K. R. PRASADA RAO, J. ( 1 ) THIS petition is filed under Section 482 of the Code of Criminal Procedure by the petitioners who are the accused in C. C. No. 8478 of 1999 on the file of the Court of IV Additional Chief Metropolitan Magistrate, bangalore City seeking for quashing the above proceedings pending against them for the offences punishable under Sections 406 and 420 of the Indian Penal Code by the impugned order dated 14-7-1999 passed by the learned Magistrate. ( 2 ) THE respondents herein filed a complaint in the Trial Court against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code alleging that they have entered into an agree ment dated 13-5-1997 with the respondents according to the terms of which the first petitioner undertook to procure 1/11th undivided share in the site bearing No. 15, Khata No. 497/2 situated in Gurukamathanapalya, k. R. Puram, Bangalore for a consideration of Rs. 87,000. 00. The respondents granted the right to construct a residential flat either directly or through a contractor in favour of the petitioner under the said agreement. Respondents also engaged the first petitioner to build the flat and the first petitioner agreed to sell the said flat for Rs. 12,10,520. 00 after completion of the construction before the end of 1997. It is the further case of the respondents that they have made a part payment of Rs. 5,05,001. 00 towards the value of the said flat and the balance amount of Rs. 4,18,001. 00 has to be paid by them after the completion of the construction of the flat. It is the further case of the complainant that the respondents sent an intimation letter dated 24-10-1997 informing them that the construction of flat in the second floor was completed and it was ready for occupation and demanded them to pay the balance amount due by them as mentioned in the agreement Rs. 7,05,519. 00 before 20-11-1997. The first petitioner demanded an additional sum of Rs. 53,580. 00 claiming the same towards the alleged extra built-up area. The complainant thereafter visited the flat along with one mr. N. Srinivasan, Consulting Engineer, Bangalore and found that the construction has not been completed and that the said flat was not ready for occupation. 7,05,519. 00 before 20-11-1997. The first petitioner demanded an additional sum of Rs. 53,580. 00 claiming the same towards the alleged extra built-up area. The complainant thereafter visited the flat along with one mr. N. Srinivasan, Consulting Engineer, Bangalore and found that the construction has not been completed and that the said flat was not ready for occupation. The said Consulting Engineer also furnished a certificate confirming that the said flat was not fit for occupation. Thereafter, the first respondent sent a letter dated 5-11-1997 informing the first petitioner that the construction of flat was not completed and requested for furnishing the certified final measurements regarding the chargeable area. First petitioner sent a reply to that letter on 11-11-1997 without furnishing the final measurements. Thereafter the first respondent wrote another letter dated 14-11-1997 and once again requested the first petitioner to expeditiously furnish the data in support of its claim of additional built-up area. A reply was sent to the said letter on 25-11-1997 by the first petitioner. Subsequently, the second petitioner held out threats that if the respondents fail to pay the balance amount due by them, the flat would be sold to some other person. Immediately thereafter the respondent got issued a notice dated 26-11-1997 calling upon the petitioner to complete the flat in all respects and to execute a registered sale deed in respect of 1/11th undivided share in the land and to hand over possession of the same to them. The first petitioner in collusion with the 6th petitioner entered into negotiations to sell the said flat and ultimately sold the said flat to one Mr. Premanand Baindoor for a sum of Rs. 6. 33 lakhs. With these allegations, the respondents filed the complaint alleging that the petitioners committed offences of cheating and misappropriation of amount paid by them punishable under Sections 406 and 420 of the Indian Penal Code. The learned Magistrate on receiving the complaint referred the matter for. investigation under Section 156 (3) of the Code of Criminal Procedure. Thereafter, the police conducted investigation and submitted a 'b' report. However, the learned magistrate permitted the complainants to prove the case against the petitioners and after recording the sworn statement of the respondent 1, the learned Magistrate passed the impugned order directing to register a case against the petitioners for the offences punishable under Sections 406 and 420 of the Indian Penal Code. However, the learned magistrate permitted the complainants to prove the case against the petitioners and after recording the sworn statement of the respondent 1, the learned Magistrate passed the impugned order directing to register a case against the petitioners for the offences punishable under Sections 406 and 420 of the Indian Penal Code. The said order is now challenged before this Court in the present petition. ( 3 ) I have heard the arguments advanced by the learned Counsel appearing on both sides. ( 4 ) THE learned Counsel for the petitioners vehemently contended that the facts alleged in the complaint do not disclose any of the offences under Sections 406 and 420 of the Indian Penal Code and the dispute is purely of civil nature and therefore, there are no grounds to proceed against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code. He further submitted that it is nowhere alleged in the complaint that the petitioner had any guilty intention at the time of entering into the contract to cheat the complainants and in the absence of said averment, the learned Magistrate ought to have held that there are no grounds to proceed against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code. According to him, the entire case of the complainants is that the petitioners have committed a breach of contract by not selling the flat constructed by them in their favour and caused loss to them by selling the flat to a third party. He therefore, submitted that the dispute is purely of civil nature and there are no grounds to initiate criminal proceedings against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code. ( 5 ) IN reply to these contentions, the learned Counsel for respondents submitted that the petitioners have induced the complainants to part with more than Rs. 5 lakhs agreeing to put up the flat in the second floor and sell the same for a total consideration of Rs. 12,10,520. ( 5 ) IN reply to these contentions, the learned Counsel for respondents submitted that the petitioners have induced the complainants to part with more than Rs. 5 lakhs agreeing to put up the flat in the second floor and sell the same for a total consideration of Rs. 12,10,520. 00 under the terms of the agreement dated 13-5-1997 entered into by the parties and without completing the construction of the flat, demanded the complainants to pay the balance amount and in spite of the complainants pointing out that the construction of the flat has not been completed in all respects and expressing their readiness and willingness to pay the balance amount of sale consideration if the remaining part of the construction work were to be attended, the petitioner deliberately sold the flat to a third party for Rs. 6. 33 lakhs and caused wrongful loss to the respondents and all the above facts in the complaint clearly disclose a prima facie case against the petitioners for the offences punishable under Sections 406 and 420 of the Indian Penal Code. ( 6 ) THE learned Counsel for the petitioners has relied upon a decision rendered by this Court in case of M/s. Silk Import and Export Inc. , california, U. SA. v Mis. Exim Aides Silk Exporter, Bangalore and Another, wherein it was held that when the criminal proceeding is initiated on a private complaint for the offences punishable under Sections 418 and 420 of the Indian Penal Code, it can be quashed if it is shown that at the time of entering into the contract or transaction, the only intention of the opposite party was to cheat the complainant and not otherwise. He also relied upon another decision of this Court rendered in the case of India Brewery and Distillery Limited, Bangalore and Others v Shaw Wallace and Company Limited, Bangalore, wherein it was held that in the absence of allegation in the complaint that at the time of the entering into the transaction, the only intention of the accused was to cheat the complainant, Magistrate was wrong in taking cognizance of the offences under Sections 406 and 420 of the Indian Penal Code and issuing process. The learned Counsel for the petitioners contended that it is nowhere alleged in the complaint filed by the respondents that at the time of entering into the above transaction, the only intention of the petitioners was to cheat the complainants and in the absence of the said averment in the complaint, he contended that the above case registered against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code is liable to be quashed. ( 7 ) ON a careful perusal of the complaint filed by the respondents in the Trial Court, it is found that the respondents have nowhere alleged that at the time when they entered into an agreement dated 13-5-1997 with the petitioners for construction of a flat in the second floor of their site bearing No. 15, Khata No. 497/2, Gurukamathanapalya, KR. Puram hobli, the petitioners entertained an intention to cheat them and thus induced them to enter into the said agreement. It is also not alleged in the said complaint that even at the time when the complainants paid a part of the sale consideration amount of Rs. 5,05,001. 00, the petitioners entertained an intention to cheat them and thus induced them to part with the said portion of the consideration amount. On the other hand, according to the facts leading to the above case, a dispute arose between the parties only after the respondents received an intimation letter from the petitioners dated 24-10-1997 informing them that they have completed the construction of the flat and that it was ready for occupation and called upon them to pay the balance amount of Rs. 7,05,519. 00 before 20-11-1997 and demanded payment of additional sum of Rs. 53,580. 00 claiming the same towards the extra built-up area. According to the respondents when they inspected the flat constructed by the petitioners along with their Consulting Engineer, they found that the construction had not been completed and that it was not fit for occupation. Thereafter there was exchange of letter correspondence between the parties and finally when the respondents failed to pay the balance amount of sale consideration within the time fixed by the petitioners, the petitioners sold the said flat to a third party. Thereafter there was exchange of letter correspondence between the parties and finally when the respondents failed to pay the balance amount of sale consideration within the time fixed by the petitioners, the petitioners sold the said flat to a third party. According to the respondents, the petitioners committed a breach of contract by selling the said flat to a third party when they were ready to pay the balance sale consideration amount and they were asking the petitioners to complete the construction of the flat and to make it ready for their occupation. But according to the petitioners, the respondents committed a breach of contract by not paying the balance amount though they had completed the construction work within the stipulated time and sent intimation to the respondents to pay the balance amount and obtain the registered sale deed. All these facts, in my opinion, clearly go to show that the dispute between the parties is purely of civil nature. The allegations made in the complaint do not make out a case for the offences under Sections 406 and 420 of the Indian Penal Code. It is pointed out by the learned Counsel for the respondents that now the dispute is pending before the Consumer Forum and they have sought for refund of the amount paid by them with interest at 24%. It is pointed out by the learned Counsel for the respondents that now the dispute is pending before the Consumer Forum and they have sought for refund of the amount paid by them with interest at 24%. The learned Counsel for the respondents has relied upon a recent decision of the Supreme Court reported in the case of Medchl Chemicals and Pharma (Private) Limited v Biological E. Limited and Others, wherein it was held that the ingredients required to constitute an offence under Section 415 has been lucidly dealt with by this Court in the case of Ram Jas v State of Uttar pradesh, wherein this Court observed as below:"the ingredients required to constitute the offence of cheating are (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii) (b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property". It has held further as under:"while Section 415 is an offence of cheating, Section 418 deals with cheating with knowledge that wrongful loss may ensue to a person whose interest the offender is bound to protect and Section 420 is cheating and dishonestly inducing delivery of property. In order to attract the provisions of Sections 418 and 420 the guilty intent, at the time of making the promise is a requirement and an essential ingredient thereto and subsequent failure to fulfil the promise by itself would not attract the provisions of Section 418 or 420. Mens rea is one of the essential ingredients of the offence of cheating under Section 420. As a matter of fact illustration (g) to section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the learned Single Judge". As a matter of fact illustration (g) to section 415 makes the position clear enough to indicate that mere failure to deliver in breach of an agreement would not amount to cheating but is liable only to a civil action for breach of contract and it is this concept which obviously has weighed with the learned Single Judge". "it is now well-settled and one need not dilate on this score, neither do we intend to do so presently that the allegations in the complaint will have to be accepted on the face of it and truth or falsity of which would not be gone into by the Court at this earliest stage as noticed above: whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial". At page 280 it has observed as follows:". . . . . . . BOTH criminal law and civil law remedy can be pursued in diverse situations. As a matter of fact they "are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. It is anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import". "placing reliance on the above decision, he contended that merely because the matter is pending in a civil proceeding, the complainant cannot be prevented from prosecuting the petitioners in a Criminal Court. The two types of actions are quite different in content, scope and import". "placing reliance on the above decision, he contended that merely because the matter is pending in a civil proceeding, the complainant cannot be prevented from prosecuting the petitioners in a Criminal Court. But in the instant case, since it is found that there are no allegations in the complaint to the effect that at the time of entering into the contract at the inception the petitioners, entertained any dishonest intention to cheat the respondents and thus induced them to enter into the said contract and since it is further found that there are no allegations in the complaint to the effect that even at the time of payment of part of the sale consideration amount, the petitioners entertained a dishonest intention to cheat the respondents and thus induced them to part with the said amount, I find that the facts alleged in the complaint taken as they are, do not disclose any grounds to proceed against the petitioners for the offences under Sections 406 and 420 of the Indian Penal Code. ( 8 ) FOR the above reasons, I find that the proceedings in C. C. No. 8478 of 1999 pending against the petitioners are liable to be quashed. ( 9 ) THE petition is, therefore, allowed and the impugned order passed by the learned Magistrate dated 14-7-1999 registering the case against the petitioners for the offences under Sections 406 and 420 of the Indian penal Code is set aside and the above proceedings pending in the Court of IV Additional Chief Metropolitan Magistrate, Bangalore City are hereby quashed. --- *** --- . TEXT OF JUDGMENT (February 1, 2001) 2002 (TLS)1003461 2002-LLR-0-129 :: 2001-LIC-0-3442 Management of KSRTC by its Divisional Controller, Hubli Vs. B. C. Hiremath ASHOK BHAN, J. ( 1 ) KARNATAKA State Road Transport corporation, (for short, the appellant) through its Divisional Controller, Hubli, has filed this appeal against the order of the single Judge dismissing the Writ Petition filed by the appellant thereby upholding the award made by the Labour Court, Hubli, in K. I. D. No. 21/1988 dated February 24, 1998. ( 2 ) FACTS: Respondent-workman, (hereinafter referred to as respondent No. 1) was working as a Conductor in the Corporation in the year 1977. While he was conducting Bus no. ( 2 ) FACTS: Respondent-workman, (hereinafter referred to as respondent No. 1) was working as a Conductor in the Corporation in the year 1977. While he was conducting Bus no. MYF 5305 plying from Hubli to Giriyal, the vehicle was subjected to checking by the checking staff at Mavanoor cross. It was found that he had failed to issue tickets for 7 passengers despite collection of fare of 0. 55 ps from the passengers. On seeing the checking staff the respondent hurriedly tore 10 tickets and handed mem over to the passengers sitting next to him. Checking staff also found that there was over writing on the way bill. A report of the illegalities committed by the respondent were submitted by the checking staff to the disciplinary Authority. It was decided to hold a domestic enquiry. Articles of charges with necessary details and particulars were served on the workman. Respondent submitted reply to the charges levelled against him which were not found satisfactory. Enquiry was ordered. An enquiry officer was appointed. Enquiry officer submitted his report recording a finding of 'guilt proved' on the charges levelled. Disciplinary Authority after going through the enquiry report and the material available on the record, passed an order dated December 9, 1977 dismissing the respondent from the service of the Corporation. Prior to this the respondent was alleged to have been involved in as many as 19 cases of misconduct. He had been punished in some of them. ( 3 ) RESPONDENT did not take any steps to question the order of dismissal before the appropriate Court of law. The Legislature of karnataka introduced a State Amendment incorporating Section 4-A after sub-section (4) of Section 10 of the Industrial Disputes Act, (hereinafter referred to as 'the Act'), permitting the workman to approach the Court. It provided that notwithstanding anything contained in Section 9-C, the workman concerned, in the case of a dispute falling within the scope of Section 2-A, may, within six months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination or the date of commencement of the Industrial Disputes (Karnataka Amendment) Act, 1987, whichever is later, apply, in the prescribed manner, to the labour Court for adjudication of the dispute. The Labour Court is to dispose of such application in the same manner as a dispute referred under sub-section (1 ). The Labour Court is to dispose of such application in the same manner as a dispute referred under sub-section (1 ). Taking advantage of the amendment introduced by the state in the Act, workman raised an Industrial dispute in the Labour Court, Hubli in the year 1988 seeking setting aside of the order of dismissal passed against him. ( 4 ) NOTICE was issued in response to which reply statement was filed. On the pleadings of the parties the following issues were framed by the Labour Court:1. Whether the domestic enquiry conducted by management is fair and proper? 2. Whether the management is justified in dismissing claimant from service? 3. To what relief the said workman is entitled to? 4. What award? 5. What order? ( 5 ) ISSUE No. 1 was taken as a preliminary issue and decided on June 17, 1995. It was held that the domestic enquiry was not held in a fair and proper manner. Parties were permitted to lead their evidence. Appellant produced m. W. 1. Several documents were also produced. Default history sheet was produced as Ex. M. 10. M. W. I deposed on the basis of record as he was not a member of the team which had checked the bus. Out of the three persons of the checking staff 2 were dead and the third one had retired. He was not in a position to come and depose before the Court due to old age. Documents produced were marked. The workman did not produce any evidence. Labour Court recorded a very mixed and a confused finding. On the one hand it held that the management had failed to prove the charges against the workman and on the other hand it recorded the following findings:"now coming to the next aspect of the case though pilferage is serious offence, an opportunity has to be given to the claimant to improve himself in future but that has not been given. Therefore, leniency has been shown to the claimant and he is to be reinstated. " ( 6 ) ON the delay caused in approaching the court, and its effects, the Labour Court recorded the following finding:"there is serious lapse on the part of the claimant that though he was dismissed long back, he kept quiet till 1988 and he filed this petition after amendment to the Industrial disputes Act by the Karnataka State government. " ( 6 ) ON the delay caused in approaching the court, and its effects, the Labour Court recorded the following finding:"there is serious lapse on the part of the claimant that though he was dismissed long back, he kept quiet till 1988 and he filed this petition after amendment to the Industrial disputes Act by the Karnataka State government. In fact no reason was offered by claimant either in the claim statement or by adducing oral evidence, what made him to file this petition so late. In fact, there is no reason to condone the delay as this Court has already passed orders on preliminary issue and has gone a step ahead by granting interim relief. Under the circumstances, I would like to observe that the claimant is not entitled for any back wages on account of delay, there is no reason to condone it but already as he has been granted with the interim relief to that extent the claimant is entitled. " ( 7 ) ON this finding the claim petition was partly allowed in the following terms:"petition is partly allowed. Respondent is directed to reinstate the claimant into service and claimant is entitled for 50% of the salary last drawn by him from June 27, 1995 till his reinstatement and no other monetary benefit. " ( 8 ) AGGRIEVED against the award of the labour Court, both the management-appellant as well as the respondent-workman filed separate Writ Petitions. Appellant- management filed W. P. No. 26462/1998 seeking quashing of the award, whereas respondent- workman filed W. P. No. 22869/1998, seeking full back wages. ( 9 ) LEARNED Single Judge dismissed both the Writ Petitions and recorded the following finding:"as stated above, the Conductor had not issued tickets to 7 passengers despite collecting fare of Rs. 0. 55. Under the circumstance, the Labour Court has rightly held that dismissal order is disproportionate to the gravity of offence. In addition to that as there was inordinate delay in approaching the Labour Court, the Labour Court also declined to grant full back wages up to June 27, 1995. This order also does not call for interference. Granting only 50% of back wages from June 27, 1995 is reasonable. In addition to that as there was inordinate delay in approaching the Labour Court, the Labour Court also declined to grant full back wages up to June 27, 1995. This order also does not call for interference. Granting only 50% of back wages from June 27, 1995 is reasonable. " ( 10 ) IT is evident from the reading of the order of the single Judge that the Single Judge proceeded on the assumption that the respondent was guilty of not issuing tickets to 7 passengers despite collecting fare of Rs. 0. 55 from each of them. The punishment of dismissal awarded by the Disciplinary authority was held to be disproportionate to the gravity of the offence. Keeping in view the nature of the charge and the delay in approaching the Labour Court the reinstatement with 50% back wages from June 27, 1995 was found to be reasonable. Appellant has come up in further appeal. ( 11 ) COUNSEL for the parties have been heard at length. ( 12 ) LABOUR Court has recorded a finding that there was a serious lapse on the part of the workman in not raising the dispute within a reasonable time. He kept quite for a period of 11 years and taking advantage of the State amendment in introducing sub-section (4-A), the dispute was raised after 11 years without giving any reason and adducing any evidence. Though a case for condonation of delay was not made out, but keeping in view the fact that the domestic enquiry was held not to be fair and proper, the workman became entitled to be taken back in service pending decision of the dispute before the Court. Taking a sympathetic view he was ordered to be reinstated with 50% back wages from June 27, 1995. ( 13 ) THERE is nothing in the record to show as to why the domestic enquiry was held to be not fair and proper. Out of the three members of the checking staff two had died and the third one had retired. Due to old age he had become incapacitated to appear as a witness. The management was called upon to prove the charges after lapse of 20 years. Management had produced a witness who deposed on the basis of the official record. Out of the three members of the checking staff two had died and the third one had retired. Due to old age he had become incapacitated to appear as a witness. The management was called upon to prove the charges after lapse of 20 years. Management had produced a witness who deposed on the basis of the official record. Labour Court has not given any reasons for not relying on his evidence, which was duly supported by documentary evidence. No clear cut finding has been recorded by the Labour Court exonerating him of the charges levelled against him; rather a lenient view based on sympathetic consideration was taken. Single Judge proceeded as if the charges were proved but order of dismissal passed by the authority was disproportionate to the gravity of the offence. ( 14 ) LABOUR Court in paragraph 12 of its order which has bean reproduced above, concedes that the case of pilferage is a serious offence but an opportunity has to be given to improve himself in future which has not been done. This finding clearly indicates that the labour Court was of the view that the workman had pilfered the money but took a lenient view to give an opportunity to the respondent to improve himself, losing sight of the fact that earlier the workman had been charge sheeted in 19 cases and in some of them he had been punished for the misconduct. Single Judge proceeded as if the charges are proved and the order of dismissal as disproportionate to the gravity of the offence. Supreme Court in a recent judgment in Janatha Bayaar (SKCCWS) ltd. v. Secretary, Sahakari Naukarara Sangha air 2000 SC 3129 : 2000 (7) SCC 517 : 2000-II-LLJ-1395 while considering as to whether the High Court is justified in confirming the order passed by the Labour court reinstating the respondent workman with 25% back wages in spite of specific finding of fact that the charges of breach of trust and misappropriation of goods for the value given in the said charges had been clearly established, held that the order of reinstatement of a workman against whom misappropriation is established would be unjustified. A proved act of misappropriation cannot be taken lightly even though a number such mis-appropriation cases remain undisclosed. In cases of misappropriation workman cannot be rewarded or legalised any reinstatement in service with full or part back wages. A proved act of misappropriation cannot be taken lightly even though a number such mis-appropriation cases remain undisclosed. In cases of misappropriation workman cannot be rewarded or legalised any reinstatement in service with full or part back wages. After referring to the case laws, the Supreme Court in paragraph 6 found as under 2000-II-LLJ-1395 at p. 1397:"6. As stated above, the learned single judge and the Division Bench in writ appeals confirmed the findings given by the labour Court that charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge-sheet had been established. After giving the said findings, in our view, the Labour Court materially erred in setting aside the order passed by the management removing the workmen from service and reinstating them with 25% back wages. Once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled. Re: Municipal committee, Bahadurgarh v. Krishnan behari in UPSRTC v. Basudeo Chaudhary this Court set aside the judgment passed by the High Court in a case where a conductor serving with U. P. State Road transport Corporation was removed from service on the ground that the alleged misconduct of the conductor was an attempt to cause loss of Rs. 65. 00 to the corporation by issuing tickets to 213 passengers for a sum of Rs. 2. 35 but recovering at Rs. 5,35 per head and also by making entry in the way bill as having received the amount of Rs. 2. 35, which figure was subsequently altered to Rs. 2. 85. The Court held that it was not possible to say that the Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development corporation Ltd. v. Kala Singh this court considered the case of a workman who was working as a Dairy helper-cum- cleaner for collecting milk from various centers and was charged for the misconduct that he inflated the quantum of milk supplies in the milk centers and also inflated the quality of fat contents where there were less fat contents. The Court held that in view of the proof of misconduct a necessary consequence will be that the management had lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the labour Court rightly declined to exercise the power under Section 11-A of the Industrial Disputes Act to grant relief with minor penalty. " ( 15 ) FURTHER in paragraph 8 it was observed thus:"in case of proved misappropriation, in our view, there is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases. " ( 16 ) IN the present case except for denying the back wages practically no punishment is imposed on the workman, although the misconduct was taken to have been proved and there was an inordinate delay of 11 years in raising the dispute. Because of the finding recorded on the preliminary issue that departmental enquiry was not fair and proper by the Labour Court and the workman was ordered to be reinstated, on sympathetic ground by showing indulgence, with continuity of service and 50% of the back wages from June 27, 1995 onwards. Such sort of sympathy and indulgence from the Court is not warranted when the workman comes to Court after a delay of 11 years. Evidence gets obliterated. Witnesses die. ( 17 ) KEEPING in view the over all circumstances of the case and the fact that the respondent is working for the past 5 years, we do not disturb the order of reinstatement of the workman but he shall not be entitled to the continuity in service between December 9, 1977 and June 27, 1995. His service for this period shall stand forfeited. He shall not be entitled to any back wages but would be entitled to the wages for the period he has actually worked. ( 18 ) APPEAL is accepted to the extent indicated above. No costs. --- *** --- .