/ 1/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3905 OF 2003 The State of Maharashtra & Anr. ...Petitioners V/s. Shri Balkrishna Anant Sankpal ..Respondent Shri.R.M. Patne AGP for Petitioners. Shri.Prabhu i/b. N.V. Bandiwadekar for Respondent. CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATED : 26th FEBRUARY, 2008. P.C.:- 1. The State is challenging the judgment and order passed by the Maharashtra Administrative Tribunal dated 6th August, 2002 in Original Application No.342 of 2002 whereby the Tribunal was pleased to direct the Petitioners herein to take a decision regarding payment of pension and gratuity within two months and whereby further direction was given to finalize the pension and gratuity after deducting 12 years period from 1978 to 1990 as un-authorized absence from his total service. / 2/ 2. Brief facts in nutshell are that the Respondent was appointed as an Agricultural Assistant on 18/06/1964. He was on leave from 12/10/1978 till 30/11/1978. Thereafter, he was transferred to the office of Sub Divisional Soil officer,(Majagi) Pune. The Respondent requested that said order of transfer be cancelled. On 09/08/1990, the Respondent submitted medical certificate but he was not allowed to join his duties in view of long absence and the application of the Respondent for joining duties dated 30/11/1990 was rejected by the Superintendent, Agriculture Officer, Pune. Services of the Respondent, however, were terminated on 21/12/1999. Against that order, the Respondent filed an original application No.872 of 1999 before the Maharashtra Administrative Tribunal for setting aside the order dated 30/11/1990. By judgment and order dated 02/05/2000 , the Maharashtra Administrative Tribunal set aside the termination notice and further directed the Government to treat the prolonged absence as extra- ordinary leave under Rule 63(6) of the Maharashtra Civil Service(Leave) Rules, 1981. This order was not challenged by the Government and on 30/05/2000, the Respondent was re-instated in service. Thereafter, on 30/11/2000, the Respondent retired from service after having reached the / 3/ age of superannuation. The Respondent was not granted pension and gratuity, therefore, he filed an original application No.342 of 2002 with the Maharashtra Administrative Tribunal, seeking pensionary benefits including arrears of pension and gratuity. This original application was allowed by the Tribunal. The Tribunal directed the Government to treat the period of 12 years from 1978 to 1990 as unauthorized absence and thereafter, to calculate pension in respect of remaining period. 3. Rule was granted on 21/06/2004. Interim relief was granted at the time of granting rule. The Petitioners have granted provisional pension to the Respondent during the pendency of the petition. 4. It was submitted by the learned counsel for the Petitioners that the Tribunal had erred in giving direction to the Government to treat 12 years from 1978 to 1990 as un-authorized absence. It was further submitted that the Petitioners by various letters directed the Respondent to report to work, however, the Respondent had willfully disobeyed orders of the superiors. It was submitted that the Respondent had remained absent / 4/ for a total period of 21 years 5 months and 25 days. 5. Submissions made by the learned counsel for the Petitioners cannot be accepted. It is an admitted position that the Respondent was re-instated in service pursuant to order passed by the Tribunal in original application No.872 of 1999 and that this order of setting aside and re- instating him was not challenged by the Government. Thereafter, the Respondent had attained age of superannuation on 30/11/2000 and had retired. The Government was, therefore, duty bound to calculate pension and gratuity of the Respondent and to pay his retiral benefits. The Petitioners not having paid pension and gratuity, the Respondent was compelled to file second original application before the Tribunal. Under these circumstances in the second original application, the Tribunal was pleased to direct that the period of 12 years from 1978 to 1990 should be treated as un-authorised absence. Since the Respondent has already put in work from 1964 to 1978 and thereafter, from 1990 to 2000 and therefore, if this period was taken into consideration, even if said period of 12 years from 1978 to 1990 was excluded, the Respondent shall be / 5/ entitled to get pension. In fact, in the earlier order which was passed in original application No.872 of 1999, the Tribunal had directed that the absence of the Respondent should be regularized as extra-ordinary leave under Rule 63(6) of the M.C.S.(Leave) Rules, 1981. Liberty was granted to the Government to institute departmental inquiry for his un-authorized absence. Admittedly, no such inquiry has been held by the Government. In the second original application No.342 of 2002, the Tribunal had held that period of absence of the Respondent was not 21 years, 5 months and 25 days, but it was only 12 years since he was absent on duty from 1978 to 1990. The Tribunal has taken into consideration that the Respondent had submitted the application alongwith medical certificate dated 09/08/1990 for permitting him to join duty. However, this request was declined by the Government by its letter dated 30/11/1990. It is further held that it cannot be held that he was absent from duties unauthorizedly after November, 1990. In our view, there is no infirmity in the said order passed by the Tribunal. In fact, the Tribunal had modified its earlier order wherein a direction was given to the Government to regularize his absence as extra-ordinary leave under Rule 63(6) of the M.C.S.(Leave) Rules, 1981 / 6/ and thereafter, held that period from 1978 to 1990 should be treated as un- authorized leave. 6. This being the position, we do not see any reason to interfere with the said order. Government had chosen not to challenge the earlier order dated 02/05/2000 and had reinstated the Respondent. It was, therefore, not open for the Government to re-agitate said finding which had attained finality in the earlier original application No.872 of 1999. No case, therefore, is made out for interference in the impugned order while exercising writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India. Petition is dismissed. Rule is discharged. Under these circumstances, there shall be no order as to costs. ( D.K. DESHMUKH, J.) (V.M. KANADE, J.)