Gray

David S. Gray, a fireman employed by the city of Oakland, sought to compel by mandate the city and its police and fire retirement board to pay him a disability pension, and sick leave benefits, and to cancel his purported discharge. The trial court decreed that Gray was entitled to the pension, and that the purported discharge should be set aside, and entered its judgment accordingly. The retirement board and the city appeal.' Gray concedes that if he is entitled to his pension he is not entitled to sick leave benefits.

Respondent was employed by the city as a fireman on November 20, 1937. The city purported to discharge him from this position on December 28, 1954. During this period he was granted by the city two military leaves, the first from March 19, 1942, until March 24, 1947, and the second from October 4, 1950, to December 1, 1954. On December 1, 1954, he received a medical discharge from the Navy, and a disability rating which entitles him to a disability pension of $265.20 per month. About December 1, 1954, he requested to be returned to active duty in the fire department. Upon examination he was found to be physically unfit for such service, and on December 28, 1954,…