1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3812 OF 1996 Maharashtra State Road Transport Corporation, through its Divisional Controller, Ahmednagar. Petitioner versus Hamid Ishaq Mirza, age major, occupation conductor, Shrigonda Depot, Dist.Ahmednagar. Respondent ----- Shri V.S. Yadav, Advocate, holding for Shri M.K.Goyenka, Advocate, for petitioner. Shri V.P. Latange, Advocate, for respondent. Coram: P.R. Borkar, J. Judgment reserved on : 13.08.2009. Judgment pronounced on : 20.08.2009. JUDGMENT 01. This Writ Petition is filed by original party No.1 before the First Labour Court, Ahmednagar, being aggrieved by the judgment and award passed by the Presiding Officer, First Labour Court, in Reference (IDA) No.13/1990 decided on 25/1/1996, whereby the second party- 2 Respondent was directed to be given continuity in service from 28/2/1987 onwards and also wages for intervening period from 1.3.1987 to 15.9.1987. 02. Briefly stated, the facts giving rise to this writ petition are thus; The present respondent was working as conductor under the Divisional Controller, Maharashtra State Road Transport Corporation, Ahmednagar. He was in service of the petitioner- corporation from 7.8.1981. On 26.6.1986, Respondent was discharging his duties as conductor on S.T. bus on Siddhatek-Shrigonda route . The said bus was checked by the checking party at Adhalgaon phata and it was found that the Respondent-conductor had collected Rs.3.00 from each of the two passengers who were traveling from Devalwadi to Adhalgaon and issued them ticket bearing Nos. 919781 and 919782 of Rs.3.00 each. Those tickets were already sold by respondent in earlier trip of bus from Ahmednagar to Sidhatek at stage No.12. It was, therefore, clear that the tickets which were already sold, were resold by Respondent and he was also found in possession of excess cash of Rs.5.30 ps. After serving charge- sheet, domestic enquiry was held and the Respondent was removed from service by Order dated 28.2.1987 with effect from that day itself. 3 03. As against the said order of dismissal, Respondent first filed appeal according to the departmental rules. By order dated 15.9.1988, the first appellate authority heard the Respondent and his union representative, considered the papers and as one chance for improvement, cancelled the order of dismissal and directed reappointment of the respondent as conductor without any continuity of past service. 04. After the said order was passed by first appellate authority on 15.9.1988, separate order of reappointment was issued pursuant to which, the Respondent joined the duties on 2.10.1987. Thereafter he filed second departmental appeal on 13.10.1987. 05. The second appellate authority heard the respondent, union representative Shri B.P. Bajiya, considered the record and dismissed the appeal. Said decision was communicated to the Respondent on 26.12.1987. Being aggrieved thereby, Respondent made representation to the Deputy Commissioner (Labour), Nasik Division, Nasik and thereafter reference was made to the Labour Court, under Industrial Disputes Act, 1947. 4 06. Learned Labour Court decided Reference in two parts. By the first part, it is held that the enquiry was not legal and valid and by second part, order of continuity in service with back wages was issued. 07. The original papers of enquiry are also produced before me. After carefully going through the said papers of domestic enquiry, it does not appear that any witness is examined. The explanation offered by Respondent is that he was yet to sell the tickets to the two passengers, but the said passengers showed tickets which were already sold in earlier trip. It is also said that the report and conclusions of the checking party were wrong. No witness is examined on behalf of the department to prove disputed facts and merely relying on documents such as, reports, weigh bills, tickets, inferences were drawn. It is also clear that before the Labour Court, several opportunities were sought by the petitioner- corporation to lead evidence, time was granted, but ultimately no witness is examined on behalf of the petitioner-corporation and as such, there was no evidence before the Labour Court to prove the alleged misconduct. Therefore, Labour Court rightly held that domestic enquiry was not legal and valid and alleged misconduct is not proved and, therefore, the orders passed against the respondent are not sustainable. 5 08. The only other point which is argued before this court is that after having accepted re-employment, Respondent-conduct could not challenge the validity of his re-appointment and claim back wages. Learned counsel for the writ petitioner wanted to rely upon the judgment of this Court in Writ Petition No.1858 of 2003 (Maharashtra State Road Transport Corporation, Bombay vs. Prakash Tulshiram Pardeshi) decided on 22.4.1988. Learned Single Judge observed thus; ". The final order of the Appellate Authority clearly suggests that the Appellate Authority was inclined to dismiss the appellant from service. However, it was the Respondent who had stated that he would not commit such a mistake in the future and it was on his request that the Appellate Authority eventually decided to make a fresh offer of appointment so as to enable the Respondent to have some opportunity to improve upon himself. 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 6 an unfair labour practice. The Respondent is clearly estopped from doing so. The principle of estoppel must apply in such a case and the Labour Court ought to have rejected the complaint on this ground alone." Similar view is taken by this Court in Writ Petition No.210 of 1997 (Sahebrao s/o Pandu Patil) vs. The Divisional Controller, Maharashtra Road Transport Corporation, Jalgaon) decided on July 23, 2009, following the case of MSRTC vs. Prakash Pardeshi (supra). 09. However, the facts of the present case are entirely different. By order dated 13.8.2009, I called upon Advocate of the parties to produce the orders passed by the first appellate authority and second appellate committee. Certain dates are worth considering. After enquiry, order of dismissal was passed on 28.2.1987. The same came to be challenged by first departmental appeal which was decided on 15.9.1987 and the decision was communicated to the Respondent-conductor on 15.9.1987. It is informed that separate order of re-appointment will be given to the Respondent. On 2.10.1987 he joined his service and immediately on 13.10.1987 the respondent filed second departmental appeal. It does not appear from the record of the first departmental appeal produced 7 on record that as in the cases of Prakash Pardeshi and Sahebrao Patil (supra), the Respondent in present case had given any promise to improve and prayed for an opportunity to be in service and under the circumstances, it was eventually decided to give fresh offer of appointment. 10. All that is stated by the first appellate authority in its order is that, the opportunity was given to Respondent and union representative to put up their case and thereafter on considering the material on record, seriousness of the misconduct, one opportunity of improvement was given by the department to the respondent. There is nothing to indicate that the respondent had asked for such an opportunity or admitted his guilt. Secondly, no time was lost by the Respondent in approaching the second appellate authority against the order of fresh appointment. 11. In the case of Sahebrao Patil referred to earlier, it was argued that fresh appointment was accepted under protest, but the circumstances including application for amendment, negatived the said defence. Not only that, in both the cited cases Labour Court had come to an conclusion that the enquiry was legal, proper and as per the principles of natural justice and the charges were proved. In the present case, Labour Court has come to a conclusion that the enquiry was vitiated and 8 in spite of sufficient opportunity, no evidence was led by the department before the Labour Court to prove misconduct of the Respondent. 12. In the light of the facts of the present case, in my opinion, ratio laid down in the cases of Prakash Pardeshi and Sahebrao Patil (supra) will not be helpful to the petitioner. In spite of sufficient opportunity, the department did not lead any evidence before the Labour Court to prove its case nor there is any material before this court to show that the respondent or union representative who appeared with him before the first appellate authority, admitted guilt of the respondent or prayed for any leniency even in the alternative. 13. In above view of the matter, this Writ Petition has no merit and the same deserves to be dismissed. Accordingly, writ petition is dismissed. pnd/wp3812.96 (P.R.BORKAR, J.)