Afzalmiya Achutmiya Khatib vs Maharashtra State Road Transport ...
2016 Latest Caselaw 5314 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                   
                         WRIT PETITION NO. 3815 OF 2015

              Afzalmiya S/o Achutmiya Khatib,




                                                  
              Age : 63 Years, Occu. : Pensioner,
              R/o Babujipura, Yaval, Tal. Yaval,
              District Jalgaon.                             ..    Petitioner




                                        
                       Versus

     1.
                             
              Maharashtra State Road Transport
              Corporation, through its
                            
              Managing Director,
              Central Office, Vahatuk Bhavan,
              Dr. Anand Nair Marg,
              Central Mumbai.
      


     2.       Maharashtra State Road Transport
   



              Corporation, Jalgaon,
              Through its Divisional Controller,
              MSRTC, Jalgaon Division,
              Jalgaon.                                      ..    Respondents





     Shri Mahesh S. Taur, Advocate for the Petitioner.
     Shri M. K. Goyanka, Advocate for Respondent Nos. 1 and 2.

                               CORAM : S. V. GANGAPURWALA AND





                                        N. W. SAMBRE, JJ.

DATE : 16TH SEPTEMBER, 2016.

ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-

. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

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02. The learned counsel for the petitioner submits that, in the year 2006 the petitioner was declared as unfit, however, the

petitioner was not terminated. The petitioner continued in service and on attaining age of superannuation stood retired in

the year 2010. The learned counsel submits that, since the petitioner was declared medically unfit till the date of superannuation, the petitioner was not paid any salary. Even

retiral benefits are not paid to the petitioner considering his

service till the year 2010. According to the learned counsel the respondents are duty bound to pay the salary and give all the

retiral benefits considering his service upto the date of superannuation. The learned counsel submits that, even otherwise the petitioner is declared medically unfit, in that case

the son of the petitioner is required to be appointed on

compassionate ground. The learned counsel submits that, the respondents have committed grave illegality. The learned

counsel for the petitioner relies on the letter issued by the Divisional Controller dated 22.03.2010.

03. The learned counsel for respondents submits that, the petitioner was declared medically unfit initially in June 2006. The petitioner has been paid all retiral benefits. The same has been accepted without any demur. According to the learned counsel, the petitioner was terminated from service. Though the Labour Court allowed the complaint filed by the present

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petitioner, the respondents had filed writ petition before this Court and when the writ petition came up for hearing the

petitioner stood superannuated. According to the learned counsel, as the petitioner was not terminated the prayer for

compassionate appointment also cannot be considered.

04. We have considered the submissions canvassed by learned

counsel for respective parties. There is no order of termination

issued as against the petitioner. In view of that, the prayer of the petitioner to grant compassionate appointment to his son in the

place of the petitioner does not arise.

05. No order of termination has been issued against the

petitioner on the ground that he is medically unfit. The letter

dated 22.03.2010 (page 52) clarifies the said position. The said letter states that, the name of the petitioner continued in the

muster role as having attended the office till the date he attained the age of superannuation on 31.05.2010. Naturally, the petitioner would be deemed to be continued in service during

that period. The petitioner has not made grievance about non payment of salary during the period from 22.06.2006 to 31.05.2010, nor during the pendency of said writ petition which was pending against the order of the Labour Court.

06. The petitioner has made a prayer to grant him pensionary

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benefits considering his service upto the year 2010 i. e. 31.05.2010. We are inclined to consider the said prayer as the

order of termination was never issued to the petitioner. Considering the above, rule is made absolute in terms of prayer

clause "C" No costs.

07. In case the petitioner files an application for grant of

salary from 22.06.2006 i. e. the date he was declared medically

unfit till the date of retirement, the respondents may take decision on the said application on its own merits.

               Sd/-                                               Sd/-
      [ N. W. SAMBRE, J. ]                     [ S. V. GANGAPURWALA, J. ]
      
   



     bsb/Sept. 16