Gujarat High Court
Narendra Kantishankar Joshi vs State Of Gujarat on 26 April, 2018
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/9787/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9787 of 2016
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NARENDRA KANTISHANKAR JOSHI
Versus
STATE OF GUJARAT
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Appearance:
MR SP KOTIA(5687) for the PETITIONER(s) No. 1
MR BHARGAV PANDYA, AGP for RESPONDENT(s) No. 1-2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 26/04/2018
ORAL ORDER
Heard Mr. S.P.Kotia, learned counsel for the petitioner and Mr. Bhargav Pandya, learned Assistant Government Pleader for the respondents.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main relief:
"(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions, and direct the respondent authority to consider the service of the petitioner from 15.05.2014 till the date of resuming his duties as regular service and not to treat the same as break in service/leave and further be pleased to direct the respondent authority, more particularly respondent No.2 to assign light work to the petitioner considering the fresh medical certificate issued by Government Hospital, Rajkot."
3. Facts indicate that the petitioner is working as an assistant machine man in the Government Press at Bhavnagar and because of some accident, left-index finger of the petitioner got crushed and therefore, it is the case of the petitioner that he should be given light work. It further appears that the petitioner approached this Court by way of filing Special Civil Application No.8917 of 2014 with a case that the Page 1 of 4 C/SCA/9787/2016 ORDER petitioner had met with an accident, which occurred on 31.12.2014 and instead of regular duty, relying upon the medical certificates, it was prayed that respondents be directed to give light work and also prayed further direction that respondent No.2 being Manager of Government Press, Bhavnagar would be held personally liable for any financial loss.
4. This Court (Coram:S.H.Vora, J.) vide order dated 12.11.2014 was pleased to reject the said petition and observed thus:
"I have heard the submissions made at Bar by the learned advocates for the respective parties and examined various documents annexed with the present petition, more particularly certificate dated 11.08.2014. In the case on hand, the petitioner has placed two medical certificates vide dated 24.01.2005 and dated 20.06.2007, wherein he was advised to avoid heavy weight lifting with left hand. Thereafter, the petitioner has never presented himself for examination before the Medical Board at any point of time till filing of the present petition in the year 2014. Pending hearing of the present petition, the petitioner has placed on record one certificate dated 11.08.2014 issued by Resident Medical Officer, Bhavnagar, which nowhere states that the petitioner is not able to lift heavy weight with the left hand. Under this circumstances, it is found that except last certificate dated 20.06.2007, there is nothing on record to confirm that as on today the petitioner is not in a position to lift heavy weight with the left hand. Lastly, it is contended by the learned advocate for the petitioner that the petitioner had permanent partial disablement of 5% to 7% and therefore, he ought to have been assigned light work. For this submission reference has been made to certificate dated 09.04.2007. This submission is devoid of merits for the simple reason that there is no latest medical certificate placed on record to indicate that the petitioner has still 5% to 7% permanent partial disablement. On the contrary, vide Undertaking dated 21.08.2012, the petitioner assured that he will perform his regular duty. It is not the case of the petitioner that said Undertaking was obtained under any coercion or threat. Therefore, considering voluntary Undertaking submitted by the petitioner on 21.08.2012, it could be confirmed that the petitioner was able to perform his regular duty. Therefore, the submission that the petitioner has 5% to 7% disablement as on today is devoid of merits. No other contention has been raised. "Page 2 of 4 C/SCA/9787/2016 ORDER
5. The said order was carried forward by filing Letter Patent Appeal No.1402/2014, which was rejected by Division Bench of this Court vide order dated 07.01.2015, which is forming part of the record of present petition, wherein the Division Bench of this Court observed thus:
"4. From the aforesaid observations, it is clear that the two Medical Certificates wherein, it was stated that the appellant is advised to avoid lifting heavy weight with left hand, were issued in the years 2005 & 2007 respectively. The appellant had never presented himself for examination before the Medical Board, at any point of time, till the filing of the captioned petition in the year 2014. Pending hearing of the writ petition and in pursuance of the order of learned single Judge, the petitioner presented himself for examination before the Medical Officer, who issued the Certificate dated 11.08.2014. However, in the said Certificate, no where it is stated that the appellant is advised to avoid lifting heavy weight with his left hand.
5. On the contrary, in the appeal dated 21.08.2012 filed by the appellant against the order of compulsory retirement, he gave an Undertaking wherein, he requested that his appeal may be considered sympathetically and that he shall do all such work that may be assigned to him in future by maintaining cordial and peaceful relation with other co-workers and that in future, he shall not raise any dispute or file case before any Court of Law. After having given such Undertaking, the appellant ought not to have raised the dispute regarding assignment of work to him.
6. Considering the totality of facts and the material on record, we are of the view that the learned single Judge was justified in rejecting the writ petition of the appellant. Hence, we find no reasons to entertain the appeal. Consequently, the appeal stands rejected."
6. Again the petitioner approached this Court by filing Special Civil Application No.6033/2015 with identical prayers as prayed for in this petition.
7. This Court (Coram : J.B.Pardiwala, J.) recorded the statement of learned Assistant Government Pleader to the effect that as the petitioner was on unsanctioned leave, some deduction from his salary is made. However, it was stated that from the next month onwards, regular salary will be paid and while disposing of the said petition, this Court was pleased Page 3 of 4 C/SCA/9787/2016 ORDER to permit the petitioner to file representation within 8 days and directed the State Government to decide the same within 15 days. As the representation is not considered, present petition is filed with identical prayers.
8. Fact remains that earlier petition which was rejected, was confirmed by the Division Bench of this Court. Even in Special Civil Application No.6033 of 2015, this Court only directed the State Government to consider the representation sympathetically, which, in opinion of this Court has been done and as pointed out by learned AGP that, considering the injury of the petitioner, at present the petitioner is working as Assistant Machine Man, who is only required to place the papers.
9. In light of the aforesaid, no further direction is necessary. However, it is provided that the respondent authority shall provide only light work as stated by learned AGP.
With the above observations, present petition is not entertained on the same grounds as observed by this Court in Special Civil Application No.6033 of 2015. Notice is discharged.
(R.M.CHHAYA, J) SUCHIT Page 4 of 4