STATE OF MAHARASHTRA Vs. SAJJAD ALI MOHAMMAD

JUDGEMENT

(1.) The petitioners have challenged the order dated 27-2-2002 passed by the Maharashtra Administrative Tribunal, Bench at Nagpur wherein the period of absence of the original respondent from 3-9-1975 till 10-4-1987 was ordered to be treated as duty for all purposes including the financial benefits. The original respondent who was working as Accountant at Government Polytechnic, Nagpur expired during the pendency of this writ petition and, therefore, the present respondents 1A to 8H were brought on record. The original respondent was prosecuted for misappropriation of the cash of Rs. 5702.42/and was charged under section 409 of the Indian Penal Code in Criminal Case No. 65/86. Pursuant to the registration of the offence, the original respondent was in police custody from 3-9-1975 to 6-9-1975. Thereafter, he remained absent and did not report on duty till 9-3-1981. The petitioners took out an order dated 6-4-1981 suspending him from the services with effect from 9-3-1981 i.e. from the date on which he joined on duty. The original respondent was acquitted from the criminal case as he was not found guilty for the offence under section 409 of the Indian Penal Code and thereafter the original respondent came to be reinstated by an order dated 10-4-1987 which was issued by the petitioner No. 3-The Deputy Director of Vocational Education. The suspension period from 9-3-1981 till his joining the duty after reinstatement i.e. 10-4-1987 was ordered to be regularized as leave permissible to the original respondent. The petitioners issued order on 9-8-1989 regularizing the period from 3-9-1975 to 6-9-1975 as on duty. However, in the meantime, the petitioners initiated departmental enquiry against the original respondent which concluded in holding the original respondent guilty for misconduct during his absence from 6-12-1971 till 8-3-1981. He did not submit any leave application hence has committed a breach of Rule 3 of the Maharashtra State Civil (Conduct) Rules of 1979 and, therefore, the period from 3-9-1975 till 8-3-1981 should be treated as extra ordinary leave without pay and that period should not be considered for the purpose of pensionary benefits. The original respondent challenged the action of the petitioners suspending him from 9-3-1981 and holding him not entitled to the monetary benefits of the period from 3-9-1975 till 8-3-1981. The Maharashtra Administrative Tribunal partially allowed the appeal and held that the original respondent's period of absence from 3-9-1975 till 10-4-1987 should be treated as duty for all purposes.

(2.) Ms. Khan, learned AGP for the petitioners has submitted that the original respondent after his release from the police custody i.e. on 6-9-1975 did not report the office and he remained absent throughout till 9-3-1981. The petitioners in the Departmental Enquiry found the original respondent guilty for serious misconduct because he did not submit any application for leave. He remained absent throughout without intimation and, therefore, he was not qualified to get the salary for the period of absence. The action taken by the petitioners under Rule 3 of Maharashtra Civil Services (Conduct) Rules, 1979 is legal and decision of the Maharashtra Administrative Tribunal of regularising the said period as a period of suspension is devoid of merit and is to be set aside.

(3.) The learned counsel appearing for the respondents submitted that in view of the Rule 4(2) (a) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 the original respondent was suspended and the petitioners did not modify or revoke the suspension till 9-4-1981. In support of his submission, the learned counsel relied on Union of India vs. Rajiv Kumar, 2003 6 SCC 516; and Anami Narayan Roy vs. Suprakash Chakravarthy and others, 2009 3 AllMR 186.