Reportable

IN THE 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.

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 breakage of  

rear spring.

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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.

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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  

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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  

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his rejoining the duties would be proper punishment.

12. 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)

New Delhi September 17, 2009.

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