JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Counsel for the petitioner Sri Samir Sharma at length, the Standing Counsel for representing respondent Nos. 1 and 2 and Sri H.K. Mishra Counsel for respondent No. 3, the workman concerned Sri Ram Nath Nishad. 2. This petition is directed against the award of the Labour Court dated 21.5.1993 (published on 18.11.1993), passed by Industrial Tribunal (I) at Allahabad. By the impugned award, the Labour Court has set aside the punishment of removal from service of the workman concerned and has decided reference in favour of him holding that his removal from service on 25.2.1989 is improper and bad in law, and that he is entitled to be reinstated with full back wages except to the extent he was gainful employee during the period he was out of job. The Industrial Tribunal also granted continuity of service and other benefits admissible to him in accordance with law. 3. The brief facts of the case are that the workman concerned was a conductor in U.P. Rajya Sadak Pariwahan Nigam through Chhetriya Prabandhak, Patel Marg (Rajapur), Allahabad. He was suspended on 4.6.1980 and was thereafter reinstated provisionally on 21.02.1982. Thereafter a charge-sheet on 21.2.1986 regarding temporary embezzlement of the amount collected by sale of tickets was issued to him. 4. The charge-sheet was replied by the workman concerned and enquiry was set up. The Enquiry Officer submitted his report inter alia that the workman concerned was somewhat careless but had not ill motive and the charge of temporary embezzlement was not proved. The workman was however dismissed from service from 25.2.1989 after serving of a show-cause notice. The remaining salary of suspension period was also forfeited by the employee while terminating the service of the workman. Aggrieved by his order of dismissal, the workman concerned represented the higher authorities but the order of his termination was maintained by the employer. 5. In the aforesaid backdrop circumstances, the workman concerned respondent No. 3 raised an industrial dispute for his reinstatement and continuity in service as well as for remaining wages of suspension period and back wages and all other benefits admissible to him in accordance with law. 6. 5. In the aforesaid backdrop circumstances, the workman concerned respondent No. 3 raised an industrial dispute for his reinstatement and continuity in service as well as for remaining wages of suspension period and back wages and all other benefits admissible to him in accordance with law. 6. Conciliation proceedings have failed, the Deputy Labour Commissioner, Allahabad by his order dated 11.10.1991 referred the following matter of dispute in exercise of his powers under Section 4K of the U.P. Industrial Disputes Act, 1947, for adjudication by the Industrial Tribunal, Allahabad. ÞD;k lsok;kstdksa }kjk vius Jfed Jh jke ukFk fu"kkn dh lsok;sa fnukad 25-2-1989 ls lekIr dj fn;k tkuk mfpr rFkk vFkok oS/kkfud gS\ ;fn ugha rks lEcfU/kr Jfed D;k ykHk vuqrks"k ikus dk vf/kdkjh gSa vU; fdl fooj.k lfgr\Þ 7. On receipt of summons from the Tribunal, the parties filed their respective written statements and rejoinder statements reiterating their stand. Preliminary issue regarding fairness of domestic enquiry was framed and decided by the Industrial Tribunal vide its order dated 26.03.1993 holding that the enquiry held by the Industrial Tribunal was fair and proper and did not suffer from any illegality or failure of principles of natural justice. 8. Thereafter, the parties were given opportunity to give evidence etc. on question of quantum of punishment. 9. The Labour Court after appreciating the evidence of the parties held that stand of the employer, that workman had been somewhat careless in not depositing the cash collected by sale of tickets immediately in the office but as he had deposited the amount on the same day was incorrect and that the workman was awarded too harsh a punishment inspite of the inquiry report. The Court also held that there being no evidence on record to show any embezzlement of the aforesaid amount by its embezzled was not proved by the employer. 10. the findings of the Labour Court are as follows : “To my mind on the aforesaid report the employer has patiently heard and dealt with the workman too harshly. The punishment awarded by the employer cannot be sustained in the eye of law. It deserves to be set aside and accordingly I set aside the punishment awarded by the employer to the workman concerned. The punishment awarded by the employer cannot be sustained in the eye of law. It deserves to be set aside and accordingly I set aside the punishment awarded by the employer to the workman concerned. It is note-worthy that the workman concerned had been in suspension at the first instance for a period of three years thereafter he has transferred to hill area and in the year 1986 he was charge-sheeted and on the report of the enquiry officer he has been found only careless and having no ill dishonest notice yet he has been removed from service by the employer. Really punishment is too harsh. In the facts and circumstances of this case a warning and censor entry against the workman would have met the ends of justice. Therefore, I direct the employer to make relevant entry in the character roll of the workman concerned. Since the punishment being too harsh has been set aside as indicated above, the natural result is that the workman concerned deserves reinstatement and continuity in service.” 11. The Labour Court also dealt with suggestions of the employer that workman concerned is not entitled to full back wages. Relying upon 1992 (84) FLR 412, Chairman Krishi Utpadan Mandi Samiti and another v. Labour Court, Allahabad and others as well as 1978 (37) FLR 340, the Labour Court held that the employer has patently erred in removing the workman concerned and forfeited his remaining salary for the suspension period and that the only punishment which could have been awarded to the workman concerned could have been a warning or censor entry in his character roll. It further held that as the punishment awarded to the workman was found to be too harsh he was entitled to be reinstated with full back wages and other benefits admissible to him in accordance with law including the remaining salary of the suspension period. 12. The Counsel for the petitioner has assailed the award on the ground that the Enquiry Officer in the departmental proceeding as well as Industrial Tribunal had failed to appreciate that mens rea is not an essential ingredient in departmental proceeding for establishing guilt of a person. 12. The Counsel for the petitioner has assailed the award on the ground that the Enquiry Officer in the departmental proceeding as well as Industrial Tribunal had failed to appreciate that mens rea is not an essential ingredient in departmental proceeding for establishing guilt of a person. It is submitted that the “Industrial Tribunal has also failed to appreciate that non-adherence of the departmental rules and regulations as contained in the Roadways Manual defining the duties, functions and responsibilities of the conductor as given in Rule 24 (XXII) was not only indicative of gross misconduct but also of utter laxity and negligence cannot be condoned. 13. It is urged that the workman concerned was handling public money and therefore he ought to have taken utmost care of it, as such the direction of the Tribunal for his reinstatement with full back wages and continuity of service of respondent No. 3 in view of law propounded in 1991 (63) FLR 184, U.P. State Electricity Board and another v. State of U.P. and others. In that case the workman was employed as Sub Station Assistant. It was mentioned that his appointment was temporary and that his services were liable to be terminated at any time without notice and without assigning any reason. His services were terminated on 27.4.76 with immediate effect on ground that it were no more required. The workman had raised an industrial dispute which was not referred by the State Government. On second occasion the dispute was referred to Labour Court which by its award dated 31.8.89 decided this reference in favour of the workman directing him to be reinstated in service and for payment of the entire arrears of salary with continuity of service and other emoluments. The award was challenged in aforesaid C.M.W.P. No. 5039/1990. It is in the aforesaid backdrop that the Court held that as about 15 years have already passed and he would be attaining the age of superannuation i.e. 58 years in about 3 years time hence reinstatement for such a short time after such a long gap would not be in the interest of justice. In the circumstances considering that there were serious charges and employers had pleaded loss of confidence in the workman as well as the fact that his salary was Rs. 385/- per month at the time of termination of his service the Court awarded Rs. In the circumstances considering that there were serious charges and employers had pleaded loss of confidence in the workman as well as the fact that his salary was Rs. 385/- per month at the time of termination of his service the Court awarded Rs. one lakh as compensation instead of reinstatement. The facts of the aforesaid case are different from the instant case at hand. 14. It is not the case of the department that there was in fact any embezzlement by the workman concerned. What appears from the facts is that he had not deposited the cash collected from passenger immediately in the office when the bus reached the bus station but deposited it after some time on same day. What were the factors due to which workman concerned had not deposited the amount immediately has not come out on the record. In fact, in the enquiry conducted by the department, the Enquiry Officer has clearly stated in his report that there was no ill motive of the workman. The Labour Court has also come to this conclusion and therefore considering the facts and circumstances of the case, it cannot be said that the workman had embezzled the amount even temporary. He had not kept it with himself even for a day but had deposited the same in the office though not immediately on reaching the office. There is no time limit framed in the regulations for depositing the amount in the same day in the office. It is not that workman had not taken care of money collected from the passenger as he would have taken care of his own property. No amount was lost by him. There was no shortage of any amount there. He had deposited the whole amount which he had collected from the passengers. 15. In the facts and circumstances, it cannot be said that the workman had violated any rules or regulations in depositing the amount after some time after disembarking from the bus and not immediately. The Industrial Tribunal on the basis of the evidence before it has rightly come to the conclusion that the punishment awarded by the petitioner to the respondent workman was too harsh and disproportionate to the charge. 16. In the facts and circumstances of this case, no interference is called for in the findings recorded by the Tribunal. The Industrial Tribunal on the basis of the evidence before it has rightly come to the conclusion that the punishment awarded by the petitioner to the respondent workman was too harsh and disproportionate to the charge. 16. In the facts and circumstances of this case, no interference is called for in the findings recorded by the Tribunal. The workman has already retired few years ago and has not been able to get even single penny inspite of interim order passed by this Court dated 21.3.1994 wherein the Court had directed : “Upto 31st July, 1994, the operation of the Award dated 21.5.1993 shall remain stayed provided the petitioner reinstates the workman and deposit half of the back wages. The wages so deposited, shall not be withdrawn by the workman till further order.” 17. He is fact had moved an urgent application as well as a modification application inter alia he was unable to get the amount deposited by the employer as he has retired from service and is unable to give any bank guarantee as directed in the interim order aforesaid. This modification application remained pending till today. 18. For the reasons stated above, the writ petition fails and is dismissed. It is further directed that the amount deposited by the petitioner with the Registrar General under order dated 21.3.1994 shall be released to the workman concerned on an application made by him forthwith without furnishing any security within a period of one week from his making an application in this regard. 19. No orders as to costs. ————