Gujarat High Court
State Of Gujarat vs Pravinlal Kalyandas Rana on 25 July, 2018
Author: A.S. Supehia
Bench: Harsha Devani, A.S. Supehia
C/LPA/984/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 984 of 2018
In SPECIAL CIVIL APPLICATION NO. 3842 of 2008
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 Yes
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
PRAVINLAL KALYANDAS RANA
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Appearance:
MR.UTKARSH SHARMA, AGP (1) for the PETITIONER(s) No. 1,2,3
for the RESPONDENT(s) No. 1
MR GM JOSHI(370) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 25/07/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.S. SUPEHIA) Page 1 of 16 C/LPA/984/2018 JUDGMENT
1. Admit. Mr.Joshi,learned advocate for the respondent waives service of Rule. With consent of the learned advocates appearing for the respective parties, the Letters Patent Appeal is taken up for final hearing today.
2. The present appeal is directed against the judgment and order dated 25.01.2017, passed in Special Civil Application No.3842 of 2008, whereby the learned Single Judge has quashed and setaside the impugned order dated 28.11.2007 and directed the present appellants - original respondents to treat the present respondent - original petitioner as having superannuated from service with effect from 30.11.2007 and pay him all the retiral dues in accordance with law and has also directed to treat the period of absence as leave without pay.
3. The brief facts of the present appeal are as under: 3.1 The respondentDeputy Executive Engineer joined the government services on 11.05.1973 and is treated to have been resigned w.e.f 30.11.2007 after rendering more than 34 years of service.
3.2 As the respondent was not in a position to perform his duties as a Deputy Executive Engineer which requires continuous traveling in a vehicle as well as on visiting different Page 2 of 16 C/LPA/984/2018 JUDGMENT sites, he had tendered a proposal seeking volunatary retirement with effect from 31.05.2003 vide application dated 25.02.2003. The said application was rejected by the authorities on the ground that a departmental inquiry was pending against him at the relevant time. As it was impossible for the respondent to perform his duties which required physical movement, he applied for leave of 75 days from 18.07.2003 to 30.06.2003 which was sanctioned by the Superintendent Engineer by Office Order dated 11.09.2003 3.3 One inquiry was closed accepting the explanation of the petitioner by order dated 28.08.2003 after period of 1 ½ years and another inquiry which was initiated in the Year 1996 resulted into the exoneration vide order dated 03.09.2004. Still another inquiry was initiated against the respondent by issuing a showcause notice dated 01.03.2004 in respect of alleged irregularities committed by the petitioner in the Year 200102, no order was passed in that and the same remained pending.
3.4 Because of the compelling circumstances namely that the whole family of the respondent except his old mother aged 82 years was abroad and because of the fact that the respondent was rendered completely immobile because of the Page 3 of 16 C/LPA/984/2018 JUDGMENT severe back pain, he applied for leave which was not granted. The respondent, therefore, proceeded on leave for 125 days which was earned leave, 160 days of converted leave and 1222 days of leave without pay by applying for the same.
3.5 It is the case of the respondent that he was regularly applying for leave, but no decision was taken on his applications though, according to the information of the respondent, immediate superior recommended for grant of leave. The respondent was to reach the age of superannuation on 30.11.2007. Therefore, the respondent addressed letters to the appellant authorities on 17.10.2007, 27.10.2007 and 16.11.2007 requesting the appellants to permit him to resume the duties so that he can superannuate on 30.11.2007 and also prayed for grant of leave as stated above. However, the respondent was called for making oral representations on 23.11.2007 as to why he should not be deemed to have resigned from service as per the amended Rule 16 of Gujarat Civil Service (Leave) Rules, 2002.(herein after referred to as Leave Rules,2002). The respondent addressed a letter on 23.11.2007 and also made oral representations requesting to grant the leave and also pointed out that he always wanted to voluntarily rétire from service because of his Page 4 of 16 C/LPA/984/2018 JUDGMENT ill health and inability to resume the duty for the reasons stated from time to time.
3.6 Vide impugned order dated 28.11.2007 i.e. 2 days before the date of superannuation, the Deputy Secretary communicated to the respondent that he is deemed to have resigned from service with effect from 01.10.2003 as per Rule 16 0f the Gujarat Civil Service (Leave) Rules, 2002, as amended with effect from 01.12.2006.
3.7 The aforesaid action was subject matter of challenge before the learned single judge in the captioned writ petition. By the impugned judgment dated 25.01.2017, the learned single judge has allowed the writ petition by quashing the order dt.28.11.2007.
4. Mr.Utkarsh Sharma, learned Assistant Government Pleader for the appellants - State submits that the learned Single Judge erred in not considering the fact that to initiate a departmental inquiry is in the discretion of government and it is not necessary to initiate departmental inquiry where there is specific Rule to take specific action on ground of unauthorized absence as provided under the statute. Furthermore, it is contended that a deemed resignation is a penalty not a punishment for absconding the service for 03.07.2003 till 30.11.2007 including the sanctioned leave of 75 days.
Page 5 of 16C/LPA/984/2018 JUDGMENT
5. Learned AGP has further submitted that the learned Single Judge has erred in not considering the facts in its true perspective. He has stated that the office of the appellant had requested the respondent on 17.05.2004; 14.07.2004; 13.08.2004; 27.08.2004; 03.09.2004; and 24.09.2004 to resume his duty however, the respondent by the letters dated 23.07.2004 and 22.11.2004 informed that due to medical ground he couldn't resume his duty, and also requested to sanction the leave. Thereafter, the office of appellant had requested him to submit medical certificate of civil surgeon on 10.11.2004, and also informed that if no certificate is issued or if he fails to resume his duty within 15 days an appropriate action would be taken. Thereafter, on 22.11.2004, it was informed by the respondent that he had already applied for leave so he is not on unauthorized leave. Mr.Sharma has asserted that the learned single judge should have considered that the respondent did not submit any medical certificate nor the leave requested by him was ever sanctioned.
6. Learned AGP, Mr.Sharma has invited the attention of this Court to Rule 16 of the Leave Rules, 2002, and has asserted that in view of the powers conferred under the same, the state government can treat a government employee deemed to have resigned from service if he remains unauthorizedly absent for a period five years. Hence, the learned single judge has erred in quashing and setting aside the order Page 6 of 16 C/LPA/984/2018 JUDGMENT dated 28.11.2007 treating the respondent as having resigned w.e.f. 01.10.2003 since he has remained absent from the said date.
7. Per contra, Mr.G.M.Joshi, learned advocate for the respondent has submitted that the date on which the respondent was unable to resume his duties, the position of the Rules was different. He has submitted that the continued absence would amount to a misconduct for which a regular departmental proceeding would be required, and the respondent is denied his retirement benefits by treating him resigned with retrospective effect as if he is imposed a major penalty of dismissal or removal.
8. Mr.Joshi, learned advocate for the respondent has submitted that the Rules are framed under Article 309 of the Constitution of India. The date of coming into force of the Rule is the date of notification namely 01.12.2006. It is,therefore, submitted by him that unless and until it is clearly made applicable with retrospective effect, it would apply only to that conduct and the absence after the date of incorporation and not before that date. Hence, the respondent could not have taken shelter of the amendment for governing the conduct prior to the date of amendment.
9. Mr.Joshi has further submitted that even otherwise, the respondent is deemed to have resigned with effect from 01.10.2003 as stated in the order, Page 7 of 16 C/LPA/984/2018 JUDGMENT but it would result into a situation, whereby two departmental proceedings which were made the basis for rejecting the application for voluntary retirement vanish in thin air. He has submitted that, on one hand, the appellant Government did not accept the proposal for voluntary retirement on the ground that the department proceedings are pending and on the other hand, the absence which would otherwise amount to misconduct is now treated as deemed resignation on the basis of an amendment which is of a subsequent date. Such an anomalous situation cannot be either envisaged or permitted by giving a retrospective effect to the operation of the Rule. It is submitted that unless and until the Rule is specifically made effective from a prior date, it cannot be used for the purpose of governing the conduct prior to that date. In support of his submission, learned advocate Mr.Joshi has referred to decision of the Hon'ble Supreme Court reported in (1989) 3SCC 448 in the case of Pyarelal Sharma V/s. Managing Director & Others.
10. We have considered the rival contentions made by the learned Advocates for the parties at lis. The learned advocates for the respective parties have premised their rival submissions on Rule 16 of Leave Rules, 2002. Before adverting to the rival contentions, we may briefly notice the provisions of the Leave Rules, 2002.
Rule (16) of the Gujarat Civil Services (Leave) Page 8 of 16 C/LPA/984/2018 JUDGMENT Rules, 2002 as it" stood on the date on which the alleged absence of the respondent commenced reads thus:
"Rule16: Unless government in view of the exceptional circumstances of the case otherwise determines, no government employee shall be granted leave of any kind for a continuous period exceeding five years."
The amendment which came into force with effect from 01.12.2006 vide Notification dated 01.12.2006 by which the State Government amended Rule 16 of the Gujarat Civil Services (Leave) Rules, 2002 reads in the following manner: "16 Maximum period of continuous leave, (1) No Government employee shall be granted leave of any kind for a continuous period exceeding five years.
(2) A Government employee shall be deemed to have resigned from service if, he,:
(a) is absent without authorization for a period of one year from the date of expiry of sanctioned leave or permission; or
(b) is absent from the duty for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year:Page 9 of 16
C/LPA/984/2018 JUDGMENT Provided that a reasonable opportunity to explain the reason for such absence shall be given to the Government employee before the provisions of subrule (2) are invoked."
11. Prior to the amendment of Rule 16 a government employee was not granted leave of any kind for a continuous period exceeding five years. Vide Notification dated 01.12.2006, the concept of "deemed resignation" has been introduced by way of amendment in Rule 16. A plain and simple reading of the aforesaid Rule postulates that a government employee will be treated as resigned from service if he has remained unauthorizedly absent for a period of one year from the date of expiry of sanctioned leave or permission; or if he is absent from the duty for a continuous period exceeding five years. The Supreme Court in case of Pyarelal Sharma(supra) while examining the effect of unauthorized absence of an employee prior to an amendment of such regulation has observed and held as under: "21. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to the abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The Page 10 of 16 C/LPA/984/2018 JUDGMENT regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20,1983 and as such the period of unauthorized absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The showcause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the showcause notice is obviously prior to April 20, 1983. The period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma. The date of showcause notice being April 21, 1983 the unauthorized absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date amendment of Regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside."
12. The laudable decision of the Apex Court Page 11 of 16 C/LPA/984/2018 JUDGMENT facilitates us to understand the legal effect of amended Rule 16 which was amended vide Notification dated 01.12.2006. Thus, the amended Rule 16 will only apply to the posterior period of absence of respondent from 01.12.2006 and not to the anterior period. In the present case the date of superannuation of the respondent is 30.11.2007 and only the period of absence from 01.12.2006 to 30.11.2007, i.e. 11 months 29 days, which is shy of one year as contemplated under Rule 16(2)(a) can be considered for deemed resignation. Unquestionably, Rule 16(2)(b) cannot govern the period of absence of the respondent since the same will not be a period of five years even if it is counted w.e.f 01.10.2003 as referred in the impugned order as he has reached the age of superannuation on 30.11.2007. The notification dated 01.12.2006 doe not remotely suggest that the Rule 16 will operate retrospectively.
13. Thus, the analysis of the period of absence of the respondent posterior to the date of Notification dated 01.12.2006 does not attract the "deemed resignation" since the same does not qualify the requirement of clause (a) of subrule (2) of Rule 16 of Leave Rules, 2002. Hence, the impugned order treating the respondent as resigned from service w.e.f 01.10.2003 is precisely quashed by the learned single judge.
14. The undisputed fact is that the present respondent was exonerated in the two department Page 12 of 16 C/LPA/984/2018 JUDGMENT inquiries vide order dated 28.08.2003 and 03.09.2004, respectively. In the impugned order, it is observed that the respondent is deemed to have resigned from services with effect from 01.10.2003, whereby vide order dated 03.09.2004, the authorities has exonerated the respondent, meaning thereby, till 03.09.2004, the respondent has been treated in service. There is total nonapplication of mind by the appellant authorities on this aspect. It was always open for the present appellants to initiate department inquiry for unauthorized absence. It appears that in order to avoid the same, the present appellant by adopting a short cut to the same has issued the impunged order treating to the respondent of having given the deemed resignation with retrospective dated from 01.10.2003 jeopardising his retirement benefits.
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 Page 13 of 16 C/LPA/984/2018 JUDGMENT 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 of Rajeshkumar Ramubhai Bhatia Versus State Of Gujarat, 2010 (1) GCD 76 , the same reads thus:
"It deserves to be recorded that the terminal be nefits may not be available had the petitioner removed or dismissed from service by the Govern ment. 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 peti tioner is deemed to have resigned and the ser vices are put to an end. When the power is exer cised 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 peti tioner has remained on duty and has worked upto 01.12.2001, thereafter, has not actually worked Page 14 of 16 C/LPA/984/2018 JUDGMENT on the post therefore, the reasonable interpret ation of the order of the State Government under Rule 16(2) of the Rules would be that the peti tioner is deemed to have resigned from 01.12.2001. The learned counsel for the peti tioner 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."
16. On the backdrop of the aforenoted analysis of fact, rule and the law enunciated by the Apex Court, this Court is of the opinion that the learned single judge has not committed any error in exercising the jurisdiction conferred under Article 226 of the Constitution of India in quashing and setting aside the impugned order dated 28.11.2007.
17. Mr.Joshi, learned advocate on the instructions of the respondent has very fairly submitted that considering, his age and health and in order to see that he is not embroiled in further litigation, propriety demands that, he may be treated as voluntary retired from service on completion of 25 years of service and his retirement benefits may be calculated and paid on that basis. Accordingly, in view of the concession, the appellants are hereby directed to fix and grant the retirement benefits to the present respondent on the basis of his 25 years of service within a period of six weeks from the date Page 15 of 16 C/LPA/984/2018 JUDGMENT of receipt of the present order. In default, the respondent shall be entitled to 6% interest on the amount of retirement benefits. The judgment and order dated 25.01.2017 passed by the learned single judge in the captioned writ petition is modified to the aforesaid extent.
18. Consequently, the present letters patent appeal fails and is accordingly dismissed. Rule is discharged.
Sd/-
(HARSHA DEVANI, J) Sd/-
(A. S. SUPEHIA, J) Girish Page 16 of 16