dissenting. I must dissent, as it is my strong belief that the Court of Appeals, and now this court, is awarding the relator back pay erroneously, in that there has never been a determination that the relator was wrongfully excluded from his prior employment.
I do not differ with the majority on the basic principle of law presented that an action in mandamus is maintainable by a reinstated public employee to recover compensation due him *371for a period of time during which he was wrongfully excluded from his employment, provided the amount recoverable is established with certainty. State, ex rel. Martin, v. Columbus (1979), 58 Ohio St. 2d 261; Marshall v. Columbus (1980), 61 Ohio St. 2d 353; and State, ex rel. Colangelo, v. McFaul (1980), 62 Ohio St. 2d 200.
However, the entry of judgment for the relator in this case upon appeal of his discharge was not upon the merits, but upon procedural grounds. I am in agreement that pursuant to the procedures of an appeal provided by R. C. 119.12, the failure of the agency to file the record in an appeal by the employee would mandate the entry of a judgment upon the issue of reinstatement, but this in no manner dictates the entry of judgment for back pay. This issue remains to be determined by the trial court in the matter upon appeal or, in the alternative, would be the issue upon a separate original action in mandamus seeking back pay.
Here, the Court of Appeals and the majority of this court incorrectly, in my view, conclude that when a civil service commission does not timely file the record, the discharged employee is placed in the same position as if the court had ruled in his favor upon the merits of the lawfulness of the discharge. Such cannot reasonably be the law to allow this raid upon the governmental coffers when there has been a complete absence of any showing of a governmental wrong in the discharge. In fact, the only determination upon review of the issue of the valid basis of the relator’s discharge was by the civil service commission which affirmed the discharge.
This case differs materially from State, ex rel. Colangelo, v. McFaul, supra, in that the facts of that case show that after removal by the appointing authority, the discharged employee appealed to the State Personnel Board of Review, which board ordered that the removal should be disaffirmed. Thereafter, the appeal by the appointing authority was dismissed on the basis of a procedural error. In a subsequent mandamus action, the Court of Appeals reinstated the discharged employee, but failed to order back pay. Upon appeal, this court rightfully held that the Court of Appeals in the reinstatement action should award the back pay due.
As stated previously, there has been no determination in *372this case at any level that the relator was improperly discharged. The procedural error of the civil service commission in not filing the record in this matter, in my opinion, does not adjudicate the issue of the wrongfulness or impropriety of the discharge of this relator.
The judgment of the Court of Appeals should be reversed, and this matter remanded to such court for an appropriate hearing upon such issue.
Locher, J., concurs in the foregoing dissenting opinion.