Bombay High Court
Shri. Hanmant Nivrutti Karade vs The Union Of India Throu Shri. R. A. ... on 7 June, 2022
Bench: Makarand Subhash Karnik
26. WP 14419.18
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
URMILA
Digitally signed
by URMILA
PRAMOD
CIVIL APPELLATE JURISDICTION
PRAMOD INGALE
Date:
INGALE 2022.06.08
19:57:52 +0530
WRIT PETITION NO. 14419 OF 2018
Shri Hanmant Nivrutti Karade .. Petitioner
Vs.
Union of India .. Respondent
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Mr. Vishal Tambat a/w Mr. Amol Wagh, Mr. Sachin Patil, Mr.
Dnyaneshwar Jaibhave i/b Pandit Kasar, for Petitioner.
Mr. Neel Helekar i/b Mr. A. A. Garge, for Respondent.
------------
CORAM : DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
DATE : JUNE 7, 2022.
P.C. :
1. The petitioner was proceeded against, for alleged
misconduct committed by him, by his disciplinary authority.
Following an enquiry that was conducted, the disciplinary
authority by its order dated October 5, 2005 imposed on
the petitioner the punishment of reduction of pay. The
appellate authority of the petitioner, in exercise of its
revisional power, directed removal of the petitioner from
service by its order dated March 31, 2006. A revision
preferred by the petitioner against the appellate order
proved abortive. It stood dismissed by an order dated July
27, 2006. The order of removal was challenged by the
26. WP 14419.18
petitioner before the Central Administrative Tribunal,
Mumbai Bench, Mumbai (hereafter "the Tribunal", for short)
by instituting an original application (O.A. No. 395 of 2007).
By its judgment and order dated May 7, 2008, the original
application was allowed. The Tribunal, inter alia, directed as
follows:
"We would, therefore, quash and set aside the
Appellate Authority's and Revisionary Authority's
orders dated 31.3.2006 and 27.7.2006
respectively and direct the respondents to restore
the penalty order dated 5.10.2005 of the
Disciplinary Authority. The respondents are
directed to reinstate the applicant with continuity
of service and all other consequential benefits
subject to the penalty order dated 5.10.2005.
We, however, make it clear that the applicant will
not be entitled to any backwages for the period
from the date of his removal till the date of his
reinstatement or till expiry of the period of two
months from today; whichever is earlier. The
respondents to comply with the directions within
two months from the date of receipt of a copy of
this order. The O.A. under consideration stands,
accordingly, allowed. No costs."
2. Aggrieved by the said judgment and order, the
respondents in the original application invoked the writ
jurisdiction of this Court by instituting a writ petition (W.P.
No. 5506 of 2008). While admitting the writ petition, a co-
ordinate Bench of this Court by its order dated December 3,
2008 had granted stay of operation of the order under
challenge. A subsequent order dated April 10, 2014
recorded as follows:
26. WP 14419.18
"The Respondent has deposited the amount after
10 days. Based upon the admission and the
situation, the Disciplinary Authority has awarded
only a major penalty. However, the
Appellate/Revisional Authority, suo motu, passed
order of removal of service with immediate effect.
The learned Central Administrative Tribunal, after
hearing both the parties, however, restricted the
order passed by the Disciplinary Authority subject
to other conditions, including no back wages for
the period from date of his removal till the date of
his reinstatement. This Court on 3 December
2008, stayed the order of Tribunal. Therefore, the
Respondent is out of service since 2006. The
issue is at present the interference by a writ court
in the reasoned order passed by the Central
Administrative Tribunal. After hearing the parties,
the Respondent, who is present in Court, has also
submitted in addition to above, that he is willing
to relinquish his back wages even from 2008 till
this date. This in our view, will take care of the
issue of major punishment, even if any, so
awarded.
Stand over to 6 May 2014 HOB for disposal."
3. Despite the petitioner having expressed his willingness
to relinquish back-wages from 2008 till April 10, 2014 and
despite the co-ordinate Bench having expressed that the
same could take care of the issue of major punishment, the
petitioners in W.P. No. 5506 of 2008 did not agree to
reinstate the petitioner in service; instead, they invited the
co-ordinate Bench to decide the validity and/or legality of
the judgment and order dated May 7, 2008 passed by the
Tribunal on its merits. Ultimately, by a judgment and order
dated December 6, 2016, the co-ordinate Bench dismissed
26. WP 14419.18
W.P. No. 5506 of 2008. The concluding paragraph reads as
follows:
"10. In view of the above, we are of the
considered opinion that the orders passed by the
Appellate Authority and Revisional Authority
dated 31st March, 2006 and 27th July 2006 are
totally unreasonable and arbitrary and cannot be
sustained in the eyes of law. It clearly appears to
us that the impugned order dated 7th May 2008
passed by the learned Members of the Tribunal is
an equitable order and the view taken therein is
just right and proper. We see no error, illegality or
perversity in the said impugned order to interfere
with in our writ jurisdiction under Article 226 of
the Constitution of India. Petition is accordingly
dismissed with no order as to costs."
4. Despite the judgment and order dated May 7, 2008 of
the Tribunal having been upheld by this Court, the
petitioner was neither reinstated in service nor paid back-
wages. This triggered a contempt petition (Contempt
Petition No. 29 of 2017) before the Tribunal at the instance
of the petitioner. The prayers in the contempt petition were
to the following effect:
"(a) That this Hon'ble Tribunal be pleased to hold
and declare that Respondents have committed
contempt of court and be punished in accordance
with law.
(b) Direct the Respondents to pass the order in
terms of the order dated 07.05.2008 and all
benefits including 100% back-wages.
(c) Pass any other and further order in the
interest of justice."
26. WP 14419.18
5. C.P. No. 29 of 2017 came up for consideration before
the Tribunal on August 3, 2017. It was recorded in
paragraph 2 of the order that the petitioner had challenged
a direction of the respondent that the petitioner should give
an undertaking not to claim back-wages from the date of
dismissal (sic, removal) up to April 10, 2014. The Tribunal
referred to the interim order dated April 10, 2014 (quoted
above) and observed that in view thereof, the question of
giving any undertaking by the petitioner does not arise.
More importantly, the Tribunal observed that the petitioner
does not have any right to claim any back-wages from the
date of dismissal (sic, removal) till the date of the order of
the High Court dated April 10, 2014. This was based on the
concession of the petitioner, as recorded in the said order.
Although the Tribunal made a passing reference to the
judgment and order of this Court dated December 6, 2016,
it failed to appreciate that by reason of the doctrine of
merger, the interim order dated April 10, 2014 had merged
in the judgment and order dated December 6, 2016 of the
co-ordinate Bench which, in unambiguous terms, put a
stamp of validity on the judgment and order dated May 7,
2008 of the Tribunal. The net result thereof was that the
petitioners in W.P. No. 5506 of 2008 incurred the liability to
pay back-wages to the petitioner excluding the period
between the order of his removal from service [March 31,
2006] till the date of his reinstatement or till 2 (two)
months of the date of the judgment and order dated May 7,
26. WP 14419.18
2008, whichever is earlier. On an erroneous interpretation
of the orders passed by this Court in W.P. No. 5506 of 2008,
the Tribunal disposed of the contempt petition by simply
directing the respondents to allow him to resume duty and
to pay him back-wages from April 11, 2014 till that date,
i.e., August 3, 2017.
6. The order dated August 3, 2017 of the Tribunal
disposing of Contempt Petition No. 29 of 2017 is challenged
in this writ petition.
7. We have heard Mr. Vishal Tambat, learned advocate
for the petitioner and Mr. Neel Helekar, learned advocate for
the respondent.
8. Since the petitioner has been paid back-wages from
April 11, 2014, the only point that we are tasked to decide
is whether the petitioner would be entitled to back-wages
between July 7, 2008 [i.e., two months after the judgment
and order dated May 7, 2008] and April 10, 2014. Having
bestowed our serious consideration, we are of the clear
view that the question must be answered in the affirmative.
9. There is no doubt that in course of consideration of
W.P. No. 5506 of 2008 on April 10, 2014, the petitioner
(appearing in person) had made a submission before the
co-ordinate Bench that he is willing to relinquish back-
wages from May 7, 2008 till April 10, 2014. It is also not in
dispute that the co-ordinate Bench had expressed a view
that the same could take care of the issue of major
26. WP 14419.18
punishment of removal that the petitioner had suffered. An
option was left open for the petitioners in W.P. No. 5506 of
2008 to decide their next course of action either to take
back the petitioner in service without paying him back-
wages or to press the writ petition on merits. If only the
said petitioners were inclined to take back the petitioner in
service without paying him back-wages from May 7, 2008
till April 10, 2014, it was open to them to agree to consent
terms being filed to enable the co-ordinate Bench dispose of
the writ petition finally on April 10, 2014 itself or
immediately thereafter. Regrettably, the said petitioners did
not choose to pursue this course of action. It appears from
the judgment and order dated December 6, 2016 that
learned advocate for the petitioners in W.P. No. 5506 of
2008 pressed the writ petition on all points that were
available to them in law in order to have the judgment and
order dated May 7, 2008 of the Tribunal reversed. However,
after hearing the parties, the co-ordinate Bench was of the
opinion that the impugned judgment and order of the
Tribunal did not warrant any interference and accordingly,
proceeded to uphold the same. The judgment and order
dated December 6, 2016 was not carried in appeal, with the
result that the direction contained in the judgment and
order dated May 7, 2008 of the Tribunal, regarding the
petitioner's entitlement to back-wages, attaining finality and
becoming binding on the respondents in the original
application. Thus, they became bound to pay back-wages to
26. WP 14419.18
the petitioner from July 7, 2008 onwards without any
reservation.
10. Having regard to such clear factual position, it was not
open to the Tribunal while disposing of the contempt
petition to rely on the interim order dated April 10, 2014 for
depriving the petitioner of back-wages resting on the
concession that he had made and which was recorded by
the co-ordinate Bench on April 10, 2014.
11. Law is well-settled that any order of interim relief, if
passed, has to be in aid of the final relief that is claimed in
the proceedings and once a final order disposing of the
proceedings is passed, any such interim order would merge
in the final order and cease to exist except in respect of acts
performed in pursuance thereof. There is no order of the
coordinate Bench recording acceptance of the concession of
the petitioner. The submission that he was willing to
relinquish back-wages was only recorded, nothing more
nothing less. The submission never crystalised into an order
of Court to be binding on the petitioner. As has been noted
earlier, the Tribunal failed to appreciate that the order dated
April 10, 2014 had merged in the judgment and order dated
December 6, 2016 by which W.P. No. 5506 of 2008 was
dismissed. With such merger, there was no independent
existence of the order dated April 10, 2014 and the
petitioners in W.P. No. 5506 of 2008/the respondents in
O.A. No. 395 of 2007 were bound to honour the judgment
and order dated December 7, 2008 by which the original
26. WP 14419.18
application was allowed. The claim of the petitioner for
payment of back-wages was perfectly justified which the
Tribunal rather illegally spurned.
12. Since we are informed that the petitioner has been
paid back-wages from April 11, 2014, we direct the
respondent to calculate the quantum of back-wages that the
petitioner is entitled to from July 7, 2008 till April 10, 2014
and to release the same together with interest @ 8% per
annum, within 3 (three) months from date of receipt of an
authenticated copy of this order. In the event, the
quantified sum on account of back-wages as above together
with interest is not released within the aforesaid time-
frame, the petitioner shall be entitled to further interest @
1% per month till such time the payment is finally made.
13. The writ petition stands allowed with the result that
the impugned order of the Tribunal dated August 3, 2017
stands set aside. No costs.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
