Kambli 1 wp1019.95 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1019 OF 1995 ... Francis Xavier Dias ...Petitioner v/s. 1. The Shipping Corporation of India Ltd. 2. Capt.A.P.Singh ...Respondents ... Mr.A.D.Shetty with Ms.Pallavi Ashar i/b S.G.Udeshi for the Petitioner. Mr.K.S.Bapat i/b Mulla & Mulla & CBC & Co. for Respondents. ... CORAM: D.K.DESHMUKH & N.D.DESHPANDE,JJ. Dated: 13th October, 2010 P.C.: 1. The facts which are relevant and material for deciding this petition are, that the Petitioner was in the service of the Kambli 2 wp1019.95 Respondent No.1 since 3rd September, 1995 as a Catering Officer. In so far as present controversy in this petition is concerned, the Petitioner was posted on duty at vessel “m.v. Kanpur on 1-4-1994. He had some dispute with the Captain on that vessel and therefore, by communication dated 21-4-1994 was addressed to him and he was advised to vacate that vessel. He was off-loaded from that vessel on 26-4-1994. Thereafter, a charge sheet was served on the Petitioner and an inquiry was held and ultimately a letter dated 15-3-1995 was addressed to the Petitioner. It was stated in that letter that the Inquiry Committee has submitted its report to the Management. It was stated that the Management has decided to take a lenient view and they have decided to issue only warning to the Petitioner. Then it was stated “Please let us know date of your reporting by Kambli 3 wp1019.95 giving the requisite 10 days notice to enable us plan your posting accordingly.” It may be pointed out here that from 24-6-1994 till 15-3-1995 the Petitioner was not on duty, though he was in service of the Respondent No.1. The Petitioner replied to the letter dated 15-3-1995 through his advocate. The reply is dated 29th March, 1995. In so far as the above quoted portion from the letter dated 15-3-1995 is concerned, he stated that there is no question of he giving any notice to the Respondent for joining duty. He stated that it is the Respondent, who has not assigned him duty since April, 1994 and he requested that he should be assigned duty. When there was no reply immediately received to the letter dated 29th March, 1995, the Petitioner addressed another communication dated 22nd April, 1995 to the Respondent stating therein that, Kambli 4 wp1019.95 “My client states that till date neither your clients have assigned the duty to my client nor responded to my aforesaid letter dated 29th March, 1995. In the aforesaid circumstances, I on behalf of my client have to state that if your clients fail to assign work to my client and to pay him his full arrears of salary and allowances and other dues from the period April, 1994 till date within 72 hours of receipt of this letter, my client will have no option than to adopt the appropriate legal proceedings against your clients.....” 2. The Petitioner then filed this petition on 1-6-1995. It is common ground that in this petition an interim order was made, as a result of which the Petitioner was assigned work from 6-7-1995. The Petitioner, thereafter, continued to work with the Respondent till his retirement, which was on 30th September, 2008. In the present petition, therefore, the Petitioner is claiming wages & allowances for the period from 26-4-1994 till 6-7-1995, the period during which he was not assigned duty. It may be pointed out here that the letter of the Kambli 5 wp1019.95 Petitioner dated 29th March, 1995 was replied to ultimately by the Respondent. The reply is dated 2-6-1995, and was received by the Petitioner during the pendency of this petition. In that reply, so far as assignment of duty to the Petitioner is concerned, the Respondent stated that 10 days notice from the Petitioner was necessary to plan assignment of duty to him. 3. In the present petition, the Petitioner has challenged even the warning and punishment that was given to him. But we do not propose to go into that because the Petitioner has now retired from the service. The only question to be considered by us is whether the Petitioner is entitled to wages & allowances for the period during which he was not assigned any duty. Kambli 6 wp1019.95 4. In our opinion, the Petitioner is entitled to wages & allowances for the aforesaid period, mainly because though he was off-loaded from the vessel “m.v. Kanpur”, neither he was placed under suspension nor his services were terminated. Therefore, he continued to be in service of the Respondent and therefore, it was for the Respondent to assign him duty. If it is assumed that till 15-3-1995 he was not assigned any duty, because the inquiry was going on, then also as at the conclusion of the inquiry only warning was issued, the Petitioner would be entitled to full wages & allowances for the period ending with 15-3-1995. So far as the period subsequent to 15-3-1995 is concerned, the Respondent had asked the Petitioner to give 10 days notice so that he can be assigned duty. The Petitioner by his letter dated 29th March, 1995 made it amply clear Kambli 7 wp1019.95 that he was always willing to resume the duty, but he was not called to join the duty by the Respondent. Therefore, nothing prevent the Respondent on receiving the letter dated 29th March, 1995 to plan a duty for the Petitioner and assign him the duty. That the Respondent did not do it till by the interim order this court assigned duty to the Petitioner with effect from 6-7-1995. For that reason wages & allowances cannot be denied to the Petitioner. 5. Taking overall view of the matter, therefore, in our opinion following order would meet the ends of justice. O R D E R (i)The Respondent No.1 is directed to pay full wages and allowances to the Petitioner to which he would have been entitled had he been assigned duty during Kambli 8 wp1019.95 the period from 26-4-1994 to 6-7-1995. (ii) The Respondent No.1 shall, within, a period of four weeks from today calculate the amount of wages and allowances to which, according to the Respondent No.1, the Petitioner would be entitled for the aforesaid period and pay that amount to the Petitioner. (iii) In case the Petitioner is not satisfied with the amount that is paid to him by the Respondent No.1, the Petitioner shall be entitled to adopt appropriate remedy for determination and recovery of that amount. (iv)Rule made absolute accordingly. No order as to costs. (D.K.DESHMUKH,J.) (N.D.DESHPANDE,J.)