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Judgment
Heard. Rule. Rule made returnable forthwith. With the consent of the parties, heard finally at the stage of admission.
By way of the present petition, the petitioner assails the order dated 08.09.2022 passed below Exhibit O-4 by the Industrial Court, Dhule in complaint ULP No. 135 of 2017, whereby, the complaint filed by the respondent herein, came to be allowed and following order was passed :
ORDER
“(1)…………..
(2)………….
(3)………..
(4)The punishment of stoppage of increments inflicted by the petitioner by its order dated 20.01.2015 stands quashed and set aside.
(5)The respondent is further directed to treat the period of 18.09.2014 to 23.01.2015 as if Complainant was in the employment and to pay wages for the said period.”
Learned Counsel for the petitioner Mr. Shinde, strenuously submits that an inquiry was initiated against the respondent, against which he filed appeal and the appellate Court quashed the inquiry proceeding and directed that instead of dismissal from service the punishment of stoppage of increments be imposed.
He further submits that the respondent accepted the said order and joined duties. After attending duties he challenged the proceeding. He would further submit that once the inquiry was set aside and lesser punishment was imposed, which was accepted by the respondent, he is not supposed to challenge the same as the principle of Estoppel would apply. In support of his contention, he relied upon the law laid down by the Hon’ble Apex Court in the case of State of Punjab and Others Vs. Krishan Niwas – AIR 1997 SC 2349, particularly on paragraph No. 3, which is reproduced as follows :
“The admitted facts are that the respondent was charged for an offence under Section 302 I.P.C. He was convicted and sentenced to undergo imprisonment for life. Thereafter, proceedings were initiated against him under Article 311(2) of the Constitution and he was removed from service. Appeal against his conviction under Section 302 I.P.C. was allowed by the High Court. Punishment of conviction under Section 302 IPC was modified to one under Section 325 IPC and he was directed to undergo rigorous imprisonment for 1-1/2 years. After undergoing the imprisonment, the respondent filed an appeal before the appellate authority. The appellate authority by order dated March 1, 1989 reduced the punishment of removal from service to lower scale of pay drawn by him and directed that he was not entitled to back- wages. The respondent accepted it and joined duty on June 5, 1989. Subsequently, he filed a civil suit for declaration that his dismissal from the service and reduction of rank and also the direction that he is not entitled to pay the arrears of wages, were illegal, the Addl. District Judge reversed the judgment of the trial Court and decreed the suit. In the second appeal, the High Court has confirmed the same. Thus this appeal, by special leave”
He further relied upon the law laid down by this court in Maharashtra State Road Transport Corporation, Bombay Vs. Prakash Tulshiram Pardeshi – 2008 (4) Mh.L.J. 940, particularly on paragraph No. 4 :
“……….The principle that estoppel must apply in a situation such as this is consistent with the judgment of the Supreme Court in the State of Punjab vs. Krishan Niwas, 1997 1 CLR 855. The same view has been taken by the Division Bench of the Gujarat High court in Union of India vs. N. M. Dhobi, 2006 I CLR 587”. and pointed out that once the petitioner accepted the order and joined duties, he cannot challenge the same.
He further he relied upon the law laid down by this Court in The Maharashtra State Road Transport Corporation, Jalgaon Vs. Pandurang Trimbak Dusane- 2016 (2) Mh.L.J. 228, particularly on paragraph No. 11 which reads thus :
“11 It is apparent that the Apex Court has concluded that once the employee has accepted the order of the Appellate Authority and joined the duties pursuant to such an order, it was not open to him to challenge the order subsequently. By conduct, he has accepted the order of the Appellate Authority and having enjoyed all the benefits on account of his employment, he is precluded from challenging the order by which he was reappointed”.
He further invited my attention to the judgment passed by this Court in the case of Anil Vaijnath Arbad Vs. The Divisional Traffic Superintendent MSRTC and Others - 2016 (5) ALL MR 502, particularly to paragraph Nos. 21 and 22, which are reproduced which are follows :
“21.As such, even if it is presumed that the order of the Appellate Authority granting reappointment/ fresh appointment is to be set aside,the Petitioner would be relegated back to the earlier order which is an order of dismissal. At best, the Industrial Court, if were to allow the complaint, could have set aside the order of the Appellate Authority thereby, relegating the Petitioner to the order passed by the first Appellate Authority confirming the order of dismissal. In any case, if the order offresh appointment is to be set aside, the Petitioner will have no option, but to challenge the order of dismissal which is a stage prior to the passing of the order by the second Appellate Authority.
22.In the light of the above and the law laid down by the Apex Court in the case of State of Punjab (supra), the Petitioner could not have questioned his fresh appointment after having accepted it and joined duties without any protest and without reserving a right to challenge the orders of the second Appellate Authority, the first Appellate Authority and the order of dismissal passed by the competent disciplinary authority and that too before the Industrial Court”. and therefore, relying upon the above judgments he submits that once the petitioner has accepted the punishment and re-joined the duties pursuant thereto, he is precluded from challenging the same order due to principle of estoppel.
Per Contra, learned Counsel Mr. Nerkar, for respondent submits that pursuant to an inquiry conducted against the petitioner, dismissal order was issued and the same has been assailed by filing appeal. The Appellate Court after considering the entire record held that inquiry was proper and reduced the punishment to stoppage of two increments from dismissal. Pursuant to the order of appellate Court the respondent has resumed the duties. He further submits that though the respondent had joined duties as per the order of the appellate authority, it does not mean that he is precluded from challenging the disciplinary action which was taken against him and he has every right to challenge the same.
After filing the complaint the learned Industrial Court has passed an order on 30.09.2019 wherein the following order was passed :
“ORDER
(1)The Departmental Enquiry conducted by the Respondent against the Complainant was just, fair, legal and in accordance to the principle of natural justice.
(2)The findings of the Competent Authority, Enquiry Officer (Divisional Traffic Officer, S.T. Dhule) are perverse and unsustainable, since based on insufficient material in the Departmental Enqury against the Complainant.
(3)The Respondent shall prove the misconducts, if any, of the Complainant by adducing evidence in a de-novo enquiry before this Court.
(4)The Complaint be fixed for hearing on the issues No. 3 to 7”.
When the respondent filed complaint, the petitioner filed reply, wherein, petitioners have not raised the ground of principle of estoppel. Not a single contention was raised by the petitioner stating that the respondent is precluded from filing the complaint.
In fact, in the judgments on which the petitioner is relying, specific contentions were raised before th ..............e Industrial Court, which were not considered, and therefore, this Court rightly held that once the employee has accepted the order of punishment, he cannot file the complaint.
It is not the case of the petitioner as well as the respondent that respondent employee has accepted the punishment and he has given any written communication to that effect. Therefore, only because respondent has joined the duties does not mean that he has accepted the order of re-appointment and the findings of the inquiry officer.
Considering the above observations, I do not find any reason to interfere with order dated 08.09.2022 passed below Exhibit O-4 by the Industrial Court, Dhule in complaint ULP No. 135 of 2017. Hence, I proceed to pass following order :
ORDER
The Writ Petition is dismissed.
No order as to cost.
Rule is discharged.