19.wp.6604-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITON NO.6604 OF 2009 Union of India through General Manager, Central Railway and 2 others. ..Petitioners. Versus Mr.Mangilal Bhanoo Barse. ..Respondent. .... Mr.T.J. Pandian, Advocate for the Petitioners. Mr.D.V. Gangal, Advocate for the Rspondent. .... CORAM : F. I. REBELLO & K. K. TATED, JJ. DATED : NOVEMBER 13, 2009 P.C. 1. Rule. Heard forthwith. 2. This is a Petition by the Employer - Railways against the order passed by the learned Tribunal which had directed in Original Application No.34 of 2007 to the respondents therein to count the two spells of services i.e. from 23.10.1962 to 20.8.1985 and from 8.9.1990 to 31.10.1996 for the purpose of pension and work-out pension and other pensionary benefits within a period of three months from the date of receipt of copy of the order. The learned Tribunal while passing the order, relied on a un-reported order of the Supreme Court in R.T.Lynch M.D. 19.wp.6604-09 2 Salim Sheikh Vs. Union of India & another decided on 4.9.1991 in Civil Appeal No.3479/91. In that case, the appellant before the Supreme Court was removed from service following disciplinary action in 1965 and on the representation made by him, he was called back to work in 1968 and superannuated in 1987. The learned Supreme Court observed as under : ".... The break in service affects his pension. Whatever may be the reason for his re-employment, the employer-respondent obviously condoned the lapses to call him back to duty and it is a usual relief available in these circumstances to give continuity of service for purposes of pension. We accordingly grant the relief to the appellant only with regard to continuity in service between 1965 to 1968 for purposes of pension only." 3. At hearing of this Petition, on behalf of the petitioner the learned Counsel submits that the learned Supreme Court at the relevant time had no occasion to consider the Railway Services (Pension) Rules, 1993, of which relevant rule is Rule 40 which reads as under : "Dismissal or removal of a railway servant from a service or post shall lead to forfeiture of his past service." 19.wp.6604-09 3 4. The learned Counsel submits that the petitioner was appointed by fresh order of appointment on 5.9.1990 merely based on the mercy petition and in these circumstances there can be no continuity of service and consequently the respondent would not be entitled to pensionary benefits. 5. On the other hand, the learned Counsel for the respondent submits that a rule like Rule 40 relied on by the petitioner was in existence earlier also and when the learned Supreme Court passed an order in the case of R.T.Lynch (supra), it is presumed that this was taken into consideration by the Court when it granted relief to the appellant before it in that case. It is also further pointed out that there is no difference in the case of the petitioner as also in the case of Lynch (supra) and consequently no fault can be found with that order. 6. After hearing the parties, in our opinion, the impugned order is liable to be set aside and the matter is restored back to the Tribunal for reconsideration on the points that we may set out below. The reasons for the order are as under: 7. The service of the respondent, admittedly, has been terminated by way of removal pursuant to disqualification on 20.8.1985. The petitioner thereafter made a mercy appeal to the General 19.wp.6604-09 4 Manager by appeal on 18.1.1990. The General Manager considered the appeal and passed an order to reemploy the respondent as fresh entrant for all purposes vide the existing vacancy. The petitioner, therefore,was in employment during 20.8.1985 and 7.9.1990. Prima facie the order would show that reemployment was as a fresh entrant for all purposes. In the case of R.T. Lynch, the Supreme Court proceeded on the footing that the employer condoned the lapses to call him back to duty and on this basis therefore Supreme Court passed order granting benefit in the case of R.T.Lynch. 8. We do not find that the Tribunal has addressed himself and recorded finding of fact as to whether considering the order of appointment there was condonation by the employment of the lapses beyond the period 20.8.1985 to 7.9.1990. 9. The other aspect of the matter is that in 1993, the Railway Services (Pension) Rules, 1993 came into force. By virtue of this rule, dismissal or removal entails forfeiture of service. In other words, that service cannot be counted for the purpose of pensionary benefits. Though the learned Counsel for the respondent pointed out that such a rule was in existence at the relevant time, also from the observations of the learned 19.wp.6604-09 5 Supreme Court we do not find that such a rule was considered. The learned Tribunal has also not addressed itself to this issue. In our opinion, therefore, the learned Tribunal will have to consider the judgment in the case of R.T.Lynch, considering Rule 40 of the Railway Services (Pension) Rules, 1993 and the order of appointment. 10. The learned Counsel for the respondent sought to raise some other points, which for the orders to be passed, we do not propose to deal with, but, left the points to be argued before the Tribunal. In the light of that, the following order is passed : :: O R D E R :: [i] The impugned order is set aside; [ii] The matter is restored back to the file of the Tribunal for deciding the matter afresh in the light of the points we have set out above and any further points that may be pointed by the parties. [iii] Rule is made absolute accordingly. No order as to costs. [iv] Writ Petition is disposed of accordingly. (K.K.TATED, J.) (F.I. REBELLO,J.)