- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5327/2010 Osman Khan s/o Jafar Khan, aged 53 yrs., occu.Clerk Typist, Regional Forensic Science Laboratory, Aurangabad, r/o Fazalpura, Opp.Roop Mahal, Aurangabad. ...Petitioner.. Versus 1] The State of Maharashtra, through its Secretary, Department of Home Affairs, Mantralaya, Mumbai – 400 032. 2] The Director, Forensic Science Laboratory, Maharashtra State and Chemical Analyser to Government, Vidyanagari, Kalina, Santacruz (East), Bombay-400 098. ...Respondents... ..... Smt.Asfia N. Ansari, Advocate for petitioner. Shri R.P. Phatake, AGP for respondent nos.1 & 2. ..... CORAM: MOHIT S. SHAH, CJ. & NARESH H. PATIL, J. DATE: 29.11.2010 - 2 - ORAL JUDGMENT (Per Chief Justice) : 1] Heard learned counsel for the parties. Rule. Rule made returnable forthwith with the consent of learned counsel for the parties in view of peculiar facts and circumstances of the present case. Learned counsel for the respondent nos.1 & 2 waives notice of Rule. Hence, Rule is taken up for final disposal at the admission stage. 2] What is challenged in this petition under Articles 226 and 227 of the Constitution is the part of order dated 6.2.2009 of the Maharashtra Administrative Tribunal in Transfer Application Nos.1360/1991 and 2681/1991 denying the petitioner’s claim for back wages or any monetary benefits. 3] The petitioner, who was working as Clerk-Typist, along with one Ramanlal s/o Ramlal Jaiswal, Peon, were removed from service by order dated 11.2.1988 passed by the Director of Forensic Science Laboratory, Maharashtra State, on the ground that they had taken illegal gratification from one Police Constable for managing “NIL” report in respect of his blood alcohol case. The petitioner and Ramanlal Ramlal Jaiswal challenged the said order of removal by filing Writ Petitions before this Court, which were then transferred to the Maharashtra Administrative Tribunal. After hearing the parties through the learned counsel, the Tribunal held that the impugned orders of removal were illegal as the common inquiry against the petitioner and said Ramanlal Ramlal Jaiswal was not held in - 3 - accordance with the principles of natural justice and the relevant rules. The Transfer Applications were ultimately allowed in the following terms: “Both the applications are allowed. The respondents are directed to reinstate the applicants within one month from today, however, considering the facts and circumstances of the present case, the applicants shall not be entitled for back wages or any monetary benefits. The respondents are at liberty to hold fresh departmental inquiry against the applicants. In the circumstances, there shall be no order as to costs.” 4] The learned counsel for the petitioner states that pursuant to the above liberty granted by the Tribunal, the respondents have started to hold a fresh departmental inquiry against the petitioner and said Ramanlal s/o Ramlal Jaiswal, and the said inquiry is still pending. The petitioner has also been served with copy of the report of the departmental inquiry. The matter is, however, pending before the Disciplinary Authority. 5] The grievance in the present petition is that even after setting aside the first inquiry as illegal and consequently directing the respondents to reinstate the petitioner, the Tribunal could not have or at least ought not to have refused the petitioner’s claim for back wages and ought to have left the issue open to be decided by the Disciplinary Authority upon conclusion of the fresh departmental inquiry, which is still pending. - 4 - 6] The learned Assistant Government Pleader for the respondent nos.1 & 2 submits that the petitioner is not entitled to back wages merely because the order of removal was set aside and the respondent – authorities have been granted liberty to hold fresh departmental inquiry against the petitioner. It is true that merely upon setting aside the order of penalty, while directing reinstatement of the petitioner with liberty to the Department to hold fresh departmental inquiry, the Tribunal was not required to pass any order in respect of back wages. But at the same time, the Tribunal ought not to have straight way rejected the petitioner’s prayer for back wages. The Tribunal ought to have left the issue open to be decided upon conclusion of fresh departmental inquiry, for which liberty was already granted. 7] In the result, the finding of the Tribunal to the effect “The applicants shall not be entitled for back wages or any monetary benefits” is set aside with a clarification that the question whether the petitioner should be paid back wages or any monetary benefits for the period from the date of his removal in March, 1988 till his reinstatement in February, 2009, shall be decided by the concerned competent authority after conclusion of fresh departmental inquiry, which is presently pending against the petitioner. It is expected that the fresh departmental inquiry pending against the petitioner shall be completed as expeditiously as possible and preferably within three months from today. - 5 - It is clarified that we have not gone into the merits of the petitioner’s claim and this order may not be treated as expression of any opinion in either way. Rule is made absolute in the above terms. No order as to costs. (NARESH H. PATIL, J.) CHIEF JUSTICE ndk/c2911102