Bombay High Court
Vidarbha Irrigation Development ... vs Shri Nadkishor Padmakar Kubde And ... on 21 November, 2016
Author: B.R. Gavai
Bench: B.R. Gavai, V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6182/2005
1. The State of Maharashtra,
through its Secretary,
Department of Irrigation,
Mantralaya, Fort, Mumbai.
2. The Sub-Divisional Officer,
Upper Wardha Canal,
Sub-Division, Dhamangaon (Old),
Tq. Dhamangaon (Railway),
Distt. Amravati.
3. The Executive Engineer,
Upper Wardha Canal,
Sub-Division, Dhamangaon (Old),
Tq. Dhamangaon (Railway),
Distt. Amravati. ..Petitioners.
..Vs..
Shri Nandkishor S/o Padmakar Kubde,
aged about 45 Yrs., Occu. Service
as a Section Engineer in the office of
petitioner No.2 at Sub-Division No.13,
Dhamangaon (Old), R/o Upper
Wardha Project Colony,
Tq. Dhamangaon, Distt. Amravati. ..Respondent.
AND WRIT PETITION NO.6183/2005
1. Vidarbha Irrigation Development
Corporation, Nagpur, through its
Executive Engineer, Upper Wardha
Canal Division, Dhamangaon (Old),
Tah. Dhamangaon (Rly.),
Distt. Amravati.
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2. The Sub-Divisional Officer,
Upper Wardha Canal
Sub-Division, Dhamangaon (Old),
Tah. Dhamangaon (Railway),
Distt. Amravati. ..Petitioners.
..Vs..
1. Shri Nandkishor Padmakar Kubde,
aged about 45 Yrs., Occu. Service
Sectional Engineer, R/o Upper
Wardha Project Colony,
Dhamangaon (Old),
Tah. Dhamangaon (Rly.),
Distt. Amravati. ig
2. The State of Maharashtra,
through its Secretary, Irrigation
Department, now known as Water
Resources Department, Mantralaya,
Mumbai - 32. ..Respondents.
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Shri N.S. Rao, A.G.P. for the petitioners/State.
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CORAM : B.R. GAVAI AND V.M. DESHPANDE, JJ.
DATED : 21.11.2016.
ORAL JUDGMENT (Per B.R. Gavai, J.)
1. Appearance of Shri B.T. Patil, learned counsel is discharged. Shri N.S. Rao, A.G.P. appears for the petitioners.
2. Both these petitions take exception to the judgment and order passed by the learned Maharashtra Administrative Tribunal in Review Application No.12/2005 dated 14.10.2005 and in Original Application No.537/2004 on 14.3.2005 filed by the Vidarbha Irrigation Development ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:03:44 ::: 3 wp6182.05 Corporation and the respondent No.1 respectively. Writ Petition No.6183/2005 is filed by the Vidarbha Irrigation Development Corporation (for short "V.I.D.C.") whereas the Writ Petition No.6182/2005 is filed by the State of Maharashtra. The parties in the present petitions are referred to as they are referred in the judgment of the learned Tribunal.
The applicant was working as an Section Engineer on the Upper Wardha Canal Division of the V.I.D.C. As the applicant was suffering from illness on 21.12.2002 he applied for grant of half day casual leave. Since he was not well he went to the Medical Practitioner, who advised him to take rest and treatment for a period of one month as such he filed application for medical leave from 23.12.2002 till 18.1.2003. The respondent No.2 refused to accept the said application. As such the applicant made a representation to the respondent No.3 on 3.1.2003. The applicant was advised for rest by the Medical Practitioner and, therefore, he filed another application dated 20.1.2003 for extension of leave along with medical certificate. Since the petitioner was not informed anything about the same he made another representation on 27.1.2003. The respondent No.3 vide communication dated 5.3.2003 directed the respondent No.2 to refer the applicant to the Medical Board for medical examination and for obtaining necessary medical certificate.
The applicant went to join his duty on 24.3.2003 along with medical fitness certificate issued by the Civil Surgeon, General Hospital, Amravati. On the basis of the same he was allowed to join the duty. After the receipt of medical ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:03:44 ::: 4 wp6182.05 fitness certificate issued by the Medical Board the applicant joined the duty on 25.3.2003. Since the respondent refused to treat the period between 21.12.2002 to 26.6.2003 as a regular leave period the applicant was required to approach the learned Tribunal. The learned Tribunal allowed the application hence the present petition.
Shri Patil, the learned counsel for the V.I.D.C. as well as the learned A.G.P. submitted that the learned Tribunal has grossly erred in allowing the application. It is submitted that the applicant had proceeded on leave without there being a valid sanction as such the learned Tribunal ought not have directed the said period to be relaxed. It is further submitted that the learned Tribunal has grossly erred in directing the petitioner to pay the salary for the said period.
3. We have perused the judgment and order. The learned Tribunal found that the application of the petitioner for grant of medical leave for the period 21.12.2002 to 18.1.2003 was duly recommended by the Medical Board for treating the same as medical leave and had also recommended for relaxing the said leave on the medical ground. The learned Tribunal further found that the petitioner having obtained the requisite medical fitness certificate from the Medical Board for the period 19.1.2003 to 19.3.2003 certifying that the petitioner on account of his medical difficulties could not attend the duty during the said period, the period from 21.12.2002 to 19.3.2003 was entitled ::: Uploaded on - 28/11/2016 ::: Downloaded on - 29/11/2016 00:03:44 ::: 5 wp6182.05 to be treated as the period of medical leave.
4. Insofar as the question regarding the period from 25.3.2003 to 25.6.2003 is concerned, the learned Tribunal has found that though from 21.12.2003 the applicant made several attempts to join the service he was not permitted to join the service since he had not produced medical fitness certificate from the Medical Board. The applicant thereafter applied to the Medical Board for getting the necessary certificate. It has been found that the petitioner could get the medical fitness certificate only on 25.6.2003 and as such after receipt of the same, he has joined duty on the same date. It can thus be seen that even for this period though the applicant had attempted to join his duty he was not allowed to do so on account of hyper-technical approach adopted by the Authorities that he could not produce the fitness certificate from the Medical Board. Though the petitioner attempted to join the service he was specifically demanded fitness certificate of the Medical Board and was not permitted to join without it. On the same date, on which he received medical fitness certificate, the petitioner has joined the service.
5. If the learned Tribunal has come to the conclusion that the petitioner was entitled for regularization of the period of absence as a period on which he was on leave, as a consequence to that he will be entitled to the salary for the said period.
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6. In that view of the matter, it cannot be said that the view taken by the learned Tribunal is either erroneous or perverse to warrant interference in the extraordinary jurisdiction under Article 226 of the Constitution of India.
Both the petitions are dismissed. Rule stands Discharged. However, there shall be no orders as to costs.
JUDGE
ig JUDGE
Tambaskar.
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