Point of Law: Applicant would not be entitled to salary for the period for which he has not worked in the service of the respondent college and the said period for which the applicant has not worked in the respondent college would be considered as notional service of the applicant for the purpose of retirement benefits of the applicant.

JUDGMENT :

1. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 24.3.2008 passed by the Gujarat Affiliated Colleges Services Tribunal at Ahmedabad (for short, `Tribunal’) in Application No.25 of 2000 in so far as it denies salaries to the petitioner for the intervening period of about 8 years from the date of wrongful termination dated 31.8.2000 to the date of reinstatement.

2. The facts in brief are as under:

2.1. The petitioner was appointed on compassionate ground under the respondent – College as a Sweeper as his father who also was working as Sweeper under the respondent No.1 – college died in harness.

2.2. Initially the petitioner was appointed as a Daily Wager. The respondent – college thereafter carried out a regular procedure of selection and appointed one Shri Kishorkumar C. Javiya on the post of regular Sweeper. The petitioner who was also called for selection, was not selected. Aggrieved by his non-selection, the petitioner approached the Tribunal by filing Application No.7 of 1992 making a grievance of his non-selection. He also challenged his termination with effect from 15.1.1992. The Tribunal on 17.1.1992 granted interim injunction which continued till the final disposal of the application. When the Tribunal heard the application on 16.12.1992, it was observed that since Shri Kishorkumar C. Javiya who was initially appointed as a Sweeper was promoted as Peon, the post of Sweeper falling vacant, the petitioner be appointed as Sweeper. Accordingly with effect from 17.1.1992, the petitioner was appointed as a Sweeper and the petitioner, therefore, did not press his application before the Tribunal. The application was partly allowed and the Tribunal issued a direction that the petitioner be considered in regular cadre of the Sweeper with effect from 1.4.1991. The petitioner was continued to work as a Sweeper with the respondent – Institution.

2.3. On 22.8.2000, a Show Cause Notice was issued to the petitioner for being unauthorizedly absent on 28 occasions. It appears that the petitioner was on the basis of show cause notice discontinued in service. He responded to the show cause notice but since he did not respond within time, he was discontinued with effect from 31.8.2000. The petitioner approached the Tribunal by filing the application No.25/2000. The order of the Tribunal was challenged before this Court by filing SCA No.11054/2006. This Court by oral order dated 16.7.2007 set aside the order of the Tribunal and remanded the matter to the Tribunal to decide afresh. The Tribunal by the order under challenge rejected the application. It is observed in the order of the Tribunal that since the college made a statement that the petitioner was reinstated on 11.3.2008, the only relief that the Tribunal granted to the petitioner was that he would be treated in continuous service and entitled to salary. However, the period from 2000 to 2008 was only considered as notional services for the purposes of pensionary benefits and no actual benefits for the period were awarded on the principle of `No Work, No Pay.’

2.4. Against the deprivation of the petitioner of financial benefits for the period of eight years, the petitioner has approached this Court.

3. Ms. Reena Kamani, learned advocate appearing for Mr. P.H. Pathak, learned counsel for the petitioner has submitted that the Tribunal failed to exercise jurisdiction vested in it. Once the Tribunal found that the order of termination is bad, back-wages for the period from 2000 to 2008 should have followed automatically.

3.1. Ms. Kamani further submitted that the Tribunal failed to consider the observations made by this Court in its order dated 16.7.2007 when the Court remanded the matter for reconsideration to the Tribunal.

3.2. Ms. Kamani submitted that there was no reason assigned by the Tribunal for denying backwages for the entire period of eight years and, therefore, the order of the Tribunal be quashed and set aside.