Gujarat High Court
Makwana Himmatlal Gokaldas vs State Of Gujarat - Through Secretary & 3 on 10 January, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/2312/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 2312 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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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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MAKWANA HIMMATLAL GOKALDAS....Petitioner(s)
Versus
STATE OF GUJARAT - THROUGH SECRETARY & 3....Respondent(s)
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Appearance:
MR PREMAL S RACHH, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GAUTAM, AGP for the Respondent(s) No. 1
MS RV ACHARYA, ADVOCATE for the Respondent(s) No. 2 - 3
Rule SERVED for the Respondent(s) No. 1 , 4
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 10/01/2017
ORAL JUDGMENT
1. Heard learned advocate Mr.Premal S. Rachh for the petitioner and learned AGP Mr.Swapneshwar Gautam for the respondent No.1. Nobody is present for respondent nos.2 and 3 even in second call. Matter has been dragged since Page 1 of 13 HC-NIC Page 1 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT long so as to enable the respondent to remain present and to submit their case. However, it seems that the respondents have selected not to remain present for the reasons best known to them. Perused the record.
2. Petitioner has challenged the action of the respondent of not considering the petitioner as voluntarily retired pursuant to his letter dated 11.11.2008 addressed to the concerned department for voluntary retirement. However, thereafter, since several work was pending in the office, he was orally requested by the respondent authority to extend his term after month of March and complete the records. The petitioner therefore, submitted an application dated 27.3.2009 requesting to extend the term for notice period for voluntary retirement which was recommended by respondent no.4 to respondent no.3. Such letter is at Annexure `B' dated 27.3.2009 whereby petitioner has requested to allow him to retire w.e.f. 30.6.2009 instead of his previous request to allow him to retire w.e.f. 28.2.2009, petitioner has once again requested the respondent by his letter dated 29.9.2009 to sanction his voluntary retirement w.e.f. 31.12.2009 disclosing that since no decision is taken on previous Page 2 of 13 HC-NIC Page 2 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT letters, now, pursuant to Rule 49(2) of the Gujarat Civil Services Rules, 2002 (For Short GCSR), he may be allowed to be retired or if otherwise application is not rejected within the prescribed time limit then he would be treated himself as voluntarily retired. Unfortunately, there is no response to such communication and, therefore, petitioner has again addressed a letter dated 4.1.2010 conveying above facts to the respondents. Thereafter, only on 28.1.2010, respondent No.4 has replied to the petitioner that he was unable to receive information sought from concern Panchayats and therefore unable to forward application for voluntary retirement of the petitioner to the concerned authority. Irrespective of such communication, respondent No.4 has issued a show cause notice for unauthorized absence on the same day. Copies of which are at Annexure E and F respectively. Pursuant to such show cause notice petitioner has addressed a detailed letter to the concerned respondent on 27.1.2010 which is also at Annexure F.
3. It seems that even after disclosing specific information and details, respondents have not considered the case of the petitioner for voluntary retirement either as per his Page 3 of 13 HC-NIC Page 3 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT request or as per the Rules, deeming provisions of GCSR and, therefore, they have addressed a letter dated 11.2.2010 to the petitioner that he would be considered on unauthorized absence and thereby on leave without pay.
4. Since the petitioner has sought to consider him as retired pursuant to Rule 49(2) of GCSR by his letter dated 29.3.2010, he has requested the respondent to extend retirement benefits like Provident Fund, Gratuity, Salary of Earned Leave, amount of insurance, pension etc. Unfortunately, instead of considering the request for voluntary retirement by the petitioner, now, by their letter dated 12.4.2010, respondents have conveyed that since the petitioner remained absent unauthorizedly, they asked the petitioner either to resume duty confirming that otherwise he is not entitled to get retirement benefits. The same fact has been reiterated by the respondent in their letter dated 31.3.2010.
5. It cannot be ignored that because of such decision, petitioner has no option but to ask for several information under the RTI Act though he was in services with the Page 4 of 13 HC-NIC Page 4 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT respondents and, thereby, though respondents are duty bound to disclose the factual details to him without any such application; in response to his application under RTI, now, respondents have disclosed that infact his application for voluntary retirement has never been forwarded to the competent authority. Such fact is found in letter dated 24.9.2010 at Annexure M which is addressed to the petitioner by respondent No.3 which makes it clear that respondent No.3 has never received the application for voluntary retirement by the petitioner from respondent No.4.
6. Therefore, now, it is quite clear that respondent No.4 has, for the reasons best known to him, failed to take appropriate steps on an application for voluntary retirement by the petitioner at the relevant time. Therefore, petitioner has no option but to serve a legal notice dated 2.10.2010 through his advocate which was responded by reply dated 30.12.2010.
7. However, at present, the allegation and reply in such notices are not much material when petitioner has called upon the respondent that why complaint under Sections 495 and 500 Page 5 of 13 HC-NIC Page 5 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT should not be filed against him for not taking appropriate steps in time. But the fact remains that for pretty long time, respondent has not processed the application for voluntary retirement by the petitioner. Therefore, we have to peruse the relevant Rule being Sub Rule (1) and (2) of Rule 49 of the GCSR which reads as under:
49. Voluntary retirement on completion of twenty five years' qualifying service:
(1) A Government employee at any time after completion of twentyfive years qualifying service, may, by giving notice of not less than three months in writing to the appointing authority, retire from service;
(2) The notice of voluntary retirement given under subRule (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
8. The bare reading of above Rule makes it clear that when appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of such period. It is undisputed fact that pursuant to sub Rule (1) of Rule 49, notice of three Page 6 of 13 HC-NIC Page 6 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT months is required to be given to the appointing authority and, thereby, as per sub Rule (2), if there is no refusal to grant the permission of voluntary retirement within the period of three months, then, after three months, the retirement shall become effective from the date of expiry of said period.
9. In the present case, it is undisputed fact that petitioner has joined the services as Talatim Cum Mantri in the year 1983 and after completing twenty five years of service, initially, he applied for voluntary retirement on 11.11.2008 but considering the work load, he issued another notice / application considering the notice period as per Rule 49 upto 30.6.2009. Such communication is dated 27.3.2009. Even, thereafter, he again requested to sanction voluntary retirement w.e.f. 31.12.2009 by letter dated 29.9.2009. Therefore, practically, petitioner has given almost a year to the respondent to respond to his application for voluntary retirement.
Therefore, if after a long period of one year, when respondents have not responded to any of the requests of the petitioner to consider him for voluntary retirement, petitioner has taken shelter under sub Rule Page 7 of 13 HC-NIC Page 7 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT (1) of Rule 49 for considering himself as voluntary retired and did not attend the office. Thereafter, respondents have issued a notice upon the petitioner conveying that his absence would be treated as unauthorized absence and leave without pay and asked him to join the services though there was no communication from the respondent before the expiry of notice period that they are refusing to grant permission for voluntary retirement. Therefore, as provided under Rule 49, when there is a provision that non refusal to grant the permission before the expiry of the period specified in such notice, the retirement shall become effective from the date of expiry of said period; there is substance in the petition to direct the respondents to consider the petitioner as voluntary retired from 31.12.2009 and to release all retiral benefits like pension, provident fund, gratuity, earned leave pay etc.
10. Though facts are quite clear as discussed hereinabove, the respondents have resisted the petition by filing affidavit in reply dated 1.4.2011 contending that though they have received application of the petitioner for voluntary retirement but when petitioner Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT has sought extension of time for such voluntary retirement, such intimation was not in prescribed format and, therefore, it could not be sent to the competent authority for consideration. Thereby, practically, respondents have failed to realize that in fact petitioner's first application was in prescribed format which they ought to have forward to the competent authority or otherwise they have to communicate to the petitioner in writing before the expiry of notice period that they are refusing to grant the permission for voluntary retirement.
11. The record shows that in fact respondent No.4 has failed to process the application for voluntary retirement and probably considering such attitude of employer the statutory Rule provides that if employer does not process the application within notice period then retirement shall become effective from the date of expiry of said period. Therefore, such statutory Rule will prevail over inaction on the part of the respondent.
12. In affidavit in rejoinder, petitioner has reiterated such legal position by reproducing the text of Rule 49 and discussed such legal position in detail. Petitioner is also Page 9 of 13 HC-NIC Page 9 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT relying upon the decision in the case of Suryakant Chimanlal Patel v. State of Gujarat reported in 2009(3) GLR 1842 wherein the Division Bench of this Court has held that in view of statutory provisions in form of Rule 49, the retirement of the employee on expiry of the notice period had become absolute. Such decision of Division Bench has been recently followed in the case of Mr.Yogesh M. Karia v. District Development Officer in the judgment dated 9.11.2016 in Special Civil Application No.4298 of 2011, wherein, the coordinate Bench has relied upon the similar provision of Rule and reproduced paragraphs 7 to 13 from the case of Suryakant Chimanlal Patel (Supra) and declared that petitioner before it, has voluntary retired from the services with effect from the concerned date i.e. 31.5.2010 and thereby subsequent termination order was quashed and set aside.
13. The petitioner has also relied upon the similar cases of Mr.R.M. Ghetiya, Mr.D.N. Poshiya and Mr.Narendra M. Raval details of which is now disclosed in his further affidavit in rejoinder dated 21.9.2011. It is submitted that in cases of above listed employees, the respondents have proceeded in Page 10 of 13 HC-NIC Page 10 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT accordance with Rule but in the present case, they failed to take similar steps or decision. If it is so, then, there is selectiveness which would certainly amount to arbitrariness and, therefore, needs to be rectified by appropriate direction.
14. However, by filing affidavit in sur rejoinder on 14.10.2011, now, respondent has come forward contending that since the application for extension of time was not in prescribed format, they have not processed the same. However, as discussed hereinabove, when first application by the petitioner is in prescribed format and, thereafter, when petitioner has voluntarily extended the notice period considering the work load and when practically respondents have got almost a year to process the application, their action of not forwarding such application to the competent authority cannot be considered in their favour and against the petitioner so as to treat his absence as unauthorized absence from duty. On the contrary, pursuant to decision in the case of Suryakant Chimanlal Patel (Supra) and Mr.Yogesh M. Karia (Supra), if provision of Rule 49 of GCSR is applied, then, now, it becomes clear Page 11 of 13 HC-NIC Page 11 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT that when the appointing authority has failed to refuse or to grant permission for voluntary retirement before the expiry of period specified in the said notice, the retirement shall become effective from the date of expiry of the said notice period.
15. In view of such fact and considering the arbitrariness with reference to the similarly situated employees as discussed hereinabove, the petition needs to be allowed, as prayed for. Therefore, petition is allowed. Thereby, it is directed that the petitioner is to be treated as voluntary retired w.e.f. 31.12.2009 and, therefore, now, respondents are directed to release all the retiral benefits like provident fund, gratuity, leave pay, pension etc. in favour of the petitioner within three months from the date of receipt of Writ of this order with 6% interest thereon if the amount is paid within three months. If such amount is not paid within three months, then respondents shall pay interest @ 9%.
16. Rule is made absolute to the aforesaid extent. Direct Service is permitted.
Page 12 of 13 HC-NIC Page 12 of 13 Created On Sat Aug 12 05:56:08 IST 2017 C/SCA/2312/2011 JUDGMENT (S.G. SHAH, J.) * Vatsal Page 13 of 13 HC-NIC Page 13 of 13 Created On Sat Aug 12 05:56:08 IST 2017