Bombay High Court
Avachit S/O. Baburao Gadekar vs Directorate Of Medical Education ... on 8 March, 2016
Bench: V.A. Naik
1/6 0803WP1186.16-Judgment
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.
---------------------------------------------------------------------------------------------------
Mr. R. P. Marsurkar, counsel for the petitioner.
Mr. H.D.Dubey, counsel for the respondents.
---------------------------------------------------------------------------------------------------
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
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
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
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.
5/6 0803WP1186.16-Judgment
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
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
