Smt. Panchafulla Khanduji ... vs Maharashtra State Road Trasnport ...
2021 Latest Caselaw 14666 Bom

     LPA 216-12                                     1                          Judgment

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 216/2012 IN WRIT PETITION NO.1100/2003 (D)

     Panchafulla Khanduji Bhiskute,
     Aged about Major, Occu.: Service,
     R/o Gyani House, Behind Gajanan
     Maharaj Temple, Kaulkheda, Akola.                                    APPELLANT
                                      .....VERSUS.....
     1.    Maharashtra State Road Transport Corporation,
           Akola through its Divisional Controller, Akola.

     2.    Member, Industrial Court, Akola.                            RESPONDENT S

               Shri B.M. Khan and Shri R.B. Khan, counsel for the appellant.
                      Shri A.R. Fule, counsel for the respondent no.1.

     CORAM : A. S. CHANDURKAR AND G.A. SANAP, JJ.

     DATE      : 07TH OCTOBER, 2021.
     ORAL JUDGMENT              (PER : A.S. CHANDURKAR, J.)

The challenge raised in this letters patent appeal is to the

judgment of the learned Single Judge in Writ Petition No.1100 of 2003

decided on 10.01.2012. By that judgment the writ petition preferred by

the respondent no.1 herein for challenging the order passed by the Industrial

Court allowing the complaint preferred by the appellant has been allowed

and the order passed by the Industrial Court has been set aside.

2. The facts in brief are that the husband of the appellant was in

service of the Maharashtra State Road Transport Corporation. After his

death, the appellant was appointed as a Peon on compassionate basis.

During the course of service a charge-sheet was issued to the appellant for

LPA 216-12 2 Judgment

committing misconduct. After holding a departmental enquiry services of

the appellant were terminated. The departmental appeal filed by her

challenging the order of termination was also dismissed. The appellant

filed a complaint challenging the order of termination. When that

complaint was pending, the appellant filed a second departmental appeal

which was partly allowed on 06.08.1991. By that order the appellant was

offered re-appointment in service without any benefit of past service. The

appellant accepted that order and joined her duties on 19.05.1992.

Subsequently on 11.11.1994 the appellant filed a fresh complaint

challenging the order passed by the second Appellate Authority dated

06.08.1991. The Industrial Court by its judgment dated 08.10.2002

allowed the said complaint and after setting aside the order of re-

appointment directed her reinstatement with continuity in service and full

back wages. The Corporation challenged the aforesaid judgment by filing

writ petition and as stated earlier that writ petition has been allowed by

the learned Single Judge.

3. Shri B.M. Khan, learned counsel for the appellant submitted

that in the discipline and appeal rules applicable to the Corporation there

was no provision to pass an order of re-appointment without the benefit

of past service. According to him, since the order dated 06.08.1991 could

not have been passed there was no question of the appellant raising any

LPA 216-12 3 Judgment

protest while joining duties again in the year 1992. Referring to

paragraph 2 of the judgment of the Industrial Court wherein it was

observed that the order of the second Appellate Authority had been

accepted under protest, it was submitted that the learned Single Judge

erred in setting aside the order passed by the Industrial Court. He

therefore submitted that since the Industrial Court had considered the

entire material on record and had granted relief to the appellant that

order be restored.

4. Shri A.R. Fule, learned counsel for the respondent no.1

supported the order passed by the learned Single Judge. According to

him, the appellant accepted the order passed by the second Appellate

Authority dated 06.08.1991 and joined duties without any protest on

19.05.1992. After about four years the appellant filed a complaint

seeking to challenge the order dated 06.08.1991. He submitted that the

learned Single Judge rightly found that in the absence of any protest

being made by the appellant before accepting the order of re-

appointment, relief could not have been granted to the appellant. He

referred to the decision in Maharashtra State Road Transport

Corporation, Bombay Versus Prakash Tulshiram Pardeshi [2008(4)

Mh.L.J. 940] and submitted that in paragraph two of the judgment the

Industrial Court had merely referred to the contentions raised by the

LPA 216-12 4 Judgment

appellant. Hence there was no case made out to interfere with the

judgment of the learned Single Judge.

5. We have heard the learned counsel for the parties and we

have perused the material on record. It is an undisputed fact that on

06.08.1991 the second Appellate Authority passed an order of re-

appointment in favour of the appellant but without giving any benefit of

past service. The appellant accepted that order and joined her duties on

19.05.1992. In November-1994, the order passed by the second

Appellate Authority was sought to be challenged. In the complaint, there

was no averment that the appellant accepted her re-appointment under

protest. The records further indicate that the parties did not lead any

evidence before the Industrial Court. Thus there is no material on record

to indicate acceptance of re-appointment by the appellant under protest.

This very issue has been considered by the learned Single Judge in

Prakash Tulshiram Pardeshi (supra) and there is no reason to take any

other view than the one taken in the said decision. Having accepted the

order of fresh appointment by foregoing earlier service, the appellant

cannot be permitted to turn around and raise the challenge subsequently.

The appellant was estopped from doing so and on that premise, the

learned Single Judge rightly allowed the writ petition after setting aside

the order passed by the Industrial Court.

LPA 216-12 5 Judgment

6. In view of aforesaid, we do not find any reason to interfere in

appellate jurisdiction. The letters patent appeal is accordingly dismissed

leaving the parties to bear their own costs.

              (G.A. SANAP, J.)              (A.S. CHANDURKAR, J.)


APTE