JUDGMENT : Heard Mr. Aloria, learned advocate for petitioner and Mr. Rathod, learned advocate for respondent. 2. In present petition, the petitioner has challenged award dated 17.9.2014 passed by learned Industrial Tribunal in Reference (ITN) No. 74 of 2010 whereby the learned Tribunal set aside the disciplinary authority's order imposing penalty of stoppage of 5 increments. The learned Tribunal set aside the said order of the disciplinary authority and, instead, the learned Tribunal substituted the penalty with order imposing penalty of stoppage of 1 increment with future effect. 3. So far as factual backdrop is concerned, it has emerged from the record that the respondent herein is employed by the petitioner corporation as Conductor. The respondent was on duty on 25.9.2008 on a bus which was enroute from Ujjain to Anand. On the way, the checking squad boarded the bus and checked the passengers and the tickets issued by the Conductor and during the course of checking, the squad found that the concerned workman had received fare from 2 passengers but had not issued tickets. The checking squad reported the said misconduct to the competent authority. 3.1 Thereupon, charge sheet came to be issued and domestic inquiry was conducted in pursuance of the charge sheet. The inquiry officer conducted domestic inquiry and upon conclusion of the inquiry, the inquiry officer submitted his report along with the findings. The inquiry officer, upon appreciation of evidence available on record of the domestic inquiry, held and declared that the charge and allegations against the workman (delinquent) are proved. 3.2 The competent authority examined the report and findings of the inquiry officer. 3.3 Since the disciplinary authority concurred with the findings and conclusion recorded by the inquiry officer, 2nd show cause notice was issued and served to the workman (respondent herein). 3.4 After considering the material on record, gravity of misconduct as well as the past service record of the concerned workman (which was found to be tainted and filled with 18 defaults) the competent authority imposed penalty vide order dated 30.7.2009 of stoppage of 5 increments with future effect. 3.5 The concerned workman, without availing departmental remedy (appeal before the first appellate authority and second appellate authority) raised industrial dispute. 3.6 Appropriate government referred the dispute for adjudication to learned Industrial Tribunal at Nadiad. 3.7 The learned Tribunal registered the dispute as Reference (ITN) No. 74 of 2010. 3.5 The concerned workman, without availing departmental remedy (appeal before the first appellate authority and second appellate authority) raised industrial dispute. 3.6 Appropriate government referred the dispute for adjudication to learned Industrial Tribunal at Nadiad. 3.7 The learned Tribunal registered the dispute as Reference (ITN) No. 74 of 2010. 3.8 During the proceedings, the claimant filed his statement of claim wherein he claimed that he had issued tickets to all passengers and had closed the way-bill, however, enroute when the bus was parked, without his knowledge, two passengers boarded the bus and therefore, he could not issue tickets to them. With such explanation in his statement of claim, the claimant workman challenged the disciplinary authority's order dated 30.7.2009 and he alleged that the order passed by the disciplinary authority is illegal, arbitrary and in violation of principles of natural justice. With such allegations, the claimant demanded that the order of penalty should be set aside and the monetary loss caused to him on account of said order should be compensated. 3.9 The opponent corporation opposed the reference as well as demand by the claimant. The corporation, in its written statement, mentioned the details about the event occurred on 25.9.2008, i.e. the details about the misconduct. The corporation clarified that the claimant had collected Rs.70 from two passengers (Rs.35 per passenger) towards fare, however, he did not issue tickets to said two passengers and that therefore, the charge sheet was issued and domestic inquiry was conducted in accordance with the principles of natural justice. The corporation also submitted that the Inquiry Officer held that the charge is proved and therefore, the disciplinary authority passed order of penalty. The corporation also submitted that the corporation took lenient view and instead of terminating service of the claimant, for serious misconduct, the competent authority imposed lesser penalty viz. stoppage of 5 increments with future effect and that therefore, there is no scope or justification to set aside the said penalty. 3.10 The learned Tribunal received evidence from both sides and also heard rival submissions by contesting parties. stoppage of 5 increments with future effect and that therefore, there is no scope or justification to set aside the said penalty. 3.10 The learned Tribunal received evidence from both sides and also heard rival submissions by contesting parties. Upon conclusion of the proceedings, learned Tribunal passed impugned order whereby the learned Tribunal exercised jurisdiction under Section 11-A and reduced the penalty determined by the employer, inasmuch as learned Tribunal set aside the order passed by the disciplinary authority and instead of penalty of stoppage of 5 increments, learned Tribunal imposed penalty of stoppage of one increment with permanent effect. Feeling aggrieved by the said decision and order by learned Tribunal, the corporation has taken out this petition. 4. Learned advocate for the petitioner corporation assailed the award. Learned advocate for the petitioner corporation submitted that the checking squad, during checking of the bus, detected that the claimant had collected fare from two passengers (Rs.70 for two tickets), but he did not issue tickets to said passengers and thereby, he committed misconduct. Learned advocate for the petitioner submitted that the said misconduct was reported by the checking squad and the corporation instituted departmental proceedings by serving charge sheet. He further submitted that a domestic inquiry was conducted in accordance with principles of natural justice wherein full opportunity of hearing and defence was granted to the concerned workman and upon conclusion of the proceedings of the inquiry, the Inquiry Officer, after considering material available on record, held and declared that the misconduct and the charge are proved. 4.1 Learned advocate for the petitioner corporation further submitted that the disciplinary authority, while determining the quantum of penalty in respect of the misconduct, examined past service record of the claimant and found that the claimant's past record is tainted with as many as 18 defaults/misconduct. In that view of the matter, ordinarily, the corporation would have terminated the service of the workman, however, the corporation took lenient view and imposed penalty of stoppage of 5 increments with permanent effect. Learned advocate for the petitioner corporation submitted that the learned Tribunal committed error in interfering with the order of disciplinary authority and said quantum of penalty. In that view of the matter, ordinarily, the corporation would have terminated the service of the workman, however, the corporation took lenient view and imposed penalty of stoppage of 5 increments with permanent effect. Learned advocate for the petitioner corporation submitted that the learned Tribunal committed error in interfering with the order of disciplinary authority and said quantum of penalty. According to the corporation, the learned Tribunal exercised power and authority under Section 11-A with material irregularity and arbitrarily and that therefore, the award deserves to be set aside and the order passed by the disciplinary authority deserves to be restored. 5. Mr. Rathod, learned advocate for the respondent workman vehemently opposed the submissions by learned advocate for the petitioner corporation. He submitted that the learned Tribunal is justified in accepting the explanation by the workman that two passengers had boarded the bus without his knowledge and the workman (concerned conductor) had no idea about the fact that two passengers boarded the bus when the bus was parked. He submitted that the conductor had, on his own, recorded a statement of the co-passenger and the said statement was relied on by the workman before the Inquiry Officer and the learned Tribunal. He submitted that the said statement of co-passenger supported the explanation by the workman and that therefore, the learned Tribunal has not committed any error in reducing the penalty by setting aside the order passed by the disciplinary authority. 6. I have considered rival submissions and material available on record as well as the impugned award. 7. A conductor, when he is on duty aboard the bus carrying passengers, holds a position of trust and confidence for the corporation and he works as a trustee of the corporation's property namely the fare collected from the passengers. It is the duty and obligation of the conductor to ensure that the passengers who board the bus are issued tickets as per the rules, i.e. by taking into account number of passengers the destination and proper rate of fare to be charged. The conductor by not issuing tickets even after collecting the fare and/or not collecting fare and not issuing tickets or issuing tickets at lower rate than the prescribed and actual fare are instances which fall not only within purview of misconduct, but also within purview of corruption and misappropriation. 8. The conductor by not issuing tickets even after collecting the fare and/or not collecting fare and not issuing tickets or issuing tickets at lower rate than the prescribed and actual fare are instances which fall not only within purview of misconduct, but also within purview of corruption and misappropriation. 8. In present case, the claimant was charged with the allegation that he collected Rs.70 towards fare from two passengers (Rs.35 per ticket), however, he did not issue tickets to the said passengers. The said conduct of the claimant came to the notice of the checking squad when the checking squad boarded the bus on the way and checked the passengers and the tickets issued to them. 8.1 It is obvious that if the checking squad had not boarded and checked the passengers and tickets issued to them, then, the instance and the conduct of the claimant would not have come to the notice of the corporation and he would be escaped with fare collected by him which would result into loss to the corporation. However, the checking squad detected the instance and reported the misconduct to the corporation. 8.2 In that view of the matter, the corporation initiated departmental proceedings by serving a charge sheet to the claimant. Upon conclusion of domestic inquiry, the disciplinary authority considered the conclusions and findings recorded by the Inquiry officer. The disciplinary authority also considered past service record of the conductor and thereupon passed order of penalty i.e. stoppage of 5 increments with future effect. Thus, the order passed by the disciplinary authority was short of a discharge or dismissal. 8.3 The concerned workman felt aggrieved by the said order and challenged the order passed by disciplinary authority before the learned Tribunal. 9. At this stage, it is pertinent to note that the respondent defended himself and his conduct as well as charge against him by offering explanation that two passengers boarded the bus when the bus was parked and he did not notice that the said passengers had boarded the bus and therefore, he did not issue tickets to the said passengers. 9.1 Such explanation, in the first phase, is not palatable at all. 9.2 Besides this, the explanation itself exhibits negligence in performance of duty by the claimant. 9.1 Such explanation, in the first phase, is not palatable at all. 9.2 Besides this, the explanation itself exhibits negligence in performance of duty by the claimant. 9.3 Further, the bus, was undisputedly, not filled with passengers, inasmuch as when the checking squad boarded the bus and checked the passengers, it was noticed that there were only 18 passengers in the bus. In that event, addition of two passengers could not have gone unnoticed and would not escape attention of the conductor. However, the conductor (present respondent), according to his own statement, did not take notice of two additional passengers in the bus and did not issue tickets. The said conduct itself constitutes misconduct on the part of the respondent. 9.4 This is one part of the incident. 9.5 The other part is the fact that the checking squad had recorded statement of passengers and had also recorded statement of concerned workman. The statement recorded by the checking squad did not support the say of the concerned workman. The Inquiry Officer considered the said material as well as the material which the concerned workman placed on record of domestic inquiry. After considering entire material available on record, the Inquiry Officer reached to the conclusion that the misconduct and charge are proved. He, accordingly, submitted the findings/report with said conclusion to the disciplinary authority. 10. So as to determine the quantum of penalty, the disciplinary authority examined past service of the concerned workman and found that the service record of the concerned workman (present respondent) is filled with 18 defaults/misconduct. Despite such tainted record of the concerned workman, the disciplinary authority took a lenient view and imposed penalty of stoppage of 5 increments with permanent effect. The said decision of the disciplinary authority was under challenge before the learned Tribunal. 11. At this stage, it is relevant and necessary to note that the claimant admitted legality and propriety of the domestic inquiry. The concerned workman filed a pursis and declared that he admits legality and propriety of the inquiry and does not challenge said proceedings, however, he kept open the challenge against findings of the Inquiry Officer. Thus, the legality of the inquiry was not in dispute before the learned Tribunal and it was admitted as well as undisputed position before the learned Tribunal that before imposing penalty, the corporation had conducted legal and fair inquiry. Thus, the legality of the inquiry was not in dispute before the learned Tribunal and it was admitted as well as undisputed position before the learned Tribunal that before imposing penalty, the corporation had conducted legal and fair inquiry. 11.1 Thereafter, the learned Tribunal took up the issue about findings of Inquiry Officer. 11.2 In this context, it is relevant to note that the learned Tribunal itself has imposed penalty of stoppage of one increment with permanent effect. Such decision of the learned Tribunal establishes the fact that the learned Tribunal found that the conduct of the workman constituted misconduct and that the misconduct is proved and it deserved penalty. 11.3 However, the Tribunal weighed the penalty by its own subjective standard and formed opinion that penalty determined by the corporation was harsh. 11.4 It is also pertinent to note that the learned Tribunal also found that the workman's past service record is tainted and filled with 18 defaults/misconduct. 11.5 Having regard to said fact, learned Tribunal itself observed in the award that the facts of the case justify imposition of penalty. 12. In light of said observation, it emerges that the learned Tribunal also found that the case deserved and warranted order of penalty. 13. In this background, the question which would arise is as to whether the learned Tribunal, after having reached to the conclusion that legal and fair inquiry was conducted by the employer, could have interfered with the quantum of penalty when the learned Tribunal itself found that misconduct is proved and it calls for penalty, acted within its bound and exercised power in legal and fair manner and whether there was scope and justification to exercise power under Section 11A of the Act. 14. On this count, it is appropriate to mention at this stage that in present case, learned Tribunal has not recorded any specific conclusion to the effect that the findings recorded by the Inquiry Officer in his report are perverse. 14.1 Learned Tribunal did not find the conclusion of the Inquiry officer perverse or arbitrary or without support of evidence. 14. On this count, it is appropriate to mention at this stage that in present case, learned Tribunal has not recorded any specific conclusion to the effect that the findings recorded by the Inquiry Officer in his report are perverse. 14.1 Learned Tribunal did not find the conclusion of the Inquiry officer perverse or arbitrary or without support of evidence. 14.2 In absence of conclusion to the effect that the Inquiry Officer's findings are perverse, it was not proper and justified or even permissible for the learned Tribunal to interfere with the decision of the disciplinary authority, more so when the disciplinary authority had imposed penalty which was short of discharge or dismissal. 15. It is also pertinent to note that in present case, it was not the case of the claimant and even learned Tribunal has not recorded finding and observation that the disciplinary authority/corporation acted malafide and by way of victimization. There is no case and/or conclusion with regard to victimization. 15.1 Thus, on one hand, it is established that the legal and fair inquiry was conducted whereas on the other hand, there is conspicuous absence of evidence of victimization and malafides. 15.2 In this background, the scope to interfere with the order of disciplinary authority was very limited and restricted. 15.3 In this context, a profitable reference can be had to the observation by Hon'ble Apex Court in case of South Indian Cashew Factories Workers' Union v. Kerala State Cashew Development Corporation Ltd. & Ors. [ (2006) 5 SCC 201 ]. 16. When present case is examined in light of above quoted observations, then, it becomes clear that in present case, learned Tribunal transgressed its jurisdiction and it overlooked the restriction which is inbuilt in Section 11-A of the ID Act. 17. On reading the award, it comes out that learned Tribunal has proceeded on presumptions and assumptions. 17.1 It is pertinent to note that the claimant tried to rely on a statement of co-passenger which he allegedly recorded, on his own, at the relevant time. 17.2 It is pertinent that said statement was not recorded in presence of members of the checking squad since signature of the member of checking squad were not obtained on the said statement. Under the circumstances, the onus to prove said statement was on the claimant which he could not and did not discharge. 17.2 It is pertinent that said statement was not recorded in presence of members of the checking squad since signature of the member of checking squad were not obtained on the said statement. Under the circumstances, the onus to prove said statement was on the claimant which he could not and did not discharge. This aspect is overlooked and ignored by the learned Tribunal. 17.3 When the claimant failed to prove the contents of the statement on which he placed reliance and when the claimant also failed to prove that the signature on the said statement is of one of the co-passengers, i.e. when he failed to prove the signature of the co-passenger, the said statement could not have been accepted and relied upon by the learned Tribunal as cogent evidence. 18. Besides this, it is also relevant to note that learned Tribunal has observed in the award that the claimant had no ill-intention of not issuing tickets to the said passengers. 18.1 When relevant fact was proved i.e. when it was proved that tickets were not issued to two passengers, it was not proper or permissible for the learned Tribunal to ignore the proved fact on the basis of intention of the claimant. 19. The learned Tribunal also got influenced by the claimant's submission that the corporation failed to prove that the claimant had misappropriated the fare by not issuing the tickets because the checking squad had, at the relevant time, not checked the cash in the hands of the conductor – claimant. 19.1 In this context, it is pertinent to note that the fact that tickets were not issued is not disputed even by the concerned employee. 19.2 The fact that the concerned two passengers themselves in their statement (which was recorded in presence of the claimant and also signed by concerned passengers in presence of the claimant and also co-signed by the claimant himself) stated before the checking squad that they had paid the fare but the conductor did not issue tickets. Under the circumstances, there was no ground for the learned Tribunal to assume the fact that the claimant did not misappropriate the amount. 20. Besides this, even if only for the sake of examining the issue, said defence of the claimant is assumed to be correct, then also, it can not be ignored that not collecting fare and/or not issuing tickets itself is a misconduct. 20. Besides this, even if only for the sake of examining the issue, said defence of the claimant is assumed to be correct, then also, it can not be ignored that not collecting fare and/or not issuing tickets itself is a misconduct. 20.1 It is also breach of trust. It is also a form of corruption. 20.2 Thus, even if it is assumed that the claimant had not collected fare then also the claimant cannot escape from the purview of misconduct. 20.3 It is the duty and obligation of the conductor to ensure that all passengers aboard the bus are issued appropriate tickets and fare at prescribed rates is collected from them. 20.4 It cannot be ignored that by not collecting fare and not issuing tickets, the conductor would cause monetary loss to the corporation. 20.5 It would also amount to showing undue favour to the passengers at the cost of corporation. 20.6 A conductor is not permitted to do so. Such conduct amounts to not only misconduct, but it is one mode and form of corruption. 20.7 Such conduct by an employee, who while aboard the bus as a conductor, enjoys the position of trust and confidence and acts as a trustee of the corporation and it is his duty to safeguard the interest of the corporation. His such conduct would not only amount to misconduct but also corruption and such conduct by a person holding post of trust cannot be viewed lightly. Unfortunately, learned Tribunal failed to appreciate this position. 21. On reading the award, it becomes clear that this case is classic instance of undue charity by the learned Tribunal at the cost of corporation. 21.1 The learned Tribunal has, without realizing or appreciating the gravity of the conduct of the claimant and without appreciating the effect of such conduct, interfered with the quantum of penalty determined by the disciplinary authority. 21.2 There was no scope, much less any justification, for learned Tribunal to show such undue sympathy. 21.3 It is not for the learned Tribunal to weigh the quantum of penalty in golden scales and/or by its own standards of discipline, misconduct and appropriate quantum of penalty. The discretion to determine quantum of penalty in case of proved misconduct is within the realm of the employer. 21.3 It is not for the learned Tribunal to weigh the quantum of penalty in golden scales and/or by its own standards of discipline, misconduct and appropriate quantum of penalty. The discretion to determine quantum of penalty in case of proved misconduct is within the realm of the employer. The learned Tribunal would not interfere with said decision unless it is established that the employer acted with malafide and to victimize the employee and that the quantum of penalty determined by the employer is shockingly disproportionate or that it hinges on the verge of victimization. In present case, learned Tribunal has not recorded any findings to this fact and without holding that the corporation acted to victimize the claimant and/or that the penalty is shockingly disproportionate or even without recording that the quantum of penalty determined by the disciplinary authority is such which any reasonable and prudent employer would not impose in such case, learned Tribunal could not and should not have interfered with the order dated 30.7.2009 passed by the disciplinary authority. 22. In present case, the learned Tribunal exercised the jurisdiction and authority under Section 11-A of the ID Act arbitrarily and with material irregularity. 23. The learned Tribunal should keep in focus that the power and authority under Section 11-A should not be used and exercised to show undue sympathy and deserving case and undeserving case should be distinguished judiciously. 24. In present case, though it was placed before the learned Tribunal that the claimant's past service record is also tainted and filled with 18 defaults/misconduct, learned Tribunal interfered with penalty and substituted the penalty with the order which it considered appropriate/proper from learned Tribunal's view point. Such substitution of penalty by learned Tribunal is unjustified, impermissible and arbitrary exercise of power. When the Court does not countenance or tolerate arbitrary action of the employer, then the Court itself also should restrain itself in exhibiting arbitrariness and/or in showing the undue sympathy in undeserving case. 24.1 For the above mentioned reasons, the award impugned in present petition cannot be sustained. 25. It has emerged from the plain reading of the award and the facts of the case that in present case, learned Tribunal exercised jurisdiction arbitrarily and with material irregularity. This is also a case where learned Tribunal has shown undue sympathy and it has been too lenient to undeserving claimant. 25. It has emerged from the plain reading of the award and the facts of the case that in present case, learned Tribunal exercised jurisdiction arbitrarily and with material irregularity. This is also a case where learned Tribunal has shown undue sympathy and it has been too lenient to undeserving claimant. There was no scope much less any justification to interfere with the penalty determined by the disciplinary authority viz. stoppage of 5 increments with permanent effect. Despite this position, learned Tribunal interfered with the penalty and substituted the disciplinary authority's order by its own order whereby the learned Tribunal reduced the penalty to stoppage one increment with permanent effect. 25.1 The said decision and direction by learned Tribunal deserves to be set aside and is, consequently, hereby set aside. The order passed by the disciplinary authority is restored. With aforesaid observations and clarifications, present petition is partly allowed. The petition, accordingly, stands disposed as allowed. Rule is made absolute to aforesaid extent.