Subhash vs Divisional Controller M.S.R.T.C. & Anr

Subhash ...Appellant

Versus

The Divisional Controller, Maharashtra State Road Transport Corporation & Anr. ...Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

2. Whether the departmental appellate authority was

justified in ordering fresh appointment to the appellant while

setting aside the order of dismissal from service or it ought to

have ordered reinstatement with continuity of service and full

back wages? This is the question that falls to be determined in

this appeal by special leave.

3. Subhash Kondiba Sontakke - the appellant - came

to be employed as driver in 1980 with Maharashtra State Road

Transport Corporation (for short, 'Corporation'). He was made

permanent in 1985. On September 28, 2000, the appellant was

on duty on Beed-Dharur route. While driving bus (MH-20-D-

4332) on that route on that day, it is alleged that the bus

ramped on the railing of the bridge near Chinchavan village due

to rash and negligent driving of the appellant and that resulted

in damage to the bus. The Transport Officer, Beed, held an

enquiry into the accident and after receipt of the report, the

disciplinary authority issued charge-sheet to the appellant on

November 20, 2000. The disciplinary authority also appointed

Inquiry Officer to enquire into the charge(s) against the

appellant.

4. The appellant responded to the charge-sheet and

denied the allegations made therein. His defence was that the

accident occurred due to mechanical failure and breakage of

rear spring.

2

5. The Inquiry Officer, after conclusion of the enquiry,

held that charges were proved against the appellant. The

disciplinary authority, upon receipt of the enquiry report, issued

notice to the appellant to show cause as to why he should not

be dismissed from service and after getting the response from

the appellant, vide order dated April 16, 2001, dismissed the

appellant from service.

6. The appellant challenged the order of dismissal by

filing departmental appeal before the First Appellate Authority.

The First Appellate Authority decided the appeal on May 21,

2001 whereby he set aside the order dismissing the appellant

from service and directed that the appellant be appointed

afresh without any monetary benefits for the past service.

7. The appellant, consequent upon the order of the

First Appellate Authority, joined his duties on June 4, 2001

reserving his right to challenge that order denying him

reinstatement with continuity of service and back wages.

3

8. On June 16, 2001, the appellant preferred appeal

before 2nd Appellate Authority. The departmental 2nd appeal was

dismissed on March 20, 2002.

9. The appellant then filed a complaint under Section

28 r/w item nos. 5 and 9 of Schedule IV of the Maharashtra

Recognition of Trade Unions and Prevention of Unfair Labour

Practices Act, 1971 (for short, `Act, 1971') before the Industrial

Court, Aurangabad. The said complaint was dismissed by

Industrial Court on October 15, 2005, inter alia, holding that the

order of First Appellate Authority warranted no interference.

10. The appellant challenged the order of the Industrial

Court in a writ petition before the High Court of Judicature at

Bombay, Bench at Aurangabad. The Single Judge did not find

any merit in the writ petition and dismissed the same on

October 15, 2007.

11. That there was negligence on the part of the

appellant in driving the bus on September 28, 2000 on Beed-

Dharur route and as a result of which the bus ramped on the

railing of the bridge resulting in damage to the bus is not in

4 dispute. Thus, the appellant's misconduct to that extent is

amply established. As a matter of fact, there is no challenge to

the said finding on behalf of the appellant. It also appears from

the impugned order that during his service tenure of about 21

years, the appellant has been punished twice. However, the

fact of the matter is that the First Appellate Authority, after

noticing that in the accident none of the passengers was injured

and considering the past record of the appellant held that it was

appropriate to set aside the order of dismissal from service. He,

accordingly, set aside the order of dismissal and ordered that

fresh appointment be given to the appellant but without giving

any benefit for the past service. It is the later part of this order

that requires little modification by us. In our judgment, looking

to all relevant aspects and to render substantial justice, it is

appropriate that the order of the First Appellate Authority

directing fresh appointment of the appellant be modified by

ordering his reinstatement with continuity of service but without

back wages. This would be commensurate with the delinquency

of the appellant. In the interest of justice and fair play, denial of

back wages for the entire period from the date of dismissal until

5 his rejoining the duties would be proper punishment.

12. The appeal is, accordingly, allowed in part to the

extent indicated above. The order of the First Appellate

Authority dated May 21, 2001 is modified and it is observed that

appellant would be treated to have been reinstated with

continuity in service but without back wages. The parties will

bear their own costs.

........................J (Tarun Chatterjee)

........................J (R. M. Lodha)

New Delhi September 17, 2009.

6