(1) WP JUD-5860.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5860 OF 2011 1. The State of Maharashtra, Through : The Joint Commissioner of Sales Tax (VAT-Administration) Aurangabad Division, 'Vikrikar Bhavan', Opp. Railway Station, Aurangabad 2. The Secretary, Finance Department, M.S. Mumbai 3. The Commissioner of Sales Tax, M.S. Mumbai 4. The Additional Commissioner of Sales Tax, M.S. Mumbai 5. The Additional Commissioner of Sales Tax, Nagpur Zone, Nagpur 6. The Asstt. Commissioner of Sales Tax (Administration), M-91, Aurangabad PETITIONERS VERSUS Vijay S/o. Gopalrao Palaskar, Age : 57 years, Occu.: Nil, R/o. E-124/6, Shivaji Nagar, Garkheda Parisar, Aurangabad Dist. Aurangabad RESPONDENT ..... Mr. Deelip Bankar Patil, Special Counsel for the Petitioner-State of Maharashtra. Mr. R.S. Deshmukh, Advocate for the Respondent. ..... (2) WP JUD-5860.2011 CORAM : B.R. GAVAI AND M.T. JOSHI, JJ. DATED : 8TH SEPTEMBER, 2011 ORAL JUDGMENT (PER - B.R. GAVAI, J.): 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present Petition, the petitioner challenges the judgment and order passed by the learned Maharashtra Administrative Tribunal dated 19.4.2011, thereby allowing the Original Application filed by the present petitioner. 3. The respondent was working as a Junior Clerk in the Office of the Additional Commissioner of Sales Tax, Aurangabad. He was served with the chargesheet dated 27.7.1999. The main allegations in the chargesheet were that the respondent-employee was not performing his duties properly and was a habitual absentee. At the end of the departmental proceedings, the punishment of "removal from service not amounting to disqualification in further re- (3) WP JUD-5860.2011 employment" was imposed upon the respondent vide order dated 9.1.2002. The departmental appeal so also the revision preferred against the same, failed. As such, the respondent-employee was required to approach the learned Tribunal by the said Original Application. The learned Tribunal allowed the Application on a ground that the details regarding the period on which the petitioner remained absent were not given in the chargesheet and as such the delinquent-employee was deprived of making the proper representation. 4. Shri Deelip Bankar Patil, learned Special Counsel appearing on behalf of the State submits that since the respondent-employee has himself admitted regarding the habitual absentism, the ground on which the learned Tribunal has allowed the Original Application is unsustainable in law. 5. The respondent-employee is at the fag end of his service. He has hardly a year of service remaining. The respondent-employee has filed a pursis, stating therein that he has no objection to waive the backwages and further that since only one (4) WP JUD-5860.2011 year service is remaining, he would take voluntary retirement. The pursis is taken on record and marked as "X" for identification. 6. In that view of the matter, we find that it would be in the interest of justice to pass the following order:- I) The order of the learned Maharashtra Administrative Tribunal insofar as it awards backwages, shall stand quashed and set aside. II) The respondent-employee would be permitted to technically join the services in pursuance of the orders passed by the Maharashtra Administrative Tribunal and on joining, permitted to take voluntary retirement. The requirement of three (3) months notice or payment of salary in lieu thereof shall stand waived in the peculiar facts and circumstances of the case. III) It is made clear that though the respondent- employee would not be entitled to backwages for the period during which he was out of the employment, the same shall be taken into consideration as continuity (5) WP JUD-5860.2011 in service for the purposes only of pensionary benefits. IV) The respondent-employee shall remain present in the Office of the petitioner no.6 on Monday, 19th September, 2011 for joining and submitting his application for voluntary retirement. V) The petitioner shall forward the pension papers to the Accountant General within a period of six (6) weeks, upon the respondent-employee completing all the requisite formalities. The Accountant General is requested to process the file and make the pensionary benefits applicable to the petitioner within a period of six (6) months from the receipt thereof by it. VI) In the facts and circumstances of the case, since the respondent-employee has opted to take voluntary retirement, we quash and set aside the observation of the learned Maharashtra Administrative Tribunal that the petitioners would be at liberty to initiate the de-novo enquiry. (6) WP JUD-5860.2011 7. Rule is partly made absolute in the aforesaid terms with no orders as to costs. Sd/- Sd/- [M. T. JOSHI, J.] [B. R. GAVAI, J.] arp/