MISRA, J. - (1.) THE petitioner-Rajasthan State Road Transport Corporation (RSRTC for short) has challenged the award dated 17. 9. 1991 passed by the Industrial Tribunal Jaipur wherein it has recorded a finding that the workman-respondent No. 1 Dharamveer Singh was guilty of the charge which was levelled against him by the management of the RSRTC to the effect that although he had realised fares from 29 passengers, he had failed to issue tickets to these passengers and thereby he was guilty of gross misconduct in discharge of his duties. THE charges were held to have been proved at the domestic enquiry conducted by the RSRTC as also before the Industrial Tribunal Jaipur wherein the respondent-workman fully participated in the proceedings and led evidence. A categorical finding has been recorded by the Tribunal that on scrutiny of the evidence on record and the other material, it is clearly established that the petitioner was guilty of the charges levelled against him and therefore committed misconduct, yet he cannot be penalised for this act because the petitioner-RSRTC failed to pay the subsistence allowance to the failed to pay the subsistence allowance to the workman during pendency of the proceedings before the Tribunal. It therefore passed an order for his reinstatement granting him entire backwages for the period during which he was out of service and in the event of failure to pay the backwages within a period of three months, he was also entitled for interest at the rate of 12%. It is this award which is under challenge in this writ petition at the instance of the RSRTC.
(2.) LEARNED counsel for the petitioner-RSRTC Mr. Manish Bhandari first of all submitted that the Industrial Tribunal has clearly erred in passing an order of reinstatement of the petitioner alongwith backwages inspite of the finding that the charge levelled against the workman was clearly proved in the light of the evidence which were adduced. Inspite of this finding, the order for reinstatement alongwith backwages was passed in favour of the respondent-workman only on account of the fact that subsistence allowance was not paid to him which cannot be held to be a valid and legal reason for passing the order of reinstatement as that would be contrary to the established legal position. In this regard he has also relied upon a judgment of the Supreme Court delivered in the matter of Karnataka State Road Transport Corporation vs. B. S. Hullkatti (1), where in a similar circumstance, the bus conductor who was guilty of misconduct pertaining to short charging of fares from 35 passengers due to which he had been dismissed from service was upheld as it was laid down that he was either dishonest while not charging the adequate fare or he was negligent while discharging his duties. But in the interest of justice it had been recorded that the respondent-workman having superannuated who would not be reinstated in service and would also not be entitled for grant of backwages, could be held entitled to retiral benefits only in the interest of equity. The true import of this judgment is that the workman who is held guilty of the charge of misconduct cannot be rewarded with an order of reinstatement in the wake of the finding recorded against him to the effect that he was negligent in discharging his duties, which caused financial loss to the Transport Corporation and that would not entail a lesser punishment than dismissal from service. Another judgment relied upon by the learned counsel for the petitioner is of the Supreme Court delivered in Regional Manager, RSRTC vs. Ghanshyam Sharma (2) in the case of wherein the learned judges of the Supreme Court by order dated August 6, 2001 have also held that where the bus conductors carry passengers without ticket or issue tickets at a lesser rate than the proper rate, the said act would interalia amount to either being a case of dishonesty or of gross negligence and such conductors are not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. In the light of these judgments which have been relied upon, it is submitted that the Tribunal in case of the petitioner is not justified in passing the order of reinstatement with backwages inspite of the charge of misconduct having been proved by the management of the RSRTC. The respondent-workman inspite of service of notice on his has failed to appear before this Court either in person or through his advocate. Since the matter is lying pending ever since 1994 it was not possible for the Court to defer the matter further and hence the counsel for the petitioner was heard even in absence of the respondent or his advocate. From perusal of the impugned award it could clearly be noticed that a clear and candid finding has been recorded against the respondent-workman stated hereinbefore that the charges of misconduct with regard to carrying of passengers without issuing tickets although fares were realised from them, had been held to be proved before the Tribunal as also in the domestic enquiry. It is therefore, difficult to appreciate the reasoning assigned by the Tribunal that although the misconduct was proved, the order of reinstatement alongwith entire backwages was fit to be paid to the workman merely because subsistence allowance had not been paid to the petitioner. If the subsistence allowance to the workman as directed by the Tribunal or as per the Rules of the RSRTC was not paid, the respondent-workman could have approached the Tribunal for an interim direction to that effect from the Tribunal. The petitioner failed to raise any grievance regarding nonpayment of subsistence allowance and hence that reason alone could not have been a valid one for the Tribunal to pass the order of reinstatement with backwages. If the interim relief was not granted to the petitioner by the Tribunal under the Industrial Disputes Act, he could have resorted to the remedy for other equitable relief or remedies enumerated under the Industrial Disputes Act viz. payment of wages under Section 33 (c) (c) regarding payment of wages last drawn by the workman or payment of subsistence allowance as per the Rules of the RSRTC and merely because subsistence allowance was not paid, the relief of reinstatement alongwith backwages could not have been granted merely on account of inaction on the part of the R. S. R. T. C. as that relief could be granted to the respondent only if the charges were not held to have been proved at the instance of the RSRTC. That clearly that being the position, learned Member of the Tribunal was clearly in error in passing the award in favour of the respondent workman ignoring the legal position in this regard. The award of the Tribunal therefore is not fit to be sustained and deserves to be quashed. The impugned award of the Industrial Tribunal passed in favour of the workman-respondent No. 1 is therefore quashed and set aside. Consequently, the RSRTC would be under no obligation either to reinstate the respondent-workman or to pay any wages to him. The respondent workman however would be at liberty to claim the amount of subsistence allowance which was payable to him during pendency of the proceedings before the Tribunal. The writ petition, subject to this limitation, stands allowed but without costs. . ;