-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 48 OF 2005 Shri Sudhakar Narayan Betkikar, of major age, resident of Wadachawada, Bicholim, Goa. ...... Petitioners V e r s u s 1. State of Goa, through its Chief Secretary having his office at Secretariat, Panaji Goa. 2. The Chief Electrical Engineer, Government of Goa, Having his office at Vidyut Bhavan, Electricity Department, Panaji-Goa. ...... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Petitioner. Mr. S. Vahidulla, Addl. Government Advocate for the Respondents. CORAM : P. B. MAJMUDAR & U. D. SALVI, JJ. DATE : 20 th February, 2009 . ORAL JUDGMENT (Per P. B. MAJMUDAR, J ) By filing this Petition, the petitioner has prayed that the -2- respondents may be directed to pay full back wages for the period between 19.10.1988 i.e. from the date of dismissal till 10.05.1993 i.e. the date when he was allowed to resume his duty on reinstatement and for regularizing the increments which were due for the relevant period. The petitioner was initially appointed as a Peon on 10.03.1964 and he was subsequently promoted as a Meter Reader in the year 1969. Subsequently, he was confirmed to the said post in April 1978. In January, 1980, the petitioner was placed under suspension in view of the audit report as it was alleged that petitioner has misappropriated Rs.21,878.60 and a Criminal case bearing No. 123/S/98 was registered against the petitioner. The petitioner was acquitted by an Order dated 26.07.1999 by the J.M.F.C., Bicholim. Since an inquiry was pending against the petitioner in connection with the misappropriation of amount, the petitioner was dismissed from service by an Order dated 19.10.1988 passed by the Disciplinary Authority. The petitioner challenged the said Order by way of appeal before the Central Administrative Tribunal. The Tribunal set aside the said Order of dismissal and remanded the matter back to the Disciplinary Authority. The matter was remanded for reconsidering the question about penalty. The Disciplinary Authority subsequently passed a fresh Order imposing penalty of reduction of pay by one stage from Rs.1250/- to Rs.1225/- for a period of one year. The said Order was passed on 07.05.1993. Subsequently, the Disciplinary -3- Authority by another Order dated 03.06.1993, treated the period from the date of dismissal till reinstatement as “Dies-Non”. The Petitioner challenged the said Order by way of an appeal. The Chief Secretary, heard the said appeal and passed an Order dated 29.08.2001, regularizing the absence of the petitioner from 19.10.1988 to 10.05.1993 by treating as extraordinary leave for the said period. The said Order is challenged by way of this Writ Petition. 2. It is submitted that initially the petitioner had also filed a Writ Petition no. 273/2004 with various prayers, including the prayer for back wages. The Division Bench of this Court, by its Order dated 13.09.2004, permitted the Petitioner to make representation for back wages to the concerned Authorities. The petitioner, thereafter, made a representation regarding payment of back wages. The Dy. Director (Administration), by his Order dated 29.04.2004, rejected the said representation. 3. The petitioner, therefore, has approached this Court with a prayer that he should be granted full back wages for the aforesaid period since, as per the Order of the Disciplinary Authority, one increment was withheld. It is also submitted that even though the Disciplinary Authority has held in its Order that upon expiry of the period of reduction, the penalty will not have any effect regarding future -4- increments, but the future increments have not been released. Mr. Lotlikar submitted that as per the Order of the Disciplinary Authority, petitioner was entitled to one increment during the period of reduction, but said increment was also not made available. Learned Additional Government Advocate Mr. Vahidulla for the Respondents submitted that since the said period was considered as extraordinary leave, he is not entitled to back wages. 4. We have heard the learned Counsel at length and we have gone through the record. It is required to be noted that the Disciplinary Authority has imposed only a punishment of withholding of one increment and, therefore, the petitioner was to be treated in service throughout. The Disciplinary Authority had not passed any Order to the effect that the petitioner is not entitled to the back wages for the said intervening period even though the Order of reinstatement was passed. The Disciplinary Authority by, subsequent Order, regularised the said period from the date of dismissal till reinstatement as “Dies-Non”. The Appellate Authority, however, regularised the said period by holding that the said period should be treated as extraordinary leave. The learned Counsel for the Respondent could not point out as to under which provision the Order granting extraordinary leave can be passed. It is also required to be noted that the Disciplinary Authority while passing -5- the Order of punishment had not passed any Order treating the said period as extraordinary leave granted to the petitioner. Learned Counsel Mr. Lotlikar submitted that when the Disciplinary Authority has not passed any such Order treating the leave period as extraordinary leave, the Appellate Authority could not have passed such an Order in the appeal filed by the petitioner. It is submitted that to deny entire back wages for the whole period, is highly unjust Order on the part of the Disciplinary Authority. 5. In our view, when the Disciplinary Authority has only passed an Order withholding one increment, the Appellate Authority in appeal could not have treated the period in question as an absence from duty and granting extraordinary leave. Apart from the said aspect, other employees like the petitioner, preferred a Writ Petition for back wages and for benefit of promotion. Since the petitioner was not in service, there was no question on his part to ask for future promotion. 6. Considering the said aspect, we are of the opinion that in the interest of justice, it would be just and proper to direct the respondents to pay to the petitioner 40% of back wages for the intervening period i.e. from the date of dismissal till reinstatement. However, this Order may not be treated as precedent in any other -6- cases. On the basis of the said Order, if the amount is payable to the petitioner, the same may be paid within a period of two months from, today. In case the petitioner is entitled to any amount towards increment as per the Order of the Disciplinary Authority during the penalty period, the same may be worked out accordingly and be paid to the petitioner within the aforesaid period. 7. Petition is, accordingly, allowed to the aforesaid extent. P. B. MAJMUDAR, J. U. D. SALVI J. arp/*