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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 10198 OF 2016

Balaprasad Brijilal Sarda

.. Petitioner

Versus

The State of Maharashtra and others

.. Respondents

Mrs. Suchita Amit Ahongade h/f Shri Suresh D. Dhongade,

Advcoate for the Petitioner.

Shri P. S. Patil, Addl. G. P. for the Respondents.

CORAM : S. V. GANGAPURWALA &

S. M. GAVHANE, JJ.

DATE

: 10

^th October, 2017

PER COURT :

1.

The learned counsel for the petitioner submits that the

tribunal failed to consider that no departmental enquiry was

initiated against the petitioner. The petitioner being permanent

employee could not have been dismissed without conducting

departmental enquiry. The learned counsel further submits that

in the year 2000 he had some dispute with the Secretary as such

become mentally weak and could not attend the duties. On 20^th

July 2001, the petitioner went to join duties but was not allowed.

On 7.9.2003, the petitioner was directed to appear before the

medical board for medical examination. The petitioner appeared

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for the medical test and was declared fit to join. The Beed

Irrigation Division was transferred to Jayakwadi Irrgiation

Divsion No. 3, as the leave of the petitioner was not sanctioned

he was not allowed to join. The petitioner in the year 2012

approached the Lokaayukta. His compliant was disposed of with

direction to approach the appropriate forum. The learned

counsel submits that the petitioner is issued with the show cause

notice for absentism on 27.4.2011 for the period 1.9.2000 to

30.11.2006 (date of his superannuation). The said notice is

challenged before the tribunal. The tribunal dismissed original

application. According to the learned counsel the petitioner

having put in almost 35 years of service is entitled for pension.

It would be clear that at no point of time departmental enquiry

was initiated and the petitioner being a permanent employee

could not have been terminated without departmental enquiry.

This aspect has been considered by the tribunal.

2.

The learned counsel in alternate submits that the

petitioner is still entitled for the payment of the gratuity amount

and provident fund.

3.

Learned A. G. P. supports the order of the tribunal and

submits that considering the absentism of the petitioner, the

petitioner had abandoned the service, the said aspect is rightly

considered by the tribunal.

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4.

The petitioner was continuously absent for 6 years i.e. from

1.9.2000 to 30.11.2006. The petitioner did not take any steps to

get his leave sanctioned nor sought permission before leaving

service. The Apex Court in a case of Vijay Sathye Vs. Indian

Airlines Ltd. reported in 2014 (1) SCC ( L & S) 760 has held

that if an employee is absent beyond the period prescribed for

which leave of any kind is granted he should be treated as

resigned and ceased to be in service. In fact, the act of the

petitioner amounts to abandonment of service. The said aspect

has been rightly considered by the tribunal. The same needs no

interference.

5.

Assuming that the petitioner has abandoned the service or

is dismissed from service still the petitioner would be entitled for

payment of gratuity. Reliance can be placed on the judgment of

the Division Bench of this Court at the Principal Seat at Bombay

in Writ Petition No. 2668 of 2002 dated 20^th June, 2014. Rule

46.1 of the M.C.S. Pension Rules has been interpreted and it is

held that even if, an employee is dismissed from the service the

said employee is entitled for payment of gratuity.

6.

As far as, the payment of provident fund is concerned the

petitioner certainly would be entitled to his own contribution

made.

7.

In view of the above, we pass the following order:

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