SCA/11056/2006 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11056 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= JAYANTILAL MOHANLAL SHAH - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR VM DHOTRE for Petitioner(s) : 1, Mr. S.P. Hasurkar, AGP, for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD Date : 02/04/2008 ORAL JUDGMENT Heard learned counsel for the parties. In this case the petitioner was punished after SCA/11056/2006 2/4 JUDGMENT Departmental Inquiry. The order of punishment was challenged challenged before the Appellate Committee. The Appellate Committee modified the order and reinstated the petitioner on 8.4.2000. The petitioner worked from 8.4.2000 till the powers were exercised by the State Government under Section 451 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as “BPMC Act”) and the order of the Appellate Committee was suspended. Pursuant to that termination of the petitioner came into being. The learned counsel for the petitioner has urged that the order of reinstatement was passed in the year 2000 and the powers of the State Government under Section 451 of the BPMC Act were exercised after about 3 years which is beyond the permissible period of limitations which generally should be invoked. In this case though no period of limitation has been prescribed under Section 451 of the BPMC Act, the period which is reasonable should be considered and this Court in the case of BHIKHABHAI ALIAS HASMUKHBHAI PURUSHOTTAMDAS LUHAR AND OTHERS VS. KANTILAL LALBHAI SHAH AND OTHERS 1984 G.L.H. (U.J.) 60 this has been held that one year time would be reasonable for exercising powers under Bombay Land Revenue Code. Maybe that this Court SCA/11056/2006 3/4 JUDGMENT is not persuaded to hold this to be an absolute rule that one year can be considered to be sufficient period of limitation but in a case where an employee has been reinstated and has worked peacefully for 3 years, if powers under Section 451 of the BPMC Act are exercised in suo motu jurisdiction beyond 3 years then the Court feels the respondents have exceeded their powers of exercising beyond 3 years because in such a case where the employee was reinstated and he worked peacefully for 3 years without there being any complaint against him during the said period, the powers should not have been exercised so belatedly. Therefore, this Court is of the opinion that the exercise of powers under Section 451 of the BPMC Act after 3 years period which the employee put in service peacefully tantamounts to an exercise of powers beyond the period of limitation. In that view of the matter, the order requires to be set aside. The learned counsel for the petitioner, on instructions, submits that the period for which the employee had remained out of service, his salary may not be paid to him and he gives up his claim. In that view of the matter, it is ordered that the petitioner SCA/11056/2006 4/4 JUDGMENT will be reinstated forthwith as far as possible within 15 days with giving allowance for continuity of his service but no payment would be made for the period he has not worked. With this observation, the order passed under Section 451 of the BPMC Act is set aside and that of the Appellate Committee is restored. It is ordered that the order of termination of the petitioner is set aside and he will be granted continuity of service without any payment being made. With the aforesaid observations, this petition is allowed. Rule is made absolute accordingly. Direct service is permitted. (BHAGWATI PRASAD, J) (pkn)