The main legal point established is that termination based on charges of misappropriation must be supported by sufficient evidence and must not be with retrospective effect.

S.J. Mukhopadhaya, J.

This Writ Appeal has been preferred by Thanthai Periyar Transport Corporation, Villupuram, {hereinafter referred to as the appellant-Management} against the order dated 13. 1997 passed by the learned single judge in Writ Petition No.8914 of 1997, upholding the Award passed by the first respondent–First Additional Labour court, Madras, in Industrial Dispute No.394 of 1982, dated 312. 1987.

2. The main plea taken by the appellant–Management is that the gravity of the charges, was such that the punishment of termination of the second respondent-workman (hereinafter referred to as the workman) from the services of the Management, is proportionate to the charges levelled against him and that the observation of the first respondent-Labour Court that the workman has suffered mental agony all along on account of his non-employment, would be a sufficient punishment, is unsustainable in law.

3. It appears that the second respondent-workman, while functioning as Conductor, was suspended by the order of the Management, dated 111. 1981 and departmental proceedings were initiated against him. The enquiry officer, having found the workman guilty, the appellant–Management of the Transport Corporation, terminated the services of the second respondent-workman from the services of the Management, by order dated 2. 1982 with retrospective effect from the date of suspension, i.e. from 111. 1981, giving rise to filing of a reference in Industrial Dispute No.394 of 1982 by the workman before the first respondent– First Additional Labour Court, Madras.

.4. The first respondent–First Additional Labour Court, Madras, by the Award dated 312. 1987, in I.D.No.394 of 1982, while holding that it is not a case in which misconduct was said to have been committed by the workman was found out during surprise inspection while the workman was in the bus or by any ticket checking staff and that as stated in the audit objection, it is only with regard to the correction of the entries and it is not as if the audit report has stated that the workman has actually committed misappropriation of the funds of the Management. The first respondent-Labour Court further held that the punishment of termination from the services of the Management, was disproportionate to the charges levelled against him and set aside the order of termination passed by the Management and directed reinstatement of the workman to the services of the Management, with full back-wages and other attendant benefits. The Award of the first respondent-Labour Court, was confirmed by the learned single Judge for the very same reason.

.5. Learned counsel appearing on behalf of the appellant-Management, while referring to the charges, the enquiry report and the Award of the first respondent-Labour Court, submitted that the first respondent-First Additional Labour Court, Madras, having found that the enquiry conducted against the workman, was in accordance with law and the charge of misappropriation of the Management’s exchequer having been proved, the question of showing "un-called for sympathy" by reinstating the second respondent-workman, does not arise and that the order of termination passed by the Management against the workman, was commensurate with the gravity of charges levelled against him.

.Learned counsel appearing on behalf of the appellant-Management of the Transport Corporation placed reliance on the decision of the Supreme Court in the case of “Janatha Bazar {S.K.C. Co-op. Wholesale Stores Ltd}. vs. Scy. Sahakari Noukarara Sangha”, reported in 2000 {6} Supreme 339 and in the said case, the Supreme Court held that, “once act of misappropriation is proved, may be for a small or large amount, there is no question of showing un-called for sympathy and reinstating employee in service".

.6. Learned counsel appearing for the second respondent-workman referred to the enquiry report and submitted that the report is not based on any evidence; in fact, no finding has