1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITIONNO.210 OF 1997 Sahebrao s/o Pandu patil age 57 years, occupation service, r/of at and post Bahaderpur, Taluka Parola, District Jalgaon. Petitioner versus The Divisional Controller, Maharashtra Road Transport Corporation, Jalgaon, Dist. Jalgaon. Respondent ------ Shri V.Y. Patil, Advocate, for the petitioner. Shri Vasant S. Yadav, Advocate, holding for Shri M.K.Goyenka, Advocate for the Respondent. Coram: P.R.Borkar J. Date: July 23, 2009 Oral Judgment 1. The original employee working as a conductor with Respondent and who is aggrieved by the judgment and order passed by the Presiding Officer, Labour Court, Jalgaon in Reference I.D.A. No.7/1990 decided on 8.9.1995, has filed this writ petition for setting aside the said judgment and order. 2 2. Briefly stated, the petitioner was appointed with respondent as conductor in the year 1966 and was confirmed in service in the year 1969. On 2.3.1986 the petitioner was terminated on the ground that on 24.3.1985 when he was working as a conductor on S.T.bus scheduled on Dharangaon to Parola route, his bus was checked and it was found that one lady along with three children was traveling from Dharangaon. They were holding ticket Nos.87130 and 83731 of Rs.1.50 ps., ticket bearing No.217914 of 00.60 paisa and ticket no.204206 of Rs.00.20 paisa. The lady passenger had paid to the petitioner, an amount of Rs.3.80 ps. as fare and it was found that those were the tickets which were already sold by the conductor on the earlier day i.e.23.3.1985. It was also found that there was group of 7-8 passengers, including one minor, who were traveling from Dharangaon to Bhavarkheda from whom the petitioner had collected the fare but had not issued tickets to them. Excess cash of Rs.3.30 ps. was found with the petitioner. 3. Petitioner was dismissed with effect from 2.3.1986. First departmental appeal filed by him against that dismissal also came to be dismissed on 30.9.1986. The petitioner filed second departmental appeal and that appeal was partly allowed by the Second Appellate Authority on 15.2.1988. In the said second departmental appeal, 3 the Deputy General Manager (Traffic) and Officer on Special Duty (Appeals) formed the second appellate committee. It took view that though the misconduct was proved, the appellant-petitioner claimed that he was not feeling well and he had headache. His record of past fifteen years was good. It was submitted by the appellant accompanied by union representative that considering the long service and nature of misconduct on the part of the petitioner, leniency may be shown. In the result, the committee quashed the earlier order issued and ordered that the appellant-petitioner may be reappointed afresh in the next available vacancy. It is no more in dispute that the petitioner joined the service on or about 12.2.1988. 4. The petitioner moved the Government Labour Officer, Jalgaon. The Deputy Commissioner of Labour held conciliation proceedings on 18.1.1990 and then madethe reference to the Labour Court. 5. It is the case of the petitioner that in stead of his fresh appointment, there should have been continuity of service. The learned Presiding Officer of the Labour Court, after considering the evidence and documents on record, came to a conclusion that the enquiry was properly held and there was no illegality, perversity or violation 4 of principles of natural justice so far as enquiry is concerned. Learned Presiding Officer of the Labour Court observed that the charges were proved and considering the misconduct, punishment of dismissal was not disproportionate. Since fresh appointment was accepted, the learned Presiding Officer of the Labour Court came to a conclusion that the employee was estopped from challenging his dismissal. Ultimately passed following order. "(i). The reference is hereby disposed off thereby suggesting the Ist party employer to grant continuity of service to the II party workman extra exceptional case. (ii) There is no order as to costs." 6. Learned counsel for the respondent argued that by accepting fresh appointment, there is waiver and also estoppel to challenge earlier termination order and fresh appointment and therefore the petitioner cannot claim continuity of service as prayed by him and there is no reason for interference in the order impugned in this writ petition. 7. Learned counsel for the petitioner submitted that the petitioner accepted the fresh appointment order under protest, but after going through the record, he was unable to point out any document to show that the petitioner accepted 5 fresh appointment under protest. Perusal of the documents show that by letter dated 18.1.1990 (produced at page 63 of the record and proceedings of the Labour Court), the petitioner wanted to amend his earlier demand and add that his service should be held as continuous and he should be paid back wages. In absence of any evidence to show that fresh appointment was accepted by petitioner under protest, it is argued that there is bar of principle of estoppel and the petitioner is not entitled to turn back and complain regarding unfair labour practice. 8. Learned Advocate for the respondent relied upon the decision of learned Single Judge of this court in Writ Petition No.1858 of 2003 (Maharashtra State Road Transport Corporation, Bombay vs. Prakash Tulshiram Pardesh) decided on 22.4.1088. The learned Judge observed: ". The Respondent accepted the order of the Appellate Authority and joined service with effect from 10th December 1994. Once that was done and having taken the benefit of the order, it was clearly not open to the Respondent to turn back and complain of an unfair labour practice. The Respondent is clearly estopped from doing so. The principle of estoppel must apply in such 6 case and the Labour Court ought to have rejected the complaint on this ground alone." 9. The learned Judge has further observed as follows; ". 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 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 7 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 1 CLR 587. 10. In view of above and considering particularly the judgment of the second appellate authority produced at Exh. A and the reasons given by the learned Presiding Officer, Labour Court, in my opinion, the ratio laid down in the case cited is fully applicable to the facts of the present case. No interference is called for in the impugned judgment and order. 11. In the result, writ petition is dismissed. Parties to bear their own costs. pnd/wp210.97 (P.R.BORKAR, J.)