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

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


A                            SUBHASH
                                  V.
        DIVISIONAL CONTROLLER M.S.R.T.C. AND ANR.
                (Civil Appeal No. 6376 of 2009)

                      SEPTty:MBER 17, 2009
B
         [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
       SUBHASH v. DIVISIONAL CONTROLLER M.S.R.T.C.          607
                         AND ANR.

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

          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.
   .                                                               G
   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.

                                                                   H
     608     SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.


 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
 B
           R.M. LOOHA, J. 1. Leave granted.
                                                             ;:;I
           2. Whether the departmental appellate aut~ority 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 ~
     perman~ntin 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, appell~nt 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
                                                             h.
                  SUBHASH v. DIVISIONAL CONTROLLER M.S.R.T.C. :509
                           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.
                                                                                     B
                       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 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.                              D

                     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
          J.
                 Practices Act, 1971 (for short, 'Act, 1971 ') before the Industrial
.I
     _,,j.:;.J
                 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
       _ ~ Bombay, Bench at Aurangabad. The Single Judge did not find G
        1
           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
610   SUPREME COURT REPORTS [2009] 14 (ADDL.} S.C.R.