Sunil Gangaram Waghmare vs The Director Of Archives Govt. Of ...
2016 Latest Caselaw 6844 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         BENCH AT AURANGABAD               




                                                           
                                                  
                               WRIT PETITION NO.3517/2005

                      Sushil s/o Gangaram Waghmare,




                                                          
                      age 48 yrs., occu.Senior Clerk
                      in Department of Archives,
                      Government of Maharashtra,
                      N-8, Bajrang Chowk, Aurangabad. 
                                        ...Petitioner..




                                               
                             Versus

                              1]
                                    ig  The Director of Archives,
                                        Government of Maharashtra,
                                        Elphinstone College Building,
                                  
                                        Fort, Mumbai.

                              2]        Archivist,
                                        Maharashtra Archives,
                                        Department of Archives,
      


                                        Government of Maharashtra,
   



                                        N-8, Bajrang Chowk, CIDCO,
                                        Aurangabad.

                              3]
                      The State of Maharashtra,
                      Through Secretary,





                      Government of Social Welfare and
                      Cultural Affairs,
                      Mantralaya, Mumbai-32. 
                                          ...Respondents... 
                                                           





                              .....
    Shri A.S. Shelke, Advocate for petitioner.
    Smt.S.S. Raut, AGP for respondent nos.1 to 3. 
                              .....
      
                                CORAM: S.V. GANGAPURWALA &
                                        K.L. WADANE, JJ. 

DATE: 01.12.2016

ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :

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1] The petitioner, at the relevant time, was

working as a Junior Clerk. On 20.8.1987, the petitioner

was terminated on various charges, such as using abusive

language, absenteeism, intimidation and temporary mis-

appropriation. The petitioner assailed the said order of

termination by filing Writ Petition No.1363/1987. This

Court transferred the said writ petition to the

Maharashtra Administrative Tribunal, Aurangabad. The

same was numbered as Transferred Application No.73/1993

before the Tribunal. On or about 7.8.2001, the Tribunal

allowed the application of the petitioner, set aside the

order of termination, but denied the back wages. The

petitioner assailed the said order by filing Writ

Petition No.5494/2002 to the extent of denial of back

wages. This Court set aside the order of the Tribunal to

the extent of denial of back wages and remitted the

matter back to the Tribunal. On remand of the matter by

this Court to the Tribunal, the Tribunal rejected the

claim of the petitioner seeking back wages. The said

order is impugned in the present petition.

2] Mr.Shelke, learned counsel for th petitioner

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states that the order of termination is held to be

illegal by the Tribunal as without conducting an enquiry,

the order of termination was passed. This Court allowed

the respondents to conduct an enquiry. Upon enquiry

being conducted, the petitioner was given punishment.

The petitioner assailed the same before the State

Government and the State Government imposed punishment to

the extent of reducing one increment. The learned

counsel submits that the petitioner is not at fault. The

petitioner has made a specific averment in the affidavit

filed before the Tribunal that during the period 1987 to

2001, the petitioner was not gainfully employed anywhere.

The said averment has not been controverted by the

respondents. As the order of termination was set aside

on the ground that without enquiry, the petitioner was

terminated, the petitioner would be entitled to the full

back wages. The learned counsel relies on the judgment

of the Apex Court in the case of M/s Hindustan Tin Works

Pvt.Ltd. v. The Employees of M/s Hindustan Tin Works Pvt.

Ltd. & others reported in AIR 1979 SC 75 so also another

judgment of the Apex Court in a case of Deepali Gundu

Surwase v. Kranti Junior Adhyapak Mahavidyalaya reported

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in 2014 (2) Mh.L.J., 480. The learned counsel further

submits that the petitioner has already been punished by

order of the State Government reducing one increment. If

the petitioner is denied back wages, it would amount to

dual punishment.

3] Learned AGP submits that only on technical

ground, the termination order of the petitioner is set

aside. The petitioner is found guilty of the charges

leveled against him and as such, the punishment was

imposed. As on technical ground, the termination order

was set aside, the petitioner is not entitled for the

back wages. The learned AGP relies on the judgment of

the Apex Court in the case of Zila Sahakari Kendriya Bank

Maryadit v. Jagdishchandra reported in (2001) 3 SCC 332.

4] We have considered the submissions canvassed by

the learned counsel for the respective parties so also

have gone through the judgment of the Tribunal.

5] Payment of back wages has a discretionary

element and it has to be dealt with in the facts and

circumstances of each case and no straight jacket formula

can be laid down in this regard. The Courts are required

to consider all the attending circumstances, the facts of

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each case, the ground for termination and the reason for

setting aside the termination order. Even the length of

litigation and the reason for prolonging the said

litigation also have to be considered.

6] The petitioner no doubt was a permanent employee

and was terminated without holding an enquiry. The

petitioner filed writ petition in this Court, which

eventually was required to be transferred to the

Maharashtra Administrative Tribunal in the year 1993 and

in 2001, the said proceedings came to be decided. Upon

enquiry being conducted, the petitioner was found guilty

and was again terminated from service. The said order is

set aside in appeal by the State Government and

punishment of stoppage of one increment was passed. The

petitioner as would appear is found guilty.

7] Rule 71(2) of the Maharashtra Civil Service

(Joining Time, Foreign Service and Payments during

Suspension, Dismissal and Removal) Rules, 1981, would be

relevant to be considered. It lays down that where the

dismissal, removal or compulsory retirement of a

Government servant is set aside by the Court solely on

the ground of non-compliance with requirement of Clause

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(2) of Article 311 of the Constitution and where he is

not exonerated on merits, the Government servant shall,

subject to the provisions of Sub-rule (7) of Rule 70 be

paid such amount (not being the whole), of the pay and

allowances to which he would have been entitled had he

not been dismissed, removed or compulsorily retired or

suspended prior to such dismissal, removal or compulsory

retirement, as the case may be, as the competent

authority may determinate after giving notice to the

Government servant of the quantum proposed and after

considering the representation, if any. Sub-rule (7) of

Rule 70 lays down that the amount determined under

Proviso to Sub-rule (2) or (4) shall not be less than the

subsistence and other allowance admissible under Rule 68.

Meaning thereby that he would be paid the amount

equivalent to the subsistence allowance which is normally

half of the salary. Though it is submitted that the said

Sub-rule would not apply as further enquiry was directed,

still the said Sub-rule can be considered while

considering the claim of back wages.

8] Considering the fact that the petitioner was not

totally exonerated even after conducting the enquiry so

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also considering the length of litigation and the factual

matrix involved in the present matter, we are inclined to

award 50% of the back wages to the petitioner from

20.8.1987 till 13.9.2001. The same shall be paid to the

petitioner expeditiously and preferably within a period

of six months.

9] Rule is accordingly made absolute in above

terms, however, with no order as to costs.

(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)

ndk/c112163.doc