2011(7) ALL MR 70
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

N.N. MHATRE, J.

Maharashtra State Road Transport Corporation Vs. Triyambak Pandurang Gandale & Ors.

Writ petition no.1427 of 1998

9th August, 2010

Petitioner Counsel: Mr. G.A. KARMALKAR
Respondent Counsel: Mr. P.J. PAWAR

Constitution of India, Art.227 - Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (1971), Sch.IV, Item 9 - Order of dismissal - Challenge to - In the circumstances Appellate Authority could have only substituted the order of dismissal with either a penalty or could have revoked it - A direction to issue a fresh employment order, held, was not one of the penalties envisaged. 2008(4) ALL MR 373 - Disting. (Para 9)

Cases Cited:
Maharashtra State Road Transport Corporation, Bombay. Vs. Prakash Tulshiram Pardeshi, 2008(4) ALL MR 373=2008 II CLR 452 [Para 6]


JUDGMENT

JUDGMENT :- The petition has been filed against the order of the Industrial Court dated 16.9.1997 in complaint (UL) N.193 of 1994. This complaint was filed under Items 9 and 10 of Schedule IV of the MRTU & PULP Act. The complaint has been allowed and it has been declared that the petitioners have committed unfair labour practices under Items 9 and 10 of Schedule IV. The Petitioners have further been directed to pay wages and other benefits to the complainant i.e. the respondents herein for the period from 27.12.1987 to 27.3.1993 within one month from the date of the order and to treat his services continuous for all purposes.

2. The facts giving rise to the present petition are as follows:

The petitioners allege that the respondent who was employed as a driver with them was caught red handed, stealing a carpet from the petitioner's guest house on 14.9.1987. The respondent was chargesheeted and an inquiry was held against him. Based on the findings of the Enquiry Officer holding that the respondent was guilty of the acts of misconduct alleged against him, the respondent was dismissed from service on 27.12.1989. The respondent had preferred a departmental appeal against his dismissal from service. The first appellate authority dismissed his appeal. However, the second appellate authority by its order dated 8.1.1993 held that the charges levelled against the respondent had not been proved in the departmental enquiry. Despite this, the second appellate authority did not direct the respondent's reinstatement in service and instead directed that he should be treated as a fresh employee from 27.3.1993. The prosecution launched against the respondents at the behest of the petitioners was also withdrawn by the petitioners on 22.10.1990.

3. The respondent filed the present complaint alleging unfair labour practices under Items 9 and 10 of Schedule IV of the MRTU & PULP Act. The respondent had contended that since he was absolved of all the charges levelled against him he was entitled to be reinstated in service. The petitioners resisted the complaint by contending that in view of the fact that the respondent had accepted the fresh appointment order issued to him on 16.2.1993, the respondent was not entitled to challenge this appointment order.

4. The Industrial Court on the basis of the record before it, has concluded that the action of the petitioners in granting the reemployment was bad in law. The Industrial Court noted that the second appellate authority had observed thus:

"From the details of the case it is seen that the Appellant was going along with the group at the gate. The witness and the guard who had obstructed him could not prove that the Appellant was taking the carpet with the intention to theft it. The charge levelled against the Appellant have not been proved and the Corporation was not able to prove the case either in the court of law or in the Departmental default case."

5. In my opinion, the Industrial Court has rightly observed that when the second appellate authority had absolved the respondent from all the charges levelled against him as they were not proved in the departmental enquiry. The question of granting the respondent fresh reemployment does not arise. The fact that the charges were not established is no longer in doubt. In fact, the petitioners chose to withdraw the prosecution launched by them against the respondent. In these circumstances, in my opinion, the question of reappointing the respondent in service does not arise. He would be entitled to reinstatement in service with continuity and full backwages as according to the appellate authority the charges against the respondent have not been established before the enquiry officer.

6. The learned advocate for the petitioner relies on the judgment of a learned Single Judge in the case of Maharashtra State Road Transport Corporation, Bombay vs. Prakash Tulshiram Pardeshi, 2008 II CLR 452 : [2008(4) ALL MR 373] in support of his submission that the respondent is estopped from challenging the order when he had accepted the fresh employment with petitioners. He points out that the fresh employment was offered to the respondent on 27.3.1993, which he accepted, whereas the complaint was preferred on 9.11.1994. In my opinion, the aforesaid judgment does not apply to the facts and circumstances in the present case. In the aforesaid case, the workman was chargesheeted for certain acts of misconduct which were serious in nature. The enquiry officer found him guilty of the charges being established. The disciplinary authority dismissed the workman from service. The first appellate authority concluded that the charge was serious and therefore the workman was not entitled to any indulgence. The court has observed thus:

" 4.. 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. ."

7. The learned Single Judge has observed that the workman was estopped from challenging the order of reemployment because the fresh appointment was offered to the workman, only because he insisted that he should be given an opportunity to improve himself.

8. The facts in the present case are different. The second appellate authority has held in no uncertain terms that the charges levelled against the respondent have not been proved. Therefore, the question of offering the respondent fresh employment did not arise. The doctrine of estoppel also would not be applicable in the present case as admittedly the respondent was absolved of all the charges levelled against him. There is nothing on record to suggest that these observations of the second appellate authority were made only because of an indulgence shown to the workman or because the workman had apologised or because the workman sought the mercy of the petitioners to give him fresh employment. The judgement in the aforesaid case has no application to the facts in the present matter.

9. In any event, the complaint in the aforesaid case was filed under Item 9 of Schedule IV as what was challenged before the Industrial Court was the reappointment in service as a fresh employee, despite the appellate authority having concluded that the respondent was not guilty of the misconduct alleged against him. It is in these circumstances that the Industrial Court concluded that the appellate authority could have only substituted the order of dismissal with either a penalty or could have revoked it. A direction to issue a fresh employment order was not one of the penalties envisaged.

10. In my opinion, therefore, the petitioners have made out no case for interference in the matter. Petition dismissed. The amount deposited in the trial court shall be disbursed to the respondent immediately.

11. Rule discharged.

12. No order as to costs.

Order accordingly.