Divisional Controller M.S.R.T.C. & ANR.  INSC 1603 (17 September
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009
(Arising out of SLP(C) No. 5594/2008) Subhash ...Appellant Versus The
Divisional Controller, Maharashtra State Road Transport Corporation & Anr.
...Respondents JUDGEMENT R.M. Lodha, J.
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.
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.
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 breakage of rear spring.
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
The appellant challenged the order of dismissal by filing
departmental appeal before the First Appellate Authority.
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.
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.
On June 16, 2001, the appellant preferred appeal before 2nd
Appellate Authority. The departmental 2nd appeal was dismissed on March 20,
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.
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.
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 4 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
order of dismissal and ordered that fresh appointment be given to the appellant
but without giving any benefit for the past service. It is the later part of
this order that requires little modification by us. In our judgment, looking to
all relevant aspects and to render substantial justice, it is appropriate that
the order of the 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 5 his rejoining the duties
would be proper punishment.
The appeal is, accordingly, allowed in part to the extent
indicated above. The order of the First Appellate Authority dated May 21, 2001
is modified and it is observed that appellant would be treated to have been
reinstated with continuity in service but without back wages. The parties will
bear their own costs.
........................J (Tarun Chatterjee)
........................J (R. M. Lodha)
September 17, 2009.