Allowed

Maharashtra State Road Transport Cor.Ahmednagar v. S.L. Athare

Bombay HC15 Sept 2014LPA/174/2002

Case brief

AI extract

What is this about?

The High Court Bench allowed the Appeal filed by the Corporation against an Industrial Court order reinstating a former conductor. The Court held that since the employee accepted re-employment as a fresh entrant without protest, the Industrial Court erred in granting back wages and continuity of service.

What did the court decide?

The impugned orders of the Industrial Court and the High Court Single Judge were quashed; the Industrial Court complaint was dismissed.

Maharashtra State Road Transport… — Labour and Industrial Disputes | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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LETTERS PATENT APPEAL NO. 174 OF 2002 WITH

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CIVIL APPLICATION NO. 4167 OF 2000

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Maharashtra State Road Transport Corporation, Through its Divisional Controller Ahmednagar ...Appellant versus

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Shri S.L. Athare, Age about 58 years, Occ. Conductor, R/o. 6500, Bhakare Galli, Sarjepura, Ahmednagar District Ahmednagar ...Respondent

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Mr. M.K. Goyanka, advocate for the appellant Mr. P.V. Barde h/f Mr. T.K. Prabhakaran, advocate for respondent

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CORAM : R.M. BORDE AND V. K. JADHAV, JJ.

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DATED : 15^th SEPTEMBER, 2014

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JUDGMENT (PER JADHAV, J.) :-

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Being aggrieved by the judgment and order dated 13.7.2000 passed by the learned Single Judge of this Court thereby dismissing writ petition No. 2089 of 1999, filed by the Maharashtra State Road Transport Corporation, Ahmednagar (for short “Corporation”) against the judgment and order dated 4.9.1997, passed by learned Member,

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Industrial Court, Ahmednagar in complaint (ULP) No. 731 of 1995, filed by respondent herein, thereby allowing the said complaint and directed the Corporation to pay full back wages and grant continuity of service to respondent herein, the Corporation has filed present Letters Patent Appeal. (Hereinafter the parties are referred to as per their status before the Industrial Court).

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Brief facts, giving rise to file this Letters Patent Appeal, are as follow:-

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The complainant was serving as conductor with the Corporation. He was dismissed from service by order dated 26.8.1992 w.e.f. 27.8.1992, after holding departmental inquiry in respect of charges of misconduct of re-issuance of used tickets and thereby misappropriating the funds of the Corporation. The complainant had challenged the said order before the first appellate authority of the Corporation and said appellate authority had partly allowed the appeal and directed the Corporation to allow the complainant to join duties as a fresh entrant conductor. In pursuance of order passed by the appellate authority, the complainant had joined the services w.e.f. 23.4.1993 and since then he was in service of the Corporation. Thereafter, the complainant had filed a complaint alleging that the Corporation has committed unfair labour practice as

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contemplated under Section 28 read with Items 5, 7, 9 and 10 of Schedule IV of Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practice Act, 1971 before the Industrial Court, Ahmednagar on 23.11.1995. As aforesaid, the learned Member of Industrial Court, Ahmednagar by judgment and order dated 4.9.1997 allowed the complaint and directed the respondent Corporation to pay full back wages and continuity of service to the complainant. The Corporation had challenged the judgment and order of the Industrial Court by filing writ petition No. 2089 of 1999. The learned Single Judge of this Court by order dated 13.7.2000 confirmed the order passed by the Industrial Court and rejected the petition. Hence, this Letters Patent Appeal.

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According to the Corporation, the complainant had joined the services in pursuance of order passed by the appellate authority of the Corporation without any protest w.e.f. 23.4.1993 and after 2 ½ years, had filed a complaint in the Industrial Court alleging that the Corporation has committed unfair labour practice. The said complaint was filed beyond period of limitation. It has also contended that the Industrial Court has no jurisdiction or authority to entertain the complaint when the complainant was already reinstated in service as a fresh entrant on the post of conductor in pursuance of order passed by the appellate authority of the Corporation. The complainant had

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accepted the said order and without making any protest, joined the services as a fresh entrant. Thus, the complainant has no cause of action to file complaint and consequently the Industrial Court has no jurisdiction, authority or power to entertain and decide the complaint.

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According to the complainant, departmental enquiry conducted against him was not according to the provisions of Discipline and Appeals Rules, relevant procedure and principles of natural justice. Thus, initial dismissal order issued by the Divisional Traffic Superintendent was illegal and the said authority was not competent to inflict punishment upon the complainant. Consequently, the complainant had challenged his dismissal order before the departmental appellate authority. The departmental Appellate authority had set aside the punishment of dismissal and the complainant was reinstated as a fresh employee without continuity of service and back-wages. Though the appellate authority had considered the case of the complainant sympathetically, however, it was by ignoring legal provisions while setting aside the punishment of dismissal. Departmental appellate authority should have directed to reinstate the complainant with continuity of service and full backwages. Thus, the complainant was constrained to approach the Industrial Court by filing complaint, as aforesaid.

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Learned Member of the Industrial Court has thus, rightly directed the Corporation to pay full back wages and continuity of service to the complainant by allowing the complaint and the learned Single Judge of this Court has dismissed the writ petition No. 2089 of 1999 by confirming the order passed by the learned Member of the Industrial Court. It is further contended that there is no merit in the appeal and thus, the appeal is liable to be dismissed.

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Learned counsel appearing for the Corporation has submitted that the complainant had filed the complaint before the Industrial Court after 2 ½ years of the decision rendered by appellate authority of the Corporation. Thus, the complaint was filed beyond period of limitation and ought not to have been entertained by the learned Member of Industrial Court. It has also submitted that the complainant was appointed as a fresh entrant on the post of conductor in pursuance of order passed by appellate authority of Corporation w.e.f. 23.4.1993 and without making any protest against the said order, complainant had accepted the said decision. In view of this, there was no cause of action and consequently the complaint itself is not tenable.

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Learned counsel appearing for the complainant has submitted

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that the learned Member of the Industrial Court has rightly allowed

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the complaint and reinstated the complainant with back-wages.

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It is not disputed that the complainant had accepted the post of conductor as a fresh entrant in pursuance of order passed by the appellate authority of Corporation w.e.f 23.4.1993 without making any protest. The learned Member of Industrial Court has observed in the impugned judgment that the order of departmental appellate authority is undated and so the complaint is within limitation. We are not inclined to approve such approach of learned Member of Industrial Court. On careful perusal of record and proceedings, we find that the complainant was given an appointment on the post of conductor as a fresh entrant by order dated 22.5.1993 issued by the Corporation by referring the order of departmental appellate authority by outward No. RP/VNAH/PS/Apl/7320 dated 23.4.1993. In pursuance to the said order, the complainant was given appointment as fresh entrant on the post of conductor w.e.f. 23.4.1993. The complainant has admittedly filed a complaint before the learned Member, Industrial Court 2 ½ years after his appointment in pursuance of the order passed by the appellate authority of Corporation dated 23.4.1993. In view of this, it appears that the complaint is filed after inordinate delay. The complainant has not bothered to explain the said delay. It is also an admitted fact that the complainant had joined the service in pursuance of order of the

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appellate authority of Corporation without any protest. The learned Single Judge of this Court has simply observed that the point of limitation has been dealt with by the Industrial Court.

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The learned Member of the Industrial Court in para 8 of the impugned judgment has observed that the departmental appellate authority has reached to the conclusion that the complainant is guilty of committing irregularities in issuing used tickets. On this backdrop, we have carefully gone through the order passed by the departmental appellate authority, wherein it is specifically mentioned that complainant has no other source of income other than the service and thus requested for taking lenient view in his case. Thus, the departmental appellate authority after taking into consideration various aspects of the case and the young age of the complainant was inclined to grant a last opportunity to the complainant to serve with Corporation. In view of these observations, departmental appellate authority has set aside the order of dismissal and directed reappointment of the complainant as a conductor in the next available vacancy without any benefit of the past service.

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Learned counsel appearing for the Corporation has placed reliance on unreported judgment of learned Single Judge of this Court in writ petition No. 1858 of 2003, (Maharashtra State Road

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Transport Corporation, Bombay vs. Prakash Tulshiram Pardeshi) decided on 22.4.2008. Learned Single Judge in the above cited case by placing reliance in the case of State of Punjab vs. Krishan Niwas, reported in 1997 1 CLR 855 , in identical facts, held that since the respondent was offered re-employment on humanitarian ground, particularly in the light of the fact that he accepted his mistake, the interference of the Labour Court in the proceeding was not warranted.

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Learned counsel appearing for the complainant has placed reliance on the judgment of this Court in the case of Maharashtra State Road Transport Corporation vs. Alfred James Gamare, reported in 2009 (4) ALL MR 31, wherein the learned Single Judge of this Court has distinguished the judgment rendered by learned Single Judge of this Court in writ petition No. 1858 of 2003 (supra) on the basis of the facts involved in the said matter and thus has taken a different view. It appears that the facts involved in writ petition No. 1858 of 2003 are similar to the facts and circumstances of the case in hand and thus it squarely applies to the issue involved in the case.

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Learned counsel appearing for the complainant has also placed reliance on the decision of this Court in the case of M/s. Cipla Ltd. vs. Anant Ganpat Patil and Ors., reported in 2008 (1) ALL

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MR 526 , wherein it is held that if there is plea raised by the workman in the complaint as to continuous nature of unfair labour practice by the employer, it is not required for the complainant to file separate application for condonation of delay. However, the facts of the present case are different. The complainant in the present case has accepted his appointment as new entrant without any protest and after 2 ½ years of joining of said post, had filed complaint before the Industrial Court.

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Learned counsel appearing for the complainant has submitted that the complainant is now retired on attaining the age of superannuation and if this appeal is allowed his pensionary benefits would be affected. However, learned counsel appearing for the Corporation has submitted that the complainant had completed his qualifying service, even after his re-appointment as new entrant on the post of conductor and thus he would get the benefits of retirement as per service conditions and in accordance with the Rules and Regulations in this regard.

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The complainant had accepted the order of departmental appellate authority and joined the services w.e.f. 23.4.1993. Thus, it was not open for the complainant to turn back and make grievance of unfair labour practice. The complaint filed in the Industrial Court thus

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suffers from delay and laches. Furthermore, the interference of the learned Member of Industrial Court was not warranted when the complainant had accepted his mistake and on humanitarian ground he was appointed on the post of conductor as a fresh entrant.

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In these circumstances, the Letters Patent Appeal will have to be allowed and it is accordingly allowed.

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The impugned judgment and order of the Industrial Court dated 4.9.1997, passed by the learned Member, Industrial Court, Ahmednagar in complaint (ULP) No. 731 of 1997 as well as the order dated 13.7.2000 passed by the learned Single Judge of this Court in writ petition No.2089 of 1999 are hereby quashed and set aside. The complaint No. 731 of 1999 filed by the complainant before the Industrial Court, Ahmednagar is hereby dismissed. However, there shall be no order as to costs.

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In view of disposal of Letters Patent Appeal, nothing further survives for consideration the civil application No. 4167 of 2000 and the same is disposed of.

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rlj/

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Maharashtra State Road Transport Cor.Ahmednagar v. S.L. Athare

Case brief

What is this about?

What did the court decide?

Maharashtra State Road Transport Cor.Ahmednagar v. S.L. Athare

Case brief

What is this about?

What did the court decide?

What the court decided

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