[2009) 14 (ADDL.) S.C.R. 606

SUBHASH

DIVISIONAL CONTROLLER M.S.R.T.C. AND ANR.

(Civil Appeal No. 6376 of 2009)

SEPTty:MBER 17, 2009

[TARUN CHATTekJEE AND R.M. LODHA, JJ.]

Labour- Dismissal - Damage to the bus due to rash and negligent driving of employee-driver - Dismissal from service C - First appellate authority set aside the dismissal order and directed fresh appointment without monetary benefit for past services - Challenged - Held: Negligence oh the part of employee in driving the bus was established - However, first appellate authority set aside the dismissal order noticing that D no passenger was injured in the accident and the past record of the employee - The order of first appellate authority modified by ordering reinstatement with continuity of service

- For delinquency on part of employee, denial of back wages,,._ . would be appropriate punishment. . ..

.....

E Appellant was employed as driver with the State Transport Corporation. While he was driving bus, it was alleged that. the bus ramped on the railing of the bridge due to rash and negligent driving and that resulted in .f< damage to the bus. He was accordingly dismissed from F service. First Appellate Authority set aside the order qf/~ ;, , .

dismissal and directed his fresh appointment without any monetory benefits for the past services. Appellant joined his duties reserving his. right .to chalienge denial _of reinstatement with continuity of service and backwages'.

G He filed appeal before second appellate authority

challenging the order denying him reinstatement withr cdntinuity of service and backwages. It was dismissed.

The Industrial Court and High Court also did not interfere

H 606

} with the order of first appellate court. Hence the appeal.

Partly allowing the appeal, the Court

HELD: It is not in dispute that there was negligence on the part of the appellant in driving the bus and as a result of which the bus ramped on the railing of the bridge B resulting in damage to the bus. Thus, the appellant's misconduct to that extent is amply established. As a

J'!! 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 C appellant was 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 . D service. He, accordingly, set aside the order of dismissal and ordered fresh appointment to the appellant but without giving any benefit for the past service. Looking to all relevant aspects and to render substantial justice, the order of the First Appellate Authority directing fresh E appointment of the appellant is modified. He is directed to be reinstated with continuity of service but without J>ack 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 F the date of dismissal until his rejoining the duties would be proper punishment. [Para 11] [609-G-H; 601-A-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6376 of 2009. ..

1 From the Judgment & Order dated 15.10.2007 of the High Court of Judicature at Bombay, Bench at Aurangabad in Writ Pet\tion No. 1389 of 2006.

A Uday B. Dube and Kuldip Singh for the Appellant. . ..,

R.S. Hegde, P.P. Singh and.Asha Gopalan Nair, (NP) for the Respondents.

The Judgment of the Court was delivered by

R.M. LOOHA, J. 1. Leave granted.

;:; I

2. Whether the departmental appellate autority was justified in ordering fresh appointment to the appellant while c 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 . D. be employed as driver in 1980 with Maharashtra State Road

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

permanntin 1985. On September 28, 2000, the appellant was on duty on Beed-Dharur route. While driving bus (MH-20-0-

4332) on that route on that day, it is alleged that the bus ramped E oh 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 'at the. repok, the r disciplinary authority issued charge-sheet to the, appellnt on ,:l. ) F 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 G accident occurred due to mechanical failure and breakage of rear spring. ·

5. The Inquiry Officer, after conclusion of the enquiry, held that charges were proved against the appellant. The H

.I J.

_,, j.:;.J

AND ANR. [R.M. LODHA, J.]

disciplinary authority, upon receipt of the enquiry report, issued A 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 B

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 C without al; ly monetary benefits for the past service.

7. The appellant, consequent upon the order of the First .P, ppellate 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.

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 E 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 F order of First Appell_ate Authority warranted no interference.

10. The appellant challenged the order of the Industrial Court in a writpetition before the High Court of Judicature at

_1 Bombay, Bench at Aurangabad. The Single Judge did not find G 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 \n driving the bus on September 28, 2000 on Beed- Dharur route and as a result of which the bus ramped on the railing of H