2008(4) ALL MR 373
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.Y. CHANDRACHUD, J.

Maharashtra State Road Transport Corporation, Bombay Vs. Prakash Tulshiram Pardeshi

Writ Petition No.1858 of 2003

22nd April, 2008

Petitioner Counsel: Mr. G. S. HEGDE

Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), S.28 - Complaint of unfair labour practice - Principle of estoppel - Respondent employee working as conductor in Petitioners' Transport Corporation - Respondent dismissed from service against the charge that he had misappropriated the funds of the corporation and had been guilty of a dereliction of duties by not issuing tickets to passengers for the journey - Held, it had to be taken seriously both by disciplinary authority and by Labour Court - Order of appellate authority offering for fresh employment to Respondent - Appellate Authority while justifying its own finding, confirmed the order of dismissal - Respondent employee without challenging the order in its entirety, had taken benefit of the order of fresh employment - Once that was done and having taken benefit of the order, held, it was clearly not open to the Respondent to turn back and complain of an unfair labour practice - The Respondent is clearly estopped from doing so. 1997(1) CLR 855 and 2006(I) CLR 587 - Rel. on. (Para 4)

Cases Cited:
State of Punjab Vs. Krishan Niwas, 1997(1) CLR 855 [Para 4]
Union of India Vs. N. M. Dhobi, 2006(I) CLR 587 [Para 4]


JUDGMENT

JUDGMENT :- The Respondent was employed as a bus conductor in the Narayangaon Depot of the Maharashtra State Road Transport Corporation. A charge-sheet was issued to him in which it is alleged that on 26th December, 1993, while he was assigned duties on a bus plying from Mumbai to Manchar, the bus was checked en route when it was found that the Respondent had collected an amount of Rs.40/- from two illiterate passengers who were travelling from Mumbai to Khopoli to whom tickets were not issued. Moreover, an amount of Rs.45/- was found in excess in the money bag of the Respondent. After the disciplinary enquiry was held, an order was passed on 16th August, 1994 by which the Respondent was terminated from service.

2. A departmental first appeal was filed by the Respondent. The Divisional Controller noted in the course of his order that the defence of the Respondent was that he had collected money, but had not issued tickets inadvertently without any evil motive. The Respondent stated that he would not commit such a mistake again. The Appellate Authority held that the misconduct against the Respondent was established and that his record of service was not satisfactory since he had been punished in the past with disciplinary penalty. However, considering that this was the first time that he was dismissed from service, the Appellate Authority entertained the request made by the Respondent and allowed him a chance to improve himself by directing that the Respondent be reinstated in service as and by way of fresh appointment. The order was confirmed by the second Appellate Committee. The Respondent was thereupon re-employed with effect from 10th December, 1994 and he joined the Talegaon Depot as Bus Conductor with effect from that date. In 1996, the Respondent instituted a complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act, 1971. The Labour Court by its order dated 7th March, 2002, came to the conclusion that the discipline and appeal procedure did not provide for an order of re-employment as a disciplinary penalty. The Labour Court noted that under the rules, the Appellate Authority had a power to set aside the order passed by the Competent Authority and substitute its own order by increasing or reducing the punishment. The Labour Court was of the view that in the circumstances, the Appellate Authority could have only substituted the order of dismissal with a penalty as prescribed by the service rules and a direction of fresh employment which was not one of the disciplinary penalties, was vitiated.

3. Counsel appearing on behalf of the Petitioner submitted that under clause 14 of the Discipline and Appeal Procedure the authority to which an appeal lies, is empowered to pass such order as it thinks fit. Hence, it was submitted that the Appellate Authority was justified in directing that an order of fresh appointment can be offered to the Respondent. Moreover, it was urged that in fact the Respondent was estopped from filing a complaint of unfair labour practices.

4. The charges against the Respondent were of a serious nature and character. A disciplinary enquiry was convened to enquire into the allegation that the Respondent while discharging his duties as conductor had collected the fare from two passengers on the bus, but to whom tickets had not been issued. The money bag of the Respondent also showed an excess fare collection. The charge against the Respondent was, therefore, that he had misappropriated the funds of the Corporation and had been guilty of a dereliction of duties by not issuing tickets to passengers for the journey. Such an act of misconduct having been found to be duly established, had to be taken seriously both by the disciplinary authority and by the Labour Court. Upon holding the charge to be established, the Respondent was dismissed from service. The first Appellate Authority, as a matter of fact, came to the conclusion that the charge was established, that it was of a serious nature and that the service record of the Respondent was not satisfactory and he was penalised in the past under the service rules. The final order of the Appellate Authority clearly suggests that the Appellate Authority was inclined to dismiss the appellant from service. However, it was the Respondent who had stated that he would not commit such a mistake in the future and it was on his request that the Appellate Authority eventually decided to make a fresh offer of appointment so as to enable the Respondent to have some opportunity to improve upon himself. The Respondent accepted the order of the Appellate Authority and joined service with effect from 10th December, 1994. Once that was done and having taken the benefit of the order, it was clearly not open to the Respondent to turn back and complain of an unfair labour practice. The Respondent is clearly estopped from doing so. The principle of estoppel must apply in such a case and the Labour Court ought to have rejected the complaint on this ground alone. Counsel appearing on behalf of the Petitioner urged that the powers of the Appellate Authority are wide enough to include an offer of the fresh appointment to the workman. For the purposes of these proceedings, it is not necessary for this Court to enter any final judgment on whether the Appellate Authority in the course of modifying the order of dismissal can pass an order of fresh appointment. But in the facts of the present case, it needs emphasis that the order of the Appellate Authority properly construed, was an offer for a fresh appointment which was duly accepted by the Respondent. If the Respondent believed that the Appellate Authority had no authority to impose such a direction upon him, he could have challenged the order in its entirety. Having taken the benefit of the order, the Respondent was estopped from challenging the order by which he was given fresh appointment. The Appellate Authority while justifying its own finding, confirmed the order of dismissal. The Respondent was, however, offered re-employment on humanitarian grounds, particularly in the light of the fact that he accepted his mistake and stated that he would not commit such a mistake in future. The interference of the Labour Court in the proceedings, was therefore, clearly not warranted. The principle of estoppel must apply in a situation such as this is consistent with the judgment of the Supreme Court in the State of Punjab Vs. Krishan Niwas, 1997(1) CLR 855. The same view has been taken by the Division Bench of the Gujarat High court in Union of India Vs. N. M. Dhobi, 2006(I) CLR 587.

In these circumstances the petition will have to be allowed and is accordingly allowed. Rule is made absolute in terms of prayer clause (a) and the impugned judgment and order of the Industrial Court dated 7th March, 2002 shall stand quashed and set aside. Complaint (ULP) 438 of 1996 shall in the circumstances stand dismissed. In the circumstances, there shall be no order as to costs.

Petition allowed.