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2021 DIGILAW 581 (GUJ)

NATVARSINH UMEDSINH VALA v. DEPUTY SECRETARY

2021-07-13

J.B.PARDIWALA, VAIBHAVI D.NANAVATI

body2021
JUDGMENT : J.B.PARDIWALA, J. 1. This appeal under Clause 15 of the Letters Patent is at the instance of a writ applicant of a writ application and is directed against the impugned judgment and order passed by the learned Single Judge dated 09.02.2017 in the Special Civil Application No.616 of 2011, by which, the learned Single Judge ordered reinstatement of the appellant herein in service, but declined to grant any back-wages or any other financial benefits. 2. The facts, giving rise to this appeal, may be summarized as under; 2.1 The appellant herein is the original writ applicant. The appellant came before this Court by filing the Special Civil Application No.616 of 2011 praying for the following reliefs; “(A) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside orders dated 29.08.2003 passed by Superintendent of Police Rajkot (Rural) (at Annexure-C hereto), 30.12.2002 passed by D.I.G (at Annexure-D hereto), order dated 29.04.2006 passed by Director General of Police (at Annexure-E hereto) as well as order dated 08.12.2010 passed by respondent No.1 (at Annexure-J hereto) and directing the respondent authorities to reinstate the petitioner forthwith along with all the consequential benefits with interest; (B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation, implementation and execution of orders dated 29.08.2003 passed by Superintendent of Police, Rajkot (Rural) (at Annexure-C hereto), 30.12.2003 passed by D.I.G (at Annexure-D hereto), order dated 29.04.2006 passed by Director General of Police (at Annexure-E hereto) as well as order dated 08.12.2010 passed by respondent No.1 (at Annexure-J hereto); (C) Pass any such other and/or further orders that may be thought just and proper in the facts and circumstances of the present case.” 2.2 It appears from the materials on record that the appellant was serving as a Police Constable. One first information report came to be registered dated 26th June, 2000 at the Jetpur Police Station vide the C.R. No.5164/2000 for the offences punishable under Sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act. In the said first information report, the appellant herein was arraigned as an accused. Upon registration of the first information report, referred to above, the appellant came to be placed under suspension with effect from 30th June, 2000. In the said first information report, the appellant herein was arraigned as an accused. Upon registration of the first information report, referred to above, the appellant came to be placed under suspension with effect from 30th June, 2000. The authority concerned thought fit to initiate departmental inquiry against the appellant. A departmental charge-sheet was issued on 29th March, 2001. It appears that the order of suspension later came to be revoked with effect from 14.05.2001. In the departmental charge-sheet, the following two charges came to be levelled against the appellant herein; “1. On 26.06.2000, at around 16:00 hours, after making an entry in the Station Diary being Entry No.16, you were sent to the Navagaam Cross Road for performing your duties as the Traffic Police. However, you failed to perform your duties sincerely, and without any instructions or reason, you on your own, left the place of your duty and went to Dhoraji Octroi-Point at Jetpur Bypass National High-way. 2. The delinquent knows that he is serving in a very disciplined police department. Preventing the anti-social activities like alcohol is his legitimate moral duty. However, ignoring his office and the reputation of the department, he left the place of his legitimate duty assigned to him and consumed liquor. Such an indecent behavior on his part cast a stigma on the police department.” 2.3 One Shri D.B. Zala, Deputy Superintendent of Police, Head Quarter, Rajkot (Rural), Rajkot was appointed as the Inquiry Officer. At the end of the inquiry, the Inquiry Officer filed his report stating that none of the charges referred to above as framed against the delinquent stood established. 2.4 The inquiry report was taken into consideration by the Superintendent of Police, Rajkot (Rural), Rajkot and the Superintendent declined to agree with the findings recorded by the Inquiry Officer. In such circumstances, the Superintendent of Police, vide order dated 28th November, 2002, recorded tentative reasons for disagreeing with the findings recorded by the Inquiry Officer. The Superintendent of Police thought fit to issue a show-cause notice calling upon the appellant herein to show-cause as to why he should not be removed from service. 2.5 Ultimately, the order of removal dated 29th August, 2003 came to be passed by the Superintendent of Police, Rajkot. Being dissatisfied with the order of removal from service, the appellant herein preferred an appeal before the Director General of Police, Gandhinagar. 2.5 Ultimately, the order of removal dated 29th August, 2003 came to be passed by the Superintendent of Police, Rajkot. Being dissatisfied with the order of removal from service, the appellant herein preferred an appeal before the Director General of Police, Gandhinagar. The appeal came to be dismissed vide order dated 30th December, 2003 passed by the Special Inspector General of Police, Rajkot Division, Rajkot. 2.6 Being dissatisfied with the order passed by the Appellate Authority, dismissing the appeal, the appellant preferred revision application before the respondent No.3 herein-Director General of Police, Gandhinagar. The revision application also came to be rejected vide order dated 29th April, 2006. 2.7 In such circumstances, referred to above, the appellant had to come before this Court by filing the Special Civil Application No.616 of 2011. 2.8 The learned Single Judge, while ordering reinstatement of the appellant in service, recorded the following findings; “16. In view of above facts when there is no evidence before the Court or the departmental authority regarding commission of offence, there is no reason for respondents to impose the punishment of removal from services as done by the impugned order and thereby impugned order could not sustain. However, considering the settled legal position that the Court should not enter into quantum of punishment, it is also settled legal position that the Court can certainly look into the very nature of punishment and thereby, whether there is misuse of powers. Thereby if punishment is there even in absence of evidence and in cases where absolutely disproportionate punishment is imposed considering the nature of the alleged offence then irrespective of general restrain of not to interfere in quantum of punishment, the Court has ample powers to disturb the order of punishment when it is passed either in absence of evidence or without jurisdiction and if it is disproportionate to the actual misconduct if any committed by the concerned employee. 17.1 The sum and substance of all the above cases is quite clear that there is no absolute ban to review the decisions of Inquiry Officer or the disciplinary authority by the Court, more particularly, when findings of fact is based on no evidence or when a Court is satisfied that there is an abuse or misuse of power by any such authority. It is also clear that mere perverse statement of complainant or witness cannot be brought on record without supporting evidence and in such cases, if findings recorded by the Inquiry Officer or decision by the disciplinary authority are not supported by evidence and wholly perverse, then order of punishment is liable to be set aside. Even discretionary power of authority is exposed to judicial intervention, if it is exercised in a manner, which is out of proportion to the fault. 17.2 To verify any of above reasons, the Court has to scrutinize the entire proceedings of Departmental Inquiry so as to ascertain that there cannot be punishment even in absence of evidence or in arbitrary and discriminatory manner or for any reason as discussed herein above. 18. Therefore, when above discussion makes it clear that this is the case where punishment of removal of service was imposed without any evidence on record and that too relying upon altogether a new fact in form of second FIR, details of which was never conveyed to the petitioner so as to enable himself to defend himself, thus impugned order needs to be disturbed. 19. In addition to what is stated and discussed herein above the petitioner has, by filing a further affidavit on 16.06.2011 now disclosed the apparent discrimination at the hands of the respondent while dealing with different employees involved in similar alleged offences and/or misconduct. Now respondent has came forward with a specific disclosure that though Dashrathsinh Pravinsinh Jadeja, Jagdishkumar Digubha, Morardan Jilubhai Gadhvi and Virendra Tavde were also involved in similar case under the Prohibition Act and amongst them at least against Virendra Tavde though there are three cases under the Prohibition Act, in case of all such employees ultimate punishment is only to the extent of stoppage of one or few increments whereas in case of Dashrathsinh Pravinsinh Jadeja and Morardan Jilubhai Gadhvi because of their death further proceedings were stopped but though specifically called, the respondents have not disclosed that what is resolution or outcome against such person i.e. whether all other benefits were released and that too more particularly based upon some facts may be in the form of second FIR against petitioner thereafter to issue fresh show cause notice either by adding charges of second offence in previous charge sheet or by initiating department inquiry for such offence before passing such order or removal from service. However, without following due process of law, new charge cannot be added in pending or continuous proceedings so as to impose major punishment and to that extent, show cause notice was issued though such notice cannot be treated as notice for second FIR and, therefore, when show cause notice is issued for punishment, such punishment is illegal and cannot sustain. 23. In view of above facts and circumstances, it is clear that there is no evidence to prove the charges levelled against the petitioner, either before the Criminal Court or any Departmental Inquiry. The Disciplinary Authority has determined the issue and concluded to punish the petitioner solely on the basis of second FIR. It is admitted position that for such second FIR, charges were never added in pending departmental inquiry and fresh inquiry for such second FIR has never been initiated. Therefore, the decision of punishment by Disciplinary Authority is not based upon record of Departmental Inquiry wherein there is lack of evidence. Disciplinary Authority has also failed to consider that petitioner has been acquitted in criminal trial also. Therefore, it is clear that the Disciplinary Authority cannot impose punishment based upon second FIR. Details of second FIR is avoided to be discussed at this stage, since it would prejudice the pending appeal and since respondents may initiate appropriate proceedings based upon such second incident. However, at this stage, it becomes clear that there cannot be direct order of removal from services relying upon second offence for which no reasonable opportunity is extended to the petitioner to explain his case. Therefore, the petition deserves to be allowed as prayed for. 24. In view of above, the petition is allowed. Thereby, the impugned order dated 29.8.2003 by the Superintendent of Police, Rajkot (Rural), so also order dated 30.12.2003 by the Special D.I.G., Rajkot Division, Rajkot as well as order by the competent authority dated 29.04.2006 and order dated 08.12.2010 by the Home Secretary are hereby quashed and set-aside. Thereby, respondents shall reinstate the petitioner in services. However, considering the overall facts and circumstances and in absence of specific evidence on record, when petitioner has not served the respondent for intermediate period, there would be no order regarding any backwages or any financial benefits except to reinstate the petitioner as if he was on special leave from the date of his removal till the date of his reinstatement. The respondents shall reinstate the petitioner as aforesaid within two months from the date of receipt of writ of this judgment. If respondents fail to do so, then, petitioner would be entitled to financial benefits as if he is reinstated after two months as per above directions. 25. It is made clear that for the reasons stated herein above, this Court has at this stage restrained from discussing anything with reference to second FIR lodged against the petitioner with Jasdan Police Station since the Criminal Appeal is pending against the conviction based upon such FIR. It is also made clear that though respondents have taken facts of such FIR as one of the ground for passing impugned orders, which is otherwise not permissible in law, now, when impugned orders are hereby quashed and set aside, it would be open for the respondents to initiate appropriate proceedings against the petitioner, for such second incident FIR, but purely in accordance with law and rules.” 2.9 Thus, what is discernible from the findings recorded by the learned Single Judge is as under; (i) It is a case of no evidence; (ii) There was no good reason for the disciplinary authority to disagree with the findings recorded by the Inquiry Officer exonerating the delinquent from all the charges and if at all the disciplinary authority wanted to disagree with the findings recorded by the Inquiry Officer, then the competent authority ought to have assigned tentative reasons. Without assigning any tentative reasons for the purpose of disagreeing with the report of the Inquiry Officer, the competent authority could not have proceeded to issue the final show-cause notice. (iii) The Disciplinary Authority/Competent Authority proceeded to pass the order of removal from service substantially relying on the second first information report, however, such second first information report was never a part of the departmental charge-sheet. (iv) The learned Single Judge, however, thought fit not to pass any order of continuity of service and back-wages or any other financial benefits on the principle of “no work no pay”. 3. Although the appellant herein came to be reinstated in service, yet he is dissatisfied as the learned Single Judge has declined to grant him back-wages and continuity of service. 4. We have heard Mr. Krutarth Pandya, the learned counsel appearing for the appellant and Mr. Krutik Parikh, the learned AGP appearing for the State. 5. 3. Although the appellant herein came to be reinstated in service, yet he is dissatisfied as the learned Single Judge has declined to grant him back-wages and continuity of service. 4. We have heard Mr. Krutarth Pandya, the learned counsel appearing for the appellant and Mr. Krutik Parikh, the learned AGP appearing for the State. 5. The only question that falls for our consideration in the present appeal is whether the appellant herein is entitled to have continuity of service and the back-wages for the period between the date of order of removal from service and the date of order of reinstatement?. 6. The first thing we would like to clarify is that the respondents have accepted the order passed by the learned Single Judge. None of the findings recorded by the learned Single Judge have been questioned by the respondents. In such circumstances, whether the learned Single Judge could be said to be justified in declining to grant back-wages and continuity of service to the appellant herein. 7. The word “reinstatement” has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol.II, 3rd Edition, the word “reinstate” means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black’s Law Dictionary, 6th Edition, “reinstatement” means ‘to reinstall, to reestablish, to place again in a former state, condition, or office? To restore to a state or position from which the object or person had been removed. 8. As per Black’s Law Dictionary, 6th Edition, “reinstatement” means ‘to reinstall, to reestablish, to place again in a former state, condition, or office? To restore to a state or position from which the object or person had been removed. 8. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter’s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.(See Deepali Gundu vs. Kranti Junior Adhyapak Mahavidyalaya, 2013 (10) SCC 324 ). 9. As held by the Supreme Court in Deepali Gundu (supra), referred to above, in case of wrongful termination of service, reinstatement with continuity of service and back-wages is the normal rule. 9. As held by the Supreme Court in Deepali Gundu (supra), referred to above, in case of wrongful termination of service, reinstatement with continuity of service and back-wages is the normal rule. Such rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee, the nature of misconduct, if any, found proved against the employee, the financial condition of the employer and similar other factors. In the case on hand, there is a positive finding recorded by the learned Single Judge that the appellant herein could not have been proceeded departmentally. There is a categorical finding that the case on hand is one of “no evidence”. Such findings have attained finality as none of the respondents has thought fit to file any appeal against such findings. 10. The decision of the Supreme Court in the case of Deepali Gundu (supra) does explain the principle of law to be applied in the matters of the present type, however, we should look into the decision of the Supreme Court in the case of Rajasthan Road Transport Corporation, Jaipur vs. Shri Phool Chand (Dead), reported in AIR (SC) 2018 4534. In this decision of the Supreme Court, we find reference of Deepali Gundu (supra). 11. The short question that fell for the consideration of the Supreme Court in Phool Chand (supra) was whether the Courts below, namely, the High Court and the Labour Court were justified in awarding full back-wages to the deceased workman after setting aside his dismissal order holding it to be bad in law and, in consequence, directing his reinstatement in service. The appellant in the said case was the State Road Transport Corporation for the State of Rajasthan. The deceased Phool Chand was in the employment of the appellant as a driver. The appellant dismissed Phool Chand from the service after holding a regular departmental inquiry on the ground of dereliction of duties on various occasions while he was on the employment. The charge against the deceased workman was his continuous absence from the work which stood proved in the departmental inquiry. Phool Chand felt aggrieved by his dismissal and filed an application before the Labour Court. The Labour Court, by its award, held the charge against Phool Chand as proved but interfered in the quantum of punishment. The charge against the deceased workman was his continuous absence from the work which stood proved in the departmental inquiry. Phool Chand felt aggrieved by his dismissal and filed an application before the Labour Court. The Labour Court, by its award, held the charge against Phool Chand as proved but interfered in the quantum of punishment. The Labour Court converted the punishment of removal from service to that of “stoppage/forfeiture of four annual grade increments without cumulative effect” and directed the reinstatement of the deceased workman in service with award of full back-wages for the period of thirteen years (16.11.1983 to 24.02.1996). The appellant (employer), felt aggrieved by the award of the Labour Court and filed a writ petition in the High Court of Rajasthan. A learned Single Judge of the High Court, vide order dated 14.07.1998, rejected the writ application filed by the appellant and affirmed the award passed by the Labour Court. Being aggrieved by the order of the learned Single Judge, the appellant filed intra court appeal. The Appeal Court dismissed the appeal and upheld the order of the learned Single Judge which gave rise to filing of the appeal before the Supreme Court by way of special leave by the appellant employer. The Supreme Court held as under; “10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back wages to the deceased workman (his legal representatives) in place of full wages. 11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. 12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board vs. Jarina Bee(Smt.), (2003) 6 SCC 141 , G.M. Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591 , U.P. State Brassware Corporation vs. Uday Narain Pandey, (2006) 1 SCC 479 , J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr., (2007) 2 SCC 433 , Metropolitan Transport Corporation vs. V. Venkatesan, (2009) 9 SCC 601 , Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC 327 ) and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324 . 14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent. 15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 16. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to the deceased workman while directing his reinstatement in service. 17. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer). 18. However, having regard to all facts and circumstances of the case such as period and money spent in litigation by the deceased workman and on his death by his legal representatives coupled with the fact that the workman–Phool Chand has since expired, we consider it just and proper and in the interest of justice to award to the respondents (legal representatives of Late Phool Chand) 50% of the total back wages. 19. This we award to the respondents in exercise of our powers under Article 142 of the Constitution of India for doing substantial justice to the parties concerned having reiterated the legal principles which govern the question of award of back wages. 20. In the light of the foregoing discussion, the appeal succeeds and is allowed in part. Impugned order is modified to the extent indicated above.” 12. From the aforesaid, the following is discernible; (i) The back-wages should not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order; (ii) A workman, as such, has no right to claim backwages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service; (iii) It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family; (iv) The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back-wages. The necessary burden is, however, on the employee; (v) The Court, in a given case, may decline to award the back-wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions how the back-wages is required to be decided, what are the factors to be taken into consideration awarding back-wages, on whom the initial burden lies etc. have been elaborately discussed in the decisions of the Supreme Court, the reference of which can be found in Para-13 of the judgment of the Supreme Court. 13. The decision of the Supreme Court in the case of Deepali Gundu (supra) has also been referred to and relied upon in a recent pronouncement of the Supreme Court in the case of Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed, 2019 (17) SCC 184. Hon’ble Justice D.Y. Chandrachud, speaking for the Bench, after referring to the principles laid down in Deepali Gundu (supra) held as under; “12. In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending for nearly eighteen years. The appellant had been removed from service on 29 June 1996. Considering the lapse of time, reopening the proceedings would not be expedient in the interest of justice particularly when the appellant had, in the meantime, attained the age of superannuation in 2005. Relegating the appellant to a protracted course of action by restoring the proceedings before the disciplinary authority would also not be fair and proper after a lapse of nearly fourteen years since his retirement. 13. Having due regard to the principles which have been enunciated in Deepali Surwase by this Court, the High Court was not, in our view, justified in denying the back-wages to the appellant altogether. Bearing in mind the circumstances which have been noted above, a lumpsum compensation should be directed to be paid. 14. 13. Having due regard to the principles which have been enunciated in Deepali Surwase by this Court, the High Court was not, in our view, justified in denying the back-wages to the appellant altogether. Bearing in mind the circumstances which have been noted above, a lumpsum compensation should be directed to be paid. 14. The ends of justice would be met by directing that the appellant be paid an amount quantified at Rs 5 lakhs in full and final settlement of his claim for back- wages for the period between the date of the order of removal and the date on which he attained the age of superannuation. This payment to the appellant shall be made in addition to the retiral benefits to which he is entitled in terms of the order of the High Court. The payment of Rs 5 lakhs shall be made within a period of two months from the date of receipt of a certified copy of this order.” 14. In Jayantibhai Raojibhai Patel (supra), although the Supreme Court held that having regard to the principles enunciated in Deepali Gundu (supra), the High Court was not justified in denying the back-wages, yet, ultimately, having regard to many other factors, the Hon’ble Court thought fit to direct the respondents therein to pay an amount of Rs.5 Lakh in full and final settlement of the claim for back-wages for the period between the date of the order of removal and the date on which the appellant before the Supreme Court attained the age of superannuation. However, the principles as enunciated in Deepali Gundu (supra) have been reiterated. 15. It has been fairly conceded by the learned counsel appearing for the appellant (employee) that he has not laid any foundation by leading some evidence or by way of pleadings to prima facie establish that his client was not gainfully employed during the interregnum period. The learned counsel fairly concedes that the initial burden would be on the employee, and it is only after he places some materials in that regard, the onus would shift on the employer to rebut the claim. 16. In such circumstances, referred to above, what should be the approach of this Court?. Should this Court agree with the learned Single Judge and dismiss this appeal?. 16. In such circumstances, referred to above, what should be the approach of this Court?. Should this Court agree with the learned Single Judge and dismiss this appeal?. We are of the view that we should take into consideration the following aspects of the matter; (i) The appellant was appointed as a police constable way back in the year 1982. (ii) After putting in almost 18 years of service, a departmental inquiry came to be initiated on the charges levelled against him as stated above. (iii) The appellant came to be removed from service in August, 2003. His writ application came to be allowed by the learned Single Judge on 09.02.2017. It is suggestive of the fact that the appellant remained out of service for a period of almost 14 years. (iv) When the appellant came to be reinstated in service, he was left with one year of service. He retired sometime in 2018. (v) As on date, the appellant is drawing 50% pension. The learned Single Judge has not thought fit to even grant continuity of service. Therefore, in substance, all that the appellant achieved was reinstatement in service and, thereafter, retiring within a period of one year and further he could be said to have restored his image which got tarnished with his removal from service. More importantly the learned Single Judge, though not in so many words, still has made it clear that there was no credible material worth the name to put the appellant to departmental inquiry. In other words, the specific finding recorded by the learned Single Judge, as noted in the earlier part of this judgment, is that the case is one of no evidence. 17. Having regard to the aforesaid, we are of the view that the appellant should be granted continuity of service and an amount of Rs.7.50 Lakh in full and final settlement of his claim for back-wages for the period between the date of the order of removal and the date on which he came to be reinstated in service. If we would have granted full back-wages, then the appellant would have received an amount of Rs.29,09,683/-. However, we would like to clarify that the benefits of grant of continuity of service shall be notional so that at least the appellant would be able to receive reasonable amount of pension that may be fixed in accordance with law. 18. If we would have granted full back-wages, then the appellant would have received an amount of Rs.29,09,683/-. However, we would like to clarify that the benefits of grant of continuity of service shall be notional so that at least the appellant would be able to receive reasonable amount of pension that may be fixed in accordance with law. 18. In the result, this appeal is partly allowed. The respondents are directed to grant continuity of service, the benefits of the same shall be notional and shall pay an amount of Rs.7.50 Lakh in full and final settlement of the claim of the appellant for back-wages. The amount of Rs.7.50 Lakh shall be paid to the appellant within a period of eight weeks from the date of the receipt of the writ of this order.