Partly allowed

Sunil Gangaram Waghmare v. the Director of Archives Govt. of Mah Elphinstone College

Bombay HC1 Dec 2016WP/3517/2005

Case brief

AI extract

What is this about?

The High Court granted 50% back wages to a petitioner whose termination was set aside on technical grounds, noting he was later found guilty on merits and only punished by reduction of one increment, balancing the lack of fair hearing with subsequent guilt.

What did the court decide?

Award of 50% back wages from 20.8.1987 till 13.9.2001 to be paid within six months.

Sunil Gangaram Waghmare Vs the Director of… — Pension and Retirement Benefits | Bombay HC (2016)

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WP 3517/05

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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 WRIT PETITION NO.3517/2005

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Sushil s/o Gangaram Waghmare,
age 48 yrs., occu.Senior Clerk
in Department of Archives,
Government of Maharashtra,
N-8, Bajrang Chowk, Aurangabad.
...Petitioner..

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Versus

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

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2] Archivist, Maharashtra Archives, Department of Archives, Government of Maharashtra, N-8, Bajrang Chowk, CIDCO, Aurangabad.

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3] The State of Maharashtra, Through Secretary, Government of Social Welfare and Cultural Affairs, Mantralaya, Mumbai-32.

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...Respondents...

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 .....

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Shri A.S. Shelke, Advocate for petitioner.
Smt.S.S. Raut, AGP for respondent nos.1 to 3.

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 .....

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CORAM: S.V. GANGAPURWALA &
 K.L. WADANE, JJ.

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DATE: 01.12.2016

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

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1]The petitioner, at the relevant time, was

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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

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

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Court transferred the said writ petition to the
Maharashtra Administrative Tribunal, Aurangabad. The

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same was numbered as Transferred Application No.73/1993

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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

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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

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the extent of denial of back wages and remitted the
matter back to the Tribunal. On remand of the matter by

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this Court to the Tribunal, the Tribunal rejected the

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claim of the petitioner seeking back wages. The said

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order is impugned in the present petition.

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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

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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

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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.

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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

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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

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submits that the petitioner has already been punished by
order of the State Government reducing one increment. If

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the petitioner is denied back wages, it would amount to
dual punishment.

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3]Learned AGP submits that only on technical

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ground, the termination order of the petitioner is set

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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

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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 .

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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.

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5]Payment of back wages has a discretionary

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

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circumstances of each case and no straight jacket formula

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

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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.

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6]The petitioner no doubt was a permanent employee

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and was terminated without holding an enquiry. The

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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

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enquiry being conducted, the petitioner was found guilty
and was again terminated from service. The said order is

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set aside in appeal by the State Government and

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punishment of stoppage of one increment was passed. The
petitioner as would appear is found guilty.

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

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(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

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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

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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,

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still the said Sub-rule can be considered while
considering the claim of back wages.

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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

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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.

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9]Rule is accordingly made absolute in above

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terms, however, with no order as to costs.

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ndk/ c112163.doc

Sunil Gangaram Waghmare v. the Director of Archives Govt. of Mah Elphinstone College

Case brief

What is this about?

What did the court decide?

Sunil Gangaram Waghmare v. the Director of Archives Govt. of Mah Elphinstone College

Case brief

What is this about?

What did the court decide?

What the court decided

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