IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO.5392 OF 1994 WRIT PETITION NO.5392 OF 1994 WRIT PETITION NO.5392 OF 1994 ANJUMAN KHAIRUL ISLAM & ANR. ...PETITIONER. ANJUMAN KHAIRUL ISLAM & ANR. ...PETITIONER. ANJUMAN KHAIRUL ISLAM & ANR. ...PETITIONER. VS. VS. VS. MR. J.I.HUSSEIN & ORS. ...RESPONDENTS. MR. J.I.HUSSEIN & ORS. ...RESPONDENTS. MR. J.I.HUSSEIN & ORS. ...RESPONDENTS. MR. A.M.JOSHI WITH MR. S.D.RAYRIKAR FOR THE PETITIONER. MR. A.M.JOSHI WITH MR. S.D.RAYRIKAR FOR THE PETITIONER. MR. A.M.JOSHI WITH MR. S.D.RAYRIKAR FOR THE PETITIONER. MS.MANISHA VICHARE I/B. MR. BHAVESH PARMAR FOR MS.MANISHA VICHARE I/B. MR. BHAVESH PARMAR FOR MS.MANISHA VICHARE I/B. MR. BHAVESH PARMAR FOR RESPONDENT NO.1. RESPONDENT NO.1. RESPONDENT NO.1. MR. S.K.CHINCHALIKAR AGP FOR RESPONDENT NOS. 2 & 3. MR. S.K.CHINCHALIKAR AGP FOR RESPONDENT NOS. 2 & 3. MR. S.K.CHINCHALIKAR AGP FOR RESPONDENT NOS. 2 & 3. ALONGWITH ALONGWITH ALONGWITH WRIT PETITION NO. 4465 OF 1995 WRIT PETITION NO. 4465 OF 1995 WRIT PETITION NO. 4465 OF 1995 J.I.HUSSAIN ...PETITIONER. J.I.HUSSAIN ...PETITIONER. J.I.HUSSAIN ...PETITIONER. VS. VS. VS. ANJUMAN KHAIRUL ISLAM & ORS. ...RESPONDENTS. ANJUMAN KHAIRUL ISLAM & ORS. ...RESPONDENTS. ANJUMAN KHAIRUL ISLAM & ORS. ...RESPONDENTS. MS.MANISHA VICHARE I/B. MR. BHAVESH PARMAR FOR MS.MANISHA VICHARE I/B. MR. BHAVESH PARMAR FOR MS.MANISHA VICHARE I/B. MR. BHAVESH PARMAR FOR PETITIONER PETITIONER PETITIONER MR. A.M.JOSHI WITH MR. S.D.RAYRIKAR FOR RESPONDENT MR. A.M.JOSHI WITH MR. S.D.RAYRIKAR FOR RESPONDENT MR. A.M.JOSHI WITH MR. S.D.RAYRIKAR FOR RESPONDENT NO.1. NO.1. NO.1. MR. S.K.CHINCHALIKAR AGP FOR RESPONDENT NOS. 3 & 4. MR. S.K.CHINCHALIKAR AGP FOR RESPONDENT NOS. 3 & 4. MR. S.K.CHINCHALIKAR AGP FOR RESPONDENT NOS. 3 & 4. ..... ..... ..... CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. DATE : January 18, 2007. DATE : January 18, 2007. DATE : January 18, 2007. ..... ..... ..... P.C. P.C. P.C. 1. These two petitions challenge the same Order 1. These two petitions challenge the same Order 1. These two petitions challenge the same Order passed by the University and Collage Tribunal, dated passed by the University and Collage Tribunal, dated passed by the University and Collage Tribunal, dated 23.11.1994. Writ Petition No. 5392 of 1994 is filed 23.11.1994. Writ Petition No. 5392 of 1994 is filed 23.11.1994. Writ Petition No. 5392 of 1994 is filed by the College Management, wheres the other by the College Management, wheres the other by the College Management, wheres the other writ writ writ petition is filed by an employee, who was petition is filed by an employee, who was petition is filed by an employee, who was working as a working as a working as a peon since 20th July, 1981 with the College. peon since 20th July, 1981 with the College. peon since 20th July, 1981 with the College. 2. Few material facts, which are necessary to 2. Few material facts, which are necessary to 2. Few material facts, which are necessary to adjudicate the issue involved in these petitions are adjudicate the issue involved in these petitions are adjudicate the issue involved in these petitions are set out below :- set out below :- set out below :- i) The employee was appointed on 20th July,1981 i) The employee was appointed on 20th July,1981 i) The employee was appointed on 20th July,1981 as a peon in senior college. On 3.5.1984, the as a peon in senior college. On 3.5.1984, the as a peon in senior college. On 3.5.1984, the employee was terminated from service. Being employee was terminated from service. Being employee was terminated from service. Being aggrieved by the termination, the employee aggrieved by the termination, the employee aggrieved by the termination, the employee filed an appeal before the University and filed an appeal before the University and filed an appeal before the University and College Tribunal. College Tribunal. College Tribunal. ii) The appeal was opposed by the ii) The appeal was opposed by the ii) The appeal was opposed by the Management,however, by Judgment and Order, Management,however, by Judgment and Order, Management,however, by Judgment and Order, dated 20th March, 1987, the Tribunal allowed dated 20th March, 1987, the Tribunal allowed dated 20th March, 1987, the Tribunal allowed the appeal and directed reinstatement of the the appeal and directed reinstatement of the the appeal and directed reinstatement of the employee with continuity of service and full employee with continuity of service and full employee with continuity of service and full back wages. back wages. back wages. iii) During the pendency of the appeal, the iii) During the pendency of the appeal, the iii) During the pendency of the appeal, the Management offered to appoint the employee in Management offered to appoint the employee in Management offered to appoint the employee in service, subject to decision of the appeal. It service, subject to decision of the appeal. It service, subject to decision of the appeal. It is not in dispute that the employee did not is not in dispute that the employee did not is not in dispute that the employee did not accept the said offer / appointment Order, as accept the said offer / appointment Order, as accept the said offer / appointment Order, as the offer/ appointment Order was not being in the offer/ appointment Order was not being in the offer/ appointment Order was not being in continuation of the service, The Offer of continuation of the service, The Offer of continuation of the service, The Offer of appointment was made on 21st August, 1984. appointment was made on 21st August, 1984. appointment was made on 21st August, 1984. iv) In the year 1989, the employee came to be iv) In the year 1989, the employee came to be iv) In the year 1989, the employee came to be reinstated in service pursuant to the Order reinstated in service pursuant to the Order reinstated in service pursuant to the Order passed by the University and College Tribunal. passed by the University and College Tribunal. passed by the University and College Tribunal. Though the employee was reinstated, the Though the employee was reinstated, the Though the employee was reinstated, the Management had not paid the back wages as Management had not paid the back wages as Management had not paid the back wages as according to the Management, it was having according to the Management, it was having according to the Management, it was having financial difficulties and constraints. financial difficulties and constraints. financial difficulties and constraints. Ultimately, the Management and the employee Ultimately, the Management and the employee Ultimately, the Management and the employee entered into a settlement on 9th February,1991. entered into a settlement on 9th February,1991. entered into a settlement on 9th February,1991. It will not be out of place to mention at this It will not be out of place to mention at this It will not be out of place to mention at this juncture that service of as many as eleven juncture that service of as many as eleven juncture that service of as many as eleven employees was terminated and all of them employees was terminated and all of them employees was terminated and all of them succeeded before the University and College succeeded before the University and College succeeded before the University and College Tribunal and all them were granted Tribunal and all them were granted Tribunal and all them were granted reinstatement, in view of the fact that in the reinstatement, in view of the fact that in the reinstatement, in view of the fact that in the changed staffing pattern enough vacancies had changed staffing pattern enough vacancies had changed staffing pattern enough vacancies had come into existence and all the employees could come into existence and all the employees could come into existence and all the employees could be accommodated. be accommodated. be accommodated. v) Under the settlement, dated 9.2.1991, the v) Under the settlement, dated 9.2.1991, the v) Under the settlement, dated 9.2.1991, the Management agreed to pay 65 % amount of the Management agreed to pay 65 % amount of the Management agreed to pay 65 % amount of the back wage, whereas in regard to 35 % amount of back wage, whereas in regard to 35 % amount of back wage, whereas in regard to 35 % amount of back wages, it was agreed that the Management back wages, it was agreed that the Management back wages, it was agreed that the Management will claim salary grant from the State will claim salary grant from the State will claim salary grant from the State Government and for that purpose, the Management Government and for that purpose, the Management Government and for that purpose, the Management and the employees would make a joint effort. and the employees would make a joint effort. and the employees would make a joint effort. .3 It seems that the Government did not release .3 It seems that the Government did not release .3 It seems that the Government did not release the amount of 35 % in regard to which parties had the amount of 35 % in regard to which parties had the amount of 35 % in regard to which parties had agreed to move the government. As the employee did not agreed to move the government. As the employee did not agreed to move the government. As the employee did not receive the balance amount of 35% of the back wages, receive the balance amount of 35% of the back wages, receive the balance amount of 35% of the back wages, moved a Miscellaneous Application in the disposed of moved a Miscellaneous Application in the disposed of moved a Miscellaneous Application in the disposed of Appeal and claimed the said amount. The Tribunal Appeal and claimed the said amount. The Tribunal Appeal and claimed the said amount. The Tribunal noticed the Management and heard the parties. Neither noticed the Management and heard the parties. Neither noticed the Management and heard the parties. Neither the management nor the employee disputed the execution the management nor the employee disputed the execution the management nor the employee disputed the execution of the settlement arrived at between the parties. The of the settlement arrived at between the parties. The of the settlement arrived at between the parties. The application was purportedly moved under Section 63 of application was purportedly moved under Section 63 of application was purportedly moved under Section 63 of the Maharashtra Universities Act, which vest the the Maharashtra Universities Act, which vest the the Maharashtra Universities Act, which vest the Tribunal with powers to penalise for non-compliance of Tribunal with powers to penalise for non-compliance of Tribunal with powers to penalise for non-compliance of the Order passed by it. The Management opposed the the Order passed by it. The Management opposed the the Order passed by it. The Management opposed the application by contending that under the settlement the application by contending that under the settlement the application by contending that under the settlement the Management had undertaken to pay 65 % of the back wages Management had undertaken to pay 65 % of the back wages Management had undertaken to pay 65 % of the back wages and it has paid the same hence contended that the and it has paid the same hence contended that the and it has paid the same hence contended that the application, which was belatedly filed in the year application, which was belatedly filed in the year application, which was belatedly filed in the year 1994, ought not be entertained. The Tribunal adopting 1994, ought not be entertained. The Tribunal adopting 1994, ought not be entertained. The Tribunal adopting a very pedentic approach, addressed the issue by a very pedentic approach, addressed the issue by a very pedentic approach, addressed the issue by observing that the Tribunal will only find out as to observing that the Tribunal will only find out as to observing that the Tribunal will only find out as to whether the Order passed by the Tribunal is complied whether the Order passed by the Tribunal is complied whether the Order passed by the Tribunal is complied with or not. Without considering the effect of the with or not. Without considering the effect of the with or not. Without considering the effect of the settlement or the binding nature of the settlement settlement or the binding nature of the settlement settlement or the binding nature of the settlement between the parties, the Tribunal proceeded to arrive between the parties, the Tribunal proceeded to arrive between the parties, the Tribunal proceeded to arrive at a figure of Rs. 25,355.24 Ps. as amount of back at a figure of Rs. 25,355.24 Ps. as amount of back at a figure of Rs. 25,355.24 Ps. as amount of back wages due and payable by the Management to the wages due and payable by the Management to the wages due and payable by the Management to the Employees, instead of passing an order of punishment Employees, instead of passing an order of punishment Employees, instead of passing an order of punishment against the Management, the Tribunal chose to pass an against the Management, the Tribunal chose to pass an against the Management, the Tribunal chose to pass an order directing the Management to pay above referred order directing the Management to pay above referred order directing the Management to pay above referred amount failing which the Tribunal had in contemplation amount failing which the Tribunal had in contemplation amount failing which the Tribunal had in contemplation to proceed for punishing the Management. It is this to proceed for punishing the Management. It is this to proceed for punishing the Management. It is this Order, dated 23.1.1994, which has been challenged by Order, dated 23.1.1994, which has been challenged by Order, dated 23.1.1994, which has been challenged by the Management. Whereas the same order has been the Management. Whereas the same order has been the Management. Whereas the same order has been challenged by an employee by contending that the challenged by an employee by contending that the challenged by an employee by contending that the Tribunal has erred in arriving at a figure of a sum of Tribunal has erred in arriving at a figure of a sum of Tribunal has erred in arriving at a figure of a sum of Rs. 25,355.24 Ps. and the amount is much more. Rs. 25,355.24 Ps. and the amount is much more. Rs. 25,355.24 Ps. and the amount is much more. 4. The learned Counsel for the employee submits 4. The learned Counsel for the employee submits 4. The learned Counsel for the employee submits that the amount of 35% of the back wages is certainly that the amount of 35% of the back wages is certainly that the amount of 35% of the back wages is certainly much more than the figure arrived at by the Tribunal. much more than the figure arrived at by the Tribunal. much more than the figure arrived at by the Tribunal. It is next contended that whatever calculations were It is next contended that whatever calculations were It is next contended that whatever calculations were submitted by the parties before the Tribunal are not submitted by the parties before the Tribunal are not submitted by the parties before the Tribunal are not properly appreciated and the impugned Order nowhere properly appreciated and the impugned Order nowhere properly appreciated and the impugned Order nowhere reflects the consideration thereof. reflects the consideration thereof. reflects the consideration thereof. 5. The further grievance is made by the learned 5. The further grievance is made by the learned 5. The further grievance is made by the learned Counsel for the employee that the pay fixation has not Counsel for the employee that the pay fixation has not Counsel for the employee that the pay fixation has not been properly made by the Management after granting been properly made by the Management after granting been properly made by the Management after granting reinstatement to the employee on 5.8.1989. It is reinstatement to the employee on 5.8.1989. It is reinstatement to the employee on 5.8.1989. It is contended that the employee was paid less salary than contended that the employee was paid less salary than contended that the employee was paid less salary than what he had, in fact, drawn at the time of termination what he had, in fact, drawn at the time of termination what he had, in fact, drawn at the time of termination of his service. Such result could only be obtained if of his service. Such result could only be obtained if of his service. Such result could only be obtained if an employee is denied continuity of service and not an employee is denied continuity of service and not an employee is denied continuity of service and not otherwise. In these peculiar circumstances, the otherwise. In these peculiar circumstances, the otherwise. In these peculiar circumstances, the impugned Order requires to be scrutinized. impugned Order requires to be scrutinized. impugned Order requires to be scrutinized. 6. One thing is clear that the Judgment and Order 6. One thing is clear that the Judgment and Order 6. One thing is clear that the Judgment and Order passed by the Tribunal, to the extent of granting passed by the Tribunal, to the extent of granting passed by the Tribunal, to the extent of granting reinstatement with continuity of service is concerned, reinstatement with continuity of service is concerned, reinstatement with continuity of service is concerned, the same has not been modified by any of the conditions the same has not been modified by any of the conditions the same has not been modified by any of the conditions contained in the settlement and hence, the employee is contained in the settlement and hence, the employee is contained in the settlement and hence, the employee is entitled to continuity of service on his reinstatement entitled to continuity of service on his reinstatement entitled to continuity of service on his reinstatement on 5.8.1989. on 5.8.1989. on 5.8.1989. 7. the learned Counsel for the Management does not 7. the learned Counsel for the Management does not 7. the learned Counsel for the Management does not dispute the entitlement of the employee in that regard. dispute the entitlement of the employee in that regard. dispute the entitlement of the employee in that regard. If this be so, the employee will be taken to have been If this be so, the employee will be taken to have been If this be so, the employee will be taken to have been in continuous uninterrupted service with effect from in continuous uninterrupted service with effect from in continuous uninterrupted service with effect from 28th July, 1981 till date. If this be the case, then 28th July, 1981 till date. If this be the case, then 28th July, 1981 till date. If this be the case, then the petitioner’s pay fixation has to be properly made the petitioner’s pay fixation has to be properly made the petitioner’s pay fixation has to be properly made after the employee was granted reinstatement on after the employee was granted reinstatement on after the employee was granted reinstatement on 5.8.1989. parties are in agreement that while making 5.8.1989. parties are in agreement that while making 5.8.1989. parties are in agreement that while making the pay fixation, the authorities shall take into the pay fixation, the authorities shall take into the pay fixation, the authorities shall take into consideration the yearly increments which were due to consideration the yearly increments which were due to consideration the yearly increments which were due to be paid to the employee every year by notionally be paid to the employee every year by notionally be paid to the employee every year by notionally calculating the same during the period commencing from calculating the same during the period commencing from calculating the same during the period commencing from 3.5.1984, which is the date of termination of the 3.5.1984, which is the date of termination of the 3.5.1984, which is the date of termination of the employee, till the date of his re-instatement which is employee, till the date of his re-instatement which is employee, till the date of his re-instatement which is 5.8.1989. The pay fixation shall have to be made by 5.8.1989. The pay fixation shall have to be made by 5.8.1989. The pay fixation shall have to be made by the Authorities notionally. However, on that count the the Authorities notionally. However, on that count the the Authorities notionally. However, on that count the employee will not be entitled to receive the same in employee will not be entitled to receive the same in employee will not be entitled to receive the same in the form of back wages or otherwise as the money claim the form of back wages or otherwise as the money claim the form of back wages or otherwise as the money claim has been settled by the parties under an agreement of has been settled by the parties under an agreement of has been settled by the parties under an agreement of settlement dated 9.2.1991. settlement dated 9.2.1991. settlement dated 9.2.1991. 8. When both the parties agreed to the terms of 8. When both the parties agreed to the terms of 8. When both the parties agreed to the terms of settlement contained in agreement dated 9.2.1991, it settlement contained in agreement dated 9.2.1991, it settlement contained in agreement dated 9.2.1991, it would be just and fair to bind the parties by the terms would be just and fair to bind the parties by the terms would be just and fair to bind the parties by the terms of the settlement and thus, the employee cannot be of the settlement and thus, the employee cannot be of the settlement and thus, the employee cannot be permitted belatedly to set up a claim for the balance permitted belatedly to set up a claim for the balance permitted belatedly to set up a claim for the balance amount of 35 % of the back wages. In my opinion, the amount of 35 % of the back wages. In my opinion, the amount of 35 % of the back wages. In my opinion, the Tribunal has committed a patent illegality in brushing Tribunal has committed a patent illegality in brushing Tribunal has committed a patent illegality in brushing aside the settlement and only in restricting the aside the settlement and only in restricting the aside the settlement and only in restricting the enquiry t enquiry t enquiry to see whether the Order passed by the Tribunal see whether the Order passed by the Tribunal see whether the Order passed by the Tribunal is complied with. Even after passing the Order by the is complied with. Even after passing the Order by the is complied with. Even after passing the Order by the Tribunal, the parties were free to arrive at a Tribunal, the parties were free to arrive at a Tribunal, the parties were free to arrive at a settlement having regard to the then prevailing settlement having regard to the then prevailing settlement having regard to the then prevailing circumstances. The parties chose to agree to the terms circumstances. The parties chose to agree to the terms circumstances. The parties chose to agree to the terms of the settlement, under which the employee has of the settlement, under which the employee has of the settlement, under which the employee has received a sum of 65 % of the back wages. It would not received a sum of 65 % of the back wages. It would not received a sum of 65 % of the back wages. It would not be out of place to mention that having taken the be out of place to mention