Dilip Govindrao Jamgade vs State Of Maharashtra Thr. Its ...
2017 Latest Caselaw 999 Bom

                                                        1                         wp675.13.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH AT NAGPUR

                            WRIT PETITION NO.675/2013

      Dilip Govindrao Jamgade,
      aged about 53 years, 
      r/o 493, Hanuman Nagar,
      Nagpur - 440 009.                                           .....PETITIONER

                                 ...V E R S U S...

 1. State of Maharashtra through
    its Secretary, Urban Development
    Department, Mantralaya, Mumbai-32.

 2. Nagpur Municipal Corporation,
    through its Municipal Commissioner,
    Civil Liens, Nagpur.                                          ...RESPONDENTS

 ---------------------------------------------------------------------------------------------------
 Shri A. Parchure, Advocate for petitioner.
 Shri V. A. Thakare, A.G.P. for respondent no.1.
 Shri S. M. Puranik, Advocte for respondent no.2.
 --------------------------------------------------------------------------------------------------

                                  CORAM:-      SMT. VASANTI A. NAIK AND
                                               V. M. DESHPANDE, JJ.

DATED :-

MARCH 23, 2017

ORAL JUDGMENT (Per : Smt. Vasanti A Naik, J.)

Heard.

Though a couple of prayers are made in the writ petition,

the learned counsel for the petitioner fairly states that the prayer for a

direction against the Corporation for fixation of the pay scale would be

made before the appropriate forum and the grievance of the petitioners

in this writ petition would stand redressed if a direction is issued

against the respondent-Corporation to pay 90% of the back-wages to

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the petitioner for the period from 27.03.1997 to 28.08.2009. It is

stated that in accordance with the order of Commissioner the resolution

of the Corporation dated 03.02.2010 should be implemented, the

petitioner should be granted 90% of the salary for the period during

which he had not worked after deducting the amount which the

petitioner may have earned by working during the said period, with

some other employer.

The petitioner was working as a Deputy Engineer at the

relevant time in the year 1996-97, when he was charged of illegally

subdividing a plot. The charge levelled against the petitioner was held

to be proved. According to the petitioner, though the sub division made

by the petitioner was approved by the superior, the superior was

exonerated. The petitioner challenged the action of the Corporation of

removing the petitioner from service, on the proof of the charge. By the

order dated 26.03.1997 in Writ Petition No. 992/1997, the High Court

partly allowed the writ petition filed by the petitioner after holding that

the punishment of removal from service was harsh and disproportionate

to the charge proved against him. The High Court directed the

reinstatement of the petitioner in service and further directed the

Corporation to pass an appropriate order imposing a lesser penalty.

After the reinstatement of the petitioner, the Municipal Corporation,

vide resolution dated 03.02.2010 decided that the petitioner would be

entitled to 90% of the salary for the period during which he had not

3 wp675.13.odt

worked instead of 100%. The resolution of the Corporation was

approved by the then Commissioner and it was held that 90% of the

salary be released in favour of the petitioner, after deducting the

amount that may have been earned by the petitioner by working

elsewhere during the said period. After the said order was passed by

then Commissioner, the incumbent Commissioner who assumed the

office, passed the impugned order directing the grant of 50% of the

arrears of salary instead of 90%. The said order is challenged by the

petitioner in the instant petition.

On hearing the learned counsel for the parties and on a

perusal of the resolution dated 03.02.2010 as also the order of the

erstwhile Commissioner approving the resolution, it appears that the

incumbent Commissioner could not have modified the decision of the

erstwhile Commissioner to release 90% of the salary in favour of the

petitioner for the period during which he had not worked after

deducting the amount which he may have earned by working elsewhere

during the relevant period. After the Corporation had passed the

resolution dated 03.02.2010 and the erstwhile Commissioner had

approved of the said resolution, the incumbent Commissioner could not

have modified the said decision. Apart from the fact that there could

not have been a review of the decision that was taken by the erstwhile

Commissioner, we find that the impugned order is sans reasons as no

reasons are recorded by the Commissioner for modifying the order of

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the Commissioner and disagreeing with the resolution of the Municipal

Corporation dated 03.02.2010. Not a single reason is recorded by the

respondent no.2 while passing the impugned order.

Hence, for the reasons aforesaid, the writ petition is

allowed. The impugned order of the Commissioner is quashed and set

aside. It is hereby held that the petitioner would be entitled to 90% of

the salary for the period during which he was out of service, minus the

amount which the petitioner may have earned by working elsewhere,

during the said period. Rule is made absolute in the aforesaid terms

with no order as to costs.

The point in regard to the claim of the petitioner for fixation

of salary is kept open.

With the disposal of the writ petition, pending civil

applications stand disposed of.

(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.)

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