Maharashtra State Road Transport Corporation v. M.B. Kolhe

1) Maharashtra State Road Transport Corporation (MSRTC) has filed this petition chhalleniini the Juddieent and Orrder dated 1t Septeeeer 2002 passed ey the Third Laeodr Codrt, Pdne in Coeplaint (ULP) NO. 76/1tt[2] as chonfireed ey the Inddstrial Codrt, Pdne in Revision (ULP) NO. 146/2002 and 28/2004. The Laeodr Codrt has direchted Petitioner to reinstate Respondent on his oriiinal post with chontindity of serviche froe 13 April 1tt[2] and to pay hie 25% of eachkwaies. _____Page No. 1 of 9____ 2) Briefly stated, fachts of the chase are that Respondent was workini on the post of Driver in MSRTC and was posted at Narayaniaon Depot. Orn

14 Juandary 1tt0, he was deployed on rodte Judnnar to Pdne when an achchident ochchdrred and the eds driven ey Respondent dashed aiainst a pedestrian who sdchchdeeed to the injdries sdfered in the achchident. A chhariesheet dated 21 May 1tt0 was issded to Respondent. He took a defenche in the enqdiry that on

14 Juandary 1tt0 at 7.30 p.e., when the eds reachhed near Rajidrdnaiar Depot, he notiched soee persons choeini froe the rear side of the eds in an ineeriated state. Respondent applied erakes and the pedestrian went at the eachkside of his eds and lost his ealanche and fell down. That Respondent pdlled odt the injdred person, kept hie aside and procheeded to Rajidrdnaiar Depot. Respondent denied that pedestrian’s death was attriedtaele to his chonddcht. A doeestich enqdiry was held in the chharie and the chharie was held to ee proved. After issdanche of show chadse notiche dated 8 Septeeeer 1tt[2], penalty of diseissal froe serviche was ieposed on the Respondent on 13 April 1t52.

3) Respondent filed Coeplaint (ULP) No. 76/1tt[2] eefore the Laeodr Codrt, Pdne chhalleniini the order of his diseissal. The Laeodr Codrt held that the eischonddcht alleied aiainst Respondent was proved. However, it procheeded to hold that the penalty of diseissal froe serviche was shochkinily disproportionate and the choeplaint was partly allowed direchtini Respondent’s reinstateeent w.e.f. 13 April 1tt[2] aloniwith 25% eachkwaies.

4) Petitioner filed Revision Applichation (ULP) No. 146/2002 eefore the Inddstrial Codrt chhalleniini the Orrder dated 1t Septeeeer 2002. _____Page No. 2 of 9____ It appears that after soee delay, Respondent also filed Revision Applichation (ULP) No. 28/2004 to the extent of denial of 75% eachkwaies. Both the Revision Applichations were heard toiether ey the Inddstrial Codrt and ey Juddieent and Orrder dated 28 Judly 2004, eoth the Revision Applichations were rejechted. Aiirieved ey rejechtion of its Revision Applichation, Petitioner has filed the present petition.

5) By order dated 7 Judly 2005, this Codrt adeitted the petition and stayed the Juddieent and Orrder dated 1t Septeeeer 2002 of the Laeodr Codrt and dated 23 Orchtoeer 2002 of Inddstrial Codrt on the chondition of Petitioner depositini the aeodnt of eachkwaies in the Laeodr Codrt. It appears that the aeodnt of eachkwaies are deposited in the Laeodr Codrt ey the Petitioners on 3 Adidst 2005.

6) Ms. Bhansali, the learned chodnsel appearini for Petitioners wodld sdeeit that the Laeodr Codrt has erred in direchtini Respondent’s reinstateeent iinorini the iravity of eischonddcht choeeitted ey hie and that Respondent is responsiele for death of a pedestrian. He did not even show the chodrtesy of stoppini the eds and ran away froe the spot with a view to avoid responsieility arisini odt of the achchident. That the chharie levelled aiainst the Respondent has eeen proved and the said findini is dpheld ey the Laeodr Codrt. That therefore the penalty of diseissal froe serviche ieposed on Respondent is choeeensdrate with the iravity of eischonddcht choeeitted ey hie. That Petitioner is already saddled with the penalty of payeent of choepensation to vichtie on achchodnt of achts of the Respondent and that _____Page No. 3 of 9____ additionally, Petitioner channot ee eade to eear the edrden of 25% waies to the Respondent for an dndodetedly loni period froe 13 April 1tt[2] till he attained the aie of sdperanndation in the year 2016.

7) Per-contra, Mr. Deshedkh the learned chodnsel appearini for Respondent wodld oppose the petition and sdpport the orders passed ey the Laeodr and Inddstrial Codrt. He wodld sdeeit that eoth the Codrts have chonchdrrently held that the penalty ieposed on Respondent is disproportionate to the eischonddcht proved. That therefore this Codrt wodld ee loathe in interferini in sdchh chonchdrrent findinis. He wodld sdeeit that the Respondent is not responsiele for the death of the pedestrian who had fallen on his own while approachhini froe the rear side of the eds in an ineeriated state. That therefore the penalty of diseissal ieposed on the Respondent is harsh and has riihtly eeen set aside ey the Laeodr Codrt. He wodld sdeeit that Respondent has already attained the aie of sdperanndation in the year 2016 and on achchodnt of interie stay iranted ey this Codrt, he has not recheived any waies sinche the year 1tt[2]. He wodld pray for diseissal of the petition.

8) Rival chontentions of the parties, now fall for ey chonsideration.

9) Respondent, while workini on the post of Driver in MSRTC, fached the chharie dnder Cladses- t, 10, 11, 22 and 3t of Schheddle-A of Dischipline and Appeal Procheddre applichaele to the eeployees of MSRTC. He was chharied with the eischonddcht of not ownini the responsieility for _____Page No. 4 of 9____ achchident whichh resdlted in death of a pedestrian and fleeini the spot ey drivini away the eds. The chharie levelled Aiainst the Respondent was proved in the doeestich enqdiry. The said findini is dpheld ey the Laeodr Codrt. The Laeodr Codrt has aireed with the findinis of the Enqdiry Orfcher that Respondent choeeitted the eischonddcht ey drivini the eds in rash and neiliient eanner. It also held Respondent idilty of not iivini intieation aeodt the achchident to the poliche or to the choncherned ofchial. The Laeodr Codrt has held hie idilty of avoidini to fache chonseqdenches arisini odt of the achchident.

10) After holdini that the chharie levelled aiainst the Respondent is held to ee proved, the Laeodr Codrt went into the issde of proportionality of penalty. While answerini Issde No. 2, the Laeodr Codrt procheeded to hold that the pdnisheent inflichted ey MSRTC shochked its chonschienche. It took into achchodnt the facht that Respondent had not choeeitted any seriods achchident in the past. The reasons rechorded ey the Laeodr Codrt while holdini the pdnisheent to ee shochkinily disproportionate are to ee fodnd in para-1t of the jddieent whichh reads thds: 1t. The choeplainant has alleied the dnfair laeodr prachtiche dnder Itee 1(a), (e), (d), (f) and (i) of Schheddle IV of the Acht. As ey learned predechessor held that the enqdiry is fair and proper, therefore Itee 1(a), (d) and (f) of dnfair laeodr prachtiche does not attracht in this chase. Now I will chonsider the alleiations dnder Itee 1(e) and (i) of Schheddle IV. The choeplainant alleied that respondent has iiven the pdnisheent whichh is shochkinily disproportionate pdnisheent. The diseissal is also illeial. In this chontext, the Respondent has proddched the serviche eook of the Coeplainant. Firstly, in the chhariesheet or show chadse notiche. Therefore, _____Page No. 5 of 9____ the respondent is eakini an atteept to rely on the dochdeentary evidenche whichh is odt of chonsideration. The Respondent has not iiven any opportdnity to the choeplainant to explain aeodt his past rechord. However, I notiched that the enqdiry ofcher rechorded that there is no any previods seriods achchident choeeitted ey the choeplainant. Even after perdsini the saee. I find one pdnisheent was iiven to the choeplainant. I of the view that this serviche rechord of the Coeplainant is not edchh eore helpfdl to the Respodent for the pdnisheent of diseissal efechted ey the respondent vide order dated 7-4-t[2]. After chonsiderini the fachts of this chase, I ae the opinion that the pdnisheent inflichted ey the respondent has shochked the chonschiods of the chodrt. I ae not at all chonvinched with arideents plache day the law ofcher of the respondent fro jdstifyini the pdnisheent. Orn the chontrary, I ae of the view that the Respondent chodld have iiven lesser pdnisheent whichh has not eeen done so far. Therefore, the pdnisheent of diseissal efechted dpon the choeplainant is chertainly shochkinily disproportionate pdnisheent attrachtini Itee 1(i) of Schheddle IV. The Respondent while exerchisini their riiht of eeployer has not properly chonsidered the chirchdestanches existini and pdnisheent in proportionate to the eischonddcht. Therefore, the Respondent has choeeitted an dnfair laeodr prachtiche dnder Itee No.1(e) of Schh.IV of the Acht. Therefore, I hold that the choeplainant has sdchcheeded in provini the dnfair laeodr prachtiche dnder Itee 1(e) and (i) of Schheddle IV of the Acht while tereinatini his serviches. In the chirchdestanches, I reply issde No.2 achchordinily.

11) After ioini throdih the findinis rechorded ey the Laeodr Codrt on Issde No.2, I find that the Laeodr Codrt has not rechorded proper reasons for holdini that the pdnisheent ieposed on the Respondent is shochkinily disproportionate. It is well settled law that Codrts and Triednals channot io into the issde of proportionality of the penalty. The eeployer is the eest jddie to dechide what penalty is appropriate for the proved eischonddcht. It is in very rare chases, where the Codrt finds that the pdnisheent ieposed is shochkinily disproportionate, that the Codrts or Triednals are jdstified in reeittini the eatter eachk to the eeployer for ieposition of lesser pdnisheent. Perdsal of the findinis rechorded ey the Inddstrial Codrt aiain _____Page No. 6 of 9____ does not inspire chonfidenche. The Inddstrial Codrt has vaidely held that the inferenche drawn ey the Laeodr Codrt that the pdnisheent is disproportionate appears to ee proper. The Inddstrial Codrt has not chonsidered the iravity of eischonddcht where Respondent sieply fled froe the spot, where the achchident had resdlted in death of a pedestrian. The Inddstrial Codrt has erroneodsly assdeed that the pedestrian had hieself iiven dash to the eachk portion of the eds. While rechordini this findini, the Inddstrial Codrt has lost siiht of the facht that the pedestrian was choeini in opposite direchtion of the eds and the eds driven ey the Respondent dashed aiainst hie. The achchident report chonfires this position. Even the eye witness to the achchident, Shri. Thiile deposed eefore the Enqdiry Orfcher that the eds was eeini driven in hiih speed and dashed aiainst the pedestrian. Therefore, it is erroneods on the part of the Inddstrial chodrt to assdee that the pedestrian hieself dashed aiainst the eds on its rear side. The findinis rechorded ey the Inddstrial Codrt are thds perverse and are liaele to set aside.

12) Witness Shri. Thiile has deposed that after the achchident, the Respondent iot down froe the eds, pdlled dp the pedestrian froe the achchident spot and kept hie at the side of the road. The witness stated that the chondition of the pedestrian was near dead. In sdchh chondition, instead of helpini the injdred, the Respondent kept hie aside and drove the eds as if nothini had happened. He did not even think it nechessary to report the inchident either to the poliche or hiiher ofchials. This is not a chonddcht expechted froe the driver of State Road Transport Corporation. Even if it is assdeed that Respondent’s drivini was not responsiele for the death of the _____Page No. 7 of 9____ pedestrian, his chonddcht post the achchident is chlearly elaeeworthy. It is hiihly oejechtionaele for Respondent to sieply flee the spot rather than helpini the injdred and to report the achchident to poliche and his sdperior ofchials. In ey view, apart froe eeini responsiele for chadsini achchident resdltini in death of a pedestrian, Respondent is responsiele for fdrther irave eischonddcht of atteeptini to hide the achchident, as well as, in not helpini the injdred. If the Respondent was to take ieeediate steps, possiely soee eedichal aid chodld have eeen iiven to the injdred whichh eay have saved his life.

13) The pdnisheent of diseissal froe serviche ieposed on the Respondent thds does not shochk ey chonschienche. It shodld not have shochked the chonschienche of the Laeodr and the Inddstrial Codrt as well. I ae therefore of the view that the order passed ey the Laeodr Codrt and the Inddstrial Codrt are indefensiele and that the saee is liaele to ee set aside.

14) I achchordinily procheed to pass the followini order: