The effect of the decision of the district court and of this court on original hearing is that a finding by a court that an employee has been erroneously discharged under the City Civil Service Law, Act No. 171 of 1940, and an order of reinstatement automatically entitle the employee to full pay from the date of dismissal. This, in my opinion, is not the law. Act No. 171 of 1940, sec. 34, clearly sets out the law in regard to this matter as follows:
"* * * After hearing and considering the evidence for and against * * * disciplinary action [including dismissal], the Commission shall approve or disapprove the action. In case of approval the disciplinary action shall be deemed final as ordered. In case of disapproval the Commission shall reinstatethe employee under such conditions as it deems proper, and mayorder full pay for lost time.
"If the Commission finds that the disciplinary action was forreligious or political reasons, then the employee shall forthwith be reinstated in his position and be reimbursed for any loss of pay occasioned by such disciplinary action." (Italics mine.)
On application for rehearing I was doubtful, in view of the above quoted provision, of the propriety of the action of the court in passing on the question of the plaintiff's pay for lost time, which amounts to approximately *Page 1043 $5700.00 to date, for which he has rendered no services, since the commission had not had occasioned to pass on that question. Assuming, however, that the action of the court was proper, I am of the opinion that the refusal of the court to consider on rehearing the question of the plaintiff's right to pay for lost time works a manifest injustice against the city in this case.
The facts of this case from my examination of them do not disclose that the plaintiff was dismissed for religious or political reasons, so that he would not be entitled automatically to pay for lost time under the act. And, if we presume to exercise the discretion given to the commission in the matter under other circumstances of dismissal by Act No. 171 of 1940, I am of the firm opinion that under the particular facts and circumstances of this case the plaintiff is not entitled to his lost pay, and that to award it to the plaintiff would be most inequitable and unfair to the city.
I respectfully dissent.