Shantaram Yashwant Mahale vs Divisional Controller ...
2016 Latest Caselaw 3846 Bom

                                         1                   WP No.4761/2001

            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                       
                       BENCH AT AURANGABAD

                          WRIT PETITION NO.4761 OF 2001




                                               
      Shantaram s/o Yashwant Mahale
      age: 57 Yrs., occu. Service,
      R/o 327, Bhuigalli, Joshipeth,




                                              
      Jalgaon, Dist. Jalgaon.                   =        PETITIONER

               VERSUS

      The Divisional Controller,




                                      
      Maharashtra State Road Transport
      Corporation, Jalgaon Division,
      Jalgaon.
                             
                              -----
                                                =        RESPONDENT 

      Mr. V.Y.Patil, Advocate for Petitioner;
                            
      Mr.Manoj Shinde, Adv. h/for Mr. M.K.Goyanka, Adv. for 
      Respondent
                              -----
                                   CORAM :  P.R.BORA, J.
      

                       
   



       
      DATE OF RESERVING JUDGMENT :  10
                                       th
                                           June,2016
                                                    

       
      DATE OF PRONOUNCING JUDGMENT :15
                                       th
                                           JULY, 2016
                                                     
                                                         





      JUDGMENT:

1) Heard the learned Counsel appearing for

the respective parties.

2) The present writ petition has been

preferred against the Judgment and Order dated

12th January 2001 passed by the Industrial Court

at Jalgaon in Revision (ULP) No.199/1999 (Old No.

147/1995), whereby the Industrial Court had

quashed and set aside the order dated 29th April,

1995 passed by the Labour Court, in Complaint

(ULP) No. 106/1990.

3) The facts, which are relevant for

decision of the present petition, in brief, are

thus, -

a) The petitioner was appointed as a Driver

in Maharashtra State Road Transport Corporation

(for short, S.T. Corporation) in its Jalgaon

division in the year 1971. In the year 1985, the

petitioner was issued with a charge sheet on the

allegation that he had consumed liquor while

performing his duty. On the basis of the charge

so levelled against the petitioner, a

departmental enquiry was held wherein the

petitioner was held guilty and by way of

punishment, he was dismissed from the services of

the Respondent/corporation.

b) Against the aforesaid order of the

disciplinary authority, the petitioner preferred

a first departmental appeal on 29.5.1985, which

was partly allowed and the first Appellate

authority set aside the punishment of dismissal

and instead, directed a fresh appointment of the

petitioner as driver without giving any relief of

back wages as well as past services.

ig The

petitioner accordingly resumed his duty as a

fresh appointee.

c) Thereafter, the petitioner preferred second

appeal and it was dismissed by the Second

Appellate authority on 21st September, 1988. The

petitioner subsequently filed a Complaint of

unfair labour practice bearing Complaint (ULP)

No.106/1990 before the Labour Court at Jalgaon

along with an application for condonation of

delay.

d) The Labour Court, vide its Judgment and

order dated 19th April, 1995 allowed the complaint

filed by the petitioner and granted him relief of

reinstatement and continuity of services with

full back wages except the period of delay during

the period from 21.5.1985 to 9.8.1989.

e) Aggrieved by the order passed by the

Labour Court, the Respondent corporation

preferred Revision (ULP) No.199/1999 (old No.

147/1995) before the Industrial Court at Jalgaon

and the Industrial court at Jalgaon allowed the

said revision vide the impugned order. Aggrieved

thereby the petitioner has preferred the present

writ petition.

4) The Industrial Court has set aside the

order passed by the Labour court on the ground

that the complaint itself was not maintainable.

As has been observed by the Industrial court, the

order of dismissal dated 21.5.1985, which the

petitioner has challenged before the Labour court

by filing a complaint alleging unfair labour

practice on the part of the respondent under Item

1(a)(b)(d) and (f) of Schedule-IV of MRTU and

PULP Act (for short, the Act) was not in

existence when such complaint was filed by the

petitioner. As has been further observed by the

Industrial Court on the date of filing the

complaint by the petitioner before the Labour

court, he was in employment of the repondent and

was thus not a dismissed or discharged employee

so as to invoke Section 28 of the Act and to file

a complaint alleging unfair labour practice as

enumerated in Item 1 of Schedule-IV.

5) According to Shri V.Y.Patil, learned

Counsel appearing for the petitioner, the order

passed by the Industrial Court is erroneous and

unsustainable in view of the law laid down by

this Court in the case of Maharashtra State Road

Transport Corporation Vs. Alfred James Gamare -

2009 (4) All MR 31. The learned Counsel submitted

that the similar facts as of the present case

were involved in the aforesaid case and as such,

the decision in the said judgment rendered by

this Court, would squarely apply to the facts of

the present case. The learned Counsel pointed

out that the following two questions were for

consideration before this Court in the aforesaid

case, -

i) Whether the Labour Court has jurisdiction to entertain the Complaint

filed by Respondent/Complainant since he was in the service when the said

Complaint was filed?

ii) Whether the Respondent was estopped from approaching the Labour Court

alleging unfair labour practices when he accepted the appointment as fresh

conductor and joined the services?

The learned Counsel pointed out that both the

aforesaid issues were answered in affirmative by

this Court.

6) The learned Counsel submitted that in an

another judgment in the case of Maharashtra State

Road Corporation Vs. Tryambak Pandurang Gandale

and Ors. delivered by this Court reported at 2011

(1) Mah.L.J. 723, it has been held that even if

an employee would have accepted the fresh

appointment in pursuance of the order passed by

the departmental appellate authority, the

employee concerned cannot be prevented from

raising a dispute before the Industrial Court

regarding the original order of dismissal passed

by the Disciplinary authority. The learned

Counsel, therefore, prayed for setting aside the

order passed by the Industrial court impugned in

the present petition and to confirm the order

passed by the labour Court in Complaint (ULP)

No.106/1996.

7) Shri Manoj Shinde, learned Counsel

holding for Shri M.Y.Goyanka, learned Counsel

appearing for the respondent, vehemently opposed

the submissions made on behalf of the petitioner.

The learned Counsel submitted that the judgments

relied upon by the learned Counsel for the

petitioner would not apply to the facts of the

present case.

. Relying on the judgment of the Hon'ble

Supreme Court in the case of State of Punjab and

Ors. Vs. Krishan Niwas - 1997 SC 2349, and two

judgments of this Court, first in the case of

Maharashtra State Road Transport Corporation Vs.

Prakash Tulshiram Pardeshi - 2008 (4) Mah. L.J.

940 and the other in the case of MSRTC, Jalgaon

Vs. Pandurang Trimbak Dusane - 2016 (2) Mah.L.J.

228, the learned Counsel submitted that after

taking benefit of the order passed by the first

appellate authority, whereby the punishment of

dismissal of services awarded by the disciplinary

authority was reduced by the said authority and

the petitioner was directed to be taken in

services of the Corporation as a fresh employee,

the petitioner was estopped from challenging the

order of dismissal passed by the disciplinary

authority. The learned Counsel, therefore,

prayed for dismissal of the writ petition.

8) Material on record reveal that the

charge was levelled against the petitioner in the

year 1985 that he had consumed liquor while

performing his duties. On the basis of the said

charge, a departmental enquiry was conducted

against the petitioner wherein he was held guilty

for the charge levelled against him. It is

further not in dispute that the punishment of

dismissal from service was awarded to the

petitioner by the disciplinary authority. It is

further not in dispute that against the order of

punishment so passed by the disciplinary

authority, the petitioner had preferred

disciplinary appeal before the first appellate

authority and the first Appellate authority

allowed the appeal so filed by the petitioner and

while setting aside the order of dismissal passed

by the disciplinary authority, directed fresh

appointment of the petitioner as a driver. The

petitioner admittedly resumed his duties in

pursuance of the said order as fresh appointee.

Though the second appeal was also preferred by

the petitioner before the second appellate

authority, the same was dismissed. It is a

matter of record that the petitioner thereafter

filed a Complaint under the provisions of MRTU

and PULP Act before the Labour Court, challenging

the order of his dismissal passed by the

disciplinary authority and prayed for setting

aside the said order and his reinstatement in

service with continuity of service and back

wages.

9) Identical facts were there in the case

of Maharashtra State Road Transport corporation

Vs. Alfred James Gamare 2009 (4) ALL MR 31. and

the same issues which were raised in the said

matter, have been raised in the present petition.

The only difference is that in the aforesaid

case, the Industrial court has confirmed the

order passed by the Labour court by dismissing

the revision application filed by the S.T.

Corporation and the S.T.Corporation had,

therefore, filed the aforesaid writ petition;

whereas in the present matter, the Industrial

court has allowed the revision application filed

by the S.T. Corporation and has thereby set aside

the order passed by the Labour court and has thus

impliedly dismissed the complaint filed by the

present petitioner and, therefore, the employee

has filed the present petition.

10) It is true that in the case of Alfred

James (cited supra), a specific point was framed

by the learned Single Judge - "whether the court

has jurisdiction to entertain the complaint filed

by respondent/complainant since he was in the

service when the said complaint was filed?"

According to the learned counsel for the

petitioner, the aforesaid issue has been answered

by the learned Single Judge in favour the

employee, who was respondent therein. In view of

the finding recorded by this Court in the

aforesaid judgment, it is the contention of the

leaned Counsel, that the judgment and order

passed by the Industrial court cannot sustain and

deserves to be quashed and set aside.

11) I am, however, not convinced with the

argument so advanced. Though it is true that the

issue as aforesaid was framed in the aforesaid

matter, the learned Single Judge has not answered

the said issue on merits. The facts of the said

case reveal that the S.T. Corporation had raised

an objection before the Labour court about the

maintainability of the complaint contending that

since the employee was in service, the provisions

of item No.1 of Schedule IV of the Act were not

attracted. The said objection was turned down by

the Labour court. The order so passed by the

Labour court was challenged by the S.T.

Corporation before the Industrial Court by

preferring a revision application. However, the

said revision was also dismissed. Admittedly,

the S.T. Corporation did not challenge the said

order in any higher court. In this background,

the learned Single Judge has observed that since

the Corporation did not prefer any further

proceeding against the judgment and order passed

by the Industrial Court, the said issue rested

there itself. It is thus evident that the

learned Single Judge did not decide the aforesaid

objection on merits. The aforesaid controversy,

therefore, needs to be looked into in the present

petition.

12) Section 28 of the MRTU and PULP Act

prescribes the procedure for dealing with the

complaints relating to unfair labour practices,

the relevant portion of which is reproduced

herein below, -

"28. PROCEDURE FOR DEALING WITH

COMPLAINTS RELATING TO UNFAIR LABOUR PRACTICES. -

(1) Where any person has engaged in or is engaging in any unfair labour

practice, then any union or any employee or any employer or any Investigating Officer may, within

ninety days of the occurrence of such unfair labour practice, file a complaint before the Court competent to deal with such complaint either under section 5, or as the case may be, under section 7 of this Act :

Provided that, the Court may entertain a complaint after the

period of ninety days from the date of the alleged occurrence, if good and sufficient reasons are shown by

the complainant for the late filing of the complaint."

13) Section 5 of the Act prescribes the

duties of the Industrial court whereas Section 7

prescribes the duties of Labour court. As

provided under Section 7, it shall be the duty of

the Labour court to decide the complaints

relating to unfair labour practices described in

item 1 of Schedule-IV and to try offenses

punishable under this Act. The petitioner had

admittedly filed the complaint before the Labour

court alleging unfair labour practices described

in item 1 of Schedule-IV of the Act. Item 1 of

Schedule-IV reads thus, -

" General Unfair Labour Practices on the part of employers

1. To discharge or dismiss employees -

(a) by way of victimisation;

(b) not in good faith, but in colourable exercise of the

employer's rights;

(c) by falsely implicating an employee in a criminal case on false

evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumped up

allegation of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with

undue haste;

(g) for misconduct of a minor or technical character, without having any regard to the nature of the

particular misconduct or the past record of service of the employee,

so as to amount to a shockingly disproportionate punishment"

14) Reading of Item 1 of Schedule-IV leaves

no doubt that a complaint under the aforesaid

provision can only be filed by a person, who has

been discharged or dismissed or apprehends his

discharge or dismissal from the services. In

other words, on the date of filing such

complaint, the order of discharge or dismissal or

the apprehension of discharge of dismissal must

be subsisting.

15) In the instant case, the petitioner has

admittedly filed the complaint before the Labour

court alleging unfair labour practice on the part

of the respondent under Item 1 of Schedule-IV of

the Act. On the date of filing of the Complaint

as aforesaid, the petitioner was indisputably in

service of the S.T. Corporation and the order of

dismissal dated 21.5.1985, which was challenged

by the petitioner in the aforesaid Complaint

(ULP) was also not in existence. Against the

order of dismissal dated 21.5.1985, the

petitioner had preferred an appeal before the

first Appellate Authority and the first Appellate

Authority had set aside the said order and

substituted it with the order of fresh

appointment to the petitioner on the post of

driver. In pursuance of the said order, the

petitioner had resumed the services with the S.T.

Corporation as a fresh appointee in the year 1985

itself. It is also not the case of the petitioner

that he was apprehending his discharge or

dismissal.

16) The facts as aforesaid clearly evince

that on the date of filing the complaint by the

petitioner in the Labour court, the order of

dismissal dated 21st May, 1985, on the basis of

which the complaint was filed by the petitioner,

was not in existence. From the facts on record,

it is further clear that on the date of filing of

the complaint, the complainant was very well in

the employment of the respondent and was thus not

falling in the category of a `discharged' or

`dismissed' employee so as to invoke the remedy

of filing a complaint of unfair labour practice

under Item 1 of Schedule IV of the Act.

Secondly, when it was undisputed that the

petitioner was there in service of the

respondent, may be as a fresh appointee, it is

not understood as to how the order of

reinstatement could have been passed by the

Labour court. The order of reinstatement can be

passed only in favour of an employee, who is not

there in service because an order of discharge or

dismissal or retrenchment against him. It

appears that all these aspects were lost sight of

by the Labour court.

17) The Industrial Court, in its order

passed on 12.1.2001, which has been impugned in

the present petition, has rightly observed that

the very order passed by the labour court was

without jurisdiction and hence unsustainable.

The Industrial Court has further rightly held

that the order dated 21st May, 1985, which was the

base for the petitioner for alleging unfair

labour practice on part of the respondent was not

in existence and was admittedly set aside by the

Appellate Authority much before on the date of

filing of complaint by the petitioner.

18) Though the learned Counsel appearing for

the petitioner has relied upon the judgment of

learned Single Judge of this court in the case of

Alfred James (cited supra), I have already

observed that while deciding the said complaint,

the learned Single Judge has not decided on

merits the issue, - "whether the labour court

possesses any jurisdiction to entertain the

complaint filed by an employee, who is in service

on the date of filing the complainant?"

19)

The judgment of this Court in the case

of MSRTC, Jalgaon Vs. Trimbak Pandurang Gandale

- 2011 (1) Mah.L.J. 723, was also relied upon by

the petitioner. In the aforesaid case Complaint

was filed under Item 9 of Schedule-IV and what

was challenged before the Industrial Court was

re-appointment in service as a fresh employee

despite the appellate authority, having concluded

that the respondent therein was not guilty of the

misconduct alleged against him. It was in those

circumstances, the Industrial Court had concluded

that the appellate authority could have only

substituted the order of dismissal with either a

penalty or could have revoked it because

direction to issue a fresh employment order was

not one of the penalties envisaged. The order so

passed by the Industrial court was confirmed by

the High Court.

20) The facts of the present case are quite

distinguishable. In the instant case, the

petitioner has filed the complaint under Item 1

of Schedule-IV and what was challenged by him

before the Labour court was his original order of

dismissal when the appellate authority had

already set aside the said order and directed the

petitioner to be appointed as a fresh appointee

and accordingly the petitioner had acted upon the

said order.

21) As against the judgments relied upon by

the petitioner, it appears to me that the

judgment cited by the respondent in the case of

2016 (2) Mah.L.J. 228, would perfectly apply to

the facts of the present case. The facts of the

said case were thus -

. An accident had occurred at the hands of

the Respondent employee while on duty causing

extensive damage to the vehicle. The damage was

assessed at Rs.25,000/- and the charge sheet was

issued, enquiry was conducted and the respondent

was dismissed from service by way of punishment.

The Respondent preferred an appeal before the

first Appellate Authority, but the same was

rejected. The Respondent preferred second

appeal, which was partly allowed and the

Respondent was granted a fresh appointment

without continuity. The Respondent employee

accepted the said order passed by the second

appellate authority and reported for duties on

the same day. Later on, the said employee filed

a Complaint challenging his dismissal and prayed

for reinstatement with continuity and full back

wages before the Labour Court. The Labour Court

allowed the Complaint, set aside his dismissal

and granted him reinstatement with continuity of

services and with full back wages. The Revision

preferred by the petitioner corporation before

the Industrial Court was dismissed. The

petitioner corporation, therefore, approached the

High Court by filing writ petition. This Court

allowed the said writ petition holding that once

the decision of Appellate Authority, directing a

fresh appointment, was accepted by the employee

concerned and was also acted upon, the concerned

employee was estopped from challenging the order

of dismissal passed by the Disciplinary

Authority.

. In the said case, the learned Single

Judge has relied upon the judgment of the Hon'ble

Apex court in the case of State of Punjab and

Ors. Vs. Krishan Niwas - AIR 1997 SC 349. In

the said case before the Hon'ble Apex Court, the

Respondent employee was charged for an offence

under Section 304 of Indian Penal Code. He was

convicted and sentenced to undergo imprisonment

for life. Thereafter departmental proceedings

were initiated against him and he was removed

from service. Appeal against his conviction

under Section 302 of Indian Penal Code was

allowed by the High Court. Punishment of

conviction under Section 302 of Indian Penal Code

was modified to one under Section 325 of Indian

Penal Code and he was directed to undergo

rigorous imprisonment for 1 ½ years. After

undergoing the punishment, the Respondent

employee filed an appeal before the Appellate

Authority and the Appellate Authority reduced the

punishment of removal from service to lower scale

of pay drawn by him but did not grant back wages.

The Respondent employee accepted altered

punishment and joined the duty. Subsequently, he

filed a civil suit for declaration that the

dismissal from service and reduction of rank and

also the direction that he is not entitled for

arrears of back wages were illegal. The Trial

Court dismissed the suit. On appeal, the

Additional District Judge reversed the judgment

of the trial court and decreed the suit. In

second appeal, the High Court confirmed the said

order. Therefore, the petitioner approached the

Hon'ble Apex Court by special leave petition.

While allowing the said SLP, the Hon'ble Apex

Court held that, "the respondent employee having

accepted the order of the Appellate authority and

joined the post, it was not open to him to

challenge the order subsequently". It is further

observed that `by his conduct the Respondent

employee had accepted the correctness of the

order passed by the Departmental appellate

authority and acted upon it.' The Hon'ble Apex

Court has further observed that `in the

circumstances, the civil court would not have

gone into merits and decide the matter against

the appellant. The Apex court accordingly set

aside the order passed by the High Court and the

first Appellate Court and confirmed the order

passed by the trial court.'

22) In the light of the law as laid down,

the Complaint (ULP) No.106/1990 preferred by the

petitioner was liable to be dismissed by the

Labour court as it was untenable. It is

altogether different that an employee declines to

accept fresh appointment order issued by the

first or second appellate authority and questions

his dismissal. In the instant case, the

petitioner accepted the decision of the first

appellate authority, accepted the order of fresh

appointment and joined the duties and thereafter

filed the complaint. Thus, on the one hand he

continued to enjoy the benefits of the order of

first appellate authority and on the other hand,

questioned propriety and validity of the original

order, which was in fact not in existence. As

has been observed by the learned Single Judge in

the case of MSRTC Vs. Pandurang Trimbak Dusane

(cited supra) had the present petitioner without

accepting the order of first appellate authority

challenged the same by filing a complaint under

Item 9 of Schedule-IV before the Industrial

Court, the said Court would have been in a

position to consider the legality and validity of

the order passed by the first appellate authority

directing fresh appointment. Labour court,

however, was not possessing jurisdiction to

entertain the said complaint.

23) After having considered the entire

material on record, the relevant legal provisions

and the precedents, it does not appear to me that

any interference is required in the order passed

by the learned Industrial court. The Writ

Petition is devoid of any substance and deserves

to be dismissed. It is accordingly dismissed.

However, in the circumstances of the case, no

order as to costs. Rule discharged.

sd/-

(P.R.BORA,J.)

bdv/ fldr 10.6.2016