353 Mass. 331 | Mass. | 1967
The sole question presented by the superintendent’s appeal from the granting of a writ of mandamus under G. L. c. 31, § 46A, is whether the petitioner (Bergeron) was barred from seeking the writ by pursuing his administrative remedy under § 46A and § 43 (b), before the Civil Service Commission.
Bergeron had a permanent appointment as a plumber and steamfitter at the Fernald school. After Friday, September 24, 1965, he did not return to work until October 29, 1965. On the latter day he was notified by the superintendent that his employment had been terminated because he had abandoned his position. He requested and was granted a hearing before the Civil Service Commission, charging that the procedures required by G. L. c. 31, § 43, had not been followed in dismissing him from his position. The hearing officer designated by the Commission found that Bergeron was not bedridden during his absence from work, and that he had neglected to notify the school of any reason for his absence until October 27. He further found that Bergeron had “voluntarily separated himself from his employment, and such separation constituted a resignation pursuant to General Laws, Chapter 31, Section 1.” He concluded that Bergeron was not entitled to the remedy provided by c. 31, § 43. On February 2, 1966, the hearing officer’s report and findings were adopted by the Civil Service Commission. The appeal was dismissed.
On February 15, 1966, the instant petition for a writ of mandamus was filed in the Superior Court. After hearing, the judge found that Bergeron had been ill during his absence from work and that on September 27, 1965, he had notified the school of the reason for his absence. Judgment was entered that the writ issue ordering Bergeron to be restored to his position with pay from October 29, 1965. The superintendent appealed.
The judgment is reversed. Judgment is to enter dismissing the petition.
So ordered.