1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.359 OF 2001 1] The Union of India , through ] its Secretary, Ministry of ] Rural Development, National ] Drinking Water Mission, ] 9th Floor, Paryavaran Bhavan ] CGO Complex, “B” Block, ] Lodh Road, New Delhi-110003] 2] The Superintending Engineer ] Central Project Management ] Cell for UNICEF Stores, ] Commerce House, 1st Floor ] Ballard Estate ] Estate, Mumbai 400 001 ]... Petitioners. Versus Ganesh Armugam Naidu ] 10/114/, CPWD Colony ] Sahar Village, Mumbai 40009 ]... Respondent. Ms.S V Bharucha a/w Mr. Y S Bhate for the Petitioners UOI None for the Respondent. CORAM : P.B.MAJMUDAR & R.M.SAVANT, JJ DATED : APRIL 27, 2009 2 ORAL JUDGMENT : [ PER P.B.MAJMUDAR, J] 1. By way of this Petition, the Petitioners-Union of India has challenged the order passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai dated 17th October 2000 by which order the Tribunal allowed the Original Application No.656 of 1996 preferred by the Respondent herein. By the impugned order the Tribunal directed the Petitioners herein to reinstate the Applicant i.e the Respondent herein back in service though without back wages. 2. The Respondent was appointed as a Driver on a purely temporary basis and accordingly the appointment order was issued to him in that behalf. The appointment order is produced at page 21 in the compilation of the above Petition which is dated 14th March 1989. The appointment order clearly states that the appointment is purely temporary and is liable to be terminated without assigning any reasons on one month's notice. Subsequently by an order dated 3rd September 1993, the services of the Respondent were terminated. 3 Prior to such termination, the Respondent was served with one month's notice as required by rules and, accordingly on completion of said one month period, subsequently after some time, by an order dated 3rd September 1993 the services of the Respondent were terminated. The Respondent, thereafter preferred an application before the Central Administrative Tribunal being Original Application No.656 of 1996 and by the impugned order, the Tribunal set aside the said termination order passed by the Petitioners without back wages. 3. The learned counsel for the Petitioners Ms.Bharucha submitted that the appointment of the Respondent was purely of temporary nature and that the Respondent was appointed on a temporarily created post which was subsequently abolished and, therefore, the Respondent has no right to continue on the said post. She further submitted that even though the order of termination was passed as back as on 26th April 1993, the Respondent preferred the Original Application No.656 of 1996 on 6th June 1996. It is therefore submitted by her that the said Application of the Respondent was 4 obviously time barred and, therefore, the same was required to be dismissed even on the ground of delay, latches and limitation. The learned counsel for the Petitioners further submitted that the Tribunal has decided the point which was not even in issue before it and has accordingly committed an error of law in passing the impugned order. 4. None appears for the Respondent, though served. 5. We have heard the learned counsel for the Petitioners. We have gone through the Petition as well as the impugned order passed by the Tribunal and another documents which are annexed with the Petition. 6. It is not in dispute that as per the appointment order of the Respondent, the Respondent was appointed purely on a temporary post in a temporary vacancy as the appointment order clearly speaks in this behalf. It seems that in the mean while the Respondent was involved in criminal case and subsequently after his acquittal he 5 preferred the said Application before the Tribunal. It is however required to be noted that the order of termination is not founded on the basis of the pendency of the criminal case against the Respondent. Under the circumstances, the Respondent was required to approach the Tribunal within the period of limitation if he had any grievance as regards the order of termination is concerned. If in a given case, the termination/removal order is passed on the basis of conviction of a person, then naturally on acquittal of such person, he is required to be reinstated in service. But this is not a factual aspect of this case. Looking to the termination order, it cannot be said that the services of the Respondent were terminated on the ground of pendency of the criminal case. If, according to the Respondent, the termination order was passed on some extraneous ground then he was required to challenge the same immediately and there was no reason for him to wait till the order of acquittal was passed. It is not in dispute that the Respondent had not taken any steps to challenge the order of termination within a reasonable time from the date when it was passed. After going through the order of termination, it appears 6 that, it is a simplicitor termination order. The Respondent still could have approached the Tribunal in stead of waiting for a considerable time of three years. The termination of the Petitioner has nothing to do with the pendency of the criminal case nor it has any relevance with the acquittal of the Petitioner in the said criminal case. Considering the said aspect, in our view, the Tribunal has committed an error, in passing the impugned order on the ground that in view of acquittal of the Respondent, he was required to be reinstated in service and that after acquittal he made certain representations and, therefore, the said Application being O.A No.656 of 1996 could be said to be within limitation. 7. Even if, the Respondent had any grievance against the termination order, he was required to approach the Tribunal within limitation, in stead, he continued to wait till the verdict of the criminal case and after he was acquitted, he started making demand of reinstatement in service. Since the termination order was not based on pendency of the criminal case and, since the Respondent did not 7 approach the Tribunal for a considerable time since passing of termination order, the Tribunal could not have passed the impugned order and directed the Petitioners to reinstate the Respondent in service. 8. It is required to be noted here that while admitting the above Petition, the impugned order has been stayed. The learned counsel for the Petitioners pointed out that the appointment of the Respondent was purely on temporary basis in a temporary vacancy, the Respondent, therefore, had no right to hold the said post. It cannot be said that the impugned order is passed by way of penalty or that it is a stigmatic order. It cannot be said that the impugned order is a penal order. The Tribunal has committed an error in passing the impugned order. In our view, therefore, on both the grounds i.e on the ground of limitation as well as on merits also, no order could have been passed by the Tribunal for reinstatement of the Respondent in service. 8 9. Considering the aforesaid aspect, the impugned order of the Tribunal is required to be set aside and the Application preferred by the Respondent i.e. Original Application No.656 of 1996 is required to be dismissed. Hence the impugned order is set aside. The Application of the Respondent being Original Application No.656 of 1996 stands dismissed. Rule is accordingly made absolute in aforesaid terms with no order as to costs. [R.M.SAVANT,J] [P.B.MAJMUDAR,J]