JUDGMENT : K.M. Thaker, J. 1. In this petition, the petitioner-Gujarat State Road Transport Corporation [hereinafter referred to as "the corporation"] has challenged award dated 22.5.2002 passed by the learned Labour Court, Bhuj-Kutch in Reference (LCB) No. 654 of 1996 (Old Reference (LCR) No. 254 of 1994) whereby the learned Labour Court has directed the petitioner corporation to reinstate the respondent in service on his original post with continuity of service, however, without backwages. 2. The respondent was employed as conductor with the petitioner corporation. His service came to be terminated pursuant to domestic inquiry in respect of alleged misconduct of re-issuing/punched tickets and not issuing tickets after collecting fare and other charges. The respondent felt aggrieved by the order terminating his service and he raised industrial dispute against the termination order dated 17.11.1993. The dispute was referred for adjudication to the learned Labour Court and upon conclusion of the proceedings, the learned Labour Court passed the impugned award with aforesaid directions. 3. So far as factual background is concerned, it has emerged from the record that on 4.11.1992, the respondent was on duty as conductor on corporation's bus which was enroute from Dudhai to Kotda. The checking squad embarked the bus and conducted the checking during which following irregularities amounting to misconduct were noticed by the checking squad:- "i. The table of the fare was in a dilapidated condition. ii. The respondent did not issue tickets to two lady passengers travelling from Dudhai to Kotada inspite of collecting fare of Rs. 2/- from them and thereby pocketed the said amount. On seeing the checking squad, the respondent tried to issue tickets but could not punch them properly. iii. One passenger traveling from Dudhai to Kotada was issued used ticket after collecting fare of Re. 1/- and the unpunched ticket was taken in possession and thereby pocketed the said amount. iv. Two passengers travelling from Dudhai to Navagam were issued used tickets after collecting fare of Rs. 2/- and the unpunched tickets were taken in possession and thereby pocketed the said amount. v. Two passengers and a minor traveling from Dudhai to Navagam were issued two and a half used tickets after collecting fare of Rs. 3/- and the unpunched tickets were taken in possession and thereby pocketed the said amount. vi. 2/- and the unpunched tickets were taken in possession and thereby pocketed the said amount. v. Two passengers and a minor traveling from Dudhai to Navagam were issued two and a half used tickets after collecting fare of Rs. 3/- and the unpunched tickets were taken in possession and thereby pocketed the said amount. vi. The respondent did not issue tickets to one passenger travelling from Dudhai to Navagam inspite of collecting fare of respondent. 1/- from the passenger and thereby pocketed the said amount. The unpunched ticket was taken in the possession. vii. The respondent did not issue ticket to one passenger traveling from Dudhai to Kotada inspite of collecting fare from the passenger and thereby pocketed the said amount. The unpunched ticket was taken in the possession. viii. The respondent did not show the particulars regarding the sold tickets in the way-bill. ix. Inspite of the fact that as per the fare table, the fare of one ticket from Dudhai to Navagan and Dudhai to Kotada is Rs. 1.25, the respondent collected fare of only respondent. 1/- and therefore, the balance amount of Rs. 1.50 was ordered to be recovered from the respondent." 3.1. The checking squad recorded statements of passengers and subsequently, reported the said incident to the competent authority. After considering the report of the checking squad and supporting material, the petitioner corporation decided to conduct domestic proceedings against the respondent for the alleged misconduct. Therefore, a charge-sheet dated 11.11.1992 alongwith a statement of allegations was served to the respondent and after considering his explanation/reply, departmental inquiry was initiated. The respondent participated in the domestic inquiry. According to the petitioner corporation, sufficient opportunity of hearing was granted to the respondent. The respondent had examined witness to support and justify his statement of defence. Upon conclusion of the proceedings of the domestic inquiry, the inquiry officer submitted his report. The inquiry officer held that the charge/allegations against the workman are proved. Thereafter, second show cause notice was served to the respondent and alongwith the notice, report of the inquiry officer was also provided. The respondent filed his reply to the show cause notice dated 4.11.1993. The disciplinary authority considered the report of the inquiry officer and the material available on record of the inquiry as well as the respondent's reply/explanation. Thereafter, second show cause notice was served to the respondent and alongwith the notice, report of the inquiry officer was also provided. The respondent filed his reply to the show cause notice dated 4.11.1993. The disciplinary authority considered the report of the inquiry officer and the material available on record of the inquiry as well as the respondent's reply/explanation. The disciplinary authority agreed with the conclusion of the inquiry officer and found that the charge/allegations are proved which deserved and justified penalty of dismissal from service. Therefore, the disciplinary authority passed the order dated 17.11.1993. 3.2. Feeling aggrieved by the said dismissal order, the respondent filed appeal before the appellate authority. The appellate authority dismissed the appeal. Feeling aggrieved by the said orders, the respondent raised industrial dispute which as aforesaid came to be referred by appropriate government for adjudication to the learned Labour Court, Bhuj-Kutch and was registered as Reference (LCB) No. 654 of 1996 (new number). During the proceedings before the learned Labour Court, the respondent filed his statement of claim and alleged that his service was terminated illegally. He challenged the findings of the inquiry officer as incorrect and also claimed that he had not committed any misconduct and the findings by the inquiry officer are perverse and the authorities have acted arbitrarily in terminating his service. With such allegations, the respondent prayed for reinstatement with consequential benefits. 3.3. The reference was opposed by present petitioner who filed his written statement wherein it mentioned the details about the checking of the bus when the respondent was on duty and the report of the checking squad and the details related to the inquiry as well as inquiry officer's report and the disciplinary authority's order and rejection of the appeal. 3.4. During the proceedings before the learned Labour Court, the respondent filed pursis declaring that the legality and propriety of the departmental inquiry is not challenged and it is admitted. The respondent, however, challenged the findings of the inquiry officer as incorrect, erroneous and unjustified. 3.5. It appears that though the respondent did not challenge the legality of the inquiry, the learned Labour Court, without recording conclusion that the findings are perverse, recorded evidence and after concluding the stage of evidence and hearing of arguments by contesting parties, passed the award. 4. 3.5. It appears that though the respondent did not challenge the legality of the inquiry, the learned Labour Court, without recording conclusion that the findings are perverse, recorded evidence and after concluding the stage of evidence and hearing of arguments by contesting parties, passed the award. 4. Learned advocate for the petitioner corporation submitted that the learned Labour Court has committed error in passing the award. It is claimed that on one hand, the learned Labour Court has observed that the allegations are not proved beyond doubt and on the other hand the learned Labour Court has exercised powers under Section 11-A of the Act. It is submitted that if according to the learned Labour Court, the charge was not proved, then, there was no question of or occasion for exercising power under Section 11-A. It is also submitted that the learned Labour Court recorded the conclusion that the charge/allegations are not proved only on the premise that the petitioner corporation did not examine any witness to prove the charge. According to the petitioner, the learned Labour Court overlooked the fact that in view of nature of the allegations and misconduct, it was not necessary for the corporation to examine witness to prove the charge, inasmuch as the charge/allegations are proved on the basis of the relevant document namely way-bill and the details regarding the tickets which were issued/reissued. Learned advocate for the petitioner corporation submitted that the learned Labour Court has committed error in holding that since any witness was not examined, the allegations are not proved. It is submitted that except the said ground, any other ground for recording such conclusion is not mentioned in the award. Learned advocate for the petitioner further submitted that the learned Labour Court committed error in passing the order and directing the petitioner to reinstate the respondent against whom charge of serious misconduct are, as held by the inquiry officer, proved. Learned advocate for the petitioner relied on the decision in case of U.P. State Road Transport Corporation v. Suresh Chand Sharma [ (2010) 6 SCC 555 ] and the decision in case of Gujarat State Road Transport Corporation v. Jamnagas Panchanabhai Bhilodia [ 2012 (3) GLH 290 ]. 5. Per contra, Mr. Learned advocate for the petitioner relied on the decision in case of U.P. State Road Transport Corporation v. Suresh Chand Sharma [ (2010) 6 SCC 555 ] and the decision in case of Gujarat State Road Transport Corporation v. Jamnagas Panchanabhai Bhilodia [ 2012 (3) GLH 290 ]. 5. Per contra, Mr. Rathod, learned advocate for the respondent workman, submitted that there is no error in the award and the learned Labour Court is right and justified in holding that the charge/allegations against the respondent are not proved. He submitted that there is no error or illegality in exercising power under Section 11-A and holding that the charge/allegations against the respondent is not proved. He submitted that the petitioner corporation did not examine any witness and did not establish any charge or allegation and the inquiry officer had committed error in holding that the charge/allegations against the respondent are proved. According to the learned advocate for the respondent, the conclusion and findings recorded by the inquiry officer are contrary to evidence and unjustified. Learned advocate for the respondent submitted that there is no substance or truth in the allegation that the respondent had re-issued the punched tickets and/or not issued tickets even after collecting fare. He submitted that the allegations are incorrect and have not been proved and therefore, the disciplinary authority should not have passed the order dismissing the respondent from service. According to learned advocate for the respondent, the order of disciplinary authority is unjustified, arbitrary and without any basis or justification. 6. I have considered the material on record and I have also examined the award passed by the learned Labour Court. I have also considered the submissions by learned advocates for the petitioner and the respondent. 7. It is not in dispute that on the date of incident, i.e. 4.11.1992, the respondent herein was on duty as conductor aboard the bus No. 994 which was plying on Dholavira-Bhuj route and at about 5:30 p.m., the checking squad had boarded the bus near Katuda and started checking the passengers and issuance of tickets and noticed that the conductor had resorted to road booking though the bus was local bus. The checking squad also noticed that the respondent had re-used punched tickets and issued such punched tickets to certain passengers whereas from certain passengers, he had received the fare but had not issued tickets. 7.1. The checking squad also noticed that the respondent had re-used punched tickets and issued such punched tickets to certain passengers whereas from certain passengers, he had received the fare but had not issued tickets. 7.1. Upon report of the said facts and alleged dereliction in performance of duty by the respondent, the petitioner initiated domestic inquiry against the respondent. The legality and propriety of the inquiry was not disputed by the respondent. In that view of the matter, the respondent workman had raised dispute/issue with regard to the findings recorded by the inquiry officer in his report. 8. So far as the findings recorded by the inquiry officer is concerned, the learned Labour Court appears to have proceeded on the premise of "requirement of strict proof beyond doubt". 8.1. In the process, the learned Labour Court appears to have overlooked or lost sight of or ignored the position that in domestic inquiry and in disciplinary actions, the principle of "strict proof" or "proof beyond reasonable doubt" is not required and the principle applicable in such cases would be "preponderance of probability". 8.2. From the observations by the learned Labour Court with regard to issue No. 2 (internal page No. 10 of the award and running page No. 28 of the petition), it transpires that the learned Labour Court has proceed on/applied the principle "allegations are not proved beyond doubt" which is evident from the observations in the award. 8.3. The said observation gives out that the learned Labour Court proceeded in the matter on erroneous premise viz. "requirement of prove beyond doubt" and learned Labour Court lost sight of applicable principle i.e. "preponderance of probability". 9. Having proceed on the premise of proof beyond doubt, the learned Labour Court also exercised power and authority available under Section 11-A of the Act. 9.1. The discussion under issue No. 3 gives out that the learned Labour Court has proceeded on the premise that the penalty imposed by the disciplinary authority and confirmed by the departmental authority is harsh. 9.2. 9.1. The discussion under issue No. 3 gives out that the learned Labour Court has proceeded on the premise that the penalty imposed by the disciplinary authority and confirmed by the departmental authority is harsh. 9.2. When the domestic inquiry conducted by the employer is found to be legal and proper and when it is established that the inquiry was conducted in compliance of the principles of natural justice and in just and fair manner and when the charge/allegations against the employee are proved, then, there would not be any justification to exercise power under Section 11-A unless the penalty is found to be excessively harsh and is tainted by victimization. 9.3. In present case, the learned Labour Court has observed that the penalty imposed by the employer is harsh, however, the learned Labour Court has not found that the employer acted with motive of victimization. 9.4. The learned Labour Court took into account the fact that the employer failed to place on record the default card so as to establish as to whether in past the respondent had committed any misconduct or not. A copy of the default card is found at Annexure-F (Page-47 of the petition) which gives out that there were 6-7 instances recorded in the default card which, inter alia, include misconduct of similar nature. 9.5. It is relevant to note that though the learned Labour Court did not reach to the conclusion that the quantum of penalty was decided out of victimization and/or that it suggested/indicated victimization, the learned Labour Court appears to have substituted its own view with regard to quantum of penalty without considering the fact that the quantum of penalty cannot be weighed by the Court in golden scale when the inquiry is not defective and the charge/allegation are proved. In such cases, the decision as regards quantum of penalty would fall within exclusive realm of employer's discretion. 10. At this stage, Mr. Rathod, learned advocate for the respondent workman submitted, under instructions of the respondent that if the respondent is reinstated even without continuity of service, then also, the respondent is ready and willing to accept such modification in the award. He submitted that the award may be modified to the said extent and the petitioner may be directed to reinstate or appoint the respondent even without continuity of service. 11. He submitted that the award may be modified to the said extent and the petitioner may be directed to reinstate or appoint the respondent even without continuity of service. 11. In this background, learned advocate for the petitioner reiterated that the observations by the learned Labour Court that the employer did not examine any witness are made without having regard to the decision by Hon'ble Apex Court in case of U.P. State Road Transport Corporation (supra), it is not necessary for the corporation to examine any passenger/witness to establish the charge when the charge is established with the aid of documents on record. 12. Another important aspect emerging from the award is that the learned Labour Court has not recorded specific and clear finding of fact that the inquiry officer's findings are perverse or not supported by evidence on record. Without recording such finding (and reasons for such finding) and without holding that enquiry was defective and it was not conducted in legal and fair manner learned Labour Court travelled into the realm of penalty and that the quantum of penalty is so excessive and disproportionate that it smacks of victimization, the learned Labour Court exercised power under Section 11-A of the Act to interfere with the quantum of penalty. 13. In this view of the matter and having regard to the fact that the service of the respondent was terminated in 1992 and the award came to be passed in 2002 and in entire process almost 20 years have passed and also having regard to the fact that the learned advocate for the respondent submitted that the learned Labour Court has not granted backwages and if the direction granting continuity of service is also set aside and the reinstatement simpliciter without backwages and without continuity of service is granted/retained, then, the respondent is ready and willing to accept reinstatement and continuity in service. Mr. Rathod, learned advocate for the respondent, also submitted, under instructions of the respondent, that the respondent has no objection even if the petitioner corporation appoints the respondent on any other equivalent post where the respondent is not required to handle cash or deal with the passengers/customers. 14. Mr. Rathod, learned advocate for the respondent, also submitted, under instructions of the respondent, that the respondent has no objection even if the petitioner corporation appoints the respondent on any other equivalent post where the respondent is not required to handle cash or deal with the passengers/customers. 14. Having regard to the material on record, above mentioned submissions by learned counsel for the petitioner and the respondent and in light of the foregoing discussion, it appears that if the award is modified and the order directing continuity of "service is set aside, then, interest of justice would be served. Therefore, following order is passed:- [a] The impugned award is set aside and modified. [b] The order directing reinstatement of the workman is not disturbed, however, the order directing continuity of service is set aside. The decision of learned Labour Court of denying backwages is also confirmed. [c] The petitioner will reinstate/appoint the respondent in service of the corporation, however such reinstatement/appointment would be without continuity of service i.e. it shall be as a fresh employee. [d] It would also be open and permissible for the petitioner corporation to reinstate/appoint the respondent on any other post, however, equivalent to the post of conductor. [e] Necessary action for compliance of the modified award may be taken by the petitioner corporation as expeditiously as possible and preferably within 8 weeks from receipt of certified copy of this order. With aforesaid observations, clarifications and directions, present petition is partly allowed. Rule is made absolute to the aforesaid extent.