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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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