Gujarat High Court
State Of Gujarat vs Jayantilal D Patel....Opponent(S) on 10 September, 2015
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/MCA/2575/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 2575 of 2015
In
SPECIAL CIVIL APPLICATION NO. 1214 of 2003
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STATE OF GUJARAT....Applicant(s)
Versus
JAYANTILAL D PATEL....Opponent(s)
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Appearance:
MR RONAK RAVAL AGP for the Applicant(s) No. 1
MR KB PUJARA, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 10/09/2015
ORAL ORDER
RULE. Respondent waives service. By consent of the parties, the review application is taken up for hearing today.
2. By this review application, the petitioner seeks the review of certain directions issued in paragraph Nos.26, 27 and 28 of the oral judgment dated 0607/08/2014 passed by this Court in SCA NO.1214 of 2003 in the facts and circumstances narrated hereunder.
3. The respondent was removed from service on the ground of his unauthorized absence for a period of 561 days. The aforestated Special Civil Application Page 1 of 9 HC-NIC Page 1 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER was therefore filed, during the hearing of which, this Court found that before removal, the respondent was not given an opportunity of being heard. Therefore, instead of remanding the matter on that count, this Court deemed it fit to direct the petitioner to substitute the punishment by the punishment which would not deprive the respondent of the pension and other benefits.
3.1 A submission was also made by the learned Counsel for the respondent that in the event the respondent applies for voluntary retirement, the same may be considered by the petitioner. This Court observed in paragraph No.28 of the said judgment that it will be open for the petitioner to apply for voluntary retirement and to that limited extent the petitioner will be notionally considered as if in service, but without any benefits and if such application is made, the respondent will decide the same in accordance with law. Such application shall be given by the respondent within two weeks and the decision shall be taken by the petitioner within two weeks thereafter. The relevant observations in paragraph Nos.26, 27 and 28 are extracted herein below for ready reference.
"26. Thus while, on one hand, it seems that no appropriate opportunity was given to the petitioner, on the other hand, there are reasons to believe that the petitioner had absented himself from service for a long period causing severe inconvenience to the administration of the respondents. However, Page 2 of 9 HC-NIC Page 2 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER undisputedly, the petitioner had put in above 16/18 years of service at the time of his removal. Except the few incidents for which he was punished, the career of the petitioner had no serious stigma. Removal of an employee, who has put in 16/18 years of service without affording him an appropriate opportunity to defend himself, is a harsh punishment. Therefore, any other punishment, which would serve the ends of justice, can be substituted by the Disciplinary Authority. It is, therefore, deemed appropriate to remand the matter to the Disciplinary Authority for reconsideration of the punishment other than the punishment which would deprive the petitioner of pension and other benefits. Accordingly, the impugned orders are quashed and set aside.
27. As such, the petitioner is not required to be reinstated by this order and the said fact is required to be considered by the Disciplinary Authority while considering the punishment to be imposed upon the petitioner.
28. It will be open for the petitioner to apply for voluntary retirement and to that limited extent, the petitioner will be notionally considered as if in service but without any benefits and if such application is made, the respondents will decide the same in accordance with law. Such application shall be given by the petitioner within two weeks and the decision shall be rendered by the respondents within two weeks thereafter."
4. Learned AGP would contend that the observations made in paragraph No.26 were only for the purpose of substitution of the penalty, as the punishment other than the one which would deprive the Page 3 of 9 HC-NIC Page 3 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER respondent of pension and other benefits was found to be harsh by this Court in view of the fact that the respondent was not heard. He would contend that as such the Court consciously in paragraph No.27 refrained from ordering reinstatement and the reinstatement was required to be considered by the disciplinary authority while considering the punishment to be imposed upon the respondent.
4.1 Learned AGP would contend that use of expression "pension and other benefits" do not make the fact clear as to whether despite nonentitlement to pension as per the rules, such benefit was intended to be given to the respondent and thus there is error apparent on the face of the record. Learned AGP would contend that this Court had not examined the right of the respondent to receive pension and therefore in absence of clarification, the observations in relation to the pension and other benefits has led to confusion as to whether the pension and other benefits are to be paid to the respondent after substitution of the punishment irrespective of his being eligible for the same under the rules. It is contended that length of the service of the respondent do not render him eligible for pension.
4.2 It is contended that in view of observations in paragraph No.27, the respondent cannot be said to be in service, but this Court only directed only in paragraph No.28, notional reinstatement without benefits and, thus according to the learned AGP there Page 4 of 9 HC-NIC Page 4 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER exists confusion between the observations made in paragraph No.27 and 28 and the same is required to be clarified by this Court.
5. As against that, the learned Counsel for the respondent while inviting attention of this Court to paragraph Nos.26, 27 and 28 quoted above, would contend that this Court was mindful of the fact that the respondent had invested 16 to 18 years of service, though the observations were in different context, but keeping in mind that fact, the observations were made in paragraph No.28 that notional reinstatement should be considered for the purpose of considering voluntary retirement application of the respondent. It is contended that in view of such directions, there was no reason for the petitioner to reject the application for voluntary retirement, which rejection has resulted into the contempt proceedings.
5.1 Learned Counsel would contend that observations in paragraph No.26 are more than clear when it is stated that the punishment, other than the one depriving the respondent of pensionary and other benefits should be substituted and therefore respondent would be entitled to pensionary benefits.
5.2 It is contended that in paragraph No.27 the Court refrained from ordering reinstatement only because the punishment was required to be substituted and therefore it was left to the petitioner to effect the reinstatement. It was also contended that the Page 5 of 9 HC-NIC Page 5 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER observations made in paragraph No.28 were invited by the respondent, but he was not under an obligation to apply for voluntary retirement, but a liberty was reserved to him to make such application, which the petitioner was required to consider in accordance with the directions in paragraph No.28. The grievance is made that even substitution of punishment is not considered though a period of about a year has passed from the date of the order. It is argued that under the circumstances, in the contempt proceedings instituted by the respondent, many fold directions including the directions to reinstate the respondent in terms of paragraph No.28 of the judgment have been sought.
5.3 Learned Counsel would contend that no ground for review is made out and the review petition is not made bona fide, but is made after a lapse of one year and that too only after initiation of contempt proceedings by respondent. It was argued while relying upon N.Anaantha Reddy Vs. Anshu Kathuria & Ors., [(2013) 15 SCC 534] that area of jurisdiction of the review is very very limited; only to the extent of considering error apparent on face of the record without a deeper probe to find out such error.
6. Having given thoughtful consideration to the rival considerations, the extent of jurisdiction of the review, is of course circumscribed in view of the settled legal position in catena of decisions of this Court as well as various High Courts and Hon'ble Page 6 of 9 HC-NIC Page 6 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER Supreme Court. In N.Anaantha Reddy (supra), the following observations in paragraph No.6 were made.
"6. A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by Respondent 1 and, in the light of the view which it took, it recalled its earlier order dated 862011. The course followed by the High Court is clearly flawed. The High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 862011. The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is selfevident, needs no search and states at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits."
7. This Court is thus conscious of the circumscribed jurisdiction of review. The question to be addressed in the review petition therefore is as to whether, there is any error apparent on face of record.
8. As indicated above, as per paragraph No.26 of the judgment, the punishment to be awarded to the respondent was required to be substituted with any other punishment, which would not deprive the respondent of pension and other benefits. The use of expression "pension and other benefits" has given an impression that while substituting the service, pension and other benefits are required to be paid to the respondent. Apparently, the Court was not addressing the issue of pension and other benefits. The focus of the Court was on punishment to be substituted as indicated above. Thus, the use of expression "pension and other benefits" in paragraph Page 7 of 9 HC-NIC Page 7 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER No.26 do indicate that there is error apparent on face of record and the same is required to be clarified. It is obvious that the said expression cannot be read out of context, as the Court could not have intended the pension and other benefits de hors the law, for, the Court does not possess such jurisdiction.
9. Furthermore, there is also an error on the face of the record in the observations made in paragraph Nos.27 and 28 when the question of reinstatement is required to be considered. In paragraph No.27, this Court made it clear that reinstatement was not ordered, but in paragraph No.28 notional reinstatement was ordered. Apparently, therefore, both the directions would contradict each other in absence of the clarification. If the respondent was not required to be reinstated, obviously he would not be entitled to any of the benefits flowing from reinstatement. Pertinently, in paragraph No.27 itself, this Court left the question of reinstatement to be considered by the petitioner. However, paragraph No.28 directed notional reinstatement only for the purpose of considering the application for voluntary retirement with a clarification that the respondent will not receive any benefits on account of such notional reinstatement. The said directions, if read with paragraph No.27, would make it clear that it was only in pursuance to the submission made by learned Counsel for the respondent that he may apply for voluntary retirement. In that context, the observations of notional Page 8 of 9 HC-NIC Page 8 of 9 Created On Wed Sep 16 01:02:33 IST 2015 C/MCA/2575/2015 ORDER reinstatement has only limited significance; inasmuch as, in absence of notional reinstatement, it would not have been possible for the petitioner to consider the application of the respondent for voluntary retirement, because the relationship of employer and employee did not exist on the date of judgment and order.
10. Though the rival parties have invited attention of this Court to the averments made in the application for contempt, this Court would not be making any observations with regard thereto since the matter is subjudice before a Bench taking up contempt matters.
11. Under the circumstances, this review application is required to be allowed and the oral judgment dated 0607/08/2014 passed by this Court in SCA NO.1214 of 2003 stands clarified to the aforesaid extent.
12. Rule is made absolute to the aforesaid extent. No costs.
(G.R.UDHWANI, J.) sompura Page 9 of 9 HC-NIC Page 9 of 9 Created On Wed Sep 16 01:02:33 IST 2015