Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1581 (GUJ)

Salanya Babubhai Hirabhai v. Union of India

2016-08-01

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. By way of this petition under Articles and 226 and 227 of the Constitution of India, the petitioner, an ex-army man, has prayed for appropriate direction and order directing the respondent authorities to pay to the petitioner all his retiral benefits, including the monthly pension, gratuity, commutation, leave encashment, etc. By way of amendment, which was allowed vide order dated 27.08.2009 in CA No. 9186/2009, the petitioner has also prayed for an appropriate direction and order holding order dated 02.09.1997 (at Annexure-J to the petition), declaring him as deserter and also order dated 17.05.2000 dismissing the petitioner from service, as illegal, unconstitutional and violative of principles of natural justice. 2. The facts leading to filing of the present Special Civil Application in nutshell are as under: 3. That the petitioner was recruited as Signalman vide order dated 21.03.1980. That after his initial appointment he underwent the requisite basic training for six months at S.T.C. Jabalpur and also undergone one year's technical training. That thereafter after completing the requisite training as Signalman, in 1982 the petitioner posted at Shillong in the F. Composite Signal Regiment and there he served upto 1984. That thereafter the petitioner was posted at 7 Infantry Div. Signal Regiment at Firozpur from 1984 to 1987 and then he was sent to 36, Infantry Div. Signal Regiment at Sagar (M.P.) from where he was drafted to Shri Lanka in the India Peace Keeping Force (I.P.K.F.) to ensure peace while combating against the L.T.T.E.'s warfares in Shri Lanka from 1988 to 1990 and after coming back to Sagar in the same Regiment, he was posted in Jammu in the 22 Wireless Operational Unit (W.O.U.) where he served upto 1994 before his posting in the 11, Infantry Div. Signal Regiment (Arent), Ahmedabad. He served at Ahmedabad from 1994 to 31.03.1997. 4. That the petitioner's tenure of service was 15 years and thus he was to retire on 31.03.1995 on completion of the tenure. However, without any application for extension, his tenure was extended for a further period of two years and he was to retire on 31.03.1987 with all retiral benefits admissible under the Rules. That, unfortunately, as the petitioner was not feeling well in the month of January 1997, he requested for two months' leave, but instead of two months' he was granted leave for 27 days from 30.01.1997 to 25.02.1997. That, unfortunately, as the petitioner was not feeling well in the month of January 1997, he requested for two months' leave, but instead of two months' he was granted leave for 27 days from 30.01.1997 to 25.02.1997. It appears that as the petitioner felt seek at his native village on 20.02.1997 and, therefore, he could not resume duty on 26.02.1997, after expiry of leave on 25.02.1997. Accordingly, the petitioner remained under treatment of medical officer of Civil Hospital at Limdi (Tal. Jhalod, Dist. Panchmahals) from 20.02.1997 to 25.03.1997. As observed hereinabove, as such even his extended period of tenure was to expire on 31.03.1997. It is the case of the petitioner that he requested to extend the leave on medical ground from 26.02.1997 till he resumed the duty with the fitness certificate, but on 26.03.1997 when he reported for duty at Ahmedabad, he was not permitted to resume the duty. That thereafter the extended tenure of service of the petitioner came to an end on 31.03.1987. That thereafter the petitioner applied for his retiral benefits, however, as he was not paid the retiral benefits and on the contrary Rs. 6,392/- came to be deducted from his Provident Fund A/c. As the petitioner was not paid the retiral benefits, despite repeated representations, he had preferred the present Special Civil Application under Articles 226and 227 of the Constitution of India for the aforesaid reliefs. 5. That from the affidavit-in-reply filed on behalf the respondent authorities it was brought on record the order declaring the petitioner as deserter and consequently dismissing the petitioner from service on the ground of desertion, as he did not resume the duty after 26.02.1997, after his leave period was over, the petitioner amended the main Special Civil Application and challenged the order of desertion dated 02.09.1997 as well as dismissal order dated 17.05.2000 respectively. 6. Shri Khurana, learned advocate appearing on behalf of the petitioner, has submitted that as such the petitioner served for the nation and the department for approx. 17 years without any unblemished record. It is submitted that during his 17 years' long period of service neither there was any memo nor any misconduct was alleged. It is submitted that as such the service tenure of the petitioner was to come to an end on 31.03.1995. However, without any application his tenure was extended and the said extended period was to expire on 31.03.1987. It is submitted that during his 17 years' long period of service neither there was any memo nor any misconduct was alleged. It is submitted that as such the service tenure of the petitioner was to come to an end on 31.03.1995. However, without any application his tenure was extended and the said extended period was to expire on 31.03.1987. Shri Khurana, learned advocate appearing on behalf of the petitioner, has submitted that in fact in the January 1997 the petitioner applied for two months leave on the ground of his sickness and was hospitalized and taking treatment in the Civil Hospital, Limdi, from 20.02.1997 to 25.03.1997. It is submitted that however, only 27 days leave was granted/sanctioned from 30.01.1997 to 25.02.1997. It is submitted that therefore, the petitioner was required to resume duty on 26.02.1997, however, because of his sickness and taking treatment at Civil Hospital, Limdi, (Tal. Jhalod, Dist. Panchmahals - at his native place), he could not resume duty on 26.02.1997 and thereafter when on 26.03.1997 he reported for duty he was not permitted to resume the duty. Shri Khurana, learned advocate appearing on behalf of the petitioner, has submitted that thereafter an ex-parte order came to be passed the petitioner from service. It is submitted that neither order of desertion nor order of dismissal have been served upon the petitioner. It is submitted that only after the affidavit-in-reply filed in the present proceedings on behalf of the respondent authorities, the petitioner came to know about the aforesaid orders of dismissal as well as dismissing from service solely on the ground of desertion. Shri Khurana, learned advocate appearing on behalf of the petitioner, has submitted that therefore the action of the respondent authorities in denying the retiral benefits to the petitioner and the order of declaring him as deserter and consequently dismissing him from service on declaring him as deserter, deserve to be quashed and set aside on the ground that the aforesaid two orders are illegal, arbitrary and in breach of principles of natural justice. 7. Shri Khurana, learned advocate appearing on behalf of the petitioner, has submitted that as such the petitioner had worked for 17 years with the Department and in the Army and for the nation without any unblemished record and in fact the petitioner has received number of awards. 7. Shri Khurana, learned advocate appearing on behalf of the petitioner, has submitted that as such the petitioner had worked for 17 years with the Department and in the Army and for the nation without any unblemished record and in fact the petitioner has received number of awards. Therefore, it is requested to allow the present petition and directed the respondent authorities to grant benefits, which would be available to the petitioner, as if the impugned orders of desertion and dismissing him from serving on passing the order of desertion are not passed against the petitioner. 8. Shri Nirzar Desai, learned advocate appearing on behalf of the respondent authorities-Department, has tried to oppose the present petition by submitting that as after leave period of the petitioner was over i.e. 25.02.1997 he was required to resume duty on 26.02.1997 and he did not resume the duty till 26.03.1997. It is submitted that there was no intimation from him thereafter an order of desertion came to be passed and consequently order of dismissal has been passed. It is submitted that therefore in view of the order of desertion and consequently dismissing the petitioner, he shall not be entitled to any retiral benefits. 9. Heard the learned advocates appearing on behalf of the respective parties at length. 10. At the outset it is required to be noted and it is not in dispute that the petitioner is an ex-army man and he served for the Department and nation for approximately 17 years without any adverse record. Nothing is on record that earlier he was either charge-sheeted and/or memo was issued against the petitioner. According to the petitioner, he has received number of awards. It is required to be noted that as such his tenure was to expire on 31.03.1995 and in fact he was to retire from service w.e.f. 31.03.1995, however his tenure came to be extended for a further period of two years, without even any application on behalf of the petitioner for extension of tenure. As per the extended period of tenure he was to retire on and from 31.03.1997. However, unfortunately, in the month of January 1997 he was not keeping good health and, therefore, he went to his native, which is a triable area. He applied for two months' leave on his medical ground. However, his leave was sanctioned only for 27 years i.e. from 30.01.1997 to 25.02.1997. However, unfortunately, in the month of January 1997 he was not keeping good health and, therefore, he went to his native, which is a triable area. He applied for two months' leave on his medical ground. However, his leave was sanctioned only for 27 years i.e. from 30.01.1997 to 25.02.1997. As per the medical certificate issued by the Medical Officer, Civil Hospital, Libdi, which is placed on record, the petitioner was under treatment of Medical Officer, Limdi, for the period between 20.02.1997 to 25.03.1997. Therefore, he could not report for duty on completion of leave period i.e. 26.02.1997. After he was discharged from hospital when he reported for duty on 26.03.1997 he was not permitted to resume the duty. That thereafter an ex-parte order has been passed declaring him as deserter and thereafter consequently order has been passed dismissing him from service on passing the order of desertion. Nothing is on record that the order of desertion and/or consequential order of dismissal were ever served upon the petitioner. That the petitioner came to know about the aforesaid orders only from the affidavit-in-reply filed on behalf of the respondent authorities in the present proceedings. Under the circumstances, as such the order of desertion as well as the consequential order of dismissal, which are observed hereinabove, were never served upon the petitioner and, therefore, the same can be said to be against the principles of natural justice and the same cannot be sustained. At this stage it is required to be noted that even the order of desertion was passed after the extended tenure period was to expire on 31.03.1997. Under the circumstances also the order declaring the petitioner as deserter and the consequential order of dismissal cannot be sustained on the aforesaid ground also. 11. As observed hereinabove, the petitioner served for 17 years and there is nothing on record to show that any charge-sheet/memo was issued against the petitioner during his 17 years of service. It also appears that the petitioner has also received awards while he was in service. Considering the aforesaid circumstances to deny the retiral benefits to the petitioner/ex-army man would be absolutely unjust and too harsh and disproportionate to even the alleged misconduct and not resuming the duty on 25.02.1997 i.e. after his leave period expired. As observed hereinabove, as such the circumstances were beyond the control of the petitioner. Considering the aforesaid circumstances to deny the retiral benefits to the petitioner/ex-army man would be absolutely unjust and too harsh and disproportionate to even the alleged misconduct and not resuming the duty on 25.02.1997 i.e. after his leave period expired. As observed hereinabove, as such the circumstances were beyond the control of the petitioner. He was hospitalized and taking treatment at his native (i.e. in tribal area) at Civil Hospital, Limdi, Tal. Jhalod, Dist. Panchmahals for the period between 20.02.1997 to 25.03.1997 and, therefore, as such there was justifiable reason for the petitioner not to resume the duty on 25.02.1997. Under the circumstances also, the action of the respondent authorities denying the retiral benefits to the petitioner, after 17 years' service with the army cannot be sustained. 12. In view of the above and for the reasons stated hereinabove, the petition succeeds. The impugned orders of desertion and consequential dismissal are hereby quashed and set aside. Consequently, it is held that the petitioner shall be entitled to all the retiral benefits which may be available to him, including benefits of monthly pension, gratuity, commutation, leave encashment, etc. The concerned respondents are hereby directed to pay all the retiral benefits to the petitioner and continue to pay the same as and when due and payable. The arrears to be calculated and paid within a period of three months, which shall carry the interest @ 7.5% per annum from the date the petitioner is entitled to the retiral benefits. The respondent authorities are directed to return Rs. 6,392/-, which they have deducted from the Provident Fund A/c./A/c. of the petitioner, which shall be returned to the petitioner within a period of three months along with arrears and the retiral benefits, which shall also be carried interest @ 7.5% per annum. RULE is made absolute to the aforesaid extent. In the facts and circumstances of the case there shall be no order as to costs.