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2009 Supreme(SC) 1592
2009(6) Supreme 683
SUPREME COURT OF INDIA
Tarun Chatterjee and R. M. Lodha,JJ.
Subhash —Appellant
versus
The Divisional Controller,Maharashtra State Road Transport Corporation & Anr. —Respondents
Civil Appeal No. of 2009
(Arising out of SLP(C) No. 5594/2008)
Decided on : 17-09-2009
For the Appellants :Uday B. Dube and Kuldip Singh, Advocates for the Appellants.
For the Respondents:R. S. Hegde, P.P. Singh and Ms. Asha Gopalan Nair, (NP), Advocates for the Respondents.
Headnote:Service Law – Appellant a driver with Maharashtra State Road Transport Corporation was dismissed from service as bus driven by him ramped on the railing of the bridge due to his rash and negligent driving and resulted in damage to the bus – Appeal – First appellate authority directed that appellant be appointed afresh without any monetary benefits for the past service – Challenge thereagainst-No dispute that there was negligence on the part of appellant in driving the bus as a result of which the bus ramped on the railing of the bridge resulting in damage to the bus dispute – Thus, appellant’s misconduct to that extent was amply established – 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 service – First Appellate Authority hence set aside order of dismissal and ordered that fresh appointment be given to appellant but without giving any benefit for the past service – Looking to all relevant aspects and to render substantial justice, held appropriate that order of First Appellate Authority directing fresh appointment of the appellant be modified by ordering his reinstatement with continuity of service but without back 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 the date of dismissal until his rejoining the duties would be proper punishment – Appeal allowed in part . (Paras 11, 12)
Facts of the Case :
Appellant a driver with Maharashtra State Road Transport Corporation was dismissed from service herein in the instant case as bus driven by him ramped on the railing of the bridge due to his rash and negligent driving and resulted in damage to the bus. On Appeal, First appellate authority directed that appellant be appointed afresh without any monetary benefits for the past service.
2. Whether the departmental appellate authority was justified in ordering fresh appointment to the appellant while 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 present appeal by special leave.
Findings of the Court :
No dispute that there was negligence on the part of appellant in driving the bus as a result of which the bus ramped on railing of the bridge resulting in damage to the bus dispute. Thus, appellant’s misconduct to that extent was amply established. 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 service. First Appellate Authority hence set aside order of dismissal and ordered that fresh appointment be given to appellant but without giving any benefit for the past service. Looking to all relevant aspects and to render substantial justice, held appropriate that order of First Appellate Authority directing fresh appointment of the appellant be modified by ordering his reinstatement with continuity of service but without back 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 the date of dismissal until his rejoining the duties would be proper punishment.
Result : Appeal allowed in part
JUDGEMENT
R.M. Lodha, J.
1. Leave granted.
2. Whether the departmental appellate authority was justified in ordering fresh appointment to the appellant while 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 be employed as driver in 1980 with Maharashtra State Road Transport Corporation (for short, ‘Corporation’). He was made permanent in 1985. On September 28, 2000, the appellant was on duty on Beed-Dharur route. While driving bus (MH-20-D- 4332) on that route on that day, it is alleged that the bus ramped on 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 of the report, the disciplinary authority issued charge-sheet to the appellant on 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 accident occurred due to mechanical failure and reakage of rear spring.
5. The Inquiry Officer, after conclusion of the enquiry, held that charges were proved against the appellant. The disciplinary authority, upon receipt of the enquiry report, issued 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 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 without any monetary benefits for the past service.
7. The appellant, consequent upon the order of the First Appellate 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 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 order of First Appellate Authority warranted no interference.
10. The appellant challenged the order of the Industrial Court in a writ petition before the High Court of Judicature at Bombay, Bench at Aurangabad. The Single Judge did not find 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 in driving the bus on September 28, 2000 on Beed- Dharur route and as a result of which the bus ramped on the railing of the bridge resulting in damage to the bus is not in dispute. Thus, the appellant’s misconduct to that extent is amply established. As a 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 appellant has been 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 service. He, accordingly, set aside the orde
