Bombay High Court
Shri Durgadas Marotrao Bhagwat vs State Of Maharashtra, Through Its ... on 29 November, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:16708-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2575/2022
Shri. Durgadas Marotrao Bhagwat,
Aged - 73 years, Occu.- Retired,
R/o. At Post - Ashti (Shahid),
Tah. Dist. - Wardha. PETITIONER
----VERSUS----
1. State of Maharashtra,
Through its Secretary,
Department of Revenue,
Mantralaya, Mumbai- 32.
2. The Chief Executive Officer,
Zilla Parishad, Wardha.
3. The Social Welfare Officer,
Zilla Parishad, Block-A, Wardha.
4. Chief Accountant and Finance Officer,
Zilla Parishad, Wardha. RESPONDENTS
Mr. P. N. Shende, Advocate for the Petitioner.
Mr. P. P. Pendke, Assistant Government Pleader for Respondent Nos. 1 & 3/State.
Mr. D. R. Bhoyar, Advocate for Respondent Nos. 2 & 4.
CORAM : SMT. ANUJA PRABHUDESSAI AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 29.11.2023.
ORAL JUDGMENT : [PER : SMT. ANUJA PRABHUDESSAI, J]
1. Rule. Rule is made returnable forthwith. Heard finally with
consent of the parties.
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2. This is a petition under Article 226 of the Constitution of
India for the following reliefs :
"A) To Direct the Respondent no.2, Chief Executive Officer,
Zilla Parishad, Wardha, to forthwith do the Pay Fixation of
the Petitioner, by calculating the Annual Increments, for his
entire service and by adjusting the break of service, in leaves
of the petitioner.
B) To Direct the Respondent no.2, Chief Executive Officer,
Zilla Parishad, Wardha, to forthwith release the Proper
Pension and Other Pensionary benefits of the Petitioner and
further to release the arrears of difference of Pension w.e.f.
01-03-2004 to till the date with interest, at the rate of
nationalized bank."
3. The petitioner was employed with the respondent No.2 - Zilla
Parishad as a Junior Clerk. He superannuated on 29.02.2004. The
grievance of the petitioner is that the respondent No.2 has not considered
his last drawn salary as on the date of the superannuation for the purpose
of fixing pensionary benefits.
4. It is not in dispute that the petitioner was suspended on
13.07.1999 till 02.12.2000. Disciplinary action was taken against him for
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misconduct and by order dated 30.11.2000, the respondent No.2 imposed
punishment of withholding increments for 3 consecutive years and
suspension period from 13.07.1999 till 02.12.2000 was treated as
suspension period. Hence, in terms of the Rule 43 of the Maharashtra Civil
Services (Pension) Rules, 1982, the period under suspension cannot be
treated as qualifying service for the purpose of pensionary benefits.
5. Though the petitioner joined his services on 05.12.2000, he
failed to report for duty from 04.06.2001 till 06.01.2003. The absence
during this period was treated as unauthorised leave. Challenge to the
order was rejected by the Appellate Authority, however, both these orders
were set aside by this Court in Writ Petition No.1747/2011 with directions
to hear the petitioner and to take appropriate decision after considering
the entire material on record.
6. In the reply filed by the respondent Nos.2 to 4 it is stated that
despite opportunity given, the petitioner failed to give valid reason for his
absence. Hence, the unauthorised absence of 582 days was treated as
extraordinary leave under Rule 63(6) of the Maharashtra Civil Services
(Leave) Rules, 1981. The said order, having not been challenged, has
attained finality. The extraordinary leave not being on medical ground,
does not count as a qualifying service for pension.
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7. As on 01.10.1998 the petitioner's monthly salary with annual
increment was fixed at Rs.4,600/-. In view of punishment imposed by
order dated 30.11.2020, increments for three consecutive years were
withheld and period under suspension was treated as suspension period
and further unauthorised absence of 582 days was considered as
extraordinary leave. In view of the above, the annual increment became
due on 23.03.2004. The petitioner superannuated before the increments
became due. Consequently, the petitioner was not entitled for any annual
increment from 01.10.1998.
8. It is pertinent to note that the petitioner had earlier made a
representation in Pension Adalat on 09.04.2013. The respondents by
order dated 15.06.2013 rejected the dispute raised by the petitioner and
communicated to him as to how the pension was decided. The present
petition is filed about nine years from the date of the said communication
and thirteen years from the date of the retirement. The petition thus
suffers from delay and latches. Furthermore, the petitioner has
suppressed several facts and has not come before the Court with clean
hands.
9. For the reasons stated above, we are not inclined to entertain
this petition. Hence, the petition is dismissed.
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10. The Rule stands discharged.
(MRS. VRUSHALI V. JOSHI, J.) (SMT. ANUJA PRABHUDESSAI, J.)
RGurnule.
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 04/12/2023 15:26:50
