Gujarat High Court
Shevo Parasram Khatri vs Union Of India & 2 on 13 September, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/9059/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9059 of 2017
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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SHEVO PARASRAM KHATRI....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MR MS TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR JOY MATHEW, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 13/09/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226/227 of the Constitution of India, the petitioner herein - original applicant before the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "Tribunal") has prayed for an appropriate writ, direction and order to quash and Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Oct 01 19:32:25 IST 2017 C/SCA/9059/2017 JUDGMENT set aside the impugned judgment and order dated 18.04.2017 in Original Application No.359/2014 by which the learned Tribunal has dismissed the said Original Application with cost quantified at Rs.5000/.
[2.0] The facts leading to the present Special Civil Application in nutshell are as follows:
[2.1] That the petitioner herein - original applicant was appointed as Stenographer on 21.09.1977. He proceeded on medical leave with effect from 19.03.1994 to 30.04.1994, which was duly sanctioned and granted. That thereafter the original applicant remained absent without getting the leave sanctioned for approximately 16 years. He reported for duty in the month of July 2000. However, he was not allowed to join the duty. Therefore, he approached the learned Tribunal by way of Original Application No.236/2004. Vide order dated 31.03.2005, the learned Tribunal disposed of the said Original Application by relegating the original applicant to sumbit a representation to the President for grant of leave of the said long period. It appears that pursuant to the direction issued by the learned Tribunal, the original applicant submitted a representation dated 20.04.2005. He also resumed the duty. He was also asked to produce the medical certificate of the Civil Surgeon, Civil Hospital by letter dated 06.09.2005 and thereafter he was allowed to resume the duty with effect from 19.09.2005 alongwith medical fitness certificate. Thereafter, a showcause notice was issued to him under F.R 17(a) requiring him to show cause as to why the continuous unauthorized absence period from 19.03.1994 to 18.09.2005 shall not be treated as dies non. On receipt of the same he submitted a representation which was considered by the competent Authority. The competent Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Oct 01 19:32:25 IST 2017 C/SCA/9059/2017 JUDGMENT Authority by the order dated 03.02.2006 treated the period as dies non with break in service under F.R 17(a).
[2.2] Feeling aggrieved and dissatisfied with the order dated 03.02.2006 treating the period between 19.03.1994 to 18.09.2005 as dies non with break in service, the original applicant again approached the learned Tribunal by way of Original Application No.375/2006. The learned Tribunal by order dated 16.01.2008 quashed and set aside the said order dated 03.02.2006 with a liberty to the respondents to pass appropriate order in terms of the direction contained therein. That thereafter the Department passed a fresh order on the strength of the liberty granted and in compliance of the direction contained in the order passed in Original Application No.375/2006 and passed a fresh order dated 09.04.2008 treating the aforesaid period as dies non with break in service.
[2.3] Feeling aggrieved and dissatisfied with the order dated 09.04.2008, the original applicant approached the learned Tribunal by way of filing Original Application No.386/2008. The learned Tribunal vide judgment and order 28.04.2011 dismissed the said original application, however modified the order to the extent treating the period between 01.05.1994 to 19.09.2005 instead of from 19.03.1994 (as per the order dated 09.04.2008), as dies non with break in service. The operative portion of the order dated 28.04.2011 of the learned Tribunal in Original Application No.386/2008 reads as under:
"9. In view of discussion made hereinabove, though we do not find any justification in the contention raised by applicant about illegality, irregularity and non application of mind etc., in Office Memorandum dated 9.4.2008, but noticing that in essence applicant's leave has been granted from 19.3.1994 to Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Oct 01 19:32:25 IST 2017 C/SCA/9059/2017 JUDGMENT 30.4.1994, as observed in reply para 8, the period of dies non cannot begun from 19.3.1994. In the circumstances, said date (19.3.1994) has to be substituted as 1.5.1994. To this extent OA is allowed. Rest of the claim is dismissed without any order as to costs."
That thereafter the respondents passed the consequential order dated 07.10.2013 and passed the following order.
"Now, therefore the case of the Shri S.P. Khatri, Steno, Gujarat Circle has been examined once again in the light of the directions dated 28.04.2011 passed by the Hon'ble CAT, Ahmedabad Bench in OA No.386/2008 and the President is pleased to review the period of unauthorized absence as Dies non with break in service w.e.f. 1.5.1994 to 19.9.2005."
That thereafter and on receipt of the above order dated 07.10.2013, the original applicant submitted a representation dated 04.02.2014 and requested to condone the break in service of the above period from 01.05.1994 to 19.09.2005 of unauthorized absence for the period of pension by submitting that he is going to retire from the service on superannuation from 31.05.2014. The aforesaid representation came to be rejected / turned down by the respondents of order dated 05.06.2014 on the ground that the order dated 07.10.2013 was the consequential order passed by the learned Tribunal in Original Application No.386/2008.
[2.4] Being aggrieved and dissatisfied with the order dated 04.02.2014 of the rejection of the representation, the petitioner herein preferred present Original Application No.359/2014. Considering the earlier orders passed by the learned Tribunal more particularly the judgment and order dated 28.04.2011 passed in Original Application No.386/2008, which attained finality, the learned Tribunal has dismissed the said original application with Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Oct 01 19:32:25 IST 2017 C/SCA/9059/2017 JUDGMENT cost which is quantified at Rs.5000/.
[2.5] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal in Original Application No.359/2014, the original applicant has preferred the present Special Civil Application under Article 226/227 of the Constitution of India.
[3.0] We have heard Shri M.S. Trivedi, learned Advocate appearing on behalf of the petitioner at length. At the outset it is required to be noted that present is a glaring example of misuse of court's proceedings and wasting court's time.
[3.1] It is required to be noted that as such the petitioner remained unauthorized absent from duty for approximately 16 years. He reported for duty in the year 2000. He was not permitted to resume the duty. Thereafter, after a period of 4 years he approached the learned Tribunal by way of Original Application No.236/2004. Despite the fact that the petitioner remained unauthorized absent for approximately 16 years and therefore, he was not permitted to resume the duty, the learned Tribunal disposed of the aforesaid original application relegating the petitioner to make a representation. That thereafter he was permitted to resume the duty with effect from 19.09.2005. That thereafter after a show cause notice as to why the continuous unauthorized absence period from 19.03.1994 to 18.09.2005 shall not be treated as dies non, an order dated 03.02.2006 came to be passed treating the aforesaid period as dies non with break in serviceunder F.R 17(a). That thereafter pursuant to the order dated 16.01.2008 passed by the learned Tribunal in Original Application No.375/2006, the Department passed a fresh order treating the period between Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Oct 01 19:32:25 IST 2017 C/SCA/9059/2017 JUDGMENT 19.03.1994 to 19.09.2005 as dies non with break in service. The aforesaid was the subject matter before the learned Tribunal by way of Original Application No.386/2008. Vide judgment and order dated 28.04.2011 in Original Application No.386/2008, the learned Tribunal modified the period of dies non as 01.05.1994 to 19.09.2005 instead of 19.03.1994. It is not in dispute that the aforesaid order attained finality. That thereafter the Department passed the consequential order dated 07.10.2013 in light of the order psased by the learned Tribunal in 28.04.2011 in Original Application No.386/2008 and passed an order to treat the period from 01.05.1994 to 19.09.2005 as dies non with break in service. At this stage it is required to be noted that the aforesaid order was as such a consequential order passed by the Department pursuant to the judgment and order passed dated 28.04.2011 in Original Application No.386/2008 which has attained finality. Despite the above again the petitioner made a representation to condone the break in service of the above period from 01.05.1994 to 19.09.2005 of unauthorized absence for the purpose of pension which was rightly rejected by the Department and the Department cannot and could not have again beyond the order dated 28.04.2011 passed by the learned Tribunal in Original Application No.386/2008, again the petitioner preferred the present Original Application No.359/2014 requesting to condone the break in service of the period from 01.05.1994 to 19.09.2005 of unauthorized absence for the purpose of pension which has been rejected by the learned Tribunal by imposing the cost of Rs.5000/. Considering the aforesaid facts and circumstances and more particularly when the earlier order dated 28.04.2011 passed by the learned Tribunal in Original Application No.386/2008 attained finality and the period from 01.05.1994 to 19.09.2005 was to be treated as dies non with break in service, thereafter it was not open for the petitioner again Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Oct 01 19:32:25 IST 2017 C/SCA/9059/2017 JUDGMENT to challenge the consequential order dated 07.10.2013 more particularly when the earlier judgment and order dated 28.04.2011 in Original Application No.386/2008 attained the finality. At this stage it is required to be noted that as such the petitioner remained unauthorizedly absent for the period between 1994 to 2000 and thereafter upto 2005. As such there does not appear any justification for the applicant to remain unauthorizedly absent for such a long period. Still he was permitted to resume the duty, however treating the period of unauthorized absent as dies non with break in service.
[4.0] Considering the aforesaid facts and circumstances, we are of the opinion that the learned Tribunal has rightly rejected the present Original Application with cost which is quantified at Rs.5000/. We are in complete agreement with the view taken by the learned Tribunal.
[5.0] In view of the above and for the reasons stated above, present Special Civil Application fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs. Notice is discharged.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Oct 01 19:32:25 IST 2017