Prakash S/O Hiralal Sone vs Municipal ...
2017 Latest Caselaw 5049 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                          WRIT PETITION NO. 2747 OF 2000

            Prakash Hiralal Sone,
            R/o. Shriram Ward, Arvi,
            Tq. Arvi, Distt. Wardha                         ..              PETITIONER

                                   ...VERSUS...

         Municipal Council, Arvi,
         through its Chief Officer,
         Tq. Arvi, Distt. Wardha.                  ......            RESPONDENT
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 None for the parties
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                          CORAM: R. K. DESHPANDE, AND
                                        Mrs. SWAPNA JOSHI, JJ.

th DATE : 26 JULY, 2017 .

ORAL JUDGMENT (P.C.)

1] By this petition, the petitioner claims direction to

the respondent to settle the retiremental benefits and pension

case of the petitioner and to pay him post retiral benefits

without any further delay.

2] The petitioner was appointed as an Accountant

in the services of respondent- Municipal Council, Arvi, on

01.12.1969. He was confirmed in the employment on

09.07.1970. After conducting an enquiry against him,

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termination order was issued on 22.06.1972. By the

judgment and order in Writ Petition No. 1608 of 1982, the

petitioner was granted reinstatement with back-wages on

28.08.1991. The said order attained the finality and the

petitioner was reinstated in service on 10.02.1992 and he

worked on the post till 22.12.1995. These facts are not in

dispute.

3] The petitioner gave notice of voluntary retirement

dated 26.12.1995 on medical ground. According to the

petitioner, he suffered severe injuries in the accident which

occurred in the month of November, 1994. According to the

respondent, the petitioner was communicated on 10.01.1996

that his claim for voluntary retirement cannot be accepted for

the reason that departmental enquiry is contemplated against

him and unless it is completed, the request for voluntary

retirement cannot be considered. As per this communication,

the petitioner was informed that he was unauthorizedly

absent from duty from 23.12.1995 and therefore, he was

asked to join the duties immediately. According to the

respondent-Municipal Council, the petitioner did not join the

duty with effect from 23.12.1995 and has thereby abandoned

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the service. It is the stand taken by the respondent that the

petitioner is not entitled to post retiral benefits including the

pension.

4] On 07.06.2017, this matter was called out. None

appeared for the parties. We had gone through the petition

and the reply filed by the respondent-Municipal Council. We

wanted to know as to why the petitioner was not paid all the

retiral benefits. We, therefore, passed an order on

07.06.2017 directing the respondent to file an affidavit as to

whether the petitioner has been paid with all the retiral

benefits. Though no one appears for the respondent-

Municipal Council, an affidavit dated 19.07.2017 is filed on

record which is sworn in by the Chief Officer, Municipal

Council, Arvi. It is the stand taken that the petitioner has not

retired from service, but he himself has abandoned the

service by remaining absent and hence, he is not entitled to

any retiral benefits. It is also the stand of the respondent that

the petitioner did not submit the medical certificate along with

the notice of voluntary retirement and hence, it was not

accepted.

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          5]               The petitioner has rendered continuous service

of 26 years from 01.12.1969 till 23.12.1995. He was,

therefore, qualified for getting the pension and to give a

notice of voluntary retirement under Rule 66 of the

Maharashtra Civil Services (Pension) Rules, 1982. As per the

said Rule, 3 months notice in writing can be given to the

appointing authority for retirement from service and it is

required to be accepted by the appointing authority. If the

appointing authority does not refuse to grant permission for

retirement before expiry of the period specified in such

notice, the retirement becomes operative from the date of

expiry of the said period. Under sub-rule (4) of Rule 66 of the

said Rules, it is permissible for the Government servant to

make a request for accepting the notice of voluntary

retirement of less than 3 months, and such requirement can

be relaxed.

6] Bare perusal of the notice of voluntary retirement

dated 26.12.1995 shows that it does not comply with the

requirement of giving 3 months' notice in writing to the

appointing authority. Probably, the petitioner wanted to have

voluntary retirement with effect from 26.12.1995, which is

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responded to by issuing the communication dated

10.01.1996 to the petitioner informing him that the notice was

not accepted for the reason that some departmental enquiry

was contemplated against the petitioner and unless it is

completed, the request for voluntary retirement cannot be

considered. It was not the stand taken in the communication

dated 10.01.1996 that the petitioner did not submit the

medical certificate and therefore, his application was

rejected.

7] Even if we accept the stand of the respondent

that the petitioner was not granted permission to retire

voluntarily from service as per his application dated

26.12.1995, the result would be that the petitioner continues

to be in service. What we gathered from the petition is that

the petitioner was aged 56 years on 18.09.2001 when he

filed rejoinder to the reply filed by the respondent. The normal

age of superannuation of the employee under the Municipal

Council is of 58 years, which the petitioner must have

attended in 2003 itself. There is nothing on record to show

that any enquiry was conducted against the petitioner in

respect of any of the charges, muchless the charge of

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abandonment of service with effect from 23.12.1995 till the

petitioner attained the age of superannuation of 58 years.

8] The stand of the respondent that the petitioner

did not submit medical certificate while seeking voluntary

retirement from service, is an afterthought and not bonafde.

In the absence of any order being passed withholding or

withdrawing the pension of the petitioner under Rule 27 of the

Maharashtra Civil Services (Pension) Rules, the respondent

- Municipal Council was not competent to refuse to grant the

petitioner all post retiral benefits either upon completion of his

20 years qualifying service or upon attaining the age of

superannuation.

9] We find that in spite of the order of reinstatement

and back-wages passed by this Court in Writ Petition No.

1608 of 1982, the petitioner was not paid the back-wages till

07.06.2000. The petitioner was required to file proceedings

under Section 33-C (2) of the Industrial Disputes Act for

implementation of the order passed by this Court granting

him back-wages. It is also not the stand of the respondent

that the petitioner did not meet with an accident prior to

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making of the application for voluntary retirement on

26.12.1995. We find no justification for withholding of the

pension and all retiral benefits to the petitioner.

10] In the result, this writ petition is allowed. The

respondent-Municipal Council, Arvi, is directed to calculate all

the retiremental benefits payable to the petitioner and to fix

the pension as if the petitioner rendered the service upto

26.12.1995 or till he attained the age of superannuation. The

respondent-Municipal Council to pay the entire arrears of

retiral benefits to the petitioner alongwith interest in terms of

Rule 129-A and 129-B of the Maharashtra Civil Services

(Pension) Rules, 1982, within a period of four months from

the date of receipt of the copy of the judgment.

Rule is made absolute in these term. No order as

to costs.

                                JUDGE                             JUDGE
 Rvjalit