Bombay High Court
Maharashtra State Road Transport ... vs Kiran Bapu Miraje on 9 April, 2025
2025:BHC-AS:16699
Megha 9_wp_4034_2007_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4034 OF 2007
Maharashtra State Road Transport
Corporation ...Petitioner
V/s.
Kiran Bapu Miraje ...Respondent
______________
Ms. Pinky M. Bhansali for the Petitioner.
Mr. Gouresh Mogre with Ms. Nikita Mandaniyan and Mr.
Dileep Satale i/b. Mr. Harshad Bhadbhade for Respondent No.1.
______________
CORAM: SANDEEP V. MARNE, J.
Judgment reserved on: 3 April 2025.
Judgment pronounced on: 9 April 2025.
Judgment:
1) Petitioner-Maharashtra State Road Transport
Corporation (MSRTC) has filed this Petition challenging the
judgment and order dated 11 September 2006 passed by the
Member, Industrial Court, Kolhapur in Complaint (ULP) No.48
of 2003. The Industrial Court has set aside the order of the First
Appellate Authority as confirmed by the Second Appellate
Digitally
signed by
MEGHA
MEGHA
SHREEDHAR
SHREEDHAR PARAB
Authority by order dated 11 October 2002 and has remanded the
PARAB Date:
2025.04.09
16:35:15
+0530
proceedings to the Second Appellate Authority for inflicting
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punishment against Respondent for proved misconduct except
the penalty of discharge/dismissal/otherwise termination.
2) Briefly stated, facts of the case are that Respondent
was working as Driver with Petitioner-MSRTC since 1 January
1978. Disciplinary proceedings were initiated against him by
issuance of charge-sheet dated 23 June 1999 alleging that he was
found illegally transporting passengers in the Jeep driven by
him. In the enquiry, charge was proved and the Respondent was
dismissed from service by order dated 1 October 1999. He
preferred departmental appeal and the First Appellate Authority
partly allowed the appeal on 20 January 2000 and set aside the
punishment of dismissal by awarding him re-appointment as a
Driver. This resulted in wiping out past service rendered by the
Respondent. He joined the services in pursuance of fresh
appointment granted by the Appellate Authority and filed appeal
before the Second Appellate Authority, which came to be
dismissed by order dated 11 October 2002. He filed Complaint
(ULP) No.48 of 2003 before the Industrial Court, Kolhapur,
challenging the order of Second Appellate Authority. The
Industrial Court has allowed the Complaint filed by the
Respondent by its judgment and order dated 11 September 2006
by setting aside the order passed by the Second Appellate
Authority dated 11 October 2002 and by remanding the
proceedings to the Second Appellate Authority for inflicting
punishment for proved misconduct except that of discharge/
dismissal /otherwise termination. The judgment and order dated
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11 September 2006 passed by the Industrial Court is subject
matter of challenge in the present Petition.
3) The Petition came to be admitted by order dated 4 July
2007 directing that the Respondent would continue in the
employment as a fresh appointee. Respondent continued to work
as a fresh appointee during pendency of the present Petition and
has retired from service in April 2011. The Petition is called out
for final hearing.
4) Ms. Bhansali, the learned counsel appearing for
Petitioner would submit that the Industrial Court has grossly
erred in interfering with the order passed by the First Appellate
Authority directing fresh appointment to the Respondent. That
the First Appellate Authority had taken a lenient view in the
matter and had issued fresh appointment in his favour. That
Respondent was found to have committed serious misconduct of
transporting passengers of MSRTC in the Jeep driven by him
and collecting fare of Rs. 6/- from each of them. The charge
involved corrupt practices and therefore, the penalty of dismissal
was in fact appropriate. However, the First Appellate Authority
still proceeded to take a lenient view in the matter by offering
fresh appointment to him. She would submit that it is
permissible for the Petitioner to offer fresh appointment to a
dismissed employee of MSRTC. She would rely upon judgment
delivered by this Court in Maharashtra State Road
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Transport Corporation V/s. Yamanappa Huvappa Jadhav 1
She would submit that the Industrial Court has grossly erred in
directing infliction of substituted penalty for proof of grave
misconduct of misappropriation. She would therefore pray for
setting aside of the order passed by the Industrial Court.
5) The Petition is opposed by Mr. Mogre, the learned
counsel appearing for the Respondent. He would submit that
grant of fresh appointment is not specified as penalty under
Rules of MSRTC. That therefore the Industrial Court has rightly
set aside the order passed by the First Appellate Authority. That
it is impermissible to inflict penalty, which is not provided for in
the Rules. In support, he would rely upon judgment of Apex
Court in State Bank of India and Ors. V/s. T.J. Paul 2. He
would submit that the Respondent was in service since 1978 and
the impugned order passed by the First Appellate Authority
would have had the effect of wiping out of 21 long years of service
rendered by the Respondent. He would submit that the
Industrial Court has rightly appreciated the entire material
available on record and there is no perversity in the findings
recorded by it for this Court to interfere in exercise of jurisdiction
under Article 227 of the Constitution of India. He would pray for
dismissal of the Petition.
6) Rival contentions of the parties now fall for my
consideration.
Writ Petition No.2719 of 2006, decided on 5 September 2024.
(1999) 4 SCC 759
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7) Respondent faced serious charge of transporting 6
passengers in the Jeep driven by him on 14 June 1999. The Jeep
driven by him was checked at Village -Levale and it was found
that 6 passengers were travelling therein and that the
Respondent had collected fare of Rs.6/- each from the said
passengers. Thus, the passengers, who would have otherwise
travelled in the bus of MSRTC by paying fare, were illegally
transported by the Respondent by pocketing Rs.36/- towards
amount collected from them.
8) The Industrial Court has not interfered in the finding
of guilt. It appears that finding of guilt was not seriously
challenged before the Industrial Court by the Respondent. His
main thrust was on punishment of re-appointment given by the
First Appellate Authority. The Industrial Court has therefore not
interfered with the finding of guilt. Its entire order deals with
correctness of penalty imposed on the Respondent.
9) The next issue for consideration is whether the First
Appellate Authority was empowered to offer re-appointment as a
fresh appointee to the Respondent, who was dismissed from
service by the Appellate Authority. The issue is no more res
integra and is covered by judgment of this Court in Yamanappa
Huvappa Jadhav (supra):
5) Ms. Bhansali would submit that Petitioner-MSRTC is entitled to
grant re-appointment to its employee depending on facts and
circumstances of the present case. She would criticize the
Industrial Court in interfering in the order dated 18 October
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1995 on the ground of impermissibility for the second Appellate
Authority to grant re-appointment to the Respondent. In my
view, grant of re-appointment to the employee concerned,
who has been dismissed from service, is entirely the
matter of discretion of the employer. It cannot be stated
that the employer is without authority to offer re-
employment to the employee, who has already been
dismissed from service considering the facts and
circumstance of each individual case. It cannot be stated
as a matter of absolute proposition of law that in no case,
Petitioner-MSRTC is authorised to offer fresh
appointment or re-appointment to its employee who has
already been dismissed from service. It depends on facts
and circumstances of each case.
(emphasis added)
10) Thus, this Court has already taken a view that grant of
fresh appointment to an employee, who has been dismissed from
service, is entirely the matter of discretion of the employer and
that it cannot be accepted as an abstract proposition that in no
case the employer can offer re-appointment to its employee, who
has been dismissed from service.
11) Ms. Bhansali has contended that Respondent accepted
the order of fresh appointment, joined service and thereafter
turned around and filed appeal before the Second Appellate
Authority and complained of unfair labour practice. She has
relied upon judgment of this Court in Maharashtra State
Road Transport Corporation, Bombay V/s. Prakash
Tulshiram Pardeshi3 in which it is held as under:
But in the facts of the present case, it needs emphasis that
the order of the Appellate Authority properly construed, was
an offer for a fresh appointment which was duly accepted by
the Respondent. If the Respondent believed that the
Appellate Authority had no authority to impose such a
direction upon him, he could have challenged the order in its
entirety. Having taken the benefit of the order, the
Writ Petition No.1858 of 2003, decided on 22 April 2008.
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Respondent was estopped from challenging the order by
which he was given fresh appointment. The Appellate
Authority while justifying its own finding, confirmed the
order of dismissal. The Respondent was, however, offered re-
employment on humanitarian grounds, particularly in the
light of the fact that he accepted his mistake and stated that
he would not commit such a mistake in future. The
interference of the Labour Court in the proceedings, was
therefore, clearly not warranted. The principle that estoppel
must apply in a situation such as this is consistent with the
judgment of the Supreme Court in the State of Punjab vs.
Krishan Niwas, 1997 1 CLR 855. The same view has been
taken by the Division Bench of the Gujarat High court in
Union of India vs. N. M. Dhobi, 2006 I CLR 587.
12) In Yamanappa Huvappa Jadhav (supra) this Court
upheld the order of the Industrial Court setting aside fresh
appointment not on the ground that the Appellate Authority was
without jurisdiction to direct re-appointment but because
punishment of dismissal was found to be disproportionate to the
misconduct of absence of only 25 days. This is clear from the
following findings in paragraph 9 of the judgment:
9. Perusal of the Order passed by the Appellate Authority would
indicate that it has set aside the dismissal order dated 23
November 1994 and has thereafter ordered re-appointment of
the Respondent in service. Furthermore in Prakash Tulshiram
Pardeshi (supra), the Respondent therein faced serious charge of
misappropriation whereas in the present case, the Respondent
suffered the charge of remaining absent for 25 days. In my view
therefore, the punishment of dismissal from service was
otherwise not commensurate with gravity of misconduct
alleged and proved. Therefore, the Order passed by the
Appellate Authority directing re-appointment was
required to be interfered not because the Appellate
Authority could not have done so, but only because the
punishment of dismissal was not proportionate to the
misconduct of absence of only 25 days.
(emphasis supplied)
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13) In the present case however, Respondent faced serious
charge of misappropriation of Rs.36/- by driving 6 passengers in
his Jeep, who would have otherwise purchased bus tickets by
undertaking journey in MSRTC Bus. Therefore, the punishment
of dismissal was actually not disproportionate to the proved
misconduct. Despite this, the Appellate Authority showed
leniency in favour of the Respondent and granted him fresh
appointment. As held above, grant of fresh appointment is not
really as a measure of penalty but as a matter of discretion
vested in the First Appellate Authority, who is higher in rank
than the appointing authority of Respondent. Therefore, grant
of fresh appointment cannot really be linked with the
punishment of dismissal earlier imposed on the Respondent.
14) Even otherwise the Respondent accepted the re-
appointment offered to him without any demur. His case would
therefore be covered by the principles enunciated by the
judgment in Prakash Tulshiram Pardeshi (supra).
15) Another gross error committed by the Industrial Court
was to direct imposition of punishment except discharge/
dismissal/otherwise termination of service of the Respondent. If
this direction is seen in the context of provisions of Discipline
and Appeal Procedure of MSRTC, punishment of either
reduction to lower pay, reversion, stoppage of promotion,
withholding of increment or recovery from pay would become
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imposable. It is inconceivable that an employee of MSRTC, who
is held guilty of unauthorisedly transporting passengers by
collecting fare from them, can be let off with imposition of
insignificant penalty of withholding of increment, reduction of
pay or stoppage of promotion. The Industrial Court has not
interfered with finding of guilt and therefore it was erroneous on
its part to direct imposition of penalty otherwise than discharge
or dismissal. This is a fit case where the Industrial Court ought
not to have interfered with award of fresh appointment to the
Respondent despite holding him guilty of serious misconduct of
transporting ST passengers in his Jeep by collecting fare from
them. The Respondent is retained in service albeit as a fresh
appointee. Grant of fresh appointment to him w.e.f. 20 January
2000 has enabled him to earn salary and allowances till his
retirement. MSRTC otherwise does not have pension scheme at
par with the State Government. He would still earn retirement
benefits on the basis of the services rendered by him after his re-
appointment.
16) The principle here is that the employee cannot plead
mercy before the Appellate Authority, get back job as a fresh
appointee and then turn around and challenge the fresh
appointment by branding the same as punishment, incapable of
being imposed under the MSRTC Discipline and Appeal
Procedure. The Appellate Authority may take special
circumstances of a case and decide to offer fresh appointment to
an employee. Such action on the part of the Appellate Authority
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cannot be termed as imposition of reduced penalty. Grant of
alternate appointment is not in exercise of disciplinary powers
but in exercise of inherent and discretionary power of the
Appellate Authority to show mercy and appoint a dismissed
employee as a fresh entrant in service.
17) In Anil Vaijnath Abrad Vs. Divisional Traffic
Superintendent, MSRTC 4 coordinate bench of this Court has
enunciated twin principles of impermissibility to challenge the
reappointment after joining service and lack of jurisdiction of
Industrial Court to interfere in the order of reappointment. This
Court relied on judgment of the Apex Court in State of Punjab
and Ors. v.Krishan Niwas5, and held as under:
16. I find that the Respondent dismissed the Petitioner from service on
12.08.2000 by way of punishment. Thereafter, it passed the following order:
--
"...... Taking into consideration all merits and demerits of the case
we have decided to give him one chance to redeem himself in the
services of the Corporation and show improvement in his attitude
only on humanitarian grounds and as such, we set aside the orders
issued by the earlier authorities and order as under:--He should be
re-appointed as a fresh Art. A."
17. It is in these circumstances that I conclude that the order of re-
appointment cannot be termed as an order of punishment in the face of the
fact that the punishment of dismissal was imposed and the service of the
Petitioner had been brought to an end.
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 judgment of the
Punjab & Haryana High Court made on March 7, 1996 in Second
Appeal No. 2662/95.
(2016) 3 BomCR 860
(1997) 9 SCC 31
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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 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.
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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 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;
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(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 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.
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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.
18) Therefore the Industrial Court could not have
interfered in the order of fresh appointment granted by the first
Appellate Authority.
19) Reliance by Mr. Mogre on T.J. Paul (supra) does not
cut any ice. In that case, the Respondent therein was found to
have committed minor misconduct as per rules of the Bank,
which would have entailed penalties of warning, adverse remark
or stoppage of increment. However, the Petitioner-Bank
proceeded to impose penalty of removal from service, which was
not one of the penalties enumerated in para 22(vii) of Bank of
Cochin Service Code. Thus, despite being held guilty of minor
misconduct, major penalty of removal was imposed. It is in the
light of fact of that case that the Apex Court has set aside major
penalty of removal. The judgment, in my view, has no application
to the facts of the case.
20) Considering the overall conspectus of the case, I am of
the view that impugned order passed by the Industrial Court is
indefensible and liable to be set aside.
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21) Petition accordingly succeeds. Judgment dated 11
September 2006 passed by the Member, Industrial Court,
Kolhapur, in Complaint (ULP) No.48 of 2023 is set aside.
22) Petition is allowed in above terms. Rule is made
absolute. There shall be no orders as to costs.
[SANDEEP V. MARNE, J.]
9 April 2025
