W.P.No.3979/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3979 OF 2010 Sheikh Farid Shekh Lal. versus Joint Director, Higher Education, Amravati and another Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. A.P. Raghute, Advocate for the Petitioner. Mrs. B.H. Dangre, Addl. Govt. Pleader for Respondent No.1. Mr. K.S. Narwade, Advocate for Respondent No.2. CORAM : MOHIT S. SHAH, C.J. & B.P. DHARMADHIKARI, J. DECEMBER 05, 2011. P.C. Heard the learned Counsel for respective parties. Rule returnable forthwith. The learned Counsel for the respondents waive service of rule. 2. In this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for directions to respondents no.1 to sanction his pension case and release of pensionary benefits. W.P.No.3979/2010 2 3. Though the prayer clause does not reflect the real controversy between the parties, it appears that the dispute between the parties is about the period from 05.01.1983 till 05.12.1989. 4. The petitioner was employed in government service on 01.06.1967, and thereafter, the services of petitioner were terminated by an order dated 12/15.12.1983. The petitioner challenged the said order before the College Tribunal. Petitioner's appeal came to be allowed by order dated 09.11.1989 by the College Tribunal. The Tribunal held the termination to be illegal, since the same was passed without holding inquiry into the allegations that the petitioner had remained un-authorisedly absent without any justification. While allowing petitioner's appeal, the College Tribunal set aside the order of termination and left it open to the authorities to hold regular inquiry in respect of the alleged misconduct, against the petitioner. As far as the issue of back wages is concerned, the W.P.No.3979/2010 3 Tribunal did not award any back wages to the petitioner for the intervening period, and made the following observations. “12. We find that documents produced on behalf of the respondents to disclose that the appellant had a Pan shop in the name of Mamu Pan Centre, we do not feel inclined to award back wages to the appellant. We only direct that the appellant should be reinstated as a peon and he will be entitled to get his salary from the date he joins till he is terminated from service after holding a regular inquiry if the charges of misconduct against him stand established. 13. Subject to above observations appeal is partly allowed and order of termination is set aside. Appellant to join his duty within a reasonable time, he will be entitled to his pay from the date he joins, no order as to back wages.” (Emphasis supplied) 5. In compliance with the above order, ultimately the respondent Authority permitted petitioner to join service w.e.f. 05.12.1989, however, the W.P.No.3979/2010 4 respondent treated the intervening period as break in service and on that basis, upon petitioner's retirement on 13.06.2007 computed his pensionary benefits for the period from 1967 till 2007, excluding the period from 1983 to 1989. 6. Mrs. Dangre, learned Additional Government Pleader appearing on behalf of respondent no.1 submits that since the break in service can be condoned only for a period of one year, and for a maximum period of two years, 6 years period in this case has to be treated as break in service and therefore, the petitioner cannot be paid any pension on the basis of computation of his pension after taking into consideration the said 6 years period. 7. Shri Raghute, learned Counsel appearing for petitioner submits that since the petitioners services were terminated in the year 1983 and pursuant to judicial order termination was set aside, and the petitioner was reinstated in the year 1989, therefore, W.P.No.3979/2010 5 there is no question of considering the period from 1983 to 1989 as break in service. 8. We find considerable substance in the contention of the learned counsel for the petitioner. This is not a case where upon after termination of services of petitioner in the year 1983, the petitioner was re-employed by the respondent Authorities on their own. In such a case only the question which may arise as to how to treat the period between 1983 to 1989. In the facts of the present case, when the termination order was challenged by the petitioner before the College Tribunal and by a judicial order the Tribunal set aside that termination order, it is clear from the observations made by the Tribunal, that the Tribunal directed the respondent to reinstate the petitioner and it was only for the purpose of denying him the back wages for the intervening period that the Tribunal referred to the case of respondent that the appellant had a pan shop. The Tribunal however, observed that the petitioner will be entitled to his salary from the date he joins till he is W.P.No.3979/2010 6 terminated from service after holding a regular inquiry if the charges of misconduct against him stand established. Inquiry in respect of alleged misconduct committed by the petitioner prior to his date of termination would be relevant only if the petitioner has to be granted continuity in service. 9. For the reasons aforesaid, we allow this petition and direct the respondents to compute the pensionary benefits of petitioner on the basis that the petitioner was in continuous services from the date of his employment i.e. from 1967 till the date of his superannuation in the year 2007. The aforesaid benefits shall be paid to the petitioner within a period of three months from today. Rule is accordingly made absoloute. No costs. CHIEF JUSTICE JUDGE. Rgd..