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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1186 OF 2016
PETITIONER :- Avachit s/o Baburao Gadekar, Age about 54
Yrs., Occu: Service, r/o 122, Sevadal Nagar,
Besa Road, Manewada, Nagpur.
...VERSUS...
RESPONDENTS :- 1. Directorate of Medical Education &
Research, Govt. Dental College & Hospital
Building, St. George Hospital Building, Near
ig C.S.T. P.Demello Road, Mumbai-400001.
2. Govt. Medical College, Nagpur, through its
Dean, Medical Square, Nagpur.
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Mr. R. P. Marsurkar, counsel for the petitioner.
Mr. H.D.Dubey, counsel for the respondents.
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CORAM : SMT. VASANTI A. NAIK &
V. M. DESHPANDE, JJ.
DATED : 08.03.2016 O R A L J U D G M E N T (Per Smt.Vasanti A. Naik, J.) Rule. Rule made returnable forthwith. The petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.
2. By this petition, the petitioner impugns the order of the Maharashtra Administrative Tribunal, dated 14/01/2016 partly allowing the original application filed by the petitioner and directing ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 08:11:07 ::: 2/6 0803WP1186.16-Judgment the reinstatement of the petitioner in service, but without salary and back wages. The petitioner has challenged the part of the order of the Maharashtra Administrative Tribunal that held that the petitioner is not entitled to salary and allowances for the period during which he was out of service.
3. The petitioner was appointed as a Ward Attendant in the Government Medical College and Hospital in the year 1983. The petitioner was promoted to the post of Clerk-cum-Typist. After successfully completing the period of 31 years of service, the petitioner applied for voluntary retirement vide Application No.758 of 2014 under Rule 65 (1) of the Maharashtra Civil Services (Pension) Rules, 1982.
The application of the petitioner was decided on 13/08/2014 and the petitioner was voluntarily retired from service with effect from 07/09/2014. However, since the petitioner had applied for withdrawal of his application for voluntary retirement on 07/08/2014, the petitioner had challenged the legality of the communication dated 13/08/2014, by which his application for permission for voluntary retirement from service was accepted. On a consideration of the material on record, the Tribunal, by the impugned order, quashed and set aside the order, dated 13/08/2014 as also the consequential order, dated 29/09/2014. In the circumstances of the case, the Tribunal ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 08:11:07 ::: 3/6 0803WP1186.16-Judgment directed the respondents to reinstate the petitioner in service. It was, however, held by the Tribunal that the petitioner would not be entitled to salary and allowances for the period during which he was out of service, though the petitioner was entitled to notional increment, seniority and other benefits flowing from the continuity of service. The petitioner has challenged this part of the impugned order in the instant petition.
4. Shri Masurkar, the learned counsel for the petitioner, submitted that the Tribunal was not justified in holding that the petitioner was not entitled to salary for the period during which he was out of service. It is stated that after the Tribunal held that the respondents ought to have considered the application filed by the petitioner for withdrawal of the application for permission for voluntarily retire from service, the Tribunal ought to have directed the payment of back wages/arrears of salary to the petitioner. It is submitted that after the Tribunal found that the statement made on behalf of the respondents were not factually true and the petitioner's application for withdrawal of the application for permission for voluntary retirement from service could not have been ignored, the Tribunal ought to have directed the respondents to pay the arrears of salary to the petitioner. It is submitted that the petitioner was ready to ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 08:11:07 ::: 4/6 0803WP1186.16-Judgment work with the respondents, as he had submitted the application for withdrawal of his proposal of voluntary retirement even before his application for permission for voluntary retirement was accepted on 13/08/2014. It is stated that though the petitioner desired to work with the respondents as a Clerk-cum-Typist by withdrawing the application for permission for voluntary retirement, the respondents were at fault in not considering his application for withdrawal and not permitting him to join his duties.
5. Shri Dubey, the learned Assistant Government Pleader appearing on behalf of the respondents, submitted that the Tribunal has rightly held that the petitioner was not entitled to the arrears of salary for the period during which he was out of service. It is stated that 'no work no pay' is the rule and the case of the petitioner would not fall within the exception to the said rule. It is stated that only where the employee makes an earnest endeavour to join his duties and to work and where he is not permitted to join his duties for no fault on his part, the employer would be liable to pay the arrears of salary or back wages.
The learned Assistant Government Pleader relied on the judgment of the Hon'ble Supreme Court, reported in (2014) 14 SCC 375 (State of Bihar and others v. Kripa Nand Singh and another) to substantiate his submission.
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6. On hearing the learned counsel for the parties, it appears that the Tribunal was not justified in holding that the petitioner was not entitled to the arrears of salary, whatsoever, for the period during which he was out of service. The Tribunal did not consider whether the case of the petitioner would be governed by the exception to the rule of "no work, no pay". The Tribunal ought to have considered that though the petitioner had applied for voluntary retirement on 10/06/2014, before the said application was accepted on 13/08/2014, the petitioner had applied for withdrawal of his notice for voluntary retirement on 07/08/2014. It is necessary to note that the Tribunal has held that in the circumstances of the case, it was necessary for the respondents to have considered the application of the petitioner for withdrawal of his notice of voluntary retirement, dated 07/08/2014. The application for withdrawal of his notice was submitted by the petitioner to the Head of the Department on 07/08/2014. This application was not diligently dispatched to the respondent Nos.1 and 2 for appropriate action on the same before the respondents accepted the application of the petitioner for voluntary retirement on 13/08/2014. In this case, the petitioner had made earnest endeavour to join the duties, but the respondents had failed to consider his application for withdrawal of his notice of voluntary retirement and proceeded to decide the application for voluntary retirement on 13/08/2014 when the application for ::: Uploaded on - 09/03/2016 ::: Downloaded on - 31/07/2016 08:11:07 ::: 6/6 0803WP1186.16-Judgment withdrawal was pending since 07/08/2014. In the circumstances of the case, it would be necessary to direct the respondents to pay 50% of the arrears of salary to the petitioner. The judgment reported in (2014) 14 SCC 375 and relied on by the learned Assistant Government Pleader would not be applicable to the facts of the present case.
7. Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order of the Tribunal, dated 14/01/2016 is hereby modified. It is hereby held that the petitioner would be entitled to 50% of the salary for the period during which he was out of service.
The respondents are directed to pay the arrears of salary to the petitioner within a period of two months. The rest of the order of the Tribunal stands confirmed. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
KHUNTE
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