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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4612/2008
Ramesh Gopinath Tidke,
Conductor, Buldhana Depot,
M.S.R.T.C., Buldhana,
R/o. Ganesh Nagar, Chikhali,
Tq. Chikhali, Distt. Buldhana. ...Petitioner
...versus...
Divisional Controller,
M.S.R.T.C., Divisional Office,
Buldhana Division,
Malkapur Road, Buldhana. ...Respondents
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Shri P.N.Verma, Adv. for the petitioner
Shri V.G.Wankhede, Adv. for Respondent
===================================
CORAM : B.P.Dharmadhikari, J.
CLOSED FOR JUDGMENT ON : 03.12.2008
JUDGMENT PRONOUNCED ON :10.12.2008
1. By this Writ Petition, Petitioner employee
challenges the Judgment dated 27/8/2008 delivered by
Member, Industrial Court, Akola in Revision U.L.P.
45/1997. Said Revision was under section 44 of
Maharashtra Recognition Of Trade Unions and
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Prevention Of Unfair Labour Practices Act, 1971,
(hereinafter mentioned as Act No I of 1971). Learned
Member has allowed the Revision file by Respondent
M.S.R.T.C. and has set aside the judgment passed in
U.L.P. Complaint 45/1994 on 18/6/1997 by Labour
Court, Akola. The said U.L.P. Complaint was filed by
present Petitioner challenging the show cause notice
dated 24/2/1994 proposing punishment of dismissal after
completing departmental inquiry, as said show cause
notice was found to constitute unfair labour practice by
Labour Court. I have heard Advocate P.N. Verma for
Petitioner & Advocate V. G. Wankhede for Respondent.
2. Misconduct here is of unauthorised driving of
empty M.S.R.T.C. bus by Petitioner conductor from bus
depot to bus station while regular driver was sitting on
battery box. Details of misconduct are not necessary in
present matter because after this judgment dated
18/6/1997 of Labour Court, the Respondent M.S.R.T.C.
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filed Revision 45/1997 and thereafter proceeded to
impose lesser punishment on 30/8/1997 for very same
misconduct. His salary was brought down by two stages
permanently and period of suspension was regularised as
paid leave and balance thereof as unpaid leave if requisite
paid leave was not available to his credit. It is not in
dispute that accordingly entry was made in his service
book & Petitioner earned the revised i.e. less salary
thereafter. Petitioner pointed out these developments to
learned Industrial Court & urged that the earlier show
cause notice dated 24/2/1994 was already rendered
infructuous.
3. Learned Member considered arguments in
U.L.P. Revision on merits ignoring the contention that
because of punishment of reduction in salary by two
stages said show cause notice has lapsed or become
infructuous. There is no application of mind insofar as
the effect of said punishment on challenge before it is
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concerned. Perusal of its judgment particularly
paragraph 29 shows that it has rightly considered the non
application of mind by Labour Court to vital aspects like
the consequences of grave and irresponsible act of
Petitioner or then his past service record. The application
of mind by learned member, Industrial Court particularly
in paragraph 30-31 in this background cannot be labeled
either as erroneous or perverse or then in excess of
jurisdiction available to it under Section 44 of Act No. I of
1971. But then impact of voluntary act of petitioner of
selecting & imposing another punishment in the matter
needed consideration.
4. Petitioner on 7/7/2008 filed a Pursis before
Industrial Court & disclosed these events. At the request
of Respondent M.S.R.T.C., Revision was adjourned to
25/7/2008 obviously with a view to enable M.S.R.T.C. to
meet the facts mentioned in Pursis. Vide said Pursis,
Petitioner pointed out to Industrial Court that after
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adjudication by Labour Court in his favour, a fresh show
cause notice dated 30/7/1997 was served upon him
mentioning a lesser punishment of permanently reducing
basic wages by two stages, that it was replied to by him
and accordingly punishment of bringing down his wages
by two stages permanently was inflicted on him on
30/8/1997 and that he was suffering that punishment i.e.
its effect for last about 11 years. In Pursis therefore it
was specifically stated that as misconduct proved against
him in departmental inquiry which formed subject matter
of U.L.P. Complaint No. 45/1994 was already suitably
punished by his Employer M.S.R.T.C., there was no
occasion for imposing any further or other punishment
for the same and hence, Revision had become
infructuous. Though chance was given to Respondent by
adjourning the matter to 25/7/2008, it was not utilised.
Ultimately, though all these facts figure in impugned
judgment of Industrial Court, still its impact or
significance has been lost sight of. Respondent could
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have pointed out to Industrial Court what was the correct
factual position in the matter. Instead of so doing,
Respondent continued to beat the dead horse and wasted
valuable time of Industrial Court.
5. Even this Court in present Writ Petition by
speaking order dated 21st October 2008 the contention of
two punishments for same misconduct was mentioned
and time was given to Respondent M.S.R.T.C. to verify
the position. Then, it was pointed out to this Court that
after judgment of Industrial Court, Petitioner was
dismissed by order dated 1/10/2008. Though time of
3 weeks was given, on 11/11/2008 Respondent
contended that after judgment of Labour Court in favour
of present Petitioner was set aside by Industrial Court, the
Respondent proceeded to impose punishment as per show
cause notice dated 24/2/1994 as it was restored and it
imposed the punishment of dismissal. It was also argued
that M.S.R.T.C. was ready to withdraw the punishment
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of reduction of salary by two stages. As these arguments
were not supported by any affidavit, time till 28/11/2008
was given to Respondent to place said stand on record
through proper affidavit. On said date, W.P. was
adjourned to 3/12/2008 at the request of Petitioner. On
3rd December, Respondent did not file any affidavit and
arguments on lines already mentioned were again
reiterated.
6. Perusal of punishment order dated
30/8/1997 shows that for very same misconduct
punishment was inflicted upon Petitioner and the order
did not mention that it was without prejudice to rights of
M.S.R.T.C. to proceed to impose more severe punishment
if it’s U.L.P. Revision 45/1997 was allowed. This
punishment order does not mention either pending
Revision or then the judgment of Labour Court. The
order of dismissal dated 1/10/2008 again nowhere
mentions the order of punishment dated 30/8/1997 or
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then the judgment of Industrial Court or of Labour Court.
Thus competent authority of M.S.R.T.C. has imposed two
punishments for same misconduct upon present
Petitioner. Petitioner was brought down by two stages in
1997 itself and appropriate note in this respect was taken
in his service book by that competent authority. The
permanent reduction by two stages implemented in 1997
therefore has affected the salary of Petitioner for last
more than 10 years.
ig It is therefore clear that the
punishment cannot be and could not have been treated as
provisional. In fact, Respondent M.S.R.T.C. also has not
treated it as stopgap arrangement. Contentions of Adv.
V.G. Wankhede on behalf of Respondent as mentioned
above are totally misconceived & it could not support the
same by filing appropriate affidavit of its competent
authority.
7. Respondent could have mentioned pending
challenge in U.L.P. Revision while imposing punishment
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of reduction of salary by two stages permanently in
punishment order dated 30/8/1997 and forewarned
Petitioner that the punishment was provisional and
without prejudice to its right to inflict punishment as
mentioned in show cause notice dated 24/2/1994 if it
succeeded in Revision. To keep the records straight,
Respondent ought to have filed a Pursis accordingly in its
pending Revision before Industrial Court. In absence of
all these steps which were essential in present facts, the
conduct of Respondent – the public Corporation, does not
inspire any confidence. Though it was given opportunity
by Industrial Court it was not taken advantage of and
even before this Court, no affidavit explaining the
situation in this respect as may appear from records of
punishment orders, has been filed. It is obvious that in
view of punishment order dated 30/8/1997, challenge in
U.L.P. Revision 45/1997 was rendered infructuous and
meaningless. Subsequent dismissal for very same
misconduct vide order dated 1/10/2008 is nothing but
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mala-fide action taken to victimise the Petitioner.
8. Judgment of Industrial Court dated
27/8/2008 in Revision U.L.P. 45/1997, therefore, shows
manifest error and it is unsustainable. Same is
accordingly quashed and set aside. Judgment dated
18/6/1997 delivered by Labour Court, Akola in complaint
U.L.P. 45/1994 is hereby restored only because show
cause notice dated 24/2/1994 has lapsed.
9. Thus Writ Petition No. 4612/2008 is allowed.
Rule made absolute in above terms. Respondent to pay
cost of Rs 2000/- to the present Petitioner.
JUDGE
Rvjalit
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