1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.1747 OF 2011. (Durgadas Marotrao Bhagwat Vs. State of Maharashtra and others) __________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. CORAM: B.P. DHARMADHIKARI & A.P. BHANGALE, JJ. DATE: NOVEMBER 24, 2011. Heard Shri P.N. Shende, Adv. for petitioner, Shri A.D. Sonak, learned A.G.P. for respondent No.1. and Shri P.D. Meghe, Adv. for respondent Nos.2 to 4. Shri Shende, Adv. states that petitioner has been deprived of the benefits of all his services from 04.05.1973 till 04.06.2001, because of his alleged unauthorized absence for 582 days i.e. from 04.06.2001 to 06.01.2003. Learned Counsel states that because of marriage in the family on 04.06.2001 he proceeded on leave by moving appropriate application. At the place of marriage he fell ill and hence on 09.06.2001, a Telegram for further extension of leave was sent. The petitioner then attempted to report his duty and submitted joining report on 24.10.2001, but it was not accepted. 2 Ultimately he was permitted to join duties on 07.01.2003. According to him the impugned order dated 11.02.2004 treating 582 days leave as an unauthorized leave, as also appellate order passed by respondent-Additional Commissioner, Nagpur Division, Nagpur on 23.01.2006 passed under Rule 13 of the Maharashtra Zilla Parishad Service (Discipline & Appeal) Rules show apparent non application of mind and thus are unsustainable. Shri Meghe, Adv. supports the action taken and points out that after petitioner was permitted to join duty, appropriate show cause notice was served on 17.10.2003 and after obtaining his explanation the order dated 11.02.2004 has been passed. According to him, as absence is admitted, the order is based upon facts which are relevant and hence no interference is possible in extra ordinary jurisdiction. Learned AGP Shri Sonak also supports the arguments of Shri Meghe. Perusal of order dated 11.02.2004 itself shows that on 04.06.2001 an application in writing for leave was submitted. The petitioner had sought leave of four days. Whether that leave was granted or not is, not apparent from record. On 09.06.2001 he sought extension therein by giving reasons of his illness. This request was forwarded by Telegram and 3 how that request has been processed, is also not born out from record. If leave was not sanctioned, whether refusal of leave was communicated to petitioner or not is also not clear. In this situation when petitioner has been denied benefit of the service from 04.05.1973 till 04.06.2001 on that count, we find the order unsustainable. The post held by the petitioner, applications moved by him needed proper consideration before taking any decision to his prejudice. It needs to be stated that after petitioner was permitted to join duty on 07.01.2003, he sought voluntary retirement and accordingly has proceeded on voluntary retirement from 01.03.2004. He has been denied pension entirely because of this break of 582 days in his service from 04.06.2001 to 06.01.2003. In other words his service after joining i.e. from 07.01.2003 has only been looked into for said purpose. As we find certain material aspects having bearing on this issue and also the impact of decision has not been properly considered by respondent No.2 employer, we quash and set aside the order dated 11.02.2004. Needless to mention that appellate order dated 23.01.2006, also falls. The respondent No.2 is directed to hear petitioner, and to consider the entire material on record and thereafter to take appropriate decision about the treatment of period from 4 04.06.2001 to 06.01.2003. While considering such treatment, regularization of leave should be also considered in accordance with the leave rules and also the benefit of leave outstanding, to his credit may be looked into. Petition is thus, partly allowed and is, disposed of. No costs. JUDGE JUDGE NSN