Bombay High Court
M.S.R.T.C.,Ahemadnagar vs Ajinath Babulal Kaikade on 25 November, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2049 OF 1997
Maharashtra State Road Transport
Corporation.
Through its
Divisional Controller, Ahmednagar.
...PETITIONER
-VERSUS-
Ajinath Babulal Kaikadi,
Age : Major, Occupation : Conductor,
R/o Mahi Jalgaon, Post : Pategaon,
Taluka Karjat, District Ahmednagar.
...RESPONDENT
...
None for Petitioner.
Advocate for Respondent : Shri V.S.Bedre.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 25th November, 2016
Oral Judgment :
1 None appeared for the Petitioner/ MSRTC on 24.11.2016.
None appears even today.
2 Since this petition is pending final adjudication and is
practically 20 years old, I decided to deal with this petition on it's merits.
Shri Bedre, learned Advocate for the Respondent/ Employee, has rendered
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his assistance.
3 The Petitioner is aggrieved by the judgment and order dated
20.09.1996 passed by the Industrial Court, Ahmednagar by which
Complaint (ULP) No.140/1990 filed by the Respondent has been allowed.
4 I do not find any dispute with regard to the following factors:-
(a) The Respondent joined as a Bus Conductor with the
Petitioner/ MSRTC on 01.08.1970.
(b) On 03.03.1987, when the Bus was halted at Pune, it was
found that the Respondent consumed liquor and was under
the influence of liquor.
(c) He misbehaved with the passengers and abused them at
Shivajinagar Bus Stand, Pune.
(d) On 27.04.1988, the Respondent was dismissed from service
after conducting the disciplinary enquiry under the Discipline
and Appeal procedure of the Petitioner/ MSRTC.
(e) On 18.08.1988, the appeal filed by the Respondent was
dismissed by the First Appellate Authority of the Petitioner.
(f) The Respondent was acquitted by the Criminal Court on
05.11.1988.
(g) The Second Appellate Authority has allowed the appeal by
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sustaining the punishment of dismissal and granting fresh
appointment.
(h) On 14.03.1989, the Petitioner issued a fresh appointment
order to the Respondent, which he had accepted and joined
service.
(i) On 29.05.1990, the Respondent challenged the order of
dismissal as well as the fresh appointment and prayed for
continuity of service and full back wages, vide Complaint
(ULP) No.140/1990.
(j) The said complaint was filed under Item 9 of Schedule IV of
the MRTU & PULP Act, 1971.
(k) The Respondent has retired on 30.04.1997 after attaining the
age of superannuation.
(l) This Writ Petition was filed before his retirement on
03.02.1997 for challenging the judgment of the Industrial
Court dated 20.09.1996 by which the Respondent was
granted full back wages and continuity of service.
(m) By order dated 01.07.1998, this Court directed the Petitioner
to implement the order of the Industrial Court in all respects
and thereafter, the criminal complaint filed by the Respondent
before the Labour Court under Section 48(1) of the MRTU &
PULP Act, 1971 would be withdrawn.
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5 Shri Bedre submits that though he is not in touch with the
Respondent, the fact remains that this Court had refused interim relief to
the Petitioner/ MSRTC and had directed the Petitioner to implement the
order of the Industrial Court. Having peacefully retired from service, this
petition has become infructuous.
6 It is thus, apparent in this case that the Respondent had
challenged his dismissal and his fresh appointment dated 14.03.1989
before the Industrial Court on 29.05.1990. It is thus, the case of accepting
a fresh appointment post dismissal and after working on the said post for
about 14 months, the complaint has been filed challenging the dismissal
and seeking continuity in service and full back wages, that too before the
Industrial Court which cannot deal with a challenge to the dismissal order.
7 This issue is no longer res-integra in the light of the judgment
of this Court in the matter of Anil Vaijnath Arbad v/s Divisional Traffic
Controller, MSRTC, 2016(3) Bombay C.R. 860. It has been observed by
this Court in paragraphs 18, 19, 20, 21 and 22 of the said judgment as
under:-
"18. The Apex Court in the case of State of Punjab (supra)
has concluded in paragraphs 2 to 5 as under:-
"2. This appeal, by special leave, arises from the
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judgment of the Punjob & Haryana High Court made
on March 7, 1996 in Second Appeal No.2662/95.
3. The admitted facts are that the respondent was
charged for an offence under Section 302 I.P.C. He
was convicted and sentenced to undergo
imprisonment for life. Thereafter, proceedings were
initiated against him under Article 311(2) of the
Constitution and he was removed from service. Appeal
against his conviction under Section 302 I.P.C. was
allowed by the High Court. Punishment of conviction
under Section 302 IPC was modified to one under
Section 325 IPC and he was directed to undergo
rigorous imprisonment for 1-1/2 years. After
undergoing the imprisonment, the respondent filed
an appeal before the appellate authority. The
appellate authority by order dated March 1, 1989
reduced the punishment of removal from service to
lower scale of pay drawn by him and directed that
he was not entitled to back-wages. The respondent
accepted it and joined duty on June 5, 1989.
Subsequently, he filed a civil suit for declaration that
his dismissal from the service and reduction of rank
and also the direction that he is not entitled to pay
the arrears of wages, were illegal. The Trial Court
dismissed the suit. On appeal; the Addl. District
Judge reversed the judgment of the trial Court and
decreed the suit. In the second appeal, the High Court
has confirmed the same. Thus this appeal, by special
leave.
4. Learned counsel for the respondent contends
that the offence with which he was sentenced under
Section 325 IPC does not involve his moral turpitude
and, therefore, the imposition of punishment of
reduction of his scale of pay and also denial of back
wages, is clearly illegal and that the appellants are
not entitled to challenge the order. We find no force in
the contention. The respondent having accepted the
order of the appellate authority and joined the post
on June 5, 1989, it was not open to him to challenge
the order subsequently. By his conduct he has
accepted the correctness of the order and then acted
upon it. Under these circumstances, the civil Court
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would not have gone into the merits and decided the
matter against the appellants.
5. Accordingly, the appeal is allowed. The orders
of the High Court and the appellate Court stand set
aside and that of the trial Court stands confirmed. No
costs."
(Emphasis is supplied).
19. In the light of the ratio laid down by the Apex Court
in the case of the State of Punjab (supra), the
Petitioner would, therefore, be precluded from
questioning the fairness of his fresh appointment once
he has accepted it without any protest or murmur and
has joined duties. If he was aggrieved with the order
of fresh appointment and imposition of punishment of
dismissal from service, he could have questioned his
order of dismissal before the Labour Court. The
Industrial Court did not have jurisdiction to dealt
with the order of dismissal in the light of the powers
vested in it.
20. The powers of the Labour Court and the Industrial
Court are defined in Sections 4, 5, 6 and 7 of the
MRTU & PULP Act, 1971, which read as under:-
"4. Industrial Court
(1) The State Government shall by notification in
the Official Gazette, constitute an Industrial Court.
(2) The Industrial Court shall consist of not less
than three members, one of whom shall be the
President.
(3) Every member of the Industrial Court shall be a
person who is not connected with the complaint
referred to that Court, or with any industry directly
affected by such complaint:
Provided that, every member shall be deemed to
be connected with a complaint or with an industry by
reason of his having shares in a company which is
connected with, or likely to be affected by, such
complaint, unless he discloses to the State
Government the nature and extent of the shares held
by him in such company and in the opinion of the
State Government recorded in writing, such member
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is not connected with the complaint, or the industry.
(4) Every member of the Industrial Court shall be a
person who is or has been a Judge or a High Court or
is eligible for being appointed a Judge of such Court :
Provided that, one member may be a person
who is not so eligible,if he possesses in the opinion of
the State Government expert knowledge of labour or
industrial matters.
5. Duties of Industrial Court.
It shall be the duty of the Industrial Court:-
(a) to decide an application by a union for grant of
recognition to it;
(b) to decide an application by a union for grant of
recognition to it in place of a union which has already
been recognised under this Act;
(c) to decide an application from another union or
an employer for withdrawal or cancellation of the
recognition of a union;
(d) to decide complaints relating to unfair labour
practices except unfair labour practices falling in Item
1 of Schedule IV;
(e) to assign work, and to give directions, to the
Investigating Officers in matters of verification of
membership of unions, and investigation of
complaints relating to unfair labour practices;
(f) to decide references made to it on any point of
law either by any civil or criminal court and
(g) to decide appeals under Section 42.
6 Labour Court
The State Government shall, by notification in the
Official Gazette, constitute one or more Labour
Courts, having jurisdiction in such local areas, as may
be specified in such notification, and shall appoint
persons having the prescribed qualifications to preside
over such Courts;
Provided that, no person shall be so appointed,
unless he possesses qualifications (other than the
qualification of age), prescribed under Article 234 of
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the Constitution for being eligible to enter the judicial
service of the State of Maharashtra; and is not more
than sixty years of age.
7 Duties of Labour Court
It shall be the duty of the Laour Court to decide
complaints relating to unfair labour practices
described in Item I of Schedule IV and to try offences
punishable under this Act."
21. As such, even if it is presumed that the order of the
Appellate Authority granting re-appointment/ fresh
appointment is to be set aside, the Petitioner would be
relegated back to the earlier order which is an order
of dismissal. At best, the Industrial Court, if were to
allow the complaint, could have set aside the order of
the Appellate Authority thereby, relegating the
Petitioner to the order passed by the first Appellate
Authority confirming the order of dismissal. In any
case, if the order of fresh appointment is to be set
aside, the Petitioner will have no option, but to
challenge the order of dismissal which is a stage prior
to the passing of the order by the second Appellate
Authority.
22. In the light of the above and the law laid down by the
Apex Court in the case of State of Punjab (supra), the
Petitioner could not have questioned his fresh
appointment after having accepted it and joined
duties without any protest and without reserving a
right to challenge the orders of the second Appellate
Authority, the first Appellate Authority and the order
of dismissal passed by the competent disciplinary
authority and that too before the Industrial Court."
8 It is thus, settled that once the first appellate authority or the
second appellate authority shows leniency and grants a fresh appointment
to an employee as like the Respondent herein, it presupposes that the
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dismissal is sustained and by way of sympathy, a fresh appointment order
is issued. There can be no debate that unless the dismissal order is
sustained, there cannot be a fresh appointment since the fresh
appointment order can be issued only after the earlier employment is
brought to an end.
9 It is also settled that after accepting the fresh appointment
and joining duties without reserving the right to challenge the order or
without expressing any protest, an employee cannot be permitted to
challenge such an order after having accepted it and joined duties, in the
light of the judgment of the Honourable Supreme Court in the matter of
State of Punjab vs. Krishan Niwas, AIR 1997 SC 2349.
10 In the light of the above, the impugned judgment of the
Industrial Court dated 20.09.1996 is unsustainable and deserves to be set
aside. This Writ Petition is partly allowed. The impugned judgment of the
Industrial Court is quashed and set aside and Complaint (ULP)
No.140/1990 stands dismissed.
11 However, considering the interim orders passed by this Court
on 17.07.1997 and 01.07.1998 in Civil Application Nos.4511/1997, in the
event the directions of this Court and the Industrial Court have already
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been complied with in all respects including by payment of gratuity and
retiral benefits, the judgment of this Court thereby, setting aside the
judgment of the Industrial Court shall not grant any liberty to the
Petitioner/ MSRTC to reopen the said issue and seek recovery of the
benefits already paid to the Respondent.
12 However, in the event, all retiral benefits have not been
extended, if gratuity has also not been paid and if the directions of the
Industrial Court granting full back wages have also not been implemented,
the Respondent would not be entitled for the same in the light of this
judgment.
13 Rule is made partly absolute in the above terms.
kps (RAVINDRA V. GHUGE, J.)
