Bombay High Court
Vidarbha Irrigation Development ... vs Shri Nadkishor Padmakar Kubde And ... on 21 November, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6182/2005
1. The State of Maharashtra,
through its Secretary,
Department of Irrigation,
Mantralaya, Fort, Mumbai.
2. The Sub-Divisional Officer,
Upper Wardha Canal,
Sub-Division, Dhamangaon (Old),
Tq. Dhamangaon (Railway),
Distt. Amravati.
3. The Executive Engineer,
Upper Wardha Canal,
Sub-Division, Dhamangaon (Old),
Tq. Dhamangaon (Railway),
Distt. Amravati. ..Petitioners.
..Vs..
Shri Nandkishor S/o Padmakar Kubde,
aged about 45 Yrs., Occu. Service
as a Section Engineer in the office of
petitioner No.2 at Sub-Division No.13,
Dhamangaon (Old), R/o Upper
Wardha Project Colony,
Tq. Dhamangaon, Distt. Amravati. ..Respondent.
AND WRIT PETITION NO.6183/2005
1. Vidarbha Irrigation Development
Corporation, Nagpur, through its
Executive Engineer, Upper Wardha
Canal Division, Dhamangaon (Old),
Tah. Dhamangaon (Rly.),
Distt. Amravati.
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2. The Sub-Divisional Officer,
Upper Wardha Canal
Sub-Division, Dhamangaon (Old),
Tah. Dhamangaon (Railway),
Distt. Amravati. ..Petitioners.
..Vs..
1. Shri Nandkishor Padmakar Kubde,
aged about 45 Yrs., Occu. Service
Sectional Engineer, R/o Upper
Wardha Project Colony,
Dhamangaon (Old),
Tah. Dhamangaon (Rly.),
Distt. Amravati. ig
2. The State of Maharashtra,
through its Secretary, Irrigation
Department, now known as Water
Resources Department, Mantralaya,
Mumbai - 32. ..Respondents.
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Shri N.S. Rao, A.G.P. for the petitioners/State.
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CORAM : B.R. GAVAI AND V.M. DESHPANDE, JJ.
DATED : 21.11.2016.
ORAL JUDGMENT (Per B.R. Gavai, J.)
1. Appearance of Shri B.T. Patil, learned counsel is discharged. Shri
N.S. Rao, A.G.P. appears for the petitioners.
2. Both these petitions take exception to the judgment and order
passed by the learned Maharashtra Administrative Tribunal in Review
Application No.12/2005 dated 14.10.2005 and in Original Application
No.537/2004 on 14.3.2005 filed by the Vidarbha Irrigation Development
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Corporation and the respondent No.1 respectively. Writ
Petition No.6183/2005 is filed by the Vidarbha Irrigation Development
Corporation (for short "V.I.D.C.") whereas the Writ Petition No.6182/2005 is
filed by the State of Maharashtra. The parties in the present petitions are
referred to as they are referred in the judgment of the learned Tribunal.
The applicant was working as an Section Engineer on the Upper
Wardha Canal Division of the V.I.D.C. As the applicant was suffering from
illness on 21.12.2002 he applied for grant of half day casual leave. Since he
was not well he went to the Medical Practitioner, who advised him to take rest
and treatment for a period of one month as such he filed application for
medical leave from 23.12.2002 till 18.1.2003. The respondent No.2 refused to
accept the said application. As such the applicant made a representation to the
respondent No.3 on 3.1.2003. The applicant was advised for rest by the
Medical Practitioner and, therefore, he filed another application dated
20.1.2003 for extension of leave along with medical certificate. Since the
petitioner was not informed anything about the same he made another
representation on 27.1.2003. The respondent No.3 vide communication dated
5.3.2003 directed the respondent No.2 to refer the applicant to the Medical
Board for medical examination and for obtaining necessary medical certificate.
The applicant went to join his duty on 24.3.2003 along with medical fitness
certificate issued by the Civil Surgeon, General Hospital, Amravati. On the
basis of the same he was allowed to join the duty. After the receipt of medical
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fitness certificate issued by the Medical Board the applicant joined the duty on
25.3.2003. Since the respondent refused to treat the period between
21.12.2002 to 26.6.2003 as a regular leave period the applicant was required
to approach the learned Tribunal. The learned Tribunal allowed the
application hence the present petition.
Shri Patil, the learned counsel for the V.I.D.C. as well as the learned
A.G.P. submitted that the learned Tribunal has grossly erred in allowing the
application. It is submitted that the applicant had proceeded on leave without
there being a valid sanction as such the learned Tribunal ought not have
directed the said period to be relaxed. It is further submitted that the learned
Tribunal has grossly erred in directing the petitioner to pay the salary for the
said period.
3. We have perused the judgment and order. The learned Tribunal
found that the application of the petitioner for grant of medical leave for the
period 21.12.2002 to 18.1.2003 was duly recommended by the Medical Board
for treating the same as medical leave and had also recommended for relaxing
the said leave on the medical ground. The learned Tribunal further found that
the petitioner having obtained the requisite medical fitness certificate from the
Medical Board for the period 19.1.2003 to 19.3.2003 certifying that the
petitioner on account of his medical difficulties could not attend the duty
during the said period, the period from 21.12.2002 to 19.3.2003 was entitled
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to be treated as the period of medical leave.
4. Insofar as the question regarding the period from 25.3.2003 to
25.6.2003 is concerned, the learned Tribunal has found that though from
21.12.2003 the applicant made several attempts to join the service he was not
permitted to join the service since he had not produced medical fitness
certificate from the Medical Board. The applicant thereafter applied to the
Medical Board for getting the necessary certificate. It has been found that the
petitioner could get the medical fitness certificate only on 25.6.2003 and as
such after receipt of the same, he has joined duty on the same date. It can thus
be seen that even for this period though the applicant had attempted to join his
duty he was not allowed to do so on account of hyper-technical approach
adopted by the Authorities that he could not produce the fitness certificate
from the Medical Board. Though the petitioner attempted to join the service
he was specifically demanded fitness certificate of the Medical Board and was
not permitted to join without it. On the same date, on which he received
medical fitness certificate, the petitioner has joined the service.
5. If the learned Tribunal has come to the conclusion that the
petitioner was entitled for regularization of the period of absence as a period
on which he was on leave, as a consequence to that he will be entitled to the
salary for the said period.
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6. In that view of the matter, it cannot be said that the view taken by
the learned Tribunal is either erroneous or perverse to warrant interference in
the extraordinary jurisdiction under Article 226 of the Constitution of India.
Both the petitions are dismissed. Rule stands Discharged. However, there
shall be no orders as to costs.
JUDGE
ig JUDGE
Tambaskar.
