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2017 DIGILAW 1496 (BOM)

Prakash Hiralal Sone v. Municipal Council, Arvi

2017-07-26

R.K.DESHPANDE, SWAPNA JOSHI

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JUDGMENT : 1. By this petition, the petitioner claims direction to the respondent to settle the retiremental benefits and pension case of the petitioner and to pay him post retiral benefits without any further delay. 2. The petitioner was appointed as an Accountant in the services of respondent-Municipal Council, Arvi, on 01.12.1969. He was confirmed in the employment on 09.07.1970. After conducting an enquiry against him, termination order was issued on 22.06.1972. By the judgment and order in Writ Petition No. 1608 of 1982, the petitioner was granted reinstatement with back-wages on 28.08.1991. The said order attained the finality and the petitioner was reinstated in service on 10.02.1992 and he worked on the post till 22.12.1995. These facts are not in dispute. 3. The petitioner gave notice of voluntary retirement dated 26.12.1995 on medical ground. According to the petitioner, he suffered severe injuries in the accident which occurred in the month of November, 1994. According to the respondent, the petitioner was communicated on 10.01.1996 that his claim for voluntary retirement cannot be accepted for the reason that departmental enquiry is contemplated against him and unless it is completed, the request for voluntary retirement cannot be considered. As per this communication, the petitioner was informed that he was unauthorizedly absent from duty from 23.12.1995 and therefore, he was asked to join the duties immediately. According to the respondent-Municipal Council, the petitioner did not join the duty with effect from 23.12.1995 and has thereby abandoned the service. It is the stand taken by the respondent that the petitioner is not entitled to post retiral benefits including the pension. 4. On 07.06.2017, this matter was called out. None appeared for the parties. We had gone through the petition and the reply filed by the respondent-Municipal Council. We wanted to know as to why the petitioner was not paid all the retiral benefits. We, therefore, passed an order on 07.06.2017 directing the respondent to file an affidavit as to whether the petitioner has been paid with all the retiral benefits. Though no one appears for the respondent-Municipal Council, an affidavit dated 19.07.2017 is filed on record which is sworn in by the Chief Officer, Municipal Council, Arvi. It is the stand taken that the petitioner has not retired from service, but he himself has abandoned the service by remaining absent and hence, he is not entitled to any retiral benefits. Though no one appears for the respondent-Municipal Council, an affidavit dated 19.07.2017 is filed on record which is sworn in by the Chief Officer, Municipal Council, Arvi. It is the stand taken that the petitioner has not retired from service, but he himself has abandoned the service by remaining absent and hence, he is not entitled to any retiral benefits. It is also the stand of the respondent that the petitioner did not submit the medical certificate along with the notice of voluntary retirement and hence, it was not accepted. 5. The petitioner has rendered continuous service of 26 years from 01.12.1969 till 23.12.1995. He was, therefore, qualified for getting the pension and to give a notice of voluntary retirement under Rule 66 of the Maharashtra Civil Services (Pension) Rules, 1982. As per the said Rule, 3 months notice in writing can be given to the appointing authority for retirement from service and it is required to be accepted by the appointing authority. If the appointing authority does not refuse to grant permission for retirement before expiry of the period specified in such notice, the retirement becomes operative from the date of expiry of the said period. Under sub-rule (4) of Rule 66 of the said Rules, it is permissible for the Government servant to make a request for accepting the notice of voluntary retirement of less than 3 months, and such requirement can be relaxed. 6. Bare perusal of the notice of voluntary retirement dated 26.12.1995 shows that it does not comply with the requirement of giving 3 months' notice in writing to the appointing authority. Probably, the petitioner wanted to have voluntary retirement with effect from 26.12.1995, which is responded to by issuing the communication dated 10.01.1996 to the petitioner informing him that the notice was not accepted for the reason that some departmental enquiry was contemplated against the petitioner and unless it is completed, the request for voluntary retirement cannot be considered. It was not the stand taken in the communication dated 10.01.1996 that the petitioner did not submit the medical certificate and therefore, his application was rejected. 7. Even if we accept the stand of the respondent that the petitioner was not granted permission to retire voluntarily from service as per his application dated 26.12.1995, the result would be that the petitioner continues to be in service. 7. Even if we accept the stand of the respondent that the petitioner was not granted permission to retire voluntarily from service as per his application dated 26.12.1995, the result would be that the petitioner continues to be in service. What we gathered from the petition is that the petitioner was aged 56 years on 18.09.2001 when he filed rejoinder to the reply filed by the respondent. The normal age of superannuation of the employee under the Municipal Council is of 58 years, which the petitioner must have attended in 2003 itself. There is nothing on record to show that any enquiry was conducted against the petitioner in respect of any of the charges, muchless the charge of abandonment of service with effect from 23.12.1995 till the petitioner attained the age of superannuation of 58 years. 8. The stand of the respondent that the petitioner did not submit medical certificate while seeking voluntary retirement from service, is an afterthought and not bonafde. In the absence of any order being passed withholding or withdrawing the pension of the petitioner under Rule 27 of the Maharashtra Civil Services (Pension) Rules, the respondent – Municipal Council was not competent to refuse to grant the petitioner all post retiral benefits either upon completion of his 20 years qualifying service or upon attaining the age of superannuation. 9. We find that in spite of the order of reinstatement and back-wages passed by this Court in Writ Petition No. 1608 of 1982, the petitioner was not paid the back-wages till 07.06.2000. The petitioner was required to file proceedings under Section 33-C (2) of the Industrial Disputes Act for implementation of the order passed by this Court granting him back-wages. It is also not the stand of the respondent that the petitioner did not meet with an accident prior to making of the application for voluntary retirement on 26.12.1995. We find no justification for withholding of the pension and all retiral benefits to the petitioner. 10. In the result, this writ petition is allowed. The respondent-Municipal Council, Arvi, is directed to calculate all the retiremental benefits payable to the petitioner and to fix the pension as if the petitioner rendered the service upto 26.12.1995 or till he attained the age of superannuation. 10. In the result, this writ petition is allowed. The respondent-Municipal Council, Arvi, is directed to calculate all the retiremental benefits payable to the petitioner and to fix the pension as if the petitioner rendered the service upto 26.12.1995 or till he attained the age of superannuation. The respondent-Municipal Council to pay the entire arrears of retiral benefits to the petitioner alongwith interest in terms of Rule 129-A and 129-B of the Maharashtra Civil Services (Pension) Rules, 1982, within a period of four months from the date of receipt of the copy of the judgment. Rule is made absolute in these term. No order as to costs.