Gujarat High Court
Indravadan Popatlal Doshi vs State Of Gujarat on 16 February, 2024
NEUTRAL CITATION
C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13763 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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INDRAVADAN POPATLAL DOSHI
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 3,4,5
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 16/02/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for the Page 1 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined following reliefs :
"A. admit and allow the present petition.
B. issue an appropriate writ, order or direction holding that the inaction on the part of the respondent-authorities in paying the outstanding dues of the petitioner towards salary for the period from February, 2008 to 11th November, 2008, as being illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.
C. issue an appropriate writ, order or direction upon the respondents-authorities more particularly, respondent Nos.4 and 5 to pay to the petitioner his outstanding dues towards salary for the period from February 2008 to 11 th November, 2008 with interest at the rate of 12% per annum.
D. Pending admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondents-authorities more particularly, respondent Nos.4 and 5 to pat to the petitioner his outstanding dues towards salary for the period form February, 2008 to 11 th November, 2008 with interest at the rate of 12% per annum and further be pleased to direct the respondents-authorities to decide various representations made by the petitioner requesting them to pay the salary to the petitioner at the earliest for the period from February, 2008 to 11 th November, 2008;
E. pass such other and further orders as thought fit in the interest of justice."
2. Brief facts giving rise to the present petition are as under :
2.1 The petitioner was appointed as Additional Assistant Engineer, Class-III with effect from 07/10/1977 in the Irrigation Department, District Panchayat, Surendranagar. The due date for his superannuation was with effect from 31/12/2012, Page 2 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined however, he has been compulsorily retired with effect from 19/12/2012. That the petitioner was transferred from Chotila to Patdi by an order dated 23/08/2007 and he resumed his duty with effect from 24/08/2007 at Taluka Panchayat, Patdi District: Surendranagar under Director of District Rural Development Agency. While the petitioner was working as Additional Assistant Engineer, Patdi, he was also having additional charge for the post of Additional Assistant Engineer, Chuda. That from the date of resumption of his duty with effect from 24/08/2007 till the month of January, 2008, the petitioner was regularly paid his salary. Thereafter, for further period, the petitioner was not paid salary and therefore, the petitioner wrote letters to authorities every month requesting to pay his outstanding dues of salary.
2.2 It is the case of the petitioner that by letter date 19/06/2010, respondent no.5 replied to the letters of the petitioner informing him to furnish a copy of his resumption report, a copy of order allowing him to resume duty and original diary for the period for which salary was not paid, etc. Pursuant to the aforesaid letter issued by respondent No.5, the petitioner addressed a letter dated 27/11/2010 to respondent Page 3 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined No.5. The petitioner was transferred from Patdi to Surendranagar District Head Office by order dated 21/10/2008 and the petitioner resumed his duty at Surendranagar District Panchayat Head Office with effect from 20/11/2008. 2.3 The petitioner was transferred from Patdi to Surendranagar Head Office and upon resumption with effect from 20/11/2008, again the petitioner received his salary every month regularly till the date of his compulsory retirement. The petitioner had made RTI application seeking a copy of the muster roll and accordingly he has been supplied a copy of the muster roll by letter dated 24/08/2011 issued by respondent No.5.
2.4 The petitioner regularly used to sign muster roll kept in the office of respondent No. 5 from the date and he resumed his duty in the office of respondent no 5. From the copies of muster roll sheet, it can be seen that the petitioner has always remained present and has discharged his duties. Therefore, there was no justification or any reason to withhold the salary of the petitioner for the period from February, 2008 to 11 th November, 2008. Being aggrieved and dissatisfied with the Page 4 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined same, the petitioner has preferred the present petition.
3. Heard learned advocate Mr.N.K. Majmudar, appearing on behalf of the petitioner, learned Assistant Government Pleader Ms.Dharitri Pancholi, appearing on behalf of the respondent Nos.1 and 2 and learned advocate Ms.Sejal Mandavia, appearing on behalf of the respondent Nos. 3 to 5.
4. Learned advocate Mr.Majmudar appearing for the petitioner has submitted that so far as the grievance of the petitioner is concerned, it is only with respect to non-payment of his salary for the period from February, 2008 to 11 th November, 2008 despite repeated requests made to the respondent authorities, more particularly, respondent Nos.4 and 5. He has submitted that the petitioner's outstanding dues towards salary are pertaining to the period during which petitioner was serving as Additional Assistant Engineer, Class-
III, Patdi, Taluka Panchayat Patdi, Dist: Surendranagar. He has further submitted that the petitioner was transferred from Chotila to Patdi by an order dated 23.08.2007 and he resumed his duty with effect from 24.08.2007 at Taluka Panchayat, Patdi Dist: Surendranagar under Director of District Rural Page 5 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined Development Agency.
4.1 Learned advocate Mr.Majmudar has further submitted that while the petitioner was working as Additional Assistant Engineer, Patdi, he was also having additional charge for the post of Additional Assistant Engineer, Chuda, and from the date of his resumption of his duty i.e. with effect from 24.08.2007 till the month of January, 2008, the petitioner was regularly paid his salary, however, from the month of February, 2008 to 11th November 2008, he was not paid his salary without there being any justifiable reason, and therefore, he wrote several letters to respondent No.5 requesting the authorities to pay his salary for the month of February, 2008 to 11th November, 2008. He has further submitted that thereafter, the petitioner went on addressing letters to the authorities every month requesting to pay his outstanding salary, however, not a single letter was replied by the authorities. It was submitted by the learned advocate Mr.Majmudar that pursuant to various letters addressed to the respondent No.5, the respondent No.5 for the first time by letter dated 19.06.2010 informed the petitioner to furnish a copy of his resumption report, a copy of order allowing his duty and Page 6 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined original diary for the period for which salary was not paid. According to Mr.Majmudar, pursuant to the letter of the respondent No.5, the petitioner addressed another letter pointing out that so far as the demand for supply of copy of resumption report is concerned, a copy of the same must have been available in the office of the respondent No.5 itself. He has submitted that so far as another direction to produce a copy of the order allowing him work/duty is concerned, the petitioner pointed out that never such orders were served upon him in his career and there was no practice of issuing any order for allowing work diary.
4.2 Learned advocate Mr.Majmudar has further submitted that thereafter, the petitioner was transferred from Patdi to Surendranagar District Head Office by order dated 21.10.2008 and the petitioner resumed his duties at Surendranagar District Panchayat Head Office with effect from 20.11.2008. He has further submitted that after the petitioner was transferred to Surendranagar District Panchayat Head Office, he had received his salary regularly every month from the date of his resuming i.e. 20.11.2008 till the date of his compulsory retirement. He has further submitted that the petitioner had made RTI Page 7 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined application seeking a copy of muster roll and accordingly, he was supplied the same and from the copy of the muster roll, it can be seen that the petitioner has always remained present and has discharged duties in the office of the respondent No.5 regularly and therefore, there was no jurisdiction or any reason to withhold the salary of the petitioner for the period from February, 2008 to 11th November, 2008. Learned advocate Mr.Majmudar has further submitted that the petitioner has filed his re-joinder to point out that the petitioner was working as Assistant Engineer and his work was completely different from the job chart issued by the Office of the respondent No.2 and therefore, action on the part of the respondent Nos.4 and 5 is absolutely arbitrary and unjust. He has therefore, urged that the present petition be allowed and the respondent authorities be directed to pay the petitioner his outstanding dues towards salary with interest at the rate of 12% p.a.
5. As against that, learned advocate Ms.Mandavia, appearing for the respondent Nos.3 to 5 has vehemently opposed the present petition and submitted that the petition requires to be rejected only on the ground that the petitioner has not provided any details which is asked by the office of the Page 8 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined respondent authorities. She has referred to the affidavit-in- reply filed on behalf of the respondent No.5 - Taluka Development Officer, Patdi, more particularly paragraphs 3 to 5, which reads as under :
"3. I say and submit that the petitioner was appointed as Additional Assistant Engineer. Class III. The petitioner has prayed the salary from not given salary of 11 months. The salary was not given by the TDO, Patdi (RID) because he has not produced original diary which is to be sanctioned every month. The petitioner was informed by my office to produce it, but he could not produce it. Here, he has not challenged that. From my office the diary cannot be demanded. Because he knows that while doing the work in the village the job chart is being given and as per this the employee has to work and produce it before the authority then only salary can be given.
4. The Deputy Commissioner, Gram Vikas has issued instructions to all Director of Gram Vikas Agency and decided the duties of various officers. There are number of duties like to maintain audit register form no.49, Bill register form no.4, Dead Stock register form no.60. Also to maintain Stamp register, Post register, Stationary register. Besides it should do the work of preparing bills, deductions in GPF, Bank Procedure Etc. Copy of detail government instructions with regard to deciding job chart, Etc. is annexed herewith and marked as Annexure R-1 to the reply.
5. I say and submit that the employee who is given work in Gram Vikas Agency has to do this type of work and also give diary. The petitioner has not given the details which is prayed for, the salary of 11 months was not paid to him."
5.1 Learned advocate Ms.Mandavia has submitted that since the petitioner has not performed his duty as prescribed in the job chart issued by the respondent No.2 and he has not produced the relevant documents before the Office of the respondent No.5 and therefore, his salary was withheld by the Page 9 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024 NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined respondent No.5. She has therefore, urged that the present petition be dismissed as the petitioner is not entitled for any relief as prayed for in the present petition.
6. I have heard the learned counsels appearing for the respective parties and perused the material placed on record. Considering the fact that the petitioner was working since 1977 and in February, 2008, he was transferred from Chotila to Patdi and till 11th November, 2008 he was working at Patdi as Assistant Engineer and even thereafter, he reported to the Surendranagar District Head Office and he retired from the said office on reaching the age of superannuation. It is pertinent to note herein that the job chart which is referred and relied upon by the learned advocate Ms.Mandavia annexed at page 42 of the compilation, in the said job chart, so far as the post of the Assistant Engineer is concerned, there is no duty mentioned in the said job chart. The duties mentioned in paragraph 4 of the affidavit-in-reply filed by the respondents is not mentioned in the job chart and therefore, the ground objected by the respondent authorities for withholding the salary of the petitioner for a period of 11 months is absolutely illegal and arbitrary.
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NEUTRAL CITATION C/SCA/13763/2016 JUDGMENT DATED: 16/02/2024 undefined 6.1 Considering all these aspects, I am of the opinion that the action on the part of the respondent Nos.4 and 5 is illegal and contrary to the provisions of Gujarat Panchayat Service Rules and therefore, the same is required to be quashed and set aside and the present petition is required to be partly allowed by directing the respondent Nos.4 and 5 to pay the amount of salary to the petitioner alongwith appropriate requisite perks due and payable to the present petitioner for a period from February, 2008 till the date of his retirement i.e. 19.12.2012, which will carry interest @ of 6% p.a. Such exercise shall be carried out by the respondent Nos.4 and 5 within a period of three months from the date of receipt of copy of this order.
7. Accordingly, the present petition is partly allowed with the aforesaid directions to the respondent Nos.4 and 5. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(HEMANT M. PRACHCHHAK,J) Dolly Page 11 of 11 Downloaded on : Fri Mar 01 21:27:18 IST 2024