Allowed

State of Maharashtra and Ors. v. Kisan Baburao Wakale and Ors.

Bombay HC8 Oct 2014WP/2396/2001

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an Maharashtra Administrative Tribunal order that granted leave and claimed pension benefits to a clerk absent for ten years. The Court held the absence was willful due to lack of medical proof, rejected the plea for recognizing the period as duty, and upheld the order commuting the absence to extraordinary leave without service benefits.

What did the court decide?

The impugned order of the Maharashtra Administrative Tribunal was set aside, and the government order dated 24th October 1990 was maintained.

State of Maharashtra and Ors. Vs Kisan… — Pension and Retirement Benefits | Bombay HC (2014)

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( 1 ) wp2396.01

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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	`WRIT PETITION NO. 2396 OF 2001` `WITH` `CIVIL APPLICATION NO. 7563 OF 2006`
`1.`	`The State of Maharashtra` `..` `Petitioners`
`2.`	`The Special Executive Magistrate,` `Collector Compound, Ahmednagar.`
`3.`	`The Collector, Ahmednagar.`
	`Versus`
`1.`	`Kisan Baburao Wakale` `..` `Respondents` `Age. 58 years, Occ. Nil,` `R/o. Sawedi, Tq. & Dist. Ahmednagar.`
`2.`	`Shri A.D. Pimparkar,` `(Nb. Tahsildar) Collector Office,` `Ahmednagar.`
`3.`	`Shri D.K. Takle` `(Retired Tahsildar)` `Tq. & Dist. Ahmednagar.`
`Mr.` `Mr.`	`P.P. More, Advocate for the petitioner/State.` `P.S. Pawar, Advocate for respondent No.1.`
	`CORAM : A.V. NIRGUDE &` `A.I.S. CHEEMA,JJ.` `DATED :` `08.10.2014`

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ORAL JUDGMENT [PER : A.V. NIRGUDE,J]:-

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1.This petition challenges the judgment and order
dated 14th June, 2000 in Original Application No.352 of
1998 passed by the learned Member of Maharashtra
Administrative Tribunal, Aurangabad Bench (for short
“M.A.T.”). Respondent No.1 was the applicant before the
M.A.T. and his application was allowed by the M.A.T. The
State of Maharashtra filed this petition challenging the
judgment and order.

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2. The facts of the case are as under :-

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.The respondent No.1 went before the M.A.T. with
following complaint:-

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In 1962, respondent No.1 joined service of

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Government of Maharashtra as a Clerk in Revenue
Department. In April, 1980, respondent No.1 was working
as a Clerk in the Office of Special Executive Magistrate,
Ahmednagar. On 14th April,1980, he proceeded on medical

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leave for a period of two months. Thereafter, he sought

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extension of such leave for two months. At this time he
submitted a medical certificate issued by a private
medical practitioner countersigned by the Government
Medical Officer. Respondent No.1 did not receive any
communication from his employer. His leave was neither
granted nor refused. After expiry of two months' period
respondent No.1 submitted one more application for
extension of medical leave. This time he sought

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extension of one year. With this application, he did not

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submit any medical certificate. After expiry of one

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year, he submitted one more application for extension of

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medical leave for a period of one year. For next one

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year even he did not submit any medical certificate to

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support his case. It is an admitted fact that during
this 2½ years, respondent No.1 made no representation to

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his employer as to what illness he is suffering from. He

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submitted no medical proof in support of his case. It is
also an admitted fact that his employer also did not

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respond to his applications. In April, 1985 and October,

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1985, respondent No.1 made two representations to his
employer seeking sanction for leave between 14.04.1980 to
11.04.1985. Even with this application, he did not submit
any medical certificate. In 1987 for the first time, he
requested to his employer that he was willing to resume
duty. Apparently, his employer did not respond to his
request. In 1988, he made similar application. This time,
he demanded that his leave should be granted and he
should be allowed to resume his duty. He also accused
his employer of negligence and highhandedness.
Thereafter, on 6thOctober, 1988, the Collector,

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Ahmednagar, sent a show cause notice to him as to why he
remained absent from duty from 14th April, 1980 and why
he remained inactive for eight long years. To this,
respondent No.1 submitted some reply, but in-vain.
Respondent No.1 continued to make representations to the
Collector, but no positive action was taken in his
favour. Ultimately, he threatened the Collector that he

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would hold protest in public, self-immolation etc. He

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also submitted complaint about his grievance to
Lokayukta. Apparently, due to respondent No.1's complaint
to Lokayukta, the Collector on 3rd September, 1990, vide
order dated 3rd September, 1990, directed respondent No.1
to resume duty. On 12th September, 1990, respondent No.1
joined his duty as per the order mentioned earlier.

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3.The question between the parties then was how to

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deal with respondent No.1's absence of ten years. On
24th October, 1990, the Department issued memorandum that
respondent No.1's absence between 04.04.1980 to
11.09.1990 should be considered as a special case. The
Government also ordered that this absence should be
treated as extra-ordinary leave. Despite grant of leave,
this period would not be considered for service benefits
including pension etc. It is further mentioned that this
absence period should not be considered as period of duty
for the purpose of benefits of service such as pension

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etc. Respondent No.1 filed appeal against this order

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before the Revenue Commissioner, Nashik. The

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Commissioner, however, dismissed the appeal holding that
the absence of respondent No.1 between 1980 to 1987 was
unauthorized absenteeism, because respondent No.1 did not
make any communication with his employer during this

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period. Against this order respondent No.1 did not take
any action thereafter for quite some time but continued
his work as Clerk till the date of his retirement, which
occurred on 28.11.1998.

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4. Apparently, respondent No.1 realized that the

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period between 1980 to 1990 was not considered for fixing
his pension and therefore in December, 1998, he moved
Original Application No.352 of 1998 before the M.A.T.
The learned Member of M.A.T. held that the respondent

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was entitled to leave from 14.04.1980 till 10.04.1985.

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He further held that the period between 11.04.1985 to
11.09.1990 should be considered as duty period. This

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judgment is challenged here in this writ petition.

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5.Upon going through the facts and the orders
passed by various authorities, following question arises
for our consideration.

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Whether the absence of respondent No.1 from
service between 1980 to 1990 can be considered
as leave of any type?

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6.The facts mentioned above clearly established

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that respondent No.1 was hopelessly irresponsible. He did

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not make any submission to his employer along with proper
medical certificate explaining his fitness or otherwise
to join duty etc. The Maharashtra Civil Service (Leave)

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Rules, 1981, is complete code in itself as far as leave
of Government employee is concerned. Rules 41 to 43, 47 &
48 are as under :-

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41. Grant of leave on medical grounds to nongazetted Government servants.

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(1)An application for leave on medical grounds
made by a non-gazetted Government servant, shall be
accompanied by a medical certificate in Form 4 in
Appendix V given by an Authorised Medical Attendant

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( 8 ) wp2396.01

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or a Registered Medical Practitioner, defining as
clearly as possible the nature and probable
duration of the illness.

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(2)A Medical Officer shall not recommend the grant
of leave in any case in which there appears to be
no reasonable prospect that the Government servant
concerned will ever be fit to resume his duties and
in such, the opinion that the Government servant is
permanently unfit for Government service shall be
recorded in the medical certificate.

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(3)The authority competent to grant leave may, at
its discretion, secure a second medical opinion by
requesting a Government Medical Officer not below
the rank of a Civil Surgeon, to have the applicant
medically examined on the earliest possible date.
Non-gazetted female government servant in Greater
Bombay may be examined by the Medical Officer in
charge Cama and Albless Hospitals, Bombay.

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(4)It shall be the duty of the Government Medical
Officer referred to in sub-rule(3) to express an
opinion both as regards the facts of the illness
and as regards the necessity for the amount of
leave recommended and for that purpose he may
either require the applicant to appear before
himself or before a Medical Officer nominated by
himself.

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(5)The grant of a medical certificate under this
rule does not in itself confer upon the Government
servant concerned any right to leave; the medical
certificate shall be forwarded to the authority
competent to grant leave and orders of that
authority awaited.

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(6)The authority competent to grant leave may, in
its discretion, waive the production of a medical
certificate in Form 4 in case of an application for
leave for a period not exceeding three days at a
time. Such leave shall not be treated as commuted

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( 9 ) wp2396.01

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leave and shall be debited against leave other than
commuted leave.

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42.Grant of leave on medical grounds to a Class IV
Government servant.

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In support of an application for leave, or for an
extension of leave, on medical grounds from a
Government servant in Class IV service the
authority competent to grant the leave may accept
such certificate as it may deem sufficient.

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43.Leave to a Government servant who is unlikely
to be fit to return to duty.

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(1)(a) When a medical authority has reported that
there is no reasonable prospect that the Government
servant will ever be fit to return to duty, leave
shall not necessarily be refused to such Government
servant.

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(b)The leave may be granted, if due, by the
authority competent to grant leave on the following
conditions:-

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i)if the medical authority is unable to say
with certainty that the Government servant will
never again be fit for service, leave not exceeding
twelve months in all may be granted and such leave
shall not be extended without further reference to
a medical authority.

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ii)if a Government servant is declared by a
medical authority to be completely and permanently
incapacitated for further service, leave or an
extension of leave may be granted to him after the
report of the medical authority has been received,
provided the amount of leave as debited to the
leave account together with any period of duty
beyond the date of the report of the medical
authority does not exceed six months.

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( 10 )

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wp2396.01

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(2)A Government servant who is declared by a
medical authority to be completely and permanently
incapacitated for further service shall;-

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(a)if he is on duty, be invalided from service
from the date of relief of his duties, which should
be arranged without delay on receipt of the report
of the medical authority; if however, he is granted
leave under sub-rule(1) he shall be invalided from
service on the expiry of such leave.

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(b)if he is already of leave, be invalided from
service on the expiry of that leave or extension of
leave, if any, granted to him under sub-rule (1).

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47. Return from leave.

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(1)A Government servant on leave shall not return
to duty before the expiry of the period of leave
granted to him unless he is permitted to do so by
the authority which granted him leave.

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(2)Notwithstanding anything contained in sub-rule
(1), a Government servant on leave preparatory to
retirement shall be precluded from returning to
duty, save with the consent of the authority
competent to appoint him to the post from which he
proceeded on leave preparatory to retirement.

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(3)(a) A Government servant who has been granted
leave on medical grounds may not return to duty
until he has produced a medical certificate of
fitness in Form 5 in Appendix V.

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(b)If the Government servant is a Gazetted
Officer, the certificate under clause (a) shall be
obtained from a Medical Board except in the
following Cases;

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(i)Cases in which the leave is for not more
than three months.

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wp2396.01

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( 11 )

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(ii)Cases in which leave is for more than
three months or leave for three months or less is
extended beyond three months, and the Medical Board
states, at the time of granting the original
certificate or the certificate for extension, that
the Government servant need not appear before
another Medical Board for obtaining the certificate
of fitness.

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(c)In cases falling under clause (b), the
certificate may be obtained from the Authorized
Medical Attendant or a Medical Officer of
equivalent status.

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(d)In the case of a non-gazetted Government
servant, the authority under whom the Government
servant is employed on return from leave may, at
his discretion, accept a certificate signed by
Registered Medical Practitioner.

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(4)(a)A Government servant returning from leave
is not entitled, in the absence of specific orders
to that effect, to resume as a matter of course the
post which he held before going on leave.

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(b)Such Government servant shall report his return
to duty to the authority which granted him leave or
to the authority, if any, specified in the order
granting him the leave and await orders.

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Note 1:-A government servant who had been
suffering from tuberculosis may be allowed to
resume duty on the basis of fitness certificate
which recommends light work for him.

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Note 2:-The competent authority should provide for
the expected return of Government servants from
leave by seeing that the Government servants to be
relieved are at headquarters in due time to give
over charge.

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( 12 ) wp2396.01

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48. Absence after expiry of leave.

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(1)Unless the authority competent to grant leave
extends the leave, a government servant who remains
absent after the end of leave is entitled to no
leave salary for the period of such absence and
that period shall be debited against his leave
account as though it were half pay leave, to the
extent such leave is due, the period in excess of
such leave due being treated as extraordinary
leave.

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(2)Willful absence from duty after the expiry of
leave renders a Government servant liable to
disciplinary action.

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7.These rules clearly provided that if an employee
moves an application for leave on medical ground, he must
annex his application with a medical certificate in Form
4 in Appendix V given by a specific medical practitioner,

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defining as clearly as possible the nature and probable
duration of illness. Even if such medical certificate is

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produced, the employee would not get any right to leave
until the leave is granted by the authority. Rule 47
further provides that a Government servant, who has been
granted leave on medical ground, might not return to duty
until he had produced the medical certificate of fitness

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in certain form given in Appendix V. Rule 48 provides

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that if a Government servant remains absent after end of

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leave, he would not be entitled to leave salary and would
also be liable to disciplinary action, if the absence is

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proved willful. Admittedly, respondent No.1 made no
attempt to get his leave application granted. His
application for leave was not submitted with proper
medical certificate. All the three applications were
never pursued by respondent No.1. Therefore, it is clear
that respondent No.1's absence from duty was his willful
absence. Fortunately for him no disciplinary action was
taken against him. Even when in 1987 or so he made
contact with his employer, it was for seeking pension. He

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did not want to join the duty. In such situation, the

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question before his employer and even before the State
Government was whether he should be allowed to join the

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duty and how to deal with his absence of ten years. In
this background, the order dated 14th October, 1990
should be carefully perused.

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8.In this order, the Government placed reliance on

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Rules 16 and Rule 63. These rules read as under :-

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16. Maximum amount of continuous leave.

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Unless government in view of the exceptional
circumstances of the case otherwise determines,
no Government servant shall be granted leave of
any kind for a continuous period exceeding five
years.

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63. Extraordinary leave.

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(1)Extraordinary leave may be granted to a
Government servant is special circumstances-

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(a)When no other leave is admissible;

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(b)When other leave is admissible but the
Government servant applies in writing for grant of
extraordinary leave.

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(2)Unless Government in view of the exceptional
circumstances of the case otherwise determines, no
Government servant who is not in permanent employ
shall be granted extraordinary leave on any one
occasion in excess of the following limits;
(a)three months.

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(b)Six Months, where the Government servant has
completed three years continuous service on the
date of expiry of leave of the kind due and
admissible under these rules, including three
months extraordinary leave under clause (a) and his
request for such leave is supported by a medical
certificate as required by these rules;

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(c)twelve months, in the case of a Government
servant who has completed five year's continuous
service on the date of expiry of leave due and
admissible under the rules including extraordinary
leave under (a) and (b) of sub-rule(2) above, if

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( 15 ) wp2396.01

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the extraordinary leave is required on account of
illness of the Government servant as certified by a
Civil Surgeon or Superintendent of Government
Hospital, as the case may be;

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(d)twelve months, where the Government servant who
has completed one year's continuous service is
undergoing treatment for cancer, or for mental
illness, in an institution recognized for the
treatment of such disease or under a Civil Surgeon
or a Specialist in such disease.

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(e)eighteen months, where the Government servant
who has completed one year's continuous service is
undergoing treatment for-
(i)pulmonary tuberculosis or pleurisy of
tubercular origin, in a recognized sanatorium.

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Note:-The concession of extraordinary leave upto
eighteen months shall be admissible also to a
government servant suffering from pulmonary
tuberculosis or pleurisy of tubercular origin, who
receives, treatment at his residence as such by the
State Administrative Medical Officer concerned and
produces a certificate signed by that specialist to
the effect that he is under his treatment and that
he has reasonable chances of recovery on the expiry
of the leave recommended.

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(ii)tuberculosis of any other part of the body by a
qualified tuberculosis specialist or Civil Surgeon,
or

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(iii)leprosy in a recognized leprosy institution or
by a Civil Surgeon or a specialist in leprosy
hospital recognized as such by the Director of
Health Services.

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(f)twenty four months, where the leave is required
for the purpose of prosecuting studies certified to
be in the public interest, provided the Government
servant concerned has completed three years
continuous service on the date of expiry of leave

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( 16 )

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wp2396.01

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of the kind due and admissible under these rules,
including three months extraordinary leave under
clause (a) of sub-rule (2) above.

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(3)(a)Where a Government servant is granted
extraordinary leave in relaxation of the provisions
contained in clause (f) of sub-rule (2) he shall be
required to execute a bond in Form 6 in Appendix V,
undertaking to refund to the Government the actual
amount of expenditure incurred by the Government
during such leave plus that incurred by any other
agency with interest thereon in the event of his
not returning to duty on the expiry of such leave
or quitting the service before a period of three
years after return to duty.

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(b)The bond shall be supported by sureties from
two permanent Government servants having a status
comparable to or higher than that of the government
servant.

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(4)Government servants belonging to the Schedule
Castes or the Scheduled Tribes may, for the purpose
of attending the pre-examination Training Course at
the centres notified by the Government from time to
time, be granted extraordinary leave by Head of
Department in relaxation of the provisions of sub-
rule (2).

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(5)Two spells of extraordinary leave, if
intervened by a spell of vacation or by any other
kind of leave, shall be treated as one continuous
spell of extraordinary leave for the purpose of
sub-rule(2).

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(6)The authority competent to grant leave may
commute retrospectively periods of absence
without leave into extraordinary leave.

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9.The case of respondent No.1 was quite hopeless.

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It appears that since the Collector did not hold

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Departmental Enquiry against respondent No.1, the
Government though it fit to use discretion provided under
Rule 63(6). The Government, thus, granted extra-ordinary

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leave to respondent No.1 by commuting his ten years of
absence. We find that the order was the best possible

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relief that the Government could have given to respondent

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No.1. We also compared two situations which respondent

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No.1 faced at that time. One was to face disciplinary

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action or to get his absence commuted as extra-ordinary
leave without any service benefits. Obviously, second
option was beneficial to respondent No.1. He apparently
took advantage of this. He continued his job as a Clerk

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for next eight years. This action on the part of

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respondent No.1 in-fact dis-entitled him to approach any
authority impugning the order dated 24th October, 1990.

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On the ground of delay and latches his application

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deserved to be rejected. Even on facts and circumstances

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of the case, his application deserved to be rejected. We

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are, therefore, inclined to set aside the impugned order
passed by the Maharashtra Administrative Tribunal and
maintain the order dated 24th October, 1990. The petition
succeeds.

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10.The writ petition is allowed. There shall be

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order in terms of prayer clause (B). Rule made absolute
accordingly.

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11.In view of disposal of the writ petition,
connected civil application does not survive and stands
disposed of.

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snk /2014/OCT14/wp2396.01ok

State of Maharashtra and Ors. v. Kisan Baburao Wakale and Ors.

Case brief

What is this about?

What did the court decide?

State of Maharashtra and Ors. v. Kisan Baburao Wakale and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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