ATAM SUGNOMAL POHANI v. GUJARAT ELECTRICITY BOARD — 1986 DIGILAW 39 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) THIS appeal is taken out by the original petitioner (party-in-person) of Special Civil Application No. 1176 of 1974 inso- far as he is aggrieved by the order of the learned Single Judge of this court (N. H Bhatt J ) whereunder the original petitioner the present appellant was not granted reinstatement in service with the respondent No. 1-Board and also insofar as he was denied back wages even though the learned Single Judge granted a declaration in favour of the appellant that the order terminating his service was void. The respon- dent-Board has also filed cross objection against that part of the other of the learned Single Judge which grants the aforesaid declaration in favour of the appellant. ( 2 ) FACTUAL backdrop :- The appellant at the relevant time was an employee of the respondent-Board. He joined the service of the respondent-Board as a technical assistant against the post of Deputy Engineer on 29-5-1963. The appellant is a D. M. E. of D. T. E. Gujarat State and a graduate in electrical engineering from the Gujarat Univer- sity. The appellant continued to serve as a technical assistant till he was ultimately appointed and posted as Deputy Engineer on probation for two years by an order of the Superintending Engineer of the respondent Board dated 30-7-1963. The appellant worked as deputy engineer at different places in the service of respondent-Board. The appellant was then ultimately confirmed in the post of deputy engineer (E. M.) while he was working at Palanpur sub-division with effect from 31 By 1974 which is the relevant year for the present purpose the appellant had come to be posted at Surat as deputy engineer. Where- after the appellant was transferred to Ukai sub-division by Superintending engineer of the respondent-Board by order dated 29-3-1974. He was posted at Ukai sub-station. The appellant was relieved pursuant to the said order from his duty with effect from 30-3-1974 to enable him to join at the place of his transfer. It appears that the appellant had nursed a grievance against the said transfer order. He therefore made a representation to the Additional Chief Engineer of the respondent Board for cancelling his transfer from Surat to Ukai. It appears that the appellant had nursed a grievance against the said transfer order. He therefore made a representation to the Additional Chief Engineer of the respondent Board for cancelling his transfer from Surat to Ukai. The pointed out that his mother aged about 70 years was ailing on account of heart trouble and that facilities of medical care were not available at Ukai while they were available at Surat. On this ground he requested that the transfer order might be cancelled. He also sent a telegram on 27 and another representation against his transfer on 9-5-1974. He also filed a suit in the Baroda Court being Civil Suit No. 765 of 1974 on 29-5-1974 against his transfer. It is in the background of this fact that the impugned order discharging the services of the appellant came to be passed by the respondent-Board. The impugned order is at annexure I to the petition. It is dated 27-5-1974. It is passed by the Chief Engineer (R. E.) which is the disciplinary authority so far as the appellant is concerned. The order recites that the appellant was ordered to resume his duties at Ukai but the registered post A. D. letter was returned by the postal authority with the remarks the party refuses to accept the R. P. A. D. letter and therefore returned to the sender. That the appellant was relieved from Surat with effect from 30-3-1974 and he lead not reported for duty at Ukai sub-station uptil then and thereby he had over-stayed unauthorisedly and hence it was ordered that the appellant is deemed to have been discharged from the service of the Board with effect from 31-3 1974 as per service regulation No. 113 The appellant challenged the aforesaid order of deemed discharge by filing Special Civil Application No. 1176 of 1974 in this court. Amongst others it was contended by the appellant that the said order was country to the principles of natural justice. That the procedure prescribed by the Board regulations for discharging an employee on the ground of alleged misconduct of unauthorisedly over-staying leave period was not followed and hence the order was null and void. The appellant also prayed for consequential relief for reinstatement with continuity of service and full wages. That the procedure prescribed by the Board regulations for discharging an employee on the ground of alleged misconduct of unauthorisedly over-staying leave period was not followed and hence the order was null and void. The appellant also prayed for consequential relief for reinstatement with continuity of service and full wages. ( 3 ) THE learned Single Judge before whom the matter came up for healing after hearing the learned Advocates of the parties came to the conclusion that the impugned order treating the appellants services to have been discharged by deeming fiction was contrary to the basic principles of natural justice. No opportunity was given to the appellant to have his say in the matter and that service regulation No. 113 of the respondent Board had to comply with atleast minimum principles of natural justice. Consequently the learned Single Judge 8ranted a declaration in favour of the appellant holding the impugned order of discharge to be void and illegal. However so far as other consequential reliefs were concerned the learned Single Judge came to the conclusion that locking to the recalcitrant attitude of the appellant and his consistent conduct of disobedience of the orders of the higher authorities be was found to Lee unsuitable for a public service and he did not deserve any relief of reinstatement or back wages. As seen earlier the aforesaid order of the learned Single Judge has resulted into the present appeal under clause 15 of the Letters Patent by the dissatisfied appellant and in cross-objections by the respondent-Board. . . . . . . . . . ( 4 ) MERITS of the cross objections: As the grievance made by the respondent-Board in cross-objections goes to the root of the matter we have thought it fit to first consider the cross-objections as if the cross-objections are allowed nothing would survive in the original petition and the appeal will also fail. ( 5 ) MR. Vyas for the respondent-Board invited our attention to service regulation No. 113 which is admittedly applicable to the facts of the present case. It reads as under:"113 The continued absence from duty or overstay inspite of warning to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board conducts Discipline and Appeal Procedure". Mr. It reads as under:"113 The continued absence from duty or overstay inspite of warning to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board conducts Discipline and Appeal Procedure". Mr. Vyas submitted that if the Board-employee continues to remain absent from duty or over-stays the period of his have inspite of warning he can be summarily discharged from service as per service regulation 113 and in such case detailed procedure for inquiry as contemplated by other service regulation need not be complied with. It must be noted that the learned Single Judge in paras 4 5 and 6 of his Judgment has given detailed reasons why the impugned order of deemed discharge has to be treated to be an order by way of penalty. We wholly concur with the reasoning of the learned Single Judge and the conclusion reached by him in the said paras in connection with the impugned order. A mere look at the order shown that the Board decided to treat the appellant to have been discharged from service on account of his insubordination and his conduct inasmuch as even though he was transferred to Ukai he did not report at Ukai and thus the respondent -Board had decided to punish the appellant for the aforesaid act of insubordination which would certainly amount to misconduct on the part of the appellant as alleged by the respondent-Board. In fact it must be stated that Mr. Vyas did not undertake any exercise to demon- strate that the order was anything but a penal order. On the facts of this case the conclusion is inevitable that the impugned order was an order imposing penalty on the appellant and was by way of punishment for his alleged misconduct. Once that conclusion is reached it has got to be held as rightly held by the learned Single Judge that before passing such a penal order atleast minimum principles of natural justice were required to be followed by the respondent-Board. If any authority for such an obvious proposition is required it is supplied by the decision of the Supreme Court in the case of Sirsi Municipality v. C. K. F. Tellis. A. I. R. 1973 S. C. 855. If any authority for such an obvious proposition is required it is supplied by the decision of the Supreme Court in the case of Sirsi Municipality v. C. K. F. Tellis. A. I. R. 1973 S. C. 855. Ray J. (as he then was) speaking for the Supreme Court held that dismissal of the employee by the municipality without reasonable opportunity for showing cause against the proposed action was void. The employee was entitled to that declaration. It was further held that in such a situation obligation to observe rules of natural justice was imperative. We have therefore no hesitation in upholding the ding of the learned Single Judge that the impugned order was by way of penalty and therefore was required to be passed in consonance with the principles of natural justice and not dehors them. It is interesting to note that before the learned Single Judge the controversy around the impugned deemed discharge order got confined to a narrow compass. The appellant contended that it was a void order as basic principles of natural justice were not followed; while so far as the respondent-Board was concerned the learned Advocate appearing for it before the learned Single Judge took up an extreme stand that once regulation If is invoked even minimum principles of natural justice were not required to be followed by the Board. The learned Single Judge rightly negatived this extreme conten- tion on behalf of the respondent-Board and therefore correctly granted a declaration as prayed for by the appellant. It is interesting to note that no effort was made on behalf of the respondent-Board before the learned Single Judge to submit in the alternative that even assuming that the impugned order was required to be passed in consonance with the basic principles of natural justice or the facts of the present case these principles were duly complied with by the Board. As no such effort was made the learned Single Judge had no occasion to go into this alternative contention and to examine the facts of the case in that light nor did the appellant get any opportunity to join issue on this point. As no such effort was made the learned Single Judge had no occasion to go into this alternative contention and to examine the facts of the case in that light nor did the appellant get any opportunity to join issue on this point. As the impugned order did impose penalty on the appellant and sought to deprive him of service for his alleged act of misconduct of not resuming at the place of transfer which naturally amounted to misconduct and insubordination on his part and as that order had pernicious evil civil consequences as it deprived the appellant of his bread and threw him out of employment minimum principles of natural justice had got to be followed before passing such an order. No fault can therefore be found with the reasoning of the learned Single Judge repelling the extreme contention of the respondent-Board that minimum principles of natural justice had to be read in service regulation No. 113 ( 6 ) MR. Vyas being confronted with this situation raised an alter- native contention to the effect that even though minimum principles of natural justice were required to be complied with before passing any order under service regulation No. 113 so far as the facts of the present case are concerned these principles were actually observed. He first invited our attention to the registered letter written by the Executive Engineer Surat to the appellant. It is dated 18-4-1974. It is at annexure J collectively to the original petition. This letter recites that the appellant has been relieved on 30-3-1984 afternoon on account of his transfer from Surat to Ukai but he has not reported at Ukai till that date and remained on unauthorised absence on relief which is a breach of service regulation No. 113. He was called upon to submit his explanation as to why severe action should not be taken against him for disobeying order of superior and breach of service regulations Nos. 112 and 113 within 7 days from the receipt of the said letter. Mr. Vyas therefore contended that this clearly amounted to show cause notice. That the appellants explanation was asked for and he did submit his explanation as per his reply dated 20-4-1974 which is also at annexure J collectively on page 25 of the paper book. 112 and 113 within 7 days from the receipt of the said letter. Mr. Vyas therefore contended that this clearly amounted to show cause notice. That the appellants explanation was asked for and he did submit his explanation as per his reply dated 20-4-1974 which is also at annexure J collectively on page 25 of the paper book. In that reply the appellant submitted that he had applied for reconsideration of his transfer from Surat to Ukai and that he was awaiting for decision on his representation. Therefore remaining on unauthorised leave was a misconceived allegation. Relying upon this reply the learned Advocate for the respondent-Board submitted that the appellant not only was given the show cause notice but he also replied to the same and submitted his version of the case before the authority How- ever the aforesaid contention of Mr. Vyas cannot advance the case of the respondent-Board any further inasmuch as the basic requirement of rule 113 is that before passing any order thereunder against the concerned employee it has to be shown that he had unauthorisedly remained absent from duty or had overstayed inspite of warning. The aforesaid show cause notice cannot be said to be a warning within contemplation of service regulation 113. ( 7 ) MR. Vyas next contended that even that requirement was also complied with as by registered A. D. letter dated 24-4-1974 the superintending engineer pointed out to the appellant that he was trans- ferred to Ukai division and was relieved by the Executive engineer Surat on 30-3-1974. That it was decided not to postpone his transfer and therefore he should report for duty at Ukai or else strict disci- plinary action would be taken against him. A copy of the aforesaid letter dated 24-4-1974 is at annexure XIV to the affidavit-in-reply of the establishment officer of the respondent-Board. It is at page 60 of the paper book. Now it is a fact that the said registered letter was not actually served on the appellant at any time. A copy of the aforesaid letter dated 24-4-1974 is at annexure XIV to the affidavit-in-reply of the establishment officer of the respondent-Board. It is at page 60 of the paper book. Now it is a fact that the said registered letter was not actually served on the appellant at any time. The endorsement below this letter shows that registered A. D. envelop addressed to the appellant was returned by the postal department with the endorsement that the addressee (the appellant) refuses to accept and the envelop was returned to the sender and that the original document (i. e. the said envelop) will be produced before the court if the appellant or the court desired to see the same. The appellant vehemently contended before us that this registered letter was never received by him and that at the relevant time he was not at Surat. Mr. Vyas produced before us the original envelop which is said to have contained the registered letter dated 24-4-1974. The envelop contained various endorsements on its back which showed that the addressee was not found at the place of the address on various occasions from 25-4-1974 onwards when attempts were made to serve the appellant and ultimately by the last endorsement of 3-5-1974 the postman mentioned that the owner (addre- ssee) had refused to accept the registered cover. The appellants case is that he was never tendered such a registered letter and he never refused to accept the said letter. The question whether the aforesaid registered letter dated 24-4-1974 which contained the warning as contem- plated by service regulation 113 was ever served on the appellant or that he had ever refused to accept the service thus becomes a highly disputed question of fact. Such a contention was never urged by the respondent-Board before the learned Single Judge as already noted earlier. It is now well settled by a series of judgments that a new contention which raises disputed question of fact cannot be permitted to be urged for the first time in a Letters Patent Appeal. We may refer to one of the decisions on the point rendered by Bhagwati C. J. and D. A. Desai J. (as they then were) in the case of Mansukhlal Kapurchand v. Sushilaben 14 G. L. R. 422. We may refer to one of the decisions on the point rendered by Bhagwati C. J. and D. A. Desai J. (as they then were) in the case of Mansukhlal Kapurchand v. Sushilaben 14 G. L. R. 422. Considering various earlier decisions on the point Bhagwati C. J. speaking for the Division Bench held as under:"there is no rule of law that an appellant in a Letters Patent Appeal cannot be heard on a point which has not been raised by him before the Judge hearing the second appeal. It is merely a rule of practice which has been adopted by the courts since long and that rule of practice also down not go to the length of an appellant in Letters Patent Appeal from ever being able to urge a new contention which has not been raised by him before the Judge hearing the second appeal the appellant has no right to insist that he shall be heard on a new contention but the court always has the power to permit the appellant to raise a new contention if it is necessary in the interest of justice to do so. That power of the court is not taken away by any rule of law and it would indeed be most unwise to take it away by a rule of practice. Of course the court would not ordinarily permit a new contention to be raised by an appellant if the contention raise a question of fact and cannot be determined without fresh investigation of facts. But if the contention is a pure question of law going to the root of the matter the court may in the exercise of its judicial discretion permit such contention to be raised in aid of justice"it is therefore obvious that if the new point which Mr. Vyas wanted to canvass for the first time before us was a pure question of law which did not require any investigation of facts it could have been entertained However in this case the question which Mr. Vas is raising for the first time in appeal by way of cross-objections requires detailed investi- gation of facts and it is a highly disputed question of fact. Vas is raising for the first time in appeal by way of cross-objections requires detailed investi- gation of facts and it is a highly disputed question of fact. The appellant party-in-person does not admit that he had ever refused to receive the registered postal envelop which is said to have contained the earning dated 24-4-1974 and according to him at the relevant time he was not in Surat at all and that the postman had never come to deliver the said registered letter to him and hence he had no occasion to either receive the registered envelop or to refuse it. What the appellant contends may be true or may not he true. Be. But that would obviously require a detailed investigation of facts. Such a contention therefore cannot be permeated to be urged for the first time in appeal by way of cross-objections then such a contention was never canvassed on behalf of the respondent-Board before the learned Single Judge If such a contention was canvassed the appellant could have pointed out all the relevant facts touching upon the question and then the learned Single Judge could have decided as to whether the letter dated 24-4-1974 could be said to have been served on the appellant on refusal. It is not even the case of the respondent-Board that it was actually served on the appellant. All that the rely upon is service by refusal while the earlier endorsement on the postal envelop showed that on various occasions when the postman went to serve the letter to the appellant at his Surat address he was not found. It becomes highly doubtful whether the last endorsement of 3-5-1974 on the said envelop that the owner (addressee) refused to accept the registered envelop on that occasion was correct endorsement. The Appellant submitted that if such a contention was taken he would have insisted on his right to cross- examine the postman. It is now view settled that even if there is endorsement on the registered postal envelop that its service was refused by the addressee the said endorsement raises merely a rebuttable pre- sumption that such a letter was tendered to the addressee who refused to receive the same. The appellant lost his right to adduce evidence in rebuttal on this question as such contention was never canvassed before the learned Single Judge. The appellant lost his right to adduce evidence in rebuttal on this question as such contention was never canvassed before the learned Single Judge. It is therefore not open to the respondent-Board to raise such a disputed question of fact before us for the first time. It must consequently be held that there is nothing on record of this case to show that the respondent-Board had ever served any warning to the appellant non-compliance with which would render him liable to be proceeded against under service regulation No. 113 In: fact the express language of service regulation 113 shows that before any summary discharge order is passed against the concerned delinquent employee a warning has to be served on him as a condition precedent. On the facts of the present case there is nothing to show that such a warning was ever served on the appellant. Issuance of show cause notice is miles away from the issuance of warning as contemplated by service regulation 113. As the respondent-Board has failed to establish on the facts of this case that such a warning was ever served on the appellant before the impugned order of deemed discharge came to be passed against him on the express language of service regulation 113 such order of summary discharge could never have been passed against the appellant. It would remain dehors the provisions of service regulation 113 themselves and would be ultra vires such regulation. Once that conclusion is reached the result is obvious. The impugned order of deemed discharge would remain null and void as being contrary to service regulation 113 itself. Thus even the alternative contention of Mr. Vyas cannot advance the case of the respondent-Board an inch further. Consequently the cross-objections filed by the respondent-Board Jail and will have to be dismissed. ( 8 ) MERITS of the Appeal: That leaves out the main question in appeal as to whether the learned Single Judge was justified in refusing other reliefs to the appellant by way of reinstatement in service and back wages when he granted the declaration that the impugned order was null and void. ( 8 ) MERITS of the Appeal: That leaves out the main question in appeal as to whether the learned Single Judge was justified in refusing other reliefs to the appellant by way of reinstatement in service and back wages when he granted the declaration that the impugned order was null and void. So far as this aspect of the matter is concerned it must be kept in view that once the order of deemed discharge is declared to be null and void as the learned Single Judge has done and which decision is being upheld by us as shown herein- above it becomes obvious that employee-employer relationship which existed between the parties prior to the impugned order of deemed discharge would Continue unimpaired and consequently the order of reinstatement and full back wages would automatically follow unless for the reasons based on exceptional circumstances of a given case such normal consequence is directed by the court not to follow either wholly or partially. We may in this connection refer to a few decisions of the Supreme Court on the point. In the case of S. K. Verma v. Industrial Tribunal-cum-Labour Court New Delhi A. I. R. 1981 S. C. 422 the Supreme Court speaking through Chinappa Reddy J. held that when termination order is contrary to the provisions of sec. 25-F of the Industrial Disputes Act reinstatement is the necessary relief that follows and that hard cases cannot make bad law. In the case of Sant Raju. O. P. Singla 1985 S. C. C. 349 D. A. Desai J. speaking for the Supreme Court in para 5 of the report held that relief of reinstatement should have ordinarily followed the order declaring the termination to be contrary to the provisions of the Industrial Disputes Act as a corollary of the finding that the termination of service was bad and illegal. In the case of Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha A. I. R. 1980 S. C. 1896 Krishna Iyear J. speaking for the majority ruled in para 148 of the report that if discharge is bad reinstatement is the rule. In para 150 of the report it has been held that another fact of the relief turns on the demand for full back wages. Certainly the normal rule on reinstatement is full back wages since the order of termination is non est. In para 150 of the report it has been held that another fact of the relief turns on the demand for full back wages. Certainly the normal rule on reinstatement is full back wages since the order of termination is non est. Even so the Industrial Court may well slice off a part if the workmen are not wholly blameless or the strike is illegal and unjustified. To what extent wages for the long interregnum should be paid is therefore a variable dependent on a complex of circumstances. In para 146 of the report it has been held that what the tribunal may in its discretion do the High Court too under Article 226 can if facts compel do. We may also in this connection refer to a later decision of the Supreme Court in the case of A. L. Kalra v. P. and B. Corporation of India Ltd. A. I. R. 1984 S C. 1361. A three-member bench of the Supreme Court speaking through D. A. Desai J. in the aforesaid case made the following pertinent observa- tions in paras 32 and 33 of the report:"32 The last question then is to what relief the appellant is entitled ? Once the order of removal from service is held to be illegal and invalid and the appellant being in public employment the necessary declaration must follow that he conti- nues to be in service uninterruptedly this aspect does not present any difficulty and the declaration is hereby granted. 33 When removal from service is held to be illegal and invalid the next question is whether the victim of such action is entitled to back wages. Ordinarily it is well settled that if termination of service is held to be bad no other punishment in the guise of denial of back wages can be imposed and therefore it must as a necessary corollary follow that he will be entitled to all the back wages on the footing that he has continued to be in service uninterruptedly. But it was pointed out in this case that the appellant was employed as Factory Manager by M/s. KDR Woollen Mills. A-90 Wazirpur Industrial Area Delhi from where he resigned with effect from 8/08/1983 It was also submitted that he was drawing a salary of Rs. 2 500 per month. But it was pointed out in this case that the appellant was employed as Factory Manager by M/s. KDR Woollen Mills. A-90 Wazirpur Industrial Area Delhi from where he resigned with effect from 8/08/1983 It was also submitted that he was drawing a salary of Rs. 2 500 per month. Now if the appellant had procured an alternative employment he would not be entitled to wages and salary from the respondent. But it is equally true that an employee depending on salary for his survival when he is exposed to the vagaries of the court litigation cannot hold on to a slender distant hope of judicial process coming to his rescue and not try to survive by accepting an alternative employment a hope which may turn out to be a mirage. Therefore the appellant was perfectly justified in procuring an alternative employ- ment in order to keep his body and soul together as also to bear the expenses of litigation to vindicate his honour integrity and character". In the aforesaid case the employee of a Government of India under- taking had challenged his termination by filing a direct writ petition un-der Article 226 of the Constitution before the Delhi High Court on the ground that the authority was one of the authorities as contemp- lated by Article 12 of the Constitution. It is in connection with the aforesaid facts that the said decision was rendered by the Supreme Court. It was held on the facts and circumstances of the said case that the employee was entitled in proceedings under Article 226 of the Constitution to a declaration that his termination was null and void. However on the facts of the case he was granted 50% of the back wages for the period since his removal from service upto his joining the department. However on the facts of the case he was granted 50% of the back wages for the period since his removal from service upto his joining the department. In view of the aforesaid two decisions of the Supreme Court it remains no longer in dispute that in proceedings under Article 226 of the Constitution the High Court has full powers to grant appropriate relief by way of declaration that the impugned order of termination is null and void and also the power to grant further relief of reinstatement with full back wages or less quantity of back wages on the facts and circumstances of each case and that in exercise of such powers the High Court can do under Article 226 of the Consti- tution which the Industrial Tribunal would have done if the dispute was raised for its adjudication. However Mr. Vyas for the respondent- Board placing strong reliance on a decision of the two-member bench of the Supreme Court in the case of U. P. Warehousing Corporation v. V. N. Vajpayee (1980)3 S. C. C. 459 submitted that in a writ of certiorari under Article 226 the High Court can merely quash a decision but cannot give further declaration and directions. The said decision on the facts of the present case has no application for number of reasons firstly because this is not the case of issuance of a writ of certiorari but it would strictly be a case of issuance of a writ of mandamus and secondly because the later decision of the three-member bench of the Supreme Court has definitely taken the view that such powers do inher in the High Court when proceedings under Article 226 of the Consti- tution for appropriate reliefs come up for decision and the powers of the High Court are in no way fettered. In our view the ratio of the aforesaid three member bench of the Supreme Court in the case of A. L. Kalra (supra) squarely applies to the facts of the present case and must govern the fate of the present proceedings. ( 9 ) IT must therefore be held that once the impugned order of deemed discharge is held to be null and void the usual consequence that the appellant continues in service of the respondent-Board unim- paired must follow. ( 9 ) IT must therefore be held that once the impugned order of deemed discharge is held to be null and void the usual consequence that the appellant continues in service of the respondent-Board unim- paired must follow. The learned Single Judge with respect to him was not justified in not giving the consequential declaration in favour of the appellant. Now remains the question of back wages. The impugned order was passed as early as on 27-5-1974 snapping the employee-employer relationship by 31-3-1974. We are in February 1986. Almost 12 years have passed by. The appellant has remained struggling for his existence and for the existence of his family all these years. It is true as admitted by the appellant himself that he has obtained Sanad to practice as an advocate with effect from 4 onwards but uptil now as submitted by him he has not been able to make any progress at the bar and he is merely a struggling junior. Mr. Vas for the respondent-Board vehemently contended inviting our attention to what is stated in the affidavit of Mr. A. R. Kaikini Establishment officer of the respondent Board at para 4 of the said affidavit that the past record of the appellant was very bad; earlier he was charge-sheeted for the misconduct of theft fraud falsification of account etc. but he was given lesser punishment by the Board. Be that as it may so far as the past acts were concerned the respondent-Board itself dealt with the appellant lightly and did not snap his employment for the reasons best known to the respondent- Board. When the respondent-Board has condoned such lapses on the part of the appellant they cannot be again pressed in service on the present occasion. So far as the impugned order of termination is con- cerned it is based only on the ground of insubordination on the part of the appellant inasmuch as he did not report at Ukai where he was ordered to be transferred. Now it must be kept in view that the impugned transfer order was not compiled with by the appellant for some reasons which according to the appellant had compelled him not to do so. According to him his mother was cardiac patient and he apprehended that he may not get adequate treatment at Ukai. Now it must be kept in view that the impugned transfer order was not compiled with by the appellant for some reasons which according to the appellant had compelled him not to do so. According to him his mother was cardiac patient and he apprehended that he may not get adequate treatment at Ukai. May be the stand taken by the appellant of not resuming Ukai on account of his alleged grievances may be foolish and technically it would amount to insubordination. However it cannot be said that the said misconduct involved any moral turpitude or was a gross one which can wholly deprive the appellant of his back wages. It has also to be kept in view that appellant twice submitted representation before the com- petent authority against the order of transfer. In these circumstances with respect to the learned Single Judge it is not possible to agree with his conclusion that the appellant was such a recalcitrant fellow that he be refused reinstatement as well as back wages and that he should be permitted to rest content with mere paper declaring that the order of transfer was void. So far as his past conduct is concerned what the learned Single Judge has stated is that he has got some false notions of the assumed prerogatives or powers of public servants. Even if he had such false notions he could not have been punished with penalty of deprivation of reinstatement and whole of back wages. We have already seen above that once the declaration about nullity of the impugned order is passed declaration regarding reinstatement with- continuity of service would almost automatically follow. However as laid down by the Supreme Court in the case of Gujarat Steel Tubes Ltd. (supra) the court has discretion on the facts and circumstances of the case to award either full back wages or percentage of back wages. On the facts and the circumstances of the present case we do not find this case to be one in which the appellant should be wholly deprived of back wages. For 12 long years he has suffered. The appellant submitted before us that he had maintained his family for all this long period by borrowing loans and thus has become a chronic debtor. For 12 long years he has suffered. The appellant submitted before us that he had maintained his family for all this long period by borrowing loans and thus has become a chronic debtor. It is true that he was foolish enough not to resume at Ukai and then to go on leave and ventilate his grievances-against transfer awaiting result of his representations. But for this foolishness he has sufficiently suffered. His three years standing at the bar as a struggling junior advocate does not seem to have given him any grounding at the bar and the said period does not seem to have yielded any lucrative advantages. as otherwise he would never have insisted in for Boards service. It is obvious that if the appellant is flourishing a advocate he would never choose to once again become a servant of the Board and give up his lucrative practice. It must be held. agreeing with the appellant that his existence at the bar as a struggling advocate cannot be said to have yielded him sufficient economic advantage by way of alternative occu- pation which can deprive him of back wages even for that period. However on a comprehensive view of the situation we think that the appellants conduct is not wholly blameless. He has also suffered from some false notions of rights and had also stuck to his guns in a most impractical and to in extent autocratic manner. Under these circumstances he cannot he granted full back wages. In fairness to the appellant he made it clear that if 50% back wages are granted to him He would be satisfied and gives gives up his claim for the rest of 50 back wages and that according to him would be sufficient punishment for is alleged misconduct or insubordination. In our view the aforesaid stand taken by the appellant deserves to be accepted. For the alleged act of insubordination in not reporting at the place of transfer at Ukai as directed by the order of transfer if the appe- llant is punished by depriving him of 50% back wages for 12 long years it would meet the ends of Justice and would be sufficient detri- ment and punishment for the appellant so that in future he may not adopt such attitude. If this order is passed interest of Justice and the requirement of the case would be fully met. If this order is passed interest of Justice and the requirement of the case would be fully met. (The rest of the Judgment is not material for the reports.)ORDER ACCORDINGLY .