Bombay High Court
Eknath Ganpatrao Shinde vs The State Of Maharashtra And ... on 24 October, 2016
Bench: S.V. Gangapurwala
W.P. 6736/2015
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6736/2015
Eknath S/o Ganpatrao Shinde
Age: 55 Years, Occu.Nil,
R/o Kanegaon Post Sakol,
Tq.Shirur Anantpal,
Dist.Latur.
..Petitioner..
Versus
1] The State of Maharashtra ,
Through its Secretary,
Marketing and Textile Department,
Mantalaya, Mumbai-32.
2] The Divisional Joint Registrar,
Co-operative Societies, Latur,
Tq.and Dist.Latur.
3] The District Deputy Registrar,
Co-operative Societies, Nanded.
4] The Agricultural Produce Market
Committee,Nanded, Through its
Administrator/Secretary.
...Respondents..
.....
Shri A.V.Patil, Advocate for the Petitioner.
Ms.S.S.Raut, AGP for Respondent Nos.1 to 3.
Shri S.B.Ghatol-Patil, Advocate for Respondent No.4.
.....
CORAM: S.V. GANGAPURWALA &
K.L. WADANE, JJ.
DATE: 24.10.2016
W.P. 6736/2015
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ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1] Heard learned counsel for the parties. Rule.
Rule made returnable forthwith and with the consent of
learned counsel for the parties, the petition is taken up
for final disposal at this stage.
2] Learned counsel for the petitioner states that
the petitioner was working as a Senior Clerk with
respondent no.4 - APMC. The departmental enquiry was
initiated against the petitioner and vide order dated
24.6.2006, the petitioner was terminated. The petitioner
preferred an appeal before the Divisional Joint
Registrar. The appellate authority allowed the appeal of
the present petitioner vide judgment and order dated
5.11.2009. In spite of the fact that the said appeal was
allowed, the respondents did not reinstate the
petitioner. The respondent no.4 filed further appeal
before the State Government. The State Government on
8.11.2012 dismissed the appeal filed by the respondent
no.4. The learned counsel submits that the petitioner on
21.9.2013 gave resignation. The said resignation was
rejected. Against the said action, present petitioner
filed an appeal. The appeal came to be allowed and the
W.P. 6736/2015
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respondent no.4 was directed to accept the resignation of
the petitioner. The learned counsel submits that the
petitioner has not been paid the retiral benefits nor the
petitioner is paid the salary for a period from 30.6.2006
to 21.9.2012. The learned counsel submits that Rule
70(4) of the Maharashtra Civil Services (Joining Time,
Foreign Service and Payment during Suspension, Dismissal
and Removal) Rules, 1981, relied upon by the respondent
no.4 would be inapplicable in the present case.
According to the learned counsel, the petitioner is
entitled for the salary for the said period.
3] Learned counsel for the respondent no.4 submits
that though the appellate authority had allowed the
appeal filed by the present petitioner, however, no
directions were given with regard to the payment to be
made to the present petitioner. More over, the appeal
was allowed only on technical grounds i.e. proper
procedure was not followed. According to the learned
counsel, Rule 70(4) of the Rules, 1981, would squarely
apply in the present case and the same has been applied.
The learned counsel further submits that the petitioner
has been paid the amount of gratuity so also the retiral
W.P. 6736/2015
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benefits totaling to Rs.6,40,400/- and the gratuity
amount of Rs.3,08,641/-. The learned counsel submits
that even subsistence allowance at the rate of 50% for
six months and thereafter 75% of the salary for the
period of 30 months preceding the date of termination of
his service on account of his resignation as per the
orders issued by the respondent no.2 has also been paid.
No amount is now due and payable to the petitioner.
4] We have considered the submissions canvassed by
the learned counsel for the respective parties.
5] The factual matrix is not disputed. The
petitioner though was terminated on 30.6.2006, the appeal
filed by the petitioner against the said termination
order was allowed on 5.11.2009. Even the appeal
preferred by the present respondent no.4 to the State
Government against the said judgment of the appellate
authority came to be dismissed. The appellate authority
who had allowed the appeal of the present petitioner had
not passed any orders with regard to the payment of the
emoluments.
6] In such a case, Rule 70(4) of the Rules, 1981,
can be resorted to. The said Rule reads as under:-
W.P. 6736/2015
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"Rule 70 - Regularisation of pay and
allowances and the period of absence from
duty where dismissal, removal or compulsory
retirement is set aside as a result of appeal
or review and such Government servant is re-
instated.
(1) to (3) ..... ....
(4) In cases other than those covered by
sub-rule(2) [including case where the order
of dismissal, removal or compulsory
retirement from service is set aside by the
appellate or reviewing authority solely on
the ground of non-compliance with the
requirements of clause (2) of article 311 of
the Constitution and no further inquiry is
proposed to be held] the Government servant
shall subject to the provisions of the sub-
rules (6) an (7), be paid such proportion of
the full 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 determine after
giving notice to the Government Servant of
the quantum proposed and after considering
the representation, if any, submitted by him
in that connection within such period which
in no case shall exceed six days from the
date on which the notice has been served, as
may be specified in the notice:
W.P. 6736/2015
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Provided that any payment under this sub-
rule to a Government servant [other than a
Government servant who is governed by the
provisions of the Payment of Wages Act,1936(4
of 1936)] shall be restricted to a period of
three years immediately preceding the date on
which orders for reinstatement of such
Government servant are passed by the
appellate authority or reviewing authority,
or immediately preceding the date of
retirement on superannuation of such
Government servant, as the case may be."
7] The said Rule will operate for a period the
petitioner was dismissed from service and the order
reinstating him is passed. The said Rule will not take
into its fold the period after the date of setting aside
the termination. The termination is set aside by the
order dated 5.11.2009. There was no order staying the
said order of setting aside the termination though the
respondent no.4 had preferred the appeal and the said
appeal also came to be dismissed. In the light of the
aforesaid aspect of the matter, there will be no
impediment for the respondent no.4 to make the payment of
salary to the petitioner from 1.12.2009 till the date the
petitioner had submitted his resignation.
W.P. 6736/2015
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8] Considering the above, we pass the following
order.
O R D E R
a] The respondent no.4 shall pay salary as
admissible to the petitioner alongwith the
consequential benefits, if any, for the
period from 1.12.2009 to 28.1.2013 i.e. the
date the petitioner had submitted the
resignation. While making the said payments,
some payment if already made for the said
period, be adjusted. The same be done
expeditiously and preferably within a period
of four months.
b] Rule is made partly absolute
accordingly. No costs.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)
ndk/c24101621.doc
