Bombay High Court High Court

The State Of Maharashtra vs Yuvraj on 26 October, 2010

Bombay High Court
The State Of Maharashtra vs Yuvraj on 26 October, 2010
Bench: S.B. Deshmukh, Shrihari P. Davare
                                       1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD.




                                                                          
                      WRIT PETITION NO.5337 OF 2001




                                                  
     01.   The State of Maharashtra,
           through Principal Secretary,
           Maharashtra, Mantralaya,




                                                 
           Mumbai.

     02.   The Commandant,
           S.R.P.F Group-VI,
           Dhule, District Dhule.




                                 
     03.   The Inspector,
           Motor Transport Department,
                      
           S.R.P.F. Group No.6,                            Petitioners/ori.
           Dhule, District Dhule.                          Respondents.
                     
                 versus

          Yuvraj s/o Dashrath Patil,
          age 49 years, occupation:
          pensioner,r/o Utkarsh Colony,
      

          Plot No.76, Sakri Road, Dhule,        Respondent/orig.
          District Dhule.                       applicant.
   



     ------------------------------------------------------------
          Shri V.B.Ghatge,Asstt.Govt.Pleader for the Petitioners.
          Shri N.B.Suryawanshi, Advocate, for the respondent.
     ------------------------------------------------------------





                       Coram:S.B.Deshmukh &   Shrihari P.Davare,JJ.
                       Judgment reserved   on : 18th October, 2010.
                       Judgment pronounced on : 26th October, 2010.


     JUDGMENT (Per: Shrihari P. Davare, J.)

01. By the present petition filed under Articles 226

and 227 of the Constitution of India, the petitioners have

prayed that the impugned judgment and order dated 11.4.2001

delivered by the learned Vice Chairman, Maharashtra

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Administrative Tribunal, Mumbai, Bench at Aurangabad (“MAT”

for short), in Original Application No.776 of 2000, be

quashed and set aside.

02. The factual matrix of the present case is that

the respondent herein-original applicant joined S.R.P.F.

Group-8, as Constable, on 24.11.1971. Initially, he was

promoted to the post of driver in the year 1982, and he was

further promoted to the post of Driver-Mechanic in 1984

of Head

which, according to the respondent, is equivalent to the

post Constable. It is also contended by the

Respondent that he was rewarded with 15 to 20 rewards out of

which, 6 rewards were granted during the year 1995-96 and

accordingly, respondent claims that his performance was good

during his service career. He also faced 2 departmental

enquiries, but he was exonerated therein, and no adverse

remarks were communicated to him during his service period.

The respondent was suspended by the authorities on the

ground of private quarrel and he was asked to attend daily

parade in the year 1992 to which he resisted. Respondent

also contends that less payment was tried to be given to him

in September 1996, but on his resistance, he was paid full

payment. Accordingly, it is the grievance of the respondent

that he was harassed on one or the other pretext, and when

it became intolerable, he made representation on 16.7.1997

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to allow him to take voluntary retirement after three months

from the date of said representation. However, since no

reply was received by the respondent, he sent another

representation to petitioner No.1, on 27.9.1997.

Thereafter, respondent sent notice on 16.10.1997 to the

authorities, stating that the respondent has a right to

retire voluntarily as per Section 66(2) of the Maharashtra

Civil Services (Pension) Rules, 1982 (for short, “MCS

(Pension) Rules”), since nothing was communicated to him

within three

dated 16.7.1997.

months from the date of his

The Respondent again sent representation
representation

on 14.3.1998, stating that he may be permitted to retire on

30.4.1998. He sent further representation on 8.5.1998,

contending that he is deemed to have retired with effect

from 16.5.1998.

03. Accordingly, the respondent went to the

authorities to deposit all his saranjams, such as, uniforms,

badge, etc., but same was not accepted and hence, the

respondent made another representation to permit him to

deposit the said articles, and requested the authorities to

forward his pension papers. However, since no action was

taken by the petitioners herein, the present respondent

approached the learned Lok Ayukta, to redress his

grievance, on 6.7.1998. Accordingly, the learned Lok Ayukta

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intervened in the matter due to which, on 23.3.1999

petitioner No.1 directed Petitioner No.2 to accept the

voluntary retirement notice given by the respondent on

16.7.1997 and consequently the petitioners passed the order

on 21.9.1999 accepting the notice for volutnary retirement

and allowed the respondent herein to retire voluntarily from

the date of acceptance of the saidnotice, but the period of

16.5.1998 to 21.9.1999 was treated as leave without salary

and allowances. It is the contention of the respondent that

took any

the petitioners-authorities

decision on his
neither

representation
communicated,

for voluntary
nor

retirement for substantial period, for which he cannot be

held responsible. It is further contention of the respondent

that the petitioners are trying to take disadvantage of

their own wrong and by imposing a kind of punishment on the

respondent, by treating the said period of 16.5.1998 to

21.9.1999 without salary and allowances, which is arbitrary

and erroneous. Hence, respondent made representations to

the petitioners from 15.10.1999 to 16.2.2000, pointing out

arbitrary action of the petitioners, and requested for

grant of pension. Accordingly, provisional pension of Rs.

500/= per month was granted to Respondent from 21.9.1999 to

January 2000, but thereafter no pension was granted to him.

Moreover, although pension papers of the respondent were

sent to the Accountant General in October 1999, same were

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sent back to the petitioners, as the petitioners had not

taken final decision about the suspension period of the

respondent herein.

04. Hence, the respondent herein approached the

learned MAT, by filing Original Application No.776 of 2000

and prayed that the impugned order dated 21.9.1999 passed by

Respondent No.2 treating the period of 16.5.1998 to

21.9.1999 as leave without salary and allowances, be quashed

and set aside,
ig and he also prayed that

herein be directed to pay salary and allowances for the said
the petitioners

period to him, along with interest thereon, by treating the

said period of 16.5.1998 to 21.9.1999 as a retirement

period.

05. After scrutiny of record and also after

considering rival submissions advanced by learned counsel

for the respective parties, learned MAT allowed the said

Original Application No.776 of 2000, by judgment and order

dated 11.4.2001, and declared that the present respondent-

original applicant shall be deemed to have retired from the

service with effect from 16.5.1998, and the impugned order

dated 21.9.1999 treating the period 16.5.1998 to 21.9.1999

as leave without pay, was quashed and set aside, and it was

directed that the respondent herein shall be entitled to

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pension for the said period, and it was further directed

that Petitioner No.2 shall determine the period of

suspension of the respondent herein from 14.5.1992 to

25.1.1995 within a period of one month from the date of

receipt of copy of the said order of the MAT, to enable the

Accountant General to finalize pension of the respondent

herein. Learned MAT also directed that if pension of the

respondent herein is not finalized within the period of four

months from the date of receipt of copy of the said order,

the amount payable to the respondent towards pension shall

carry interest at the rate of 10 per cent from the date it

became due, till the date on which it would be actually paid

to the respondent herein. Being aggrieved and dissatisfied

by the said judgment and order of the learned MAT, dated

11.4.2001 in Original Application No.776 of 2000, the

original respondents-authorities have preferred present writ

petition, praying for quashment thereof.

06. We have perused the contents of the present

petition, its annexures, impugned order dated 11.4.2001

delivered by learned MAT in Original Application No.776 of

2000, and also considered the submissions advanced by the

learned counsel for the parties, anxiously.

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07. It was canvassed by learned A.G.P. Shri Ghatge

for the petitioners that the learned MAT, in clear terms,

observed that the respondent herein did not attend the duty

after 16.5.1998, and further observed that it did not find

any justice in ordering that the respondent’s services from

16.5.1998 to 21.9.1999 should be treated as leave without

pay and hence, when the learned MAT admitted the fact that

after 16.5.1998, respondent herein did not attend his

duties, merely forwarding representations to the authorities

would

period
not

for
entitle

which
ig he
him

did
to claim

not attend
salary

his
benefits

duties.

for

It
the

is

further canvased by learned A.G.P. Shri Ghatge for the

petitioners that the learned MAT overlooked the fact that

the Commandant, S.R.P.F., Group VI, Dhule, was the competent

authority to decide the voluntary retirement of the

respondent herein. However, in stead of approaching the

said competent and appropriate authority, the respondent

herein approached directly to the Chief Secretary,

Government of Maharashtra, and requested for voluntary

retirement. It is, therefore, submitted that had the

respondent approached the competent authority, namely,

Commandant, S.R.P.F., Group VI, Dhule, the said authority

would have taken decision on request of the respondent for

voluntary retirement. It is accordingly submitted that

the respondent herein chose wrong forum and

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as such, it was the fault of the respondent in choosing the

forum, but the learned MAT overlooked the said fact and the

fault of the respondent and hence, it cannot be said that

there was delay caused by the authorities in considering the

request of the respondent for voluntary retirement.

According to the learned A.G.P. Shri Ghatge, learned MAT

also overlooked the fact that the authorities tried to

consider the representations of the respondent herein as

early as possible and, therefore, the observations made by

the learned MAT in respect of inaction on the part of the

petitioners-authorities, are unwarranted.

08. As regards the suspension of the respondent,

which was revoked by order dated 25.1.1995, learned A.G.P.

Shri Ghatge for the petitioners, submitted that the

respondent was reinstated, but the decision regarding

suspension period was to be taken after the decision of the

court case, as per the Government Resolution dated

24.12.1987 and the relevant provisions under the MCS Rules.

The learned A.G.P. Shri Ghatge also submitted that the

learned MAT has overlooked the fact that the criminal case

lodged against the respondent herein is still pending before

the Special Court, Dhule and, therefore, the competent

authority cannot take decision regarding suspension period

till the said criminal case is concluded and decided and,

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accordingly, learned A.G.P. urged that the impugned order

dated 11.4.2001 passed by the learned MAT, in Original

Application No.776 of 2000, be quashed and set aside.

09. Shri N.B.Suryawanshi, learned counsel for the

respondent-original applicant, opposed the present petition

and countered the arguments advanced by the learned A.G.P.

for the petitioners, and submitted that indisputably, the

respondent herein sent notice for voluntary retirement, on

directly, but

16.7.1997 to the Chief Secretary, Government of Maharashtra,

that does not make the notice illegal.

Moreover, it is also submitted that merely because the

notice was not addressed to the immediate authority, that by

itself does not mean that the notice is illegal. It is

further submitted that it has to be noted that ultimately,

on 23.3.1999, the State Government has directed Petitioner

No.2 to accept the notice dated 16.7.1997 given by the

respondent herein, for voluntary retirement, and no

objection was taken to the same, nor it was stated that the

notice was bad-in-law, because it was directly addressed to

the Chief Secretary of the State. Hence, it is submitted by

the learned counsel for the respondent herein that there is

no justification for such prolonged delay in accepting the

notice sent by the respondent herein on 16.7.1997, since it

was accepted in March 1999.

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10. Shri N.B.Suryawanshi, learned Counsel for the

respondent further submitted that since the respondent has

actually put in service till 16.5.1998, he was entitled to

all salary and allowances till that day. It is also

submitted that the petitioners-authorities have accepted the

notice of voluntary retirement, after expiry of more than

two years and the fault wholly lies with them and,

therefore, the respondent was entitled to invoke provisions

of Rule 66(2) of the MCS (Pension) Rules, for seeking deemed

date of voluntary retirement, since nothing was communicated

by the petitioners to him, in time after three months from

the date of sending such notice of voluntary retirement,

and it is further submitted that there was nothing wrong on

the part of the respondent in not attending the duty after

16.5.1998. It is further canvassed by learned counsel for

the respondent that the appropriate way for the petitioners

was to hold that the respondent was deemed to have retired

on 16.5.1998, and the action of the petitioners in treating

the period of 16.5.1998 to 21.9.1999 as leave without pay,

is totally unjust and inequitable, particularly when the

petitioners themselves claim to have accepted the notice of

voluntary retirement.

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11. As regards the suspension, learned counsel for

the respondent submitted that since the respondent was

permitted to retire in response to his notice for voluntary

retirement, it would not have been proper on the part of the

petitioners-authorities to decline to decide the period of

suspension, on the ground that though the said suspension

was revoked long back, the criminal case which was the basis

of ordering said suspension, is not yet over, and nothing

prohibits the petitioners to treat the said period of

suspension, appropriately. In the said context, it is also

submitted by learned counsel for the respondent that if at

all the respondent is found guilty in the criminal case,

any permissible action would follow for reducing the amount

of his pension, in accordance with the relevant rules. It

is, therefore, further submitted that it was not necessary

to postpone the decision on suspension period, particularly

when the suspension was revoked by the petitioners-

authorities themselves, long back, and since not taking

decision on the period of suspension would amount to

indefinite postponement of finalization of the pension of

the respondent, as the Accountant General has invoked the

concerned rule to deny finalization of the pension of the

respondent. Moreover, Shri N.B.Suryawanshi, learned counsel

for the respondent, submitted that provisional pension was

given to the respondent for a particular period, but same

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was also stopped and hence, he submitted that the learned

MAT rightly issued necessary directions in that respect.

Accordingly, learned counsel for the respondent urged that

the judgment and order dated 11.4.2001 delivered by the

learned MAT in Original Application No. 776 of 2000, is just

and proper and no interference therein is warranted.

12. After considering the rival submissions advanced

by the learned counsel for the respective parties,

anxiously, we are of the considered view that merely because

the notice of voluntary retirement dated 16.7.1997 given by

the respondent herein was not addressed to the immediate

authority, but was sent to the Chief Secretary, Government

of Maharashtra, directly, by itself does not mean that the

said notice can be construed as illegal. Accordingly, the

finding given by the learned MAT in respect of addressing

the said notice dated 16.7.1997 by respondent herein, of his

voluntary retirement directly to the Chief Secretary of the

State, cannot be faulted with, and merely because the said

notice was not addressed to the immediate superior

authority, it cannot be construed that the said notice is

illegal, particularly when the State Government had given

directions on 23.3.1999 to accept the said notice dated

16.7.1997, and more so when no objection was taken to the

notice, by saying that it was bad-in-law, because it was

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addressed to the Chief Secretary of the State, directly.

13. Moreover, there is substance in the argument

canvassed by learned counsel for the respondent that the

petitioners-authorities neither communicated nor took any

decision on representations of the respondent for voluntary

retirement for substantial period, for which the respondent

cannot be held responsible and there cannot be any

justification for such prolonged delay in accepting the

notice sent by the respondent herein on 16.7.1997, since it

was accepted in March 1999, and the petitioners cannot take

disadvantage of their own wrong, by imposing a kind of

punishment on the respondent, by treating the period from

16.5.1998 to 21.9.1999 as leave without salary and

allowances. Accordingly, as regards the said period from

16.5.1998 to 21.9.1990, the reasoning adopted by learned MAT

that the respondent herein was entitled to invoke provisions

of Rule 66(2) of the MICS (Pension) Rules and could have

sought deemed date of retirement, in the absence of any

communication by the State Government, in time after expiry

of three months from the date of sending such notice, cannot

be faulted with. Moreover, the observations of the learned

MAT that the action of the petitioners herein in treating

the period from 16.5.1998 to 21.9.1999 as leave without

salary is totally unjust and inequitable, particularly when

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the petitioners themselves claim to have accepted the notice

of voluntary retirement, also appears to be proper, since

the respondent could not have been forced to work against

his wish, more particularly when, under the relevant rules,

he was entitled to seek voluntary retirement. Moreover, the

view adopted by the learned MAT that it was proper to

declare that the respondent herein stood retired from

service from 16.5.1998 and was entitled to pension from that

date, by quashing and setting aside the petitioners’ order

dated 21.9.1999 treating the said period from 16.5.1998 to

21.9.1999 as leave without pay or salary is unsustainable,

also appears to be proper and legal.

14. Besides that, we are in agreement with the

observations made and finding recorded by the learned MAT,

regarding the aspect of suspension of the respondent and

same cannot be faulted with.

15. In the circumstances, having comprehensive view

of the matter, we are not inclined to accept the submissions

advanced by the learned A.G.P. Shri Ghatge for the

petitioners, and we are of the considered view that this is

not the fit case to exercise extra-ordinary writ

jurisdiction to interfere in the impugned order dated

11.4.2001 rendered by the learned MAT in O.A. No. 776/2000.

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16. In the result, present petition bears no substance and

same is devoid of any merits and, therefore, same stands

dismissed. However, we make it clear that the aforesaid

observations and finding be treated as per incuriam,

considering the peculiar facts and circumstances of the

present case.

17. Rule stands discharged. In the facts and circumstances,

there shall be no order as to costs.

(SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.)

pnd/wp5337.01

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