1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.2506 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.M.K.Goyanka, advocate for the Petitioner. Mr.H.A.Joshi, advocate holding for Mr.A.R.Mohane, advocate for the Respondent. CORAM : S.V.GANGAPURWALA,J. Date : 07.07.2011. 1. Heard. 2. The petitioner assails the order of the Assistant Labour Commissioner, Aurangabad, awarding an amount of Rs.1,79,721/- (Rupees one lac seventy nine thousand seven hundred twenty one) towards gratuity and the order of the appellate authority confirming the same. 3. Mr.Goyanka, learned counsel submits that the Respondent is not entitled for the said amount as his services from 17.4.1975 to 29.2.2004 can 2 not be computed as a continuous service in view of the judgment which is passed by this Hon'ble Court in W.P.No.2167/1990 and the subsequent order passed by the Apex Court in Special Leave Petition. The Respondent was awarded an amount of Rs.4,00,000/- (Rupees four lacs) as compensation by this Court. Only that part of the order has been set aside by the Apex Court. From the tenor of the order passed by this Court, it does not appear that the Respondent has been granted continuity of service. As such he would not be entitled for the amount of gratuity on the basis of his alleged service from 1975. 4. The learned counsel further contends that the authorities have also failed to consider that the petitioner was punished and his salary was reduced to Rs.11,050/- (Rupees eleven thousand fifty) but the gratuity has been allowed considering the salary of the Respondent as Rs. 11,500/- (Rupees eleven thousand five hundred) which is also erroneous. 5. Mr.Joshi, learned counsel supports the order passed and submits that the order passed by 3 this Court in W.P.No.2167/1990 is unambiguous and does not admit of any other interpretation. The continuity of service is granted by this Court in the said Writ Petition. The learned counsel further submits that the Respondent has filed an appeal against the punishment reducing the salary and the same is pending. The difference in payment of gratuity would be meager. 6. I have perused the order passed by this Court in said Writ Petition. This Court in para 13 has categorically observed as under : "The petitioner no doubt, deserves to be reinstated in service from the date he was sent out of the service on the basis of wrong acceptance of resignation." So also in the penultimate para of the judgment, this Court has observed as under : "Needless to mention that the petitioner is also entitled to grant of other consequential benefits of service such as increments and placement at the appropriate place in the seniority." Perusal of the said judgment, it is manifest that the petitioner has been granted continuity in 4 service. I do not find any error in the findings of the authorities that the petitioner's service will have to be counted from its inception. 7. Regarding the second contention that the payment of gratuity will be on the basis of the salary of the Respondent as Rs.11,050/- (Rupees eleven thousand fifty) and not Rs.11,500/- (Rupees eleven thousand five hundred). The same deserves to be considered. The petitioner was punished and as such in view of that punishment on the date of his superannuation, his pay-scale was reduced to Rs.11,050/-. The amount has to be calculated on the basis of the same. The Respondent has contended that he has already preferred an appeal against the said punishment and that is pending. If in case the appeal is dismissed then the Respondent shall pay the difference of the amount to the petitioner with interest at the rate of Rs.9% p.a. The Respondent has undertaken to pay the difference of the amount of gratuity received by him if his appeal, challenging the said punishment of reduction of his pay-scale is dismissed. The said undertaking 5 is accepted. 8. The Writ Petition as such is disposed of in view of the aforesaid observations. No costs. (S.V.GANGAPURWALA,J.) Dt.07.07.2011. asp/office/wp2506.10