1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7694 OF 2008 1. Divisional Controller } MSRTC, Ahmednagar Division } Through Divisional Controller } Ahmednagar. } 2. Depot Manager (C), } MSRTC Shrigonda Depot, } Shrigonda, Dist. Ahmednagar. } 3. First Appellate Authority } Divisional Controller } MSRTC, Ahmednagar Division } Ahmednagar. } .... PETITIONERS V E R S U S Smt. Ranjana Keshav Bhosale } Age : Major, Occ. Service, } R/o Behind Dhoot Agency, } Nagar to Pune Road, Ahmednagar } Dist. Ahmednagar. } .... RESPONDENT Mr. Vasant Yadav holding for Mr. M.K.Goyanka, Advocate for Petitioner. 2 [ CORAM : S.S.SHINDE, J. ] DATE : 04/09/2009 JUDGMENT : 1. Rule, returnable forthwith, taken for final hearing. 2. This Writ Petition is filed challenging the Judgment and Order passed by the learned Industrial Court, Ahmednagar in Complaint (ULP) No. 101 of 2002 dated 16/10/2007, by which the Industrial Court ordered that the complaint filed by the respondent herein is allowed. The petitioner/original respondent is engaged in unfair labour practice by stopping yearly increments for 3 years of complainant. That practice is declared illegal and it is directed to cease from it. The original respondent/petitioner herein is also directed to give the regular increments and benefit regarding salaries to the complainant regularly. The respondent herein is in the service of M.S.R.T.C. at Shrigonda depot, Dist. Ahmednagar as a sweeper. That the respondent herein had been absent from 1/1/1999 to 25/3/1999 and thereafter for 26/3/1999 to 20/7/1999 without obtaining leave from the petitioner or giving intimation or prior permission of the petitioner. The respondent was absent for the period of 134 days. The Charge Sheet was issued to the respondent as the respondent was absent for the mis-conduct of absentism without leave or prior permission. Enquiry was conducted by following due 3 procedure of law following principles of natural justice and after giving due opportunity of hearing to the respondent. Respondent did participate in the enquiry, however, did not produce any medical bill, certificate and other documents regarding medical check up, report, etc. During enquiry, respondent herein failed to prove her absentism for any sufficient reason and as such the Enquiry Officer submitted his report and held guilty of misconduct to the respondent and suggested punishment of termination. 3. After the departmental enquiry, the Enquiry Officer submitted his report with finding that the respondent is guilty of misconduct of absentism and the show cause notice was issued, respondent filed reply to said notice and ultimately respondent was terminated from services w.e.f. 14/3/2001. 4. The respondent herein preferred appeal before the first appellate authority of the department. The first appellate authority by Order dated 11/3/2002 set aside the termination of the respondent and imposed punishment of the stoppage of yearly increments of the respondent for 3 years. Being aggrieved by the Order passed by the first appellate authority, the respondent herein preferred Complaint (ULP) No. 101 of 2002 before the Industrial Court, Ahmednagar. 4 5. The Member, Industrial Court, Ahmednagar allowed the complaint filed by the respondent, hence this Writ Petition. 6. The learned counsel for the petitioner submitted that the respondent in departmental enquiry has admitted that she has not submitted any application for leave or produced any medical certificate, report, bills, prescription in the enquiry and further admitted that during the period of absentism, she has not produced medical certificate and after joining service, she has submitted medical certificate. Therefore, learned counsel would submit that the enquiry which was conducted by the Enquiry Officer was proper. The respondent remained absent for 134 days without any application, without any prior permission and, therefore, Enquiry Officer came to the conclusion that the services of the respondent are required to be terminated. The learned counsel further submitted that all the contentions which were raised before the Industrial Court by the respondent about submitting medical certificate or medical bills were not raised and no medical certificates were submitted during the course of enquiry. On the contrary, the respondent has admitted that she remained absent without filing any application either for the regular leave or for the leave on medical ground. According to the learned counsel, proper departmental enquiry was conducted and Enquiry Officer found that remaining absent for about 134 days without prior permission or sanction of leave, amounts to misconduct. The learned 5 counsel submitted that the Hon’ble Supreme Court in series of Judgment held that the absentism from the service without any application for leave or without prior permission, amounts to misconduct and employer is entitled to take appropriate decision including termination of the service of such employee. The learned counsel further submitted that the appellate authority has rightly considered the case of the respondent and on her request reduced the punishment only to the suspension of yearly increments for 3 years. The learned counsel submitted that in the reported Judgment in case of Delhi Transport Corporation V/s Sardar Singh reported in AIR 2004 SUPREME COURT 4161 and in case of State of Punjab and others V/s Charanjit Singh reported in AIR 2003 SUPREME COURT 4317, the Apex Court held that the act of absentism without permission is serious misconduct and for which punishment of termination is proper. 7. The learned counsel submitted once the appellate authority has passed the order on the prayer by the respondent that sympathetic view may be taken looking in to the financial condition of the family of the respondent and further the respondent has stated in her defence that she will not commit such act of remaining absent without prior permission or without application for leave, the appellate authority has reduced the punishment from termination to stoppage of 3 increments and, therefore, when the Order is passed taking sympathetic view on 6 the prayer by the respondent, principle of estopple should apply against the respondent. In support of his contention, learned counsel relied on Judgment of this Court in case of Maharashtra state Road Transport Corporation, Mumbai V/s Prakash Tulshiram Pardeshi in Writ Petition No. 1858 of 2003 delivered on 22/4/2008. The learned Judge observed that, “ For the purpose of these proceedings, it is not necessary for this Court to enter any final Judgment on whether the Appellate Authority in the course of modifying the order of dismissal can pass an order of fresh appointment. 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 7 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. ” Therefore, counsel for the petitioner prayed that Writ Petition may be allowed. 8. I have heard the learned counsel appearing for the petitioner at length. Though the respondent is duly served, none appears for the respondent. This matter was listed time to time before this Court. However, the respondent did not appear even on single date. The office listed this matter on 16/10/2008, 5/1/2009, 7/8/2009, 14/8/2009, 17/8/2009 and 18/8/2009. However, respondent did not remained present or no counsel engaged on her behalf. Therefore, it will have to be presumed that the pleadings in the petition are not controverted by the respondent. 9. On perusal of the original record available with the department produced by the petitioner, I find considerable force in the submission of the learned counsel for the petitioner that the appellate authority took sympathetic view and considering the financial condition 8 of the respondent, has set aside the termination order and reduced it to stoppage of 3 increments of the respondent. On perusal of the applications filed by the respondent herein before the appellate authority, it is abundantly clear that the respondent invoked the jurisdiction of the appellate authority and prayed therein that sympathetic view may be taken by the appellate authority to reduce the sentence. It is also abundantly clear that the respondent herein specifically prayed in her application that as one time measure, looking to the financial condition of the family of the respondent and hardship faced by her, the appellate authority should give one more opportunity to the respondent to serve the petitioner. Therefore, it clearly appears that the appellate authority, taking into consideration the prayer of the respondent that the sympathetic view may be taken and one more opportunity should be given to the respondent to improve herself, has passed Order by setting aside termination and converting it into stoppage of 3 increments. Therefore, in the facts of this case, the Judgment of this Court in case of M.S.R.T.C. V/s Prakash (cited supra), is clearly applicable in this case. Therefore, the principle of estopple must apply in the present case and the Member, Industrial Court ought to have rejected the complaint on this ground alone. On careful perusal of the Judgment of the Industrial Court, Ahmednagar, it clearly appears that this point was agitated by the petitioner before the Industrial Court. However, the Industrial Court went ahead and allowed the complaint of the respondent. In fact, the Industrial Court was bound by 9 the pronouncement of this Court in case of M.S.R.T.C. V/s Prakash (cited supra) and it was not permissible for the Industrial Court to entertain the complaint. 10. Apart from above, as the Hon’ble Apex Court in case of Delhi Transport Corporation V/s Sardarsingh reported in AIR 2004 SUPREME COURT 4161 has held that , “ When an employee absents himself from duty without sanctioned leave, the authority can, on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer’s work. Habitual absence is a factor which establishes lack of interest in work. There can not be any sweeping generalization. But at the same time, some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings ”. In the facts of that case, the Court held that, “ In view of the Governing Standing Orders 10 unauthorized leave can be treated as misconduct ”. 11. This Court has also taken a view that, “ 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 ”. 12. Therefore, in the facts of this case, the above mentioned Judgment of this Court is clearly applicable and in the instant case also, respondent was estopped from challenging the order of the appellate authority. For all these reasons, Writ Petition is allowed. The impugned Judgment and Order of the Industrial Court is quashed and set aside. Rule made absolute. Writ Petition is disposed of. No order as to costs. Civil Application, if any, stands disposed of in view of disposal of main Writ Petition. [ S.S. SHINDE ] JUDGE knp/WP7694.08