Gujarat High Court
Dharnantbhai Lakhmanbhai Suva vs State Of Gujarat on 27 January, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/8543/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8543 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DHARNANTBHAI LAKHMANBHAI SUVA
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR.K.B.PUJARA, ADVOCATE with MR VINOD M GAMARA(5910) for the
Petitioner(s) No. 1
MR. UTKARSH SHARMA, AGP (1) for the Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 27/01/2020
ORAL JUDGMENT
1. RULE. With the consent of the parties, the matter is taken up for final hearing.
2. The facts in brief are as under:
2.1 The petitioner was serving as a Senior Assistant in the Public Health Department at Lakadiya, District:Kutch. He joined service as an Assistant Junior Clerk. An appointment order was issued on 23.10.1989. He joined service on Page 1 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT 01.11.1989. In the year 2005, he was appointed as Senior Assistant with the office of Superintendent, Community Health Center, Public Health Department, Village:Lakadiya.
2.2 On 11.10.2011, the petitioner having rendered more than 20 years of service, applied for voluntary retirement with effect from 31.01.2012. The application dated 11.10.2011 is on record (page 27). His immediate superior, by the letter of the same date, forwarded the application of the petitioner to the Director, Health and Medical Services (Health) for appropriate action. His immediate Superior also, in order to comply with the necessary formalities, addressed a letter to the Director of Pension and Provident Fund, confirming that the petitioner had rendered 22 years and 3 months of service.
Relevant documents were forwarded, certifying that there was no departmental inquiry pending, that there was no outstanding dues etc. so as to see that there is no hindrance in consideration of the petitioner's application for voluntary retirement. Appropriate certificates are annexed collectively.
3. From the communication dated 28.01.2012, it appears that the petitioner addressed a letter to the Superintendent- respondent no.4 that he was on leave from 11.10.2011 till 12.10.2011 and thereafter on sick leave upto 28.01.2012. A request was made that his leave be sanctioned. The request was reiterated in his letter dated 30.01.2012. An added request was made that the petitioner be communicated to resume his duties. The letter of 30.01.2012, a day before the petitioner was to retire was forwarded with valid documents like leave report, certificate of a doctor to suggest that the petitioner had validly remained on the leave for the period in Page 2 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT question. More than three years after the suggested period, the Superintendent of the Community Health Center on 20.08.2015, addressed a letter to the petitioner saying that the petitioner had remained on unauthorized leave from 12.10.2011 even though several letters and phone calls were made to the petitioner. Since the petitioner was not reporting for duty, the administration of the Community Health Center was suffering. The petitioner promptly on 19.09.2015 gave an application submitting that he was reporting for duties forthwith. The same was accompanied by a certificate showing his father's ailment. On the letter so addressed by the petitioner on 19.09.2015, the respondent no.4 again asked his superior-the Director, Rajkot, for his guidance stating that the petitioner had come to report for duty, he be appropriately guided as to what action be taken in context of the petitioner's request. From the letter of an even date from the Deputy Director, Rajkot, addressed to the Superintendent, Community Health Center, it is evident that the superior officer asked for the Superintendent's explanation on certain question which needed to be explained by the Superintendent. They are;
(a) as to when the certificate that the petitioner was entitled to superannuation pension was received ?
(b) Whether there was any action taken in context of the leave of the petitioner ?
Details were sought for from the Superintendent. In response to this, on 30.09.2015, the Superintendent's response that in fact, by a letter of 25.10.2011, the Director of Pension and Provident Fund was approached for issuance of a certificate of appropriate pension. However, the same has not Page 3 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT been received.
4. On 29.09.2015, the petitioner addressed a letter to the Commissioner that looking to his aged parents and a certain litigation that was being faced by him with regard to his house being mortgaged with the Central Bank, if it was not possible for the authorities to permit him to report at Lakadiya, he may be transferred to Community Health Center, Kalavad or Community Health Center, Lalpur. Documents suggesting details of the litigation that he was facing as a result of a possession notice of his residential property which was sought to be auctioned by the bank and for which appropriate criminal proceedings were also pending, were part of the record.
On record, there is also request from the Superintendent of Referral Hospital, Kalavad, confirming the suitability of the petitioner to be placed at Kalavad looking to his experience.
On 06.09.2016, the petitioner was issued a show cause notice. The show-cause notice indicated that despite communications having been addressed on 04.02.2012 and 20.08.2015, by which his request for leave was rejected, it was found that the petitioner had remained absent unauthorizedly. That, he had disobeyed the orders of his Superior and therefore action was contemplated under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 ('Discipline and Appeal Rules' for short) or under the Gujarat Civil Services (Leave) Rules, 2002 ('Leave Rules' for short). The petitioner was asked to show cause within 10 days. A copy of the notice was marked to the Deputy Director of the Page 4 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT Division asking for explanation as to what action the Rajkot office will take for the unauthorized absence of the petitioner.
The petitioner responded to the show-cause notice on 28.09.2016. Together with the show cause notice, letters were also written attaching the possession notice of his mortgaged property and a communication of 29.09.2015 by which the petitioner had reiterated and shown his willingness to resume duties.
However, by the impugned order dated 31.03.2017, invoking Rule 16(2) of the Leave Rules, the fiction of deemed resignation was invoked on the pretext that the petitioner had remained absent without authorization for a period of one year.
5. Mr.K.B.Pujara learned counsel appearing with Mr.Vinod Gamara learned advocate for the petitioner would contend taking me through the communications including the one dated 11.10.2011 to submit that a specific request was made for voluntary retirement on 11.10.2011. On the same date, the Superior Officer under whom the petitioner was working, had forwarded the application for appropriate consideration. Documents necessary for enforcement of the request for voluntary retirement such as no due certificate etc. were forwarded to the Pension and Provident fund office. Secondly, the petitioner had remained on leave from 11.10.2011 to 12.10.2012 in the first phase and thereafter, 12.10.2012 to 20.12.2012, for which, applications were made. On 30.12.2012, he requested that he be permitted to resume his duties. He was not allowed to do so. The request was Page 5 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT reiterated on 30.01.2012 but, no action was taken.
6. More than four years after such an episode, a communication on 20.08.2015 was received asking for an explanation and asking the petitioner to report for duty. Promptly, the petitioner reported on 19.09.2015. However, under the purported guise to seek permission from his superiors, he was not permitted to report. Show-cause notice dated 06.09.2016 was issued by which the departmental proceedings under the Discipline and Appeal Rules were sought to be initiated. However, by a completely arbitrary exercise of powers, Rule 16(2) of the Leave Rules was sought to be invoked, by which, the petitioner was treated to have given a deemed resignation with effect from 10.12.2011.
7. Apart from the order of 31.03.2017 being in violation of Article 14 inasmuch as being completely arbitrary, it is a non- speaking order. Sufficient circumstances had been explained over the period of time showing that the petitioner was on leave. Applications for leave were forwarded. In the year 2012, the petitioner reported for duty. Even four years after the department sought to seek an explanation in August, 2015, the petitioner immediately went to report for duties but, was not allowed to report.
8. The reference to a letter of 04.12.2012 which is relied upon in the show cause notice was never served upon the petitioner and though a copy was asked for, the same was not made available. Reading of the order impugned would indicate that it was certainly not a case of invoking Rule 16 of the Leave Rules. Inviting my attention to Rule 16(2) of the Page 6 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT Leave Rules, especially the proviso, Mr.Pujara would submit that had he been given a reasonable opportunity to explain the reason for such absence, the petitioner would have availed of such opportunity. In fact, from the show cause notice dated 06.09.2016, what is evident is that the authorities had contemplated taking an action under Discipline and Appeal Rules for the petitioner's act/omission of unauthorized absence, opining that the petitioner has shown a conduct unbecoming of a Government servant. They had resorted to a short-cut by invoking Rule 16(2) of the Leave Rules. The order of deemed resignation operated retrospectively from 10.12.2011 when in fact, there was no action taken by the authorities for the period from 12.10.2011 when it was a first day on which the petitioner had tendered his request for voluntary retirement.
9. Reliance is placed on a decision of Supreme Court in case of Krushnakant B. Parmar v. Union of India and Another reported in (2012) 3 SCC 178 in order to press his contention that unless and until willful absence is proved by an appropriate departmental proceedings, it was not open for the respondent Government to invoke Rule 16(2) of the Leave Rules. While supporting his argument to the order being arbitrary and therefore deserving to be set aside, Mr.Pujara would submit that looking to the fact that the petitioner's date of birth was 01.06.1965, and he will otherwise superannuate on 30.06.2023, on the quashing of the order, the petitioner should be reinstated so that he can resume his services and work till retirement on his superannuation, albeit with the liberty that in the event the respondents think it fit, they may take appropriate recourse to the provisions of Rules 8 and 9 of Page 7 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT the Discipline and Appeal Rules.
10. Alternatively, Mr.Pujara would submit that unlike Rule 25 of the Gujarat Civil Services (Pension) Rules ('Pension Rules' for short), resignation under Rule 16 i.e. deemed resignation, cannot have result of forfeiture of pension and the period of service from 01.11.1989 to 31.03.2017, though he had withdrawn his request for voluntary retirement on 23.03.2017, be treated as service undergone after accepting his voluntary retirement and appropriately calculate his terminal benefits and pay the same. Reliance in this support was placed on a decision of Division Bench of this Court in Letters Patent Appeal No.984 of 2018 in case of State of Gujarat v. Pravinlal Kalyandas Rana. Para 15 was pressed into service, which reads as under:
"15. There is yet another aspect which necessitates observations of this Court. The consequential effect of the impugned order is that the respondent is disentitled from his retirement benefits. No provision of law is pointed to the Court by the learned AGP which facilitates the appellant authorities to deny the retirement benefits to the employees who have been treated to be deemed to have resigned from service under Rule 16 of the Leave Rules, 2002. Deemed resignation under Rule 16 does not entail serious consequence of denial of retirement benefits to the employees who have otherwise become eligible to the same after rendering 20, 25 or 30 years of service as per Rule 47, 48 and 49 of Gujarat Civil Services (Pension) Rules, 2002. There can be no cavil on the law that an employee is not entitled to retirement benefits if he tenders his resignation from the service as service prior to his resignation is not treated as qualifying service(see Rule 25(I)(e) of Pension Rules, 2002), but the same will not apply in the cases of deemed resignation. We may endorse the view taken by the learned single judge of this Court in the case Page 8 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT of Rajeshkumar Ramubhai Bhatia Versus State Of Gujarat, 2010 (1) GCD 76 , the same reads thus:
"It deserves to be recorded that the terminal benefits may not be available had the petitioner removed or dismissed from service by the Government. Such is not the fact situation in the present case. The order itself speaks for the exercise of power by the Government under the Rules of 2002 for deemed resignation, therefore, the effect of the order would be that the petitioner is deemed to have resigned and the services are put to an end. When the power is exercised under Rule 16(2), it is no case of removal or dismissal from service but could be said as a statutory deeming fiction for the resignation and putting an end to the services. It is true that the order has been passed on 22.07.2008 but the perusal of the order shows that the petitioner has remained on duty and has worked upto 01.12.2001, thereafter, has not actually worked on the post therefore, the reasonable interpretation of the order of the State Government under Rule 16(2) of the Rules would be that the petitioner is deemed to have resigned from 01.12.2001. The learned counsel for the petitioner did contend that the retrospective effect may not be given to the order and as the order is passed on 22.07.2008, he should be termed as deemed to have resigned only from 22.07.2008."
11. He also relied on a decision of this Court in case of Subhashchandra Chimanlal Patel v. State of Gujarat and others reported in 2017 (1) GLR 723 to support his case.
12. Mr.Utkarsh Sharma learned AGP would submit that the entire fault cannot lay at the doorstep of the Government. There is no explanation coming-forth as to why after having tendered his request for voluntary retirement in the year 2011, the petitioner did nothing for four years till August, 2015 to follow up on his leave reports or pressed for reporting Page 9 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT for duty. The petitioner himself showed complete indolence after submitting his voluntary retirement application in 2011. No fault can be found at the hands of the authorities for issuing communication of 20.08.2015.
13. Rule 16(2) has rightly been invoked because admittedly for a period of more than one year, the petitioner has remained out of service by remaining unauthorizedly absent, attracting the ingredients of Rule 16(2). There is no case for the petitioner now to contend that the department should fall back upon the provisions of Discipline and Appeal Rules to hold any inquiry. The explanation of delay for the period from 2011 to the communication of 20.08.2015, according to Mr.Sharma, would squarely fall on the shoulders of the petitioner. Neither the petitioner was proactive in seeing that his applications for leave were considered nor did he make any attempt to report for duty. The petitioner just sat back assuming that his application for voluntary retirement shall be accepted. The indolence of the petitioner cannot foist the Government and the public exchequer with financial fall-out of consequential benefits that will follow in the event of impugned order dated 31.03.2017 is quashed and set aside.
14. The submissions of the respective counsel need to be considered and the few events that unfolded before passing of the impugned order are as under:
(I) The petitioner joined service on 01.11.1989. On the date when he applied for voluntary retirement i.e. on 11.10.2011, even according to the department, he had completed 22 years and 3 months of service and therefore, he was eligible for Page 10 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT seeking voluntary retirement. The communication of the Superintendent, CHC, Lakadiya, to the Director of Pension and Provident Fund, vindicates eligibility of the petitioner.
(II) That the petitioner was on leave from 11.12.2011 to 12.11.2012 and thereafter, upto 28.01.2012 was a matter of record by way of an application made to the Superintendent-
respondent no.4.
(III) After exhausting the leaves, the petitioner on 30.01.2012 unequivocally wrote to the department that he has reported for duty. Reading of the letter (at page 40) would indicate that the petitioner had applied for leave (half pay) and after having done so, he was reporting for duty and may accordingly be considered as so. Letter at page 41 also confirms the stand of the petitioner.
(IV) The department appears to have done nothing from the years 2011 to 2015. On 20.08.2015, the respondent no.4 addresses a letter to the petitioner. Recitals of the letter would indicate that the respondent no.4 was of the opinion that several letters were written to the petitioner, phone calls were made but no explanation was forthcoming on the cause of the petitioner's absence. The petitioner's absence was causing administrative difficulties. To this letter, the petitioner immediately responded and reported for duty. The issue was again at the back-burn at the hands of the respondent as is evident from the communication of even date i.e. 19.09.2015, by which, the Superintendent, Lakadiya, sought guidance from his Deputy Director at Rajkot. Even the letter of the Deputy Director of the same date makes a Page 11 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT reference to the letter, by which, the petitioner had sought voluntary retirement i.e. a letter dated 10.11.2011. Admittedly, therefore, the higher officer was aware that the petitioner had applied for voluntary retirement and that application was pending. That the officer was aware of this, is evident from the context in which the letter was addressed because it refers and raises two questions that the Superintendent had to answer i.e. as to what had happened to the certificate of pension and whether any decision was taken on the issue thereafter. Explanation was sought from the Superintendent as to why no explanation was taken for the period from 2012 to 2015.
15. Reading of these communications in context of the issue and the argument made by the learned counsel for the respective parties, it may be that the employee made an application in the year 2011 and tried to report for duties on 20.01.2012. The application for leave was being supported with medical certificates, the employer cannot be expected to state that it was for the employee to pro-actively follow them. From the letters of 19.09.2015, both by the Superintendent to the Director and the written communications of the same date to the Superintendent would indicate that the employer was conscious of the delay that had occurred on their part of not acting on the application of the petitioner for voluntary retirement and on the issue of pending request of the petitioner to join. This certainly cannot absolve the employer from putting the blame on the employee when it was always open for the employer to act promptly if the authorities were of the opinion that the petitioner had remained unauthorizedly absent.
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16. From the applications of leave and the communications of the petitioner twice to authorities showing his willingness to report and, the conduct of the authorities keeping the issue pending by referring it to the higher authorities when also seen in the context of letters of the referral hospital, Kalavad, would indicate that though there was always the willingness on the part of the employee to report, the issue somehow remain in the nature of correspondences between the superior authorities. This cannot therefore be branded as an action of 'unauthorized' or 'willful' absence on the part of the petitioner. In fact, even after the letter of 20.08.2015, requests have been made by the petitioner showing his willingness to report.
17. It is in the background of these facts that the petitioner was faced with the show-cause notice dated 06.09.2016 by which the authorities thought it fit to take action either under the Discipline and Appeal Rules or the Leave Rules. The show-cause notice was marked to the Director who on 19.09.2015 had asked for the Superintendent's explanation on the action that was contemplated or not taken on the question of the certificate of the pension. Obviously this would indicate that the mindset of the authorities was that they had still not come to a conclusion that the petitioner was absent unauthorizedly or that he was absent willfully. It is true that the show-cause notice contemplated an option to invoke Rule 16(2) and therefore, in the facts of the case, it may be an option that was left open for the Disciplinary Authority to take.
17.1 The question is whether in the facts of the present Page 13 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020 C/SCA/8543/2017 JUDGMENT
case, such an option should have been resorted to? It is in this context when the explanation of the petitioner if read and the impugned order dated 31.03.2017 is appreciated, what is reflected is that despite the application of voluntary retirement having been made and that having remained pending, though application for leave was made with contemporaneous evidence to support his application, the authorities did not think it fit to act on that. Adding thereto when the petitioner wanted to report for duties, the request of the petitioner was shelved under the pretext of taking guidance from the superiors. This certainly cannot be termed as an act on the part of the petitioner to claim that he had been absent willfully and expose himself to the vagaries of Rule 16 to treat him as deemed to have resigned.
17.2 At best, the authorities should have followed the procedure under Rule 8 and 9 of the Discipline and Appeal Rules after issuance of show-cause notice dated 06.09.2016, imputed charges, called for petitioner's explanation, held a regular departmental proceedings and thereafter should have come to a conclusion of whether the petitioner was willfully and/or unauthorizedly absent.
17.3 Resort to Rule 16(2) of the Leave Rules in the facts of the present case, when repeated requests of the petitioner had fallen on deaf ears of the authorities, can certainly and fail on the touchstone of Article 14 of the Constitution of India.
17.4 That brings me to the question of what relief the petitioner can be granted.
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18. While quashing the order dated 31.03.2017 on the aforesaid grounds, I leave the authorities with two options:
(A) The petitioner applied for voluntary retirement by an application dated 11.10.2011. For the reasons recorded above, I have found that the stand of the department that the petitioner was willfully or unauthorizedly absent, is without any authority of law, therefore the petitioner can be treated to have voluntarily retired with effect from 31.03.2017, the date on which the impugned order was passed and pay the petitioner all consequential terminal benefits as if the petitioner was in service upto 31.03.2017.
Secondly, in the alternative;
(B) On quashing of the order of 31.03.2017, the petitioner be reinstated in service forthwith so that the petitioner can serve the remaining tenure of service upto 30.06.2023 subject to the rider that in the event the respondents deem it fit, they can resort to the provisions of Discipline and Appeal Rules for issuing an appropriate charge-sheet for the period which the respondents think that the petitioner remained unauthorizedly absent. The reinstatement shall follow forthwith. In the event the respondents fail to take any decision of issuing any charge-sheet after his reinstatement within a period of six weeks from the date of receipt of the order, that option shall stand closed.
19. Petition is allowed accordingly. Direct service is permitted. Rule is made absolute.
(BIREN VAISHNAV, J) ANKIT SHAH Page 15 of 15 Downloaded on : Mon Jun 15 10:17:43 IST 2020