Judgment D. Y. CHANDRACHUD, J. ( 1 ) THE petitioner was a conductor in the Best undertaking. A charge-sheet was issued to him, on 30th January, 1996 for misconduct under Standing Order 20 (j) "gross negligence" and Standing Order 20 (c) " theft, fraud or dishonesty in connection with the business of the undertaking". The charge of misconduct was that in the month of October, 1995 a shortage of cash had been detected to the extent of Rs. 86. 25, while in the month of November, 1995 a similar shortage of Rs. 91/- had been detected. A disciplinary enquiry was held, upon which the petitioner came to be dismissed form service. The order of dismissal was challenged in proceedings under the Bombay Industrial Relations Act, 1946. The Labour Court held that the charge of misconduct was duly established; that the findings of the enquiry Officer were not perverse and that the penalty of dismissal was not disproportionate. The Labour Court noted that the factum of shortage was admitted by the employee. This was not an isolated case of misconduct. The workman has been punished 11 times in the past and on five occasions, he had been subject to a disciplinary penalty for similar acts of misconduct. On 24th April, 1987 his salary was reduced by one step for six months on 31st june, 1988 by one step for two years; on 7th March, 1990 by one step permanently; on 22nd March, 1990 by one step for fix months; and 22nd August, 1991 by two steps permanently. The Industrial Court on these findings held that the charge of misconduct has been proved and having regard to the past record where the workman had been penalised on 11 previous occasions, the punishment of dismissal was not disproportionate. ( 2 ) COUNSEL appearing on behalf of the petitioner urges that a shortage of the nature that is involved in the present case was not sufficient to establish a case of gross negligence, particularly since no charge of dishonesty in connection with the business of the undertaking has been established. Reliance was sought to be placed on judgments of learned Single Judge of this Court in (Mahindra and Mahindra Ltd. v G. V. Akerkar), 1988 (57) F. L. R. 667 and (Vomayya Babu Shetty v. Digvijay Spinning and Weaving Mills), 1992 (Supp.) bom. C. R. 774 : 1992{1) L. L. J. 691. Reliance was sought to be placed on judgments of learned Single Judge of this Court in (Mahindra and Mahindra Ltd. v G. V. Akerkar), 1988 (57) F. L. R. 667 and (Vomayya Babu Shetty v. Digvijay Spinning and Weaving Mills), 1992 (Supp.) bom. C. R. 774 : 1992{1) L. L. J. 691. Reliance was also placed on ajudgment of division Bench in (National Textile Corporation (South Maharashtra) Ltd. v. Shramik Jananta Union), 1991 (1) Bom. C. R. 160: 1990 Mh. L. J. 1315. ( 3 ) THE charge against the workmen that has been held to be established is of gross negligence under Standing Order 20 (j ). In his application before the labour Court, the explanation of the petitioner, who admitted the shortage, was as follows:"the shortages are due to faulty transactions with the passengers, the printing of rs. 3. 50 block. The entire amount is made good by the employee. The factum of shortage was not disputed. When the matter was carried in appeal before the Industrial Court, the earlier explanation was sought to be changed in the Memo of appeal and it was alleged that the petitioner was indisposed and that shortage was usual phenomenon : the learned Labour Judge ought to have considered that the employee was sick and also made all the money good. The learned Judge ought to. have considered that shortage is an usual phenomenon in the Traffic Industry. " ( 4 ) BOTH the. courts below have been consistent in holding that the factum of misconduct has been proved. In fact, the shortage was admitted. The nature of the explanation was hardly believable and in any event both the courts having rejected the explanation of the employee, the exercise of the jurisdiction under Article 226 is not warranted. In the written statement that was filed by the undertaking, the past service record of the workman was adverted to and it would be material to cull out an extract therefrom :