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2018 DIGILAW 418 (GUJ)

KRUSHNAKANT B PARMAR v. UNION OF INDIA

2018-02-06

A.Y.KOGJE, M.R.SHAH

body2018
JUDGMENT : M.R. SHAH, J. 1. Rule. Shri Parth Bhatt, learned advocate waives service of notice of Rule on behalf of the respondent. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the present petition is taken up for final hearing today. 2. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned order dated 23.06.2017 passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad passed in OA No. 177 of 2014, by which, the learned Tribunal has dismissed the said OA. 3. The facts leading to the present petition in nutshell are as under: 3.1. That the departmental inquiry was initiated against the petitioner herein. In departmental proceedings, he was dismissed from service. The order of dismissal came to be confirmed upto the High Court. The petitioner approached the Hon'ble Supreme Court. The Hon'ble Supreme Court by judgment and order dated 15.02.2012 quashed and set aside the order of dismissal passed by the disciplinary authority affirmed by the learned Tribunal and the High Court and ordered reinstatement. While ordering reinstatement, the Hon'ble Supreme Court granted 50% of the back wages by specifically observing that keeping in view of the fact that he has not worked for long time. That thereafter, in compliance with the order passed by the Hon'ble Supreme Court, the petitioner came to be reinstated in services by order dated 17.04.2012 and in fact reinstated on 23.04.2012. That thereafter by order impugned before the learned Tribunal, the appropriate authority passed an order that period of his absence from 15.2.2012 to 23.04.2012 be treated as extraordinary leave. The authority also fixed the pay of the petitioner at Rs.6650/- in the pay band of Rs. 520020200 (PB1) + Grade Pay of Rs.2000/- w.e.f. 15.2.2012. However, thereafter passed an order that the petitioner will be granted 50% of the pay and allowances for the period intervening of his removal from service and date of his reinstatement i.e. (2.12.2003 to 31.12.2005) and he shall be paid Rs.3575/per month from 2.12.2003 to 31.12.2005 and Rs.6650/+ grade pay of Rs.2000/- from 1.1.2006 to 14.2.2012. However, thereafter passed an order that the petitioner will be granted 50% of the pay and allowances for the period intervening of his removal from service and date of his reinstatement i.e. (2.12.2003 to 31.12.2005) and he shall be paid Rs.3575/per month from 2.12.2003 to 31.12.2005 and Rs.6650/+ grade pay of Rs.2000/- from 1.1.2006 to 14.2.2012. Feeling aggrieved and dissatisfied with the aforesaid order passed by the authority dated 17.04.2012, the petitioner approached the Tribunal by way of present OA No. 177 of 2014. By impugned judgment and order, the learned Tribunal has dismissed the said OA, which has given rise to the present Special Civil Application under Articles 226 & 227 of the Constitution of India. 4. Shri S.P. Majmudar, learned advocate for the petitioner has vehemently submitted that the appropriate authority has materially erred in not granting continuity for the period from the date of removal till reinstatement. 4.1. It is further submitted by Shri Majmudar, learned advocate for the petitioner that once the order of dismissal passed by the disciplinary authority came to be set aside by the Hon'ble Supreme Court, as a necessary consequence the delinquent shall be entitled to continuity in service as if he was never removed as, the order of dismissal passed by the disciplinary authority came to be set aside by the Hon'ble Supreme Court. It is submitted that therefore, the petitioner shall be entitled to all the benefits including promotion etc. by granting continuity. It is submitted that the learned Tribunal has not properly appreciated the aforesaid fact. 4.2. It is further submitted by Shri Majmudar, learned advocate for the petitioner that even otherwise the authority has materially erred in not granting the back wages without even granting increment which petitioner might have earned from the date of removal till reinstatement. It is submitted that if 50% back wages would have been granted by the authority with the increment earned which available from the date of removal till reinstatement, the same can be said to be making the payment of 50% back wages as ordered by the Hon'ble Supreme Court. 4.3. It is further submitted by Shri Majmudar, learned advocate for the petitioner that even the impugned order so far treating the period from 15.2.2012 to 23.04.2012 as extraordinary leave cannot be sustained and same deserves to be quashed and set aside. 4.3. It is further submitted by Shri Majmudar, learned advocate for the petitioner that even the impugned order so far treating the period from 15.2.2012 to 23.04.2012 as extraordinary leave cannot be sustained and same deserves to be quashed and set aside. It is submitted that the petitioner was required to be reinstated in service pursuant to the order passed by the Hon'ble Supreme Court immediately from 15.2.2012, however the department took time to pass order of reinstatement and thereafter the petitioner came to be reinstated in service on 23.4.2012. It is submitted that therefore, the delay was on the part of the department and not on the part of the petitioner and therefore, there is no justification to treat the period from 15.02.2012 to 23.04.2012 as extraordinary leave. Making above submissions, it is requested to admit / allow the present petition. 5. Shri Parth Bhatt, learned advocate has appeared on behalf of the respondent. 5.1. Now, so far as submission on behalf of the petitioner that petitioner shall be entitled to continuity for the period from the date of removal till reinstatement is concerned, it is vehemently submitted by Shri Bhatt, learned advocate for the respondent that as Hon'ble Supreme Court ordered only 50% back wages while quashing and setting aside the order of dismissal, department was justified in not granting continuity and the learned Tribunal has rightly rejected the said claim. 5.2. Now, so far as submission on behalf of the petitioner that even 50% of the back wages was required to be paid while considering the increments due and payable for the period between 2.12.2003 to 14.12.2012, it is submitted that as such petitioner has been paid salary while granting benefit of 5th & 6th Pay Commission recommendation. However, is not in a position to dispute that for the interregnum period between 2.12.2003 to 14.12.2012, he has not been paid increments. He is also not in a position to justify the Court that the order passed by the authority treating the period between 15.02.2012 to 23.04.2012 as extraordinary leave. 6. Heard the learned advocates for the respective parties at length. He is also not in a position to justify the Court that the order passed by the authority treating the period between 15.02.2012 to 23.04.2012 as extraordinary leave. 6. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that while quashing and setting aside the order of dismissal passed by the disciplinary authority and ordering reinstatement, the Hon'ble Supreme Court passed an order to grant 50% back wages only by observing that as the appellant has not worked for long time he be paid 50% of the back wages. The Hon'ble Supreme Court did not grant the continuity. The aforesaid is not disputed by the learned advocate for the petitioner. Under the circumstances, the authority was justified in not granting the continuity for the period from the date of removal till reinstatement, which otherwise was not granted by the Hon'ble Supreme Court. The learned Tribunal has rightly declined to grant such a relief. 6.1. However, the petitioner is justified in making grievance that 50% back wages as ordered by the Hon'ble Supreme Court was required to be paid while considering the increments which would have been earned by the petitioner, if he would have been continued in service. The petitioner shall be entitled to 50% back wages as ordered by the Hon'ble Supreme Court with the increments which the petitioner would have earned during the interregnum period i.e. 2.12.2003 to 14.12.2012. The authority is also not justified in treating the period of his absence from 15.02.2012 to 23.04.2012 as extraordinary leave. It is required to be noted that Hon'ble Supreme Court passed the order of reinstatement on 15.02.2012. However, the authority passed order of reinstatement only on 17.04.2012 and the petitioner was actually reinstated on 23.04.2012. Therefore, the delay in passing the order of reinstatement and actually reinstating the petitioner was at the end of the department. Therefore, the impugned order treating the period of his absence from 15.02.2012 to 23.04.2012 is extraordinary leave cannot be sustained and same deserves to be quashed and set aside. 7. In view of the above and for the reasons stated above, petition succeeds in part. Therefore, the impugned order treating the period of his absence from 15.02.2012 to 23.04.2012 is extraordinary leave cannot be sustained and same deserves to be quashed and set aside. 7. In view of the above and for the reasons stated above, petition succeeds in part. The impugned judgment and order dated 23.06.2017 passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad passed in OA No. 177 of 2014 as well as order passed by the authority dated 17.04.2012 are hereby modified to the extent and it is held that the petitioner shall be entitled to 50% back wages as ordered by the Hon'ble Supreme Court along with increments due and payable for the period between 02.12.2003 to 14.12.2012 and accordingly his pay is required to be fixed while granting the benefit of 5th and 6th Pay Commission recommendation. The 50% back wages for the period between 02.12.2003 to 14.12.2012 be refixed accordingly and the arrears shall be paid to the petitioner within a period of either weeks from today. The order dated 17.04.2012 treating the period of his absence form 15.02.2012 to 23.04.2012 as extraordinary leave is hereby quashed and set aside. So far as claim of the petitioner for continuity is concerned, considering the fact that the Hon'ble Supreme Court while passing the judgment and order dated 15.02.2012 in Civil Appeal No.2106 of 2012 did not pass any order with respect to continuity, the learned Tribunal is justified in not considering the said claim. We confirm the impugned judgment and order passed by the learned Tribunal to the aforesaid extent. Rule is made absolute to the aforesaid extent. No costs.