1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.5470 of 2008 Union of India through the Secretary of the Government of India, Ministry of Defence, Raksha Bhawan & anr. Petitioners Vs. Shri Dattatrayay Ganpat Pawar Respondent Mr.A.K.Singh for petitioners. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. January 20, 2009. ORAL ORDER: 1. This petition arises from the judgment and order rendered by the Central Administrative Tribunal in O.A. No.145 of 2006 on 26th June 2007. The undisputed facts leading to the Original Application filed by the present respondent are as under. 2. The respondent came to be appointed as a Driver in the Defence Department of the Ministry of Defence, Government of India sometimes in the year 1960-61. After completing twelve years of service continuously in Mizoram and Assam, he had submitted representations from the year 1972 to 1975 for his transfer out of Mizoram/Assam on health grounds. In the year 1979 he 2 was admitted in the Military Hospital at Silchar in Assam and was advised to undergo brain operation. However, when he was shifted to the Mental Hospital at Tejpur he was declared medically unfit and was issued a certificate accordingly. On the basis of this medical certificate he was discharged from service vide the order dated 7/5/1979. The said order came to be challenged in Civil Suit No.406 of 1980 in the Court of Civil Judge at Ahmednagar and the suit was decreed in favour of the plaintiff on 14/7/1983. He was not reinstated in service and instead after two years he was compelled to file another suit registered as Civil Suit No.167 of 1985 for claiming arrears of pay and allowances for the period from 1/10/1980 to 30/9/1983. The Civil Court passed an order on 29/9/1987 and directed the defendants to pay a sum of Rs.27,300/- to the plaintiff. The decree passed on 14/7/1983 as well as the subsequent order dated 29/9/1987 came to be challenged by the defendants by filing two separate appeals in the District Court at Ahmednagar and the appeals were dismissed vide the orders dated 21/6/1999 and 5/8/2000 respectively. The present respondent thereafter sent a legal notice on 10/9/2004 and there was no response. Hence he approached the Central Administrative Tribunal in O.A. 3 No.145 of 2006 seeking a declaration that he retired on superannuation on 30/6/1988 and for further directions to the present petitioners to work out his pension and pensionary benefits on the basis that he continued in service till the end of June 1988 (the date of superannuation). 3. The Tribunal held that since the order discharging the application from service was already set aside by a competent Court and appeal filed by the Department was dismissed, obviously the applicant shall be deemed to be in service till the end of June 1988 when he attained the age of superannuation. Consequently he would be entitled to pensionary benefits which ought to be worked out on the basis of his notional pay from 7/5/1979 to 30/6/1988. It was further noted that the applicant was already paid pay and allowances upto 30/9/1983. The Tribunal directed to pay backwages at the rate of 50 per cent from 1/10/1983 to 30/6/1988 and the Department was directed to calculate his pension and pay the arrears within six months. Interest at the rate of 12 per cent per annum has been directed to be paid if the arrears are paid after six months. 4 4. The Civil Suit filed by the respondent against the order of termination dated 7/5/1999 was decreed as per the judgment and order dated 14/7/1982 and the suit was opposed on the ground of jurisdiction. The Civil Court held that the order of discharge passed indicated that he was a civilian in Defence service and was a permanent servant. Consequently the suit was maintainable. This decree was challenged by filing an appeal before the District Court but in the Appeal memo dated 24/11/1983, the ground relating to jurisdiction of Civil Court was given up and in any case the appeal was dismissed on 21/6/1999. Thus the order of the Civil Court setting aside the order of discharge reached its finality as no Second Appeal was filed by the present petitioners. The Tribunal noted that the Department could not bring anything on record to show that the applicant was part of the Armed Forces of the Union of India and it was not disputed that he was employed as a Driver. The petitioners did not have any regards to the orders passed by the Civil Court as well as the District Court and the employee was forced to approach the Central Administrative Tribunal in the year 2004. Despite the fact that the appeal was dismissed about ten years back, the employee is still waiting for his retiral benefits to 5 be paid to him. 5. Having heard the learned counsel for the petitioners and perused the reasoning set out by the Tribunal in the impugned order, we are satisfied that the order does not suffer from any errors calling for interference at our hands and hence the petition must fail at the threshold. 6. Petition is rejected summarily. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)