful to him as they do not relate to misconduct or misappropriation. Similar view has been taken by a Division Bench of this Court in Raj. State Road Transport Corporation v. Habib Khan & Ors.—(108) (supra) and the learned Judges have obsereved as under:—

“It is indeed true that ordinarily we should be slow in interferring with an order of reinstatement passed u/s. 11 A of the Industrial Dispute Act and to substitute it by an order of dismissal or discharge that too a special appeal but there are cases of this Court as well as of the Hon'ble Supreme Court where such an arbitrary exercise of discretion has not been countenanced because it tantamounts not only to an abuse of the discretionary jurisdiction conferred on the court by Sec. 11A of the Act but it results in spread of indiscipline in the organisation. A person, who illegally demands a sum Rs. 10/- from his colleague and on his refusal abuses him and causes grevious injuries to him deserves no sympathy and, therefore, the leniency shown to him by the Tribunal as also by the learned Single Judge is totally mis-placed and cannot be sustained specially when there is no suggestion or even a whisper of victimisation, harassment or lack of bona fides against the appellant.”

14. In view of what we have discussed above, the impugned award dt. 2.4.90 passed by the learned Judge, Labour Court to the extent of reinstating the workman and the order of the learned Single Judge dt. 21.8.90 affirming the same deserves to be setaside.

15. Consequently, the special appeal filed by the Corporation is allowed. The order of the learned Single Judge dt. 21.8.90 and the impugned award dt. 2.4.90 passed by the learned Judge, Labour Court, Jodhpur are set aside to the extent of reinstating the workman. The writ petition of the workman No. 148/91 is dismissed. However, the appellant Corporation will pay the back wages to the workman according to law within a period of three months from the date of receipt of this order No order as to costs.