1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.110 OF 2009 IN WRIT PETITION NO.6600 OF 2006 Vasudeo s/o Omkar Patil, R/o- At Post-Mohadi, Near Telephone Division, Dhule, At Post-Dhule, Tq. & Dist-Dhule. ...APPELLANT. VERSUS Divisional Controller, Maharashtra State Road Transport Corporation, Division Office, Dhule, At Post-Dhule, Tq. & Dist-Dhule. ...RESPONDENT. ... Shri. Pradeep Shahane Advocate for Appellant. Shri. D.S. Bagul Advocate for Respondent. ... CORAM: NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATE : 16TH NOVEMBER, 2010. PER COURT : 1. Heard learned counsel for the parties. 2 2. The Appellant, who was working as a driver, was appointed on 17th May, 1988. A departmental enquiry was initiated against him on the charge of absenteeism. By an order dated 6th September,2001, the Appellant was dismissed from service. He preferred first appeal to the Departmental Authorities, which was allowed by an order dated 9th January, 2002. The First Appellate Authority cancelled the order of dismissal and substituted the same with an order of fresh appointment of the Appellant. Accordingly, the Respondent Corporation issued appointment order to the Appellant on 15th January, 2002. The Appellant joined the services consequent to the said appointment order. The Appellant preferred Second Appeal to the Departmental Authorities, which came to be rejected by an order dated 23rd September, 2003. Thereafter the complaint was filed before the Industrial Court. The Industrial Court, by an order dated 3rd July, 2006, rejected the Complaint. The Writ Petition No.6606 of 2006 filed 3 by the Appellant, was dismissed by the learned Single Judge on 25th February, 2008. This Letters Patent Appeal was filed on 10th November, 2008. 3. In substance, the learned counsel Shri. Shahane submitted that the Disciplinary Authority did not follow proper procedure as provided under the Departmental Rules. The punishment awarded against the Appellant was not in consonance with the Rules and was harsh. The Appellant is suffering monetary loss due to the order of fresh employment. The learned counsel referred to following Judgments in support of his submissions: 1) Rajendra B. Oza vs. Air India, Bombay, 2003 Lab I.C. Page 19, 2) State of Punjab and others vs. Bakshish Singh, 1999 (I) L.L.J. Page 1208, 3) Abujam Amuba Singh vs. State of Manipur and others, 2000 4 Lab. I.C. Page 498, 4) Virendra Singh vs. Managing Director, Uttar Pradesh State Road Transport Corporation, Lucknow and others, 1996 (I) L.L.N. Page 79, 5) M.S.R.T.C. vs. Namdev Ramchandra Musale, 2002 (I) Bom. L.C. Page 637, 6) M.P. Electricity Board vs. Maiku Prasad, 2009 ALL S.C.R. Page 637, 7) Managing Director, Bharat Containers Pvt. Ltd. vs. Arvind Waman Unhavana and others, 1996 II C.L.R. Page 241, 8) Mahadev s/o Atmaramji Nage vs. M.S.R.T.C. Amravati, 2009(2) Mh. L.J. Page 817, 9) Judgment delivered by Single Bench of this Court (CORAM: S.P. DAVARE, J.) in Writ 5 Petition No.3815 of 1996 dated 22nd April, 2009, 10) Judgment delivered by the Nagpur Bench of the Bombay High Court in L.P.A. No.4 of 2007 dated 11th April, 2008, 11) Order passed by the Division Bench of this Court (CORAM: NARESH H. PATIL AND K.K. TATED, JJ) in L.P.A. No.12 of 2010, 12) Bir Bajrang Kumar Vs. State of Bihar, A.I.R. 1987 Supreme Court, Page 1345, 13) Judgment Delivered by the Supreme Court in the Case of Subhash vs. The Divisional Controller, Maharashtra State Road Transport Corporation and another (Arising out of SLP (C) No.5594 of 2008), dated 17th September, 2009. 4. Shri. Shahane, learned counsel 6 specifically submitted that in the light of the ratio in the case of Subhash vs. Divisional Controller, M.S.R.T.C. (arising out of SLP (C) No. 5594 of 2008), cited supra, the Appellant deserves continuity of service. 5. Shri. Bagul, learned counsel appearing for the Corporation submitted that the issue in respect of fresh employment ordered by the appellate authority, was not raised before the Industrial Court and before the learned Single Judge by the Appellant. For the first time, the issue is being raised during the course of arguments, therefore, in exercise of jurisdiction under the Letters Patent Appeal, this Court may not consider the submissions. The counsel further submitted that application for amendment of complaint at the stage of delivery of the Judgment, was filed by the Appellant before the Industrial Court, which came to be rejected. The Appellant accepted the order of fresh employment and accordingly joined the services consequent to 7 the order dated 15th January, 2002. The Complaint was filed before the Industrial Court after delay of one year nine months and six days. The counsel submitted that in the light of the peculiar facts of the case, the Industrial Court and the learned Single Judge did not interfere into the order passed by the Appellate Authority. The learned counsel submitted that in the case of Subhash vs. the Divisional Controller, M.S.R.T.C., cited supra, the employee therein had joined the services reserving his right to challenge the order denying reinstatement with continuity of service and back wages. 6. We have perused the copy of memo of Writ Petition filed by the Appellant before the learned Single Judge, the order passed by the learned Single Judge. Though the order of Industrial Court is not annexed with the L.P.A., we had called the proceedings of Writ Petition No.6600 of 2006 and perused the order passed by the Industrial Court dated 3rd July, 2006 in Complaint (ULP) No.4 of 8 2005. We do not find that the Appellant had raised the issue in respect of the order of fresh employment not being in consonance with the Departmental Rules, before the Industrial Court or before the learned Single Judge of this Court. From the order passed by the learned Single Judge of this Court too, we do not find that this issue was raised by the Appellant and therefore could not be addressed by the learned Single Judge. There is nothing on record to show that the Appellant joined the services consequent to the order passed on 15th January 2002, under protest or reserving his rights to challenge the said order. 7. Inspite of sufficient time available to the contesting parties, the relevant order passed by the Industrial Court, in respect of application for amendment filed by the Appellant, is not placed before this Court. Each case will have to be considered in the facts and circumstances of its own. 9 8. We have perused the Judgments cited supra. In exercise of our jurisdiction under the Letters Patent Appeal, the Appellant is required to point out glaring error or perversity in the impugned order. The learned Single Judge had addressed the issue which was raised. We do not find any glaring error or perversity in the order passed by the learned Single Judge. The Letters Patent Appeal is dismissed. [SHRIHARI P. DAVARE, J.] [NARESH H. PATIL, J.] asb/NOV10/lpa110.09