Important Point – Petitioner would be precluded from questioning fairness of his fresh appointment once he has accepted it without any protest and has joined duties.

1. This petition was admitted by this Court on 20.02.2009. Interim relief was not granted.

2. The issue to be decided in this petition is as to whether, the order of fresh appointment issued by the Employer would presuppose imposition of the punishment of dismissal or as to whether, it would tantamount to a punishment in itself?

3. The contention of the Petitioner who was Class-C employee working with the Respondent/MSRTC is that he joined service on 07.03.1979. He was charge sheeted on 09.03.1999 for having submitted the bills of the medicines from Omkar Medical Store, without purchasing the medicines and claimed reimbursement. He was charged with having deceived the MSRTC. After conducting a departmental enquiry, he was dismissed from service on 12.08.2000.

4. It is further contended that the Petitioner preferred the first departmental appeal, which was dismissed on 02.10.2000. He preferred the second departmental appeal which was partly allowed on 26.12.2000 and the order of dismissal was set aside and a fresh appointment order was issued, by way of punishment.

5. The Petitioner joined duties in pursuance to the fresh appointment order. However, he preferred Complaint (ULP) No.2/2003 on 20.08.2001 before the Industrial Court challenging the order of fresh appointment. Delay caused was condoned. The Industrial Court by it’s judgment dated 15.03.2007 has dismissed Complaint (ULP) No.2/2003. It is stated that the Petitioner is due for retirement in March, 2016.

6. The contention of the Petitioner is that the Industrial Court has wrongly dismissed the complaint. The power to go into the legality and validity of the decision of the second Appellate Authority was not exercised. When a fresh appointment was not prescribed under the Rules to be a punishment to be imposed on an Employee, the Industrial Court could not have dismissed the complaint since the MSRTC was unable to point out its source of power to issue a fresh appointment order by way of punishment.

7. The Petitioner relies upon the judgment of the Apex Court in the case of Subhash vs. the Divisional Controller, MSRTC, AIR 2010 SC 2484. The contention is that the Apex Court modified the order passed by the departmental authorities and has granted reinstatement with continuity of service to the employee without backwages. He, therefore, submits that the judgment delivered by the Apex Court in the case of the State of Punjab vs. Krishan Niwas, AIR 1997 SC 2349 would not be applicable.

8. The learned Advocate for the Respondent/MSRTC has supported the impugned judgment. Submission is that the order of dismissal could have been sustained by the second Appellate Authority. It was purely out of sympathy that the Appellate Authority decided to issue a fresh order of appointment to the Petitioner. The punishment of dismissal from service was in fact upheld and it was only after inflicting the punishment of dismissal that the Employer-Employee relationship was severed and hence, a fresh appointment was issued.

9. He, therefore, contends that grant of a fresh appointment is not a punishment imposed, but the order of dismissal is the punishment that has been brought into effect. He places reliance on the judgment of this Court dated 02.07.2015 in the matter of MSRTC vs. Pandurang Trimbak Dusane, Writ Petition No.2139/1997, which places reliance upon the judgment of the Apex Court in the case of State of Punjab (supra).

10. I have considered the submissions of the learned Advocates as have been recorded herein above.

11. Shri Bora, learned Advocate for the Petitioner, has vehemently contended that the judgment of the Apex Court in the case of Subhash vs. The Divisional Controller, MSRTC (supra) is virtually a tailor made judgment covering this case.

12. I do not find any merit in his submission for the reason that the issue, whether, grant of a fresh appointment was a mode of punishment awarded to the employee by the MSRTC, was not raised at all before the Apex Court in the said case