Bombay High Court
State Of Maharashtra, & Others vs Shrinivas S/O Penchalayya Minke on 15 November, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3808/2005
1. State of Maharashtra through its
Principal Secretary, Animal Husbandry,
Dairy Development and Fisheries
Mantralaya, Mumbai.
2. The Commissioner of Animal Husbandry
Central Building, M.S. Pune.
3. The Joint Commissioner of Animal
Husbandry, Nagpur Region, Nagpur.
4. The Deputy Commissioner of Animal
Husbandry, Chandrapur. .....PETITIONERS
...V E R S U S...
Shrinivas s/o Penchalayya Minke,
aged about 43 years, Occ. Taluka Mini
Polyclinic (Animal Husbandry),
Nagbhid, Dist. Chandrapur. ...RESPONDENT
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Mr. M. K. Pathan, A.G.P. for petitioners.
Mr. A. M. Kukde, Advocate for respondent.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- NOVEMBER 15, 2016
ORAL JUDGMENT (Per : B. R. GAVAI, J.)
1. The petitioners challenge the order passed by learned
Maharashtra Administrative Tribunal (For short the "Tribunal")
thereby allowing the original application filed by the respondent-
employee which was filed challenging the order dated 27.07.2001
passed by the petitioners.
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2. The respondent-employee was appointed as Live Stock
Supervisor, initially at Kohali, Taluka Kalmeshwar, District Nagpur.
He came to be transferred to Kinhi-Dhanoli, Taluka Hingna, District
Nagpur in the year 1988. While he was posted there, he went on
leave from 04.08.1988 on the ground of ill health. He submitted his
leave application for a short period on the medical ground. It appears
that subsequently he did not make any application. It further appears
that the petitioners addressed a communication to the employee to
join the service. The employee communicated, that due to ill health,
he could not join the service. Ultimately, it appears that the employee
resumed the duties on 16.02.1990. On 17.02.1990, he produced the
necessary medical certificate, certifying that on account of his illness
he could not join the duty from 04.08.1988 to 16.12.1990.
3. It appears that the immediate superior of the employee
recommended grant of leave to the employee for the entire period.
However, it appears that the petitioner no.2 passed the order on
07.07.2001 holding that the period between 02.11.1988 to
16.02.1990 be treated as unauthorized leave. It was also directed
that the same resulted into break in service and as such the earlier
service rendered by the respondent-employee was liable to be
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forfeited. As a result, the employee was treated to be in fresh
employment from 17.02.1990. As such the employee had approached
the tribunal. The tribunal allowed the original application of the
employee thereby setting aside the order impugned and directed that
the period, during which the employee was absent, shall also be
liable to be treated as a period in service. However, the learned
tribunal took care to direct that for the period for which the
employee was out of employment, he would not be entitled to the
salary.
4. Mr. Pathan, learned A.G.P. for the petitioners, submitted
that the learned tribunal has erred in allowing the original
application. It is submitted that the learned tribunal ought to have
taken into consideration that the employee was absent without his
leave being sanctioned and as such the said period could not have
been treated as a period during which the employee was in service.
5. The entire case depends upon interpretation of Rule 47
(1) of the Maharashtra Civil Services (Pension) Rules, 1982 and
specifically clauses (a) and (b) thereof, which read thus:
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47. Effect of interruption in service
(1) An interruption in the service of a Government
servant entails forfeiture of his past service, except in
the following cases:-
(a) authorized leave of absence;
(b) unauthorized absence in continuation of
authorized leave of absence so long as the post held by
the absentee is not filled substantively"
It can thus be seen that an interruption in service of a
Government servant entails forfeiture of his past service, except in
sub rule (1) of Rule 47.
6. Insofar as the period between 04.08.1988 to 01.11.1988 is
concerned, the absence has already been been directed to be treated
as extra ordinary leave vide order dated 30.06.1997. The learned
tribunal, relying on clause (b) of Rule 47 (1) has held that the period
between 04.08.1988 to 01.11.1988 is also entitled to be exempted in
view of the various exemptions under clause (b) inasmuch as the
post held by the employee was not filled in substantively. Perusal of
clause (b) would show that when the a person remains absent in
continuation of the authorised leave of absence, so long as the post
held by the absentee is not filled substantively, he would also be
entitled to exemption from the rigor of main provision of forfeiture of
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service.
7. Undisputedly, the period between 04.08.1988 to
01.11.1988 would now be an authorised leave in view of the order
dated 30.01.1997. It can thus be seen that the unauthorized absence
in continuation of the said period would also be entitled to be
exempted from the rigor of the main provision only with a rider that
such an exemption would not be applicable if the post of the
absentee is filled in substantively. The learned tribunal has, upon
material placed before it, come to the conclusion that the post held
by the employee was not filled in substantively. Not only that, even
in the petition no such averment is made.
8. In that view of the matter, it cannot be said that the view
taken by the learned tribunal is either perverse or impossible
warranting interference. The petition is found to be without merit.
The same is, therefore, dismissed.
Rule is discharged. No order as to costs.
(V. M. Deshpande, J.) (B. R. Gavai, J.)
kahale
