Abdul Kalam Abdul Rashid vs State Of Maharashtra And Anr.
2005 Latest Caselaw 626 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By this writ petition under Articles 226 and 227 of Constitution of India, the petitioner, an ex employee of Maharashtra State Road Transport Corporation has challenged the judgment dated 17-2-2005 passed by Industrial Court Amravati allowing the Revision U.L.P. No. 92/2004 filed by respondent No. 2 thereby reversing the order dated 2-9-2004 passed by the Labour Court Amravati in his favour ordering his reinstatement with full back wages and continuity with effect from 20-11-2003. Respondent No. 2 did terminate services of petitioner by order dated 20-11-2003 consequent upon the judgment of Industrial Court in earlier revision U.L.P. Revision No. 5 of 1993 whereby the learned member of Industrial Court set aside the order dated 24-12-1992 of Labour Court in favour of petitioner. During pendency of the U.L.P. Revision 5 of 1993, petitioner who was reinstated back came to be dismissed once again on 9-10-1999. His departmental appeal against subsequent dismissal came to be allowed on 17-7-2000 whereby he was given fresh employment. The contention of petitioner is that earlier misconducts or Revision No. 5/1993 pending in relation thereto was rendered infructuous in view of this fresh employment and as such, the order of Industrial Court dated 12-11-2003 allowing said Revision could not have been used to terminate him again on 20-11-2003 by his employer.

2. In view of this, parties argued the matter finally on 26-4-2005 at the admission stage itself and it was closed for judgment.

3. I have heard Advocate Shri Samudra Singh for petitioner, Advocate Shri S. C. Mehadia for respondent No. 2 employer and learned AGP for respondent No. 1 State Government. State Government is a formal party in the matter.

4. The facts are not in dispute. The petitioner earlier joined services with respondent No. 2 as conductor on 30-10-1986. He was dismissed by order dated 25-10-1989 on proved misconduct after departmental inquiry and he challenged the same by filing complaint U.L.P. No. 413/1989 under Section 28 of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (referred to as MRTU Act hereafter) before Labour Court Amravati. Said Labour Court decided the complaint on 24-12-1992 and granted relief of reinstatement. Accordingly respondent No. 2 reinstated petitioner back in service. But respondent No. 2, also challenged said judgment of Labour Court by filing revision under Section 44 of MRTU Act before Industrial Court Amravati in Revision U.L.P. No. 5/1993. This revision has been allowed in favour of respondent No. 2 by Industrial Court on 12-11-2003. This adverse order was not challenged by petitioner because of intervening event in which he was dismissed for subsequent misconduct and, after considering his past service record, appellate authority re-employed him as fresh employee. He was dismissed again after holding departmental inquiry on 9-10-1999 and the first appellate authority allowed his appeal on 17-7-2000 and ordered his re-employment/reappointment as fresh conductor mentioning that his earlier service period would not be taken into consideration. Accordingly, employer issued order of fresh employment dated 28-8-2000 and he resumed duties as fresh recruit as conductor and therefore did not challenge the above referred adverse order dated 12-11-2003 of Industrial Court. However, respondent number two after its revision was allowed issued order of dismissal dated 20-11-2003 only on that account. This order was challenged by petitioner by filing U.L.P. Complaint 100/2003 and the Labour Court on 2-9-2004 delivered judgment in favour of petitioner and allowed it. Respondent No. 2 challenged the judgment in U.L.P. Revision 92/2004 and the learned member of Industrial Court on 17-2-2005 allowed that revision and set aside the judgment dated 2-9-2004 which was in favour of petitioner. It is in this background that the petitioner has challenged this order of Industrial Court dated 17-2-2005, order dated 20-11-2003 passed by employer dismissing him and the adverse order dated 12-11-2003 passed by Industrial Court in earlier revision 5/1993 in present petition.

5. Advocate Shri Samudra Singh for petitioner contended that the appellate authority considered past service record and thereafter only ordered petitioner's fresh re-employment. He states that thus after July, 2000 petitioner has entered the services as fresh employee and whatever he did earlier could not be used against him after such fresh employment. He further stated that his earlier dismissal by order dated 25-10-1989 also formed part of a service record before appellate authority and after considering it only, he was given fresh employment. He argued that on account of this fresh employment he lost service of about 14 years with all benefits flowing therefrom and he became a new employee. This decision was taken by respondent No. 2 and as such, respondent No. 2 expressly mentioned in appellate order that period of his past service would not be considered. He therefore contended that order of Industrial Court dated 12-11-2003 was passed in revision and in litigation which was rendered infructuous on account of his fresh employment. He stated that reasoning given by learned member of Industrial Court on 17-2-2005 was thus perverse and showed total non-application of mind. According to him on account of his fresh employment, all earlier misconducts (if any) are deemed to have been condoned or waived.

6. Advocate Shri S. C. Mehadia for respondent No. 2 contended that appellate authority could not have been taken to be interfering with the pending Court matter i.e. Revision No. 5/1993 and, the reasoning given by Industrial Court in its order dated 17-2-2005 is just and proper. He further states that appellate authority was concerned only with misconduct involved in that appeal and as such it cannot be said that it looked into even the earlier misconducts or the punishment inflicted therefor. He argued that on 12-11-2003 when revision was allowed, the earlier order of dismissal dated 25-10-1989 automatically revived and, order dated 20-11-2003 was not a fresh order of dismissal. He stated that there was absolutely no material before Labour Court to hold that appellate authority considered earlier dismissal or the pending litigation while passing the order dated 17-7-2000. According to him, the Industrial Court has correctly considered the law on the point and no case is made out for interference therein in writ Jurisdiction. In the alternative, he argued that petitioner did not lead any evidence before Labour Court that he was not gainfully employed after his termination and as such, Labour Court could not have granted reinstatement with full backwages. He has relied upon judgment of Hon'ble Apex Court between Haryana Urban Development Authority v. Devi Dayal reported at 2002 (3) SCC 473.

7. Here, it will be appropriate to refer to some provisions of The Discipline and Appeal and Procedure (referred to as D.A. Procedure) which regulates the departmental action against petitioner and also governs the departmental appeal filed by him. As per Rule 6B of this D.A. Procedure, while awarding punishment the competent/disciplinary authority must have due regard to the gravity of misconduct of petitioner and also his past record. In the facts of present case it appears that petitioner was dismissed on 9-10-1999 because of his absence. When employee is dismissed for absence from duties, employer is bound to look into his earlier service record. It cannot, therefore be said that disciplinary authority dismissed petitioner on 9-10-1999 without considering his past record. The appellate authority was considering propriety of this action of disciplinary authority and as per Rule 10 of D. A. Procedure, appellate authority has to find out whether the punishment is unwarranted, excessive or adequate and has to pass appropriate order after such consideration. Thus appellate authority also could not have discharged its obligation and could not have decided appeal of petitioner without looking into his past service record. The order of appellate authority dated 17-7-2000 expressly mentions that punishment inflicted by order dated 9-10-1999 was set aside and petitioner came to be re-appointed as fresh recruit. The order expressly mentions that his period of past service would not be looked into. Arguments of respondent No. 2 that appellate authority did not consider past service record of petitioner therefore cannot be accepted, in any case, it was open to respondent No. 2 to demonstrate before Labour Court that the appellate authority did not want to interfere with Industrial Court proceedings and its order of fresh re-employment was subject to the decision of U.L.P. Revision 5/1993 then pending. This could have been done by producing papers placed before appellate authority. However, the respondent No. 2 did not lead any evidence before the Labour Court when employee challenged his termination by order dated 20-11-1993 in U.L.P. Complaint 100/2003. Neither petitioner nor respondent No. 2 lead any evidence before Labour Court and they filed joint pursis declining to adduce it. Labour Court has decided the matter on the basis of records only. The Labour Court has correctly interpreted the language of order of appellate authority dated 17-7-2000 and the conclusions drawn by learned member of Industrial Court about said order are perverse. In view of requirement of D. A. Procedure, the Industrial Court is not right in observing that the appellate authority did not consider past record or did not condone petitioner's previous dismissal. Question of appellate authority interfering with U.L.P. Revision 5/1993 does not arise because it was always open to employer to withdraw it. In fact, effect of grant of fresh employment is wiping out entire service, either good or bad, rendered by petitioner before such grant. It is not strictly speaking even condonation of past lapse/misconduct. Respondent No. 2 is bound by its order granting fresh service to the petitioner. Even if the issue of condonation of misconduct or of waiver of right to initiate action against employee by respondent No. 2 is taken up, it has to be a conscious act of employer and the burden to show that there was no such conscious act, in the face of D. A. Procedure lay squarely on respondent No. 2. Respondent No. 2 did not discharge that burden at all. Hence it will have to be held that by re-appointing petitioner as fresh conductor the respondent No. 2 condoned his lapse or waived its right to punish him for it after such reappointment.

8. Further in order to show that employer condoned the lapse or misconduct and waived his right to initiate action therefor, it will have to be shown that the date on which such action was sought to be taken, employer was in a position to initiate it. All precedents in this respect reveal that the employee who invokes such waiver continues in service after alleged lapse/misconduct and, as such, employer is competent in law to initiate action against him. In the facts of present case, employer has recruited petitioner afresh from 28-8-2000 and, effect is as if petitioner was never in employment before that date. Employer did not recruit petitioner afresh subject to result of pending revision or by reserving his right to throw him out of employment if said revision 5/1993 came to be allowed and the earlier order of dismissal dated 25-10-1989 revived. Said past service is totally extinguished and is not in existence for any purpose whatsoever. The petitioner cannot derive any benefit therefrom and also respondent No. 2 employer cannot utilize that service to his prejudice. It is apparent that in view of appellate order dated 17-7-2000 and fresh appointment as new recruit by order dated 28-8-2000, the respondent No. 2 employer could not have taken any action for any misconduct for period before 9-10-1999 i.e. the date of dismissal order in relation to which appellate order came to be passed. It is to be noticed that petitioner was not in employment between 9-10-1999 to 28-8-2000 and thereafter he has joined as new recruit. Thus, the question of condoning the earlier misconduct or waving the right of employer to proceed against petitioner for it does not survive after 28-8-2000. Practically, relationship of employer and employee is created between parties for the first time on that date. Hence on 20-11-2003, respondent No. 2 did not possess any right to proceed against petitioner for alleged lapses/misconducts committed by him prior to 28-8-2000. Fresh employment of petitioner was not subject to result of U. L. P. Revision No. 5/1993.

9. Petitioner has joined in August, 2000 as new/fresh recruit with respondent No. 2. The relationship between parties is governed by the appellate order dated 17-7-2000 and unless and until the respondent No. 2 modifies said order. It cannot proceed against petitioner. Said order of re-employment is conclusive and determinative of relations between parties. The learned member of Industrial Court has lost sight of this aspect and has proceeded on theory which did not have any roots. It was not open to it to go behind said order at all. It's judgment dated 17-2-2005 in U.L.P. Revision 92/2004 is therefore found to be suffering from an error apparent and is accordingly quashed and set aside. With the result, the order of Labour Court dated 2-9-2004 is restored back. Respondent No. 2 shall proceed to reinstate petitioner back in service accordingly within period of two months from the date of this order. Writ petition is allowed and Rule is made absolute accordingly. There shall be no order as to costs.