1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5337 OF 2001 01. The State of Maharashtra, through Principal Secretary, Maharashtra, Mantralaya, Mumbai. 02. The Commandant, S.R.P.F Group-VI, Dhule, District Dhule. 03. The Inspector, Motor Transport Department, S.R.P.F. Group No.6, Petitioners/ori. Dhule, District Dhule. Respondents. versus Yuvraj s/o Dashrath Patil, age 49 years, occupation: pensioner,r/o Utkarsh Colony, Plot No.76, Sakri Road, Dhule, Respondent/orig. District Dhule. applicant. ------------------------------------------------------------ Shri V.B.Ghatge,Asstt.Govt.Pleader for the Petitioners. Shri N.B.Suryawanshi, Advocate, for the respondent. ------------------------------------------------------------ Coram:S.B.Deshmukh & Shrihari P.Davare,JJ. Judgment reserved on : 18th October, 2010. Judgment pronounced on : 26th October, 2010. JUDGMENT (Per: Shrihari P. Davare, J.) 01. By the present petition filed under Articles 226 and 227 of the Constitution of India, the petitioners have prayed that the impugned judgment and order dated 11.4.2001 delivered by the learned Vice Chairman, Maharashtra 2 Administrative Tribunal, Mumbai, Bench at Aurangabad ("MAT" for short), in Original Application No.776 of 2000, be quashed and set aside. 02. The factual matrix of the present case is that the respondent herein-original applicant joined S.R.P.F. Group-8, as Constable, on 24.11.1971. Initially, he was promoted to the post of driver in the year 1982, and he was further promoted to the post of Driver-Mechanic in 1984 which, according to the respondent, is equivalent to the post of Head Constable. It is also contended by the Respondent that he was rewarded with 15 to 20 rewards out of which, 6 rewards were granted during the year 1995-96 and accordingly, respondent claims that his performance was good during his service career. He also faced 2 departmental enquiries, but he was exonerated therein, and no adverse remarks were communicated to him during his service period. The respondent was suspended by the authorities on the ground of private quarrel and he was asked to attend daily parade in the year 1992 to which he resisted. Respondent also contends that less payment was tried to be given to him in September 1996, but on his resistance, he was paid full payment. Accordingly, it is the grievance of the respondent that he was harassed on one or the other pretext, and when it became intolerable, he made representation on 16.7.1997 3 to allow him to take voluntary retirement after three months from the date of said representation. However, since no reply was received by the respondent, he sent another representation to petitioner No.1, on 27.9.1997. Thereafter, respondent sent notice on 16.10.1997 to the authorities, stating that the respondent has a right to retire voluntarily as per Section 66(2) of the Maharashtra Civil Services (Pension) Rules, 1982 (for short, "MCS (Pension) Rules"), since nothing was communicated to him within three months from the date of his representation dated 16.7.1997. The Respondent again sent representation on 14.3.1998, stating that he may be permitted to retire on 30.4.1998. He sent further representation on 8.5.1998, contending that he is deemed to have retired with effect from 16.5.1998. 03. Accordingly, the respondent went to the authorities to deposit all his saranjams, such as, uniforms, badge, etc., but same was not accepted and hence, the respondent made another representation to permit him to deposit the said articles, and requested the authorities to forward his pension papers. However, since no action was taken by the petitioners herein, the present respondent approached the learned Lok Ayukta, to redress his grievance, on 6.7.1998. Accordingly, the learned Lok Ayukta 4 intervened in the matter due to which, on 23.3.1999 petitioner No.1 directed Petitioner No.2 to accept the voluntary retirement notice given by the respondent on 16.7.1997 and consequently the petitioners passed the order on 21.9.1999 accepting the notice for volutnary retirement and allowed the respondent herein to retire voluntarily from the date of acceptance of the saidnotice, but the period of 16.5.1998 to 21.9.1999 was treated as leave without salary and allowances. It is the contention of the respondent that the petitioners-authorities neither communicated, nor took any decision on his representation for voluntary retirement for substantial period, for which he cannot be held responsible. It is further contention of the respondent that the petitioners are trying to take disadvantage of their own wrong and by imposing a kind of punishment on the respondent, by treating the said period of 16.5.1998 to 21.9.1999 without salary and allowances, which is arbitrary and erroneous. Hence, respondent made representations to the petitioners from 15.10.1999 to 16.2.2000, pointing out arbitrary action of the petitioners, and requested for grant of pension. Accordingly, provisional pension of Rs. 500/= per month was granted to Respondent from 21.9.1999 to January 2000, but thereafter no pension was granted to him. Moreover, although pension papers of the respondent were sent to the Accountant General in October 1999, same were 5 sent back to the petitioners, as the petitioners had not taken final decision about the suspension period of the respondent herein. 04. Hence, the respondent herein approached the learned MAT, by filing Original Application No.776 of 2000 and prayed that the impugned order dated 21.9.1999 passed by Respondent No.2 treating the period of 16.5.1998 to 21.9.1999 as leave without salary and allowances, be quashed and set aside, and he also prayed that the petitioners herein be directed to pay salary and allowances for the said period to him, along with interest thereon, by treating the said period of 16.5.1998 to 21.9.1999 as a retirement period. 05. After scrutiny of record and also after considering rival submissions advanced by learned counsel for the respective parties, learned MAT allowed the said Original Application No.776 of 2000, by judgment and order dated 11.4.2001, and declared that the present respondent- original applicant shall be deemed to have retired from the service with effect from 16.5.1998, and the impugned order dated 21.9.1999 treating the period 16.5.1998 to 21.9.1999 as leave without pay, was quashed and set aside, and it was directed that the respondent herein shall be entitled to 6 pension for the said period, and it was further directed that Petitioner No.2 shall determine the period of suspension of the respondent herein from 14.5.1992 to 25.1.1995 within a period of one month from the date of receipt of copy of the said order of the MAT, to enable the Accountant General to finalize pension of the respondent herein. Learned MAT also directed that if pension of the respondent herein is not finalized within the period of four months from the date of receipt of copy of the said order, the amount payable to the respondent towards pension shall carry interest at the rate of 10 per cent from the date it became due, till the date on which it would be actually paid to the respondent herein. Being aggrieved and dissatisfied by the said judgment and order of the learned MAT, dated 11.4.2001 in Original Application No.776 of 2000, the original respondents-authorities have preferred present writ petition, praying for quashment thereof. 06. We have perused the contents of the present petition, its annexures, impugned order dated 11.4.2001 delivered by learned MAT in Original Application No.776 of 2000, and also considered the submissions advanced by the learned counsel for the parties, anxiously. 7 07. It was canvassed by learned A.G.P. Shri Ghatge for the petitioners that the learned MAT, in clear terms, observed that the respondent herein did not attend the duty after 16.5.1998, and further observed that it did not find any justice in ordering that the respondent's services from 16.5.1998 to 21.9.1999 should be treated as leave without pay and hence, when the learned MAT admitted the fact that after 16.5.1998, respondent herein did not attend his duties, merely forwarding representations to the authorities would not entitle him to claim salary benefits for the period for which he did not attend his duties. It is further canvased by learned A.G.P. Shri Ghatge for the petitioners that the learned MAT overlooked the fact that the Commandant, S.R.P.F., Group VI, Dhule, was the competent authority to decide the voluntary retirement of the respondent herein. However, in stead of approaching the said competent and appropriate authority, the respondent herein approached directly to the Chief Secretary, Government of Maharashtra, and requested for voluntary retirement. It is, therefore, submitted that had the respondent approached the competent authority, namely, Commandant, S.R.P.F., Group VI, Dhule, the said authority would have taken decision on request of the respondent for voluntary retirement. It is accordingly submitted that the respondent herein chose wrong forum and 8 as such, it was the fault of the respondent in choosing the forum, but the learned MAT overlooked the said fact and the fault of the respondent and hence, it cannot be said that there was delay caused by the authorities in considering the request of the respondent for voluntary retirement. According to the learned A.G.P. Shri Ghatge, learned MAT also overlooked the fact that the authorities tried to consider the representations of the respondent herein as early as possible and, therefore, the observations made by the learned MAT in respect of inaction on the part of the petitioners-authorities, are unwarranted. 08. As regards the suspension of the respondent, which was revoked by order dated 25.1.1995, learned A.G.P. Shri Ghatge for the petitioners, submitted that the respondent was reinstated, but the decision regarding suspension period was to be taken after the decision of the court case, as per the Government Resolution dated 24.12.1987 and the relevant provisions under the MCS Rules. The learned A.G.P. Shri Ghatge also submitted that the learned MAT has overlooked the fact that the criminal case lodged against the respondent herein is still pending before the Special Court, Dhule and, therefore, the competent authority cannot take decision regarding suspension period till the said criminal case is concluded and decided and, 9 accordingly, learned A.G.P. urged that the impugned order dated 11.4.2001 passed by the learned MAT, in Original Application No.776 of 2000, be quashed and set aside. 09. Shri N.B.Suryawanshi, learned counsel for the respondent-original applicant, opposed the present petition and countered the arguments advanced by the learned A.G.P. for the petitioners, and submitted that indisputably, the respondent herein sent notice for voluntary retirement, on 16.7.1997 to the Chief Secretary, Government of Maharashtra, directly, but that does not make the notice illegal. Moreover, it is also submitted that merely because the notice was not addressed to the immediate authority, that by itself does not mean that the notice is illegal. It is further submitted that it has to be noted that ultimately, on 23.3.1999, the State Government has directed Petitioner No.2 to accept the notice dated 16.7.1997 given by the respondent herein, for voluntary retirement, and no objection was taken to the same, nor it was stated that the notice was bad-in-law, because it was directly addressed to the Chief Secretary of the State. Hence, it is submitted by the learned counsel for the respondent herein that there is no justification for such prolonged delay in accepting the notice sent by the respondent herein on 16.7.1997, since it was accepted in March 1999. 10 10. Shri N.B.Suryawanshi, learned Counsel for the respondent further submitted that since the respondent has actually put in service till 16.5.1998, he was entitled to all salary and allowances till that day. It is also submitted that the petitioners-authorities have accepted the notice of voluntary retirement, after expiry of more than two years and the fault wholly lies with them and, therefore, the respondent was entitled to invoke provisions of Rule 66(2) of the MCS (Pension) Rules, for seeking deemed date of voluntary retirement, since nothing was communicated by the petitioners to him, in time after three months from the date of sending such notice of voluntary retirement, and it is further submitted that there was nothing wrong on the part of the respondent in not attending the duty after 16.5.1998. It is further canvassed by learned counsel for the respondent that the appropriate way for the petitioners was to hold that the respondent was deemed to have retired on 16.5.1998, and the action of the petitioners in treating the period of 16.5.1998 to 21.9.1999 as leave without pay, is totally unjust and inequitable, particularly when the petitioners themselves claim to have accepted the notice of voluntary retirement. 11 11. As regards the suspension, learned counsel for the respondent submitted that since the respondent was permitted to retire in response to his notice for voluntary retirement, it would not have been proper on the part of the petitioners-authorities to decline to decide the period of suspension, on the ground that though the said suspension was revoked long back, the criminal case which was the basis of ordering said suspension, is not yet over, and nothing prohibits the petitioners to treat the said period of suspension, appropriately. In the said context, it is also submitted by learned counsel for the respondent that if at all the respondent is found guilty in the criminal case, any permissible action would follow for reducing the amount of his pension, in accordance with the relevant rules. It is, therefore, further submitted that it was not necessary to postpone the decision on suspension period, particularly when the suspension was revoked by the petitioners- authorities themselves, long back, and since not taking decision on the period of suspension would amount to indefinite postponement of finalization of the pension of the respondent, as the Accountant General has invoked the concerned rule to deny finalization of the pension of the respondent. Moreover, Shri N.B.Suryawanshi, learned counsel for the respondent, submitted that provisional pension was given to the respondent for a particular period, but same 12 was also stopped and hence, he submitted that the learned MAT rightly issued necessary directions in that respect. Accordingly, learned counsel for the respondent urged that the judgment and order dated 11.4.2001 delivered by the learned MAT in Original Application No. 776 of 2000, is just and proper and no interference therein is warranted. 12. After considering the rival submissions advanced by the learned counsel for the respective parties, anxiously, we are of the considered view that merely because the notice of voluntary retirement dated 16.7.1997 given by the respondent herein was not addressed to the immediate authority, but was sent to the Chief Secretary, Government of Maharashtra, directly, by itself does not mean that the said notice can be construed as illegal. Accordingly, the finding given by the learned MAT in respect of addressing the said notice dated 16.7.1997 by respondent herein, of his voluntary retirement directly to the Chief Secretary of the State, cannot be faulted with, and merely because the said notice was not addressed to the immediate superior authority, it cannot be construed that the said notice is illegal, particularly when the State Government had given directions on 23.3.1999 to accept the said notice dated 16.7.1997, and more so when no objection was taken to the notice, by saying that it was bad-in-law, because it was 13 addressed to the Chief Secretary of the State, directly. 13. Moreover, there is substance in the argument canvassed by learned counsel for the respondent that the petitioners-authorities neither communicated nor took any decision on representations of the respondent for voluntary retirement for substantial period, for which the respondent cannot be held responsible and there cannot be any justification for such prolonged delay in accepting the notice sent by the respondent herein on 16.7.1997, since it was accepted in March 1999, and the petitioners cannot take disadvantage of their own wrong, by imposing a kind of punishment on the respondent, by treating the period from 16.5.1998 to 21.9.1999 as leave without salary and allowances. Accordingly, as regards the said period from 16.5.1998 to 21.9.1990, the reasoning adopted by learned MAT that the respondent herein was entitled to invoke provisions of Rule 66(2) of the MICS (Pension) Rules and could have sought deemed date of retirement, in the absence of any communication by the State Government, in time after expiry of three months from the date of sending such notice, cannot be faulted with. Moreover, the observations of the learned MAT that the action of the petitioners herein in treating the period from 16.5.1998 to 21.9.1999 as leave without salary is totally unjust and inequitable, particularly when 14 the petitioners themselves claim to have accepted the notice of voluntary retirement, also appears to be proper, since the respondent could not have been forced to work against his wish, more particularly when, under the relevant rules, he was entitled to seek voluntary retirement. Moreover, the view adopted by the learned MAT that it was proper to declare that the respondent herein stood retired from service from 16.5.1998 and was entitled to pension from that date, by quashing and setting aside the petitioners' order dated 21.9.1999 treating the said period from 16.5.1998 to 21.9.1999 as leave without pay or salary is unsustainable, also appears to be proper and legal. 14. Besides that, we are in agreement with the observations made and finding recorded by the learned MAT, regarding the aspect of suspension of the respondent and same cannot be faulted with. 15. In the circumstances, having comprehensive view of the matter, we are not inclined to accept the submissions advanced by the learned A.G.P. Shri Ghatge for the petitioners, and we are of the considered view that this is not the fit case to exercise extra-ordinary writ jurisdiction to interfere in the impugned order dated 11.4.2001 rendered by the learned MAT in O.A. No. 776/2000. 15 16. In the result, present petition bears no substance and same is devoid of any merits and, therefore, same stands dismissed. However, we make it clear that the aforesaid observations and finding be treated as per incuriam, considering the peculiar facts and circumstances of the present case. 17. Rule stands discharged. In the facts and circumstances, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) pnd/wp5337.01