Gujarat High Court
State Of Gujarat vs Yagnesh Indravadan Dhebar on 28 September, 2018
Author: A.S. Supehia
Bench: Harsha Devani, A.S. Supehia
C/LPA/1572/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1572 of 2017
In SPECIAL CIVIL APPLICATION NO. 7906 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI Sd/-
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
YAGNESH INDRAVADAN DHEBAR
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Appearance:
MR.UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER(1) for the
PETITIONER(s) No. 1,2
MR AR THACKER(888) for the RESPONDENT(s) No. 4
MR BAIJU JOSHI(1207) for the RESPONDENT(s) No. 2,3
MS. SHIVANGI M RANA(7053) for the RESPONDENT(s) No. 1
SHIVANG A THACKER(7424) for the RESPONDENT(s) No. 4
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 28/09/2018
Page 1 of 14
C/LPA/1572/2017 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA)
1. The present appeal is directed against the order dated 21.02.2017, passed by the learned Single Judge in the captioned Special Civil Application, whereby the learned Singe Judge has dismissed the same and confirmed the order of the Tribunal, and further directed the petitioners to pay pension and retirement dues to the respondent no.1.
2. The brief facts necessary for considering the issue involved are as under: 2.1 The controversy involved in appeal pertain to the power of tribunal (Gujarat Affiliation Colleges Services Tribunal), to convert "Resignation" into "Voluntary Retirement".
2.2 The respondent no.1 joined the service in the Year1974 i.e. from 05.07.1974 in the Law College, Bharuch. He then joined I.M.Nanavati College at Ahmedabad and thereafter, he joined K.P.Shah Law College, Jamnagar on 06.08.1992 as Principal.
2.3 Pursuant to the some misconduct, the respondent no.1 was suspended by respondent no.2 College on 06.08.1992.
2.4 Being aggrieved and dissatisfied by the order of suspension dated 06.08.1992, the respondent no.1 preferred an application before the Gujarat Affiliated Colleges Services Tribunal being Application No.3 of 2002.
Page 2 of 14C/LPA/1572/2017 JUDGMENT 2.5 During the pendency of the said proceedings on 17.06.2002, a compromise was arrived at between respondent nos.1 and 3 to the effect that the respondent no.1 is permitted to resign from the college and respondent no.3 will withdraw all departmental proceedings and criminal cases against the respondent no.1.
2.6 A compromise dated 17.06.2002 was presented before the tribunal by way of pursis. The tribunal disposed of the pending proceedings on the basis of compromise pursis on 17.06.2002. The resignation of the respondent no.1 was accepted by the respondent no.3 College on 25.06.2002.
2.7 After approximately 2 years of having tendered resignation and resignation having been accepted, the respondent no.1 on 12.04.2004, made an application to respondent no.3 management, requesting to consider his "Resignation" as "Voluntary Retirement".
2.8 The respondent no.3 forwarded the application to the State Authorities. The State authorities rejected the application of respondent no.1 vide order dated 22.08.2007, as there is no provision in service rules, whereby once an employee, who has tendered resignation, the same can be considered as voluntary retirement.
2.9 The respondent no.1 preferred an application before the tribunal, being application no.1 of 2008 with a prayer to convert his resignation which was Page 3 of 14 C/LPA/1572/2017 JUDGMENT submitted way back in the Year 2002 into voluntary retirement.
2.10 The Tribunal vide order dated 08.02.2008 allowed the application of respondent no.1 and directed the State authorities to release all pensionary benefits in favour of respondent no.1 herein by converting his resignation into voluntary retirement.
2.11 The order dated 08.02.2008, passed by the tribunal was challenged before this Court by filing a writ petition being Special Civil Application No.1225 of 2008.
2.12 This Court had allowed the writ petition and quashed and set aside the order passed the tribunal dated 08.02.2008 vide order dated 10.12.2008, and the matter was remanded back to the tribunal for fresh adjudication.
2.13 Upon remand, the tribunal again by order dated 22.07.2010, allowed the application of respondent no.1 converting his resignation into voluntary retirement and directed the State authorities to grant all retirement benefits to respondent no.1.
2.14 Being aggrieved by the order dated 20.07.2010, the captioned writ petition was filed before this Court. The learned Single Judge, after hearing both the sides, dismissed the petition vide order dated 21.02.2017, and upheld the order passed by the Page 4 of 14 C/LPA/1572/2017 JUDGMENT tribunal dated 22.07.2010.
3. Mr.Utkarsh Sharma, learned Assistant Government Pleader for the appellantsStateoriginal petitioners has submitted that even if respondent no.1 would have tendered an application for voluntary retirement, the same was bound to be rejected since there were not only departmental proceedings pending, but there was a criminal complaint which was filed against the respondent no.1 by the College. It is also contended that the respondent no.1 had entered in to a compromise with the Management for tendering his resignation, since he was facing departmental and criminal prosecution. Thus, no fault can be attributed to the state in denying the request of the respondent no.1 for treating his resignation as voluntary retirement.
4. In view of the aforesaid submissions, learned Assistant Government Pleader has urged that the impugned judgments and orders passed by the Tribunal as well as the learned Single Judge confirming the order of the Tribunal are required to be quashed and set aside.
5. In furtherance to the aforesaid submissions, Mr.Baiju Joshi, learned advocate for the respondent nos.2 and 3 has submitted that in fact, the respondent no.1 had resigned from the services in view of the compromise between the Trust and him on 17.06.2002. He has submitted that on such compromise arrived at between the parties, filed by the Page 5 of 14 C/LPA/1572/2017 JUDGMENT respondent no.1 being Application No. 3 of 2002 was disposed of vide order dated 18.06.2002. He has also invited the attention of this Court to the pursis filed before the Tribunal in Review Application No.10 of 2006 with Application No.24 of 2003 and Application No.1 of 2008. He has submitted that in the pursis the Trust has specifically stated that the RespondentTrust would forward his case to the State Government for considering his case for voluntary retirement instead of resignation and the Trust will not be responsible in case his application is rejected by the State.
6. Learned advocate Mr.Joshi has asserted that an amount of Rs.40,000/ towards subsistence allowance was also paid to the respondent no.1 on 08.04.2001. Thus, he has urged that the Trust has no role to play since on the proposal sent by the Trust, the State Government has rejected the case of the present respondent no.1 for treating his case as voluntary retirement by the order dated 22.08.2007.
7. In response to the aforesaid submissions advanced by learned advocate Mr.Baiju Joshi and learned AGP, Ms.Shivangi Rana, learned advocate for the respondent no.1 has submitted that there was no intention on the part of the respondent no.1 to resign from the service. She has submitted that subsequently, on 12.04.2004, the respondent no.1 had given an application for converting the voluntary resignation into voluntarily retirement. She has submitted that the respondent no.1 has completed 27 Page 6 of 14 C/LPA/1572/2017 JUDGMENT years of service and as he is suffering from various ailments, a sympathetic approach may be adopted.
8. She has further submitted that looking to the resignation letter, it can be said that the respondent no.1 has used improper terminology of voluntary resignation instead of voluntary retirement. In support of her submissions, she has placed reliance on the decisions of the Apex Court in the case of Sheelkumar Jain versus New India Assurance Company Limited and Others, reported in (2011) 12 SCC 197 and in the case of Shashikala Devi versus Central Bank of India & Ors., reported in (2014) 16 SCC 260.
9. She has placed reliance on the various resolutions and circulars i.e. 08.10.1970, 13.04.1978, 15.10.1984, 07.11.1988, 18.01.1990, 16.01.1992, 11.04.1994, 24.10.2000 and 22.11.2000. She has submitted that all these resolutions provide that on completion of 20 years of service an employee is entitled for pensionary benefits and since the respondent no.1 has completed 27 years of service, he is entitled to pension. Reference is also made to Rule 48 and 49 of the Gujarat Civil Services(Pension)rules, 2002.
10. In view of the aforesaid resolutions, she has urged that the order of the Tribunal as well as the learned Single Judge confirming the order of the Tribunal and directing the present appellants to pay pension to the respondent no.1 does not require Page 7 of 14 C/LPA/1572/2017 JUDGMENT interference.
11. In the present case, the present respondent no.1 was serving as Lecturer under the respondent no.2 - Trust. The respondent no.1 is claiming pension under the Gujarat Civil Services (Pension) Rule, 2002. Rule 25 defines qualifying services for pension. The same reads as under: "25.Qualifying Service : Subject to the provisions of these rules, qualifying service of a Government employee, means and includes
(i) all service including service on probation rendered on a regular establishment in any capacity whether, temporary or permanent, interrupted or continuous but it shall not include a. ......
b. ......
c. ......
d. ......
e. Service prior to resignation, removal or dismissal."
12. Thus, the service which is rendered prior to resignation is not included as qualifying service for pension as per Rule 25(e) of the aforesaid Gujarat Civil Services (Pension) Rules, 2002. Reliance placed on Rule 48 and 49 of the Pension Rules, 2002 by the Respondent no.1 is misconceived since the same deal with voluntary retirement after completion of 20 and 25 years of service. A Page 8 of 14 C/LPA/1572/2017 JUDGMENT government employee after completion of 20 and 25 years of service can seek voluntary retirement after giving notice of not less than three months in writing to the appointing authority under Rule 48 and 49. Rule 48 and 49 are not attracted in the case of the present Respondent no.1 since he had not given any notice as required under the Rules.
13 It is an undisputed fact that the respondent no.1 was suspended from the services, and he was also facing departmental inquiry as well as criminal prosecution. It is also not in dispute that he had filed an Application No.3 of 2002 before the Tribunal challenging his suspension order dated 05.02.2002. During the pendency of the proceedings before the Tribunal, a compromise dated 16.06.2002 was arrived at between the present respondent no.1 and the Trust.
14. A close scrutiny of the aforesaid compromise reveals that the respondent no.1 had agreed to tender his resignation and in response to the same, the Trust would withdraw his suspension order as well as departmental proceedings. It was also agreed that criminal prosecution i.e. Criminal Case No. 424 of 2001 against the respondent no.1 would also stand withdrawn by the Trust.
15. Prior to that compromise, the respondent no.1 had tendered his resignation on 04.06.2002 which was sent to the Saurashtra University and the same was also accepted. The respondent no.1 had tendered his Page 9 of 14 C/LPA/1572/2017 JUDGMENT resignation on 04.06.2002 with effect from 01.07.2002. The resignation letter reads as under: "To, President Shri, Shri Vidhyotejak Mandal, Jamnagar.
Sub: Tendering of resignation from K.P.Shah Law College, Jamnagar as Principal. It is respectfully informed to you that, due to personal reasons, I am tendering my voluntary resignation with effect from 01.07.2002 from K.P.Shah Law College and I request you to accept the same and sanction the same.
Thanking You, Sd/ Y.I.DHEBHAR Copy to: Registrar, Saurashtra University, Rajkot."
16. Thus, on plain reading of the resignation letter dated 04.06.2002, it is manifest that the respondent no.1 had tendered his resignation voluntarily, and thereafter, on tendering his resignation, a compromise was arrived at between the respondent no.1 and the Trust for withdrawing the departmental proceedings and criminal prosecution. Thus, from the Page 10 of 14 C/LPA/1572/2017 JUDGMENT aforesaid facts, it cannot be inferred that the resignation of the present respondent no.1 was a case of simpliciter resignation, but in order to avoid the rigors of departmental proceedings and criminal prosecution, he had consented for a compromise with the Trust.
17. In this view of the matter, it cannot be said that the respondent no.1 had voluntary retired from the services and his resignation cannot be said to be an application for voluntary retirement. The respondent no.1 has based his entire case on the reply filed by the respondentTrust in the Review Application No.10 of 2006 in Application No.24 of 2003 with Application No.1 of 2008 for claiming pension.
18. The respondentTrust in the reply dated 08.02.2008 has specifically stated that the case of the respondent no.1 would be sent to the State Government by the Trust to treat it as voluntary retirement instead of resignation with a stipulation that there would not be any responsibility of the Trust, if any decision is taken by the Joint Director, Education Department, Gandhinagar. Subsequently, by the letter dated 22.08.2007, the State Government has declined to convert the resignation of the respondent no.1 to voluntary retirement. Hence, the respondent no.1 cannot rely upon the reply filed by the Trust before the Tribunal for making a case for voluntary retirement.
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19. In this view of the matter, the Tribunal has failed to appreciate the facts in its true perspective and has totally erred in holding that the respondent no.1 is entitled to pension and his case is to be considered as voluntary retirement instead of resignation. The Tribunal, vide order dated 22.07.2010 has made a declaration that the resignation of the respondent no.1 is converted into voluntary retirement.
20. In the considered opinion of this Court, the Tribunal lacks jurisdiction in converting a "resignation" of an employee to "voluntary retirement" as the same exclusively falls in the sole domain of the State Government. Thus, the Tribunal has exceeded its jurisdiction in giving such declaration of converting resignation into voluntary retirement.
21. As regards various resolutions and circulars relied upon by the learned advocate Ms.Shivangi Rana in support of her arguments that the respondent no.1 would be entitled to pension on completion of 27 years of service, it is pertinent to note that the aforesaid resolutions/circulars deal with the voluntary retirement and on careful scrutiny of all the resolutions and circulars, this Court does not find anything which would support the case of the respondent no.1 conveying that if an employee, who resigns from the service would be entitled to pension.
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22. Reliance placed by learned advocate Ms.Shivangi Rana on the decision of Sheelkumar Jain (Supra) would not come to the rescue of the respondent no.1. In the said case, the Apex Court has observed thus: "30. The aforesaid authorities would show that the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purpose of the statutory provisions."
23. Reliance placed by learned advocate Ms.Shivangi Rana on the decision of Shashikala Devi (Supra), the same would not apply in the facts of the present case since the regulations mentioned therein protected the employee for grant of pension in case of resignation.
24. Thus, the aforesaid decisions would not apply in the facts of the present case since, as noted herein above, the case of the respondent no.1 would be governed by Rule 25(e) of the Gujarat Civil Services (Pension) Rules, 2002, which prohibits service prior to the resignation of an employee as qualifying service.
25. In light of the foregoing observations and analysis, the present appeal is allowed. The impugned judgment and order of the learned single Page 13 of 14 C/LPA/1572/2017 JUDGMENT judge and the tribunal are quashed and set aside. Rule is made absolute. There shall be no order as to costs.
Sd/-
(HARSHA DEVANI, J) Sd/-
(A. S. SUPEHIA, J) GIRISH Page 14 of 14