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2017 DIGILAW 1655 (GUJ)

Girishkumar M. Dwivedi v. State of Gujarat

2017-09-15

A.S.SUPEHIA

body2017
JUDGMENT : A.S. Supehia, J. 1. By way of present writ petition, the petitioner has prayed for quashing and setting aside dismissal order dated 16.05.2005 whereby dismissing the petitioner from service and the petitioner further prayed to direct the respondents to accept the voluntary retirement of the petitioner w.e.f. 31.07.1997 and consequentially direct the respondents to pay all the retirement benefits, including pension and all other consequential benefits to the petitioner. 2. The brief facts of the case culled out from the record of the petition are that the petitioner is holding Master Degree in Surgery (M.S.). He was appointed on 14.02.1977 as Medical Officer (Class-II) with respondent No. 1 in the pay-scale of Rs. 700-1300. By order dated 13.12.1977, the petitioner was posted as Medical Officer (Class-I) at Referral Hospital, Jambusar. As per the say of the petitioner, he was discharging his duties and functions as Medical Officer - Superintendent (Class-I) sincerely, honestly and faithfully and he had put in about 20 years clean and blotless service as a Medical Officer. The conditions of service of the petitioner are governed under the provisions of the Bombay Civil Services Rules, 1959. 3. On 07.10.1994 the petitioner had operated one Smt. Jayaben Ukabhai Baraiya for family planning operation, but due to some serious complications during operation, she expired and, therefore, Special (ACB) Case No. 16/1997 was filed against the petitioner for the offences punishable under Section 304(A), 161, 165, 312, 315 of the Indian Penal Code, 1860 read with Sections 7 and 13 of the Prevention of Corruption Act, 1947, wherein, after holding trial, by judgment and order dated 28.01.2005 the petitioner was honourably acquitted. 4. On account of pendency of the above criminal case, due to heavy pressure in work and also due to continuous ill-health of the petitioner, the petitioner could not keep concentration on his work of surgery, etc. and, therefore, he decided to take voluntary retirement from service. Accordingly, on 24.10.1996 the petitioner applied for voluntary retirement from service and had given three months' notice to the respondents for voluntary retirement w.e.f. 31.03.1997, as required under Rule 48 of the Gujarat Civil Services (Pension) Rules, 2002 (the Rules). Pursuant to the aforesaid application of the petitioner, Additional Director (Medicines) vide letter dated 04.02.1997 recommended to the State Government to grant permission for voluntary retirement to the petitioner w.e.f. 31.03.1997. Pursuant to the aforesaid application of the petitioner, Additional Director (Medicines) vide letter dated 04.02.1997 recommended to the State Government to grant permission for voluntary retirement to the petitioner w.e.f. 31.03.1997. However, the respondents did not take any decision on the said application of the petitioner for about five years. It is the case of the petitioner that under Rule 48(2) of the Rules, the respondents were statutorily bound to either grant or refuse the request of the petitioner for voluntary retirement within the period specified in the notice, failing which the provisions provide for deemed acceptance on the date of the expiry of the said period. Thereafter, the respondents without recording any reasons, after a long period of about five months, by a telegram dated 29.03.1997 refused the application of the petitioner for voluntary retirement. 5. Since the petitioner was unable to discharge his duties and functions, due to his ill-health and various health related problems, by another letter dated 09.04.1997, again, the petitioner requested the respondents to accept his application for voluntary retirement. The respondent authorities vide telegram dated 30.04.1997 refused the application of the petitioner for voluntary retirement. Thereafter, again third application was made by the petitioner dated 30.06.1997 for voluntary retirement. By giving notices to the concerned officers dated 31.07.1997, the petitioner himself relieved from the services of the respondent authorities. 6. After about 16 months of the last notice dated 31.07.1997 of the petitioner, on 10.12.1998, respondent No. 2 issued a show cause notice, inter alia, alleging that the petitioner, without obtaining permission, relieved himself from service w.e.f. 31.03.1997, which is a serious misconduct under the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 and the petitioner was asked to tender his explanation to show cause as to why disciplinary proceedings should not be initiated against the petitioner for such misconduct. Accordingly, on 13.01.1999 the petitioner submitted his detailed explanation, inter alia, denied the allegations made in the show cause notice and stated that in spite of his repeated requests to accept his voluntary retirement, the respondents did not take any action on the applications of the petitioner and as he was unable to discharge his duties as Medical Officer (Class-I), in public interest, after due intimation to all the concerned authorities, he himself relieved from service w.e.f. 31.07.1997. It is the say of the petitioner that the petitioner has not committed any misconduct as alleged which causes any loss to the State Government. 7. A charge-sheet was issued to the petitioner on 01.02.2001 wherein it is, inter alia, alleged that the State Government had refused the voluntary retirement, however, the petitioner on his own relieved himself from services w.e.f. 31.07.1997 and remained unauthorizedly absent from duty. Respondents further alleged that the petitioner has committed negligence in discharging his duties and thereby committed breach of the provisions of sub-rule (2) of rule 3(1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. Petitioner responded to the aforesaid show cause notice and on 23.03.2001 gave his explanation to the charges leveled against him and denied each and every statement of facts and/or allegations made therein by reiterating the aforesaid facts. However, the respondents decided to hold departmental inquiry against the petitioner for the said alleged misconduct and the Inquiry Officer. Pursuant to the aforesaid inquiry, by the impugned order dated 16.05.2005 the respondent authorities dismissed the petitioner from service, which action has given rise to filing of the present petition. 8. Learned advocate for the petitioner has stated that the petitioner was working as Medical Officer - Superintendent since last 20 years. His entire service record is clean and blotless, and there is no complaint against the petitioner about his duties, and functions as well as his integrity. He has submitted that the respondent authorities, without application of mind and arbitrarily, dismissed the petitioner from service on a flimsy ground. He has submitted that the petitioner has not committed any misconduct as contemplated under the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. He has further submitted that on account of pendency of the criminal case and due to heavy pressure in work as well as due to his ill-health, as stated above, the petitioner was unable to discharge his duties and functions as Medical Officer effectively and, therefore, in the interest of justice and as per law, the petitioner submitted three months' notice for voluntary retirement. Reliance is placed upon the provisions of rule 48 of the Gujarat Civil Services (Pension) Rules, 2002, more particularly sub-rule (2) thereof, which provides that the notice of voluntary retirement shall require acceptance by the appointing authority. Reliance is placed upon the provisions of rule 48 of the Gujarat Civil Services (Pension) Rules, 2002, more particularly sub-rule (2) thereof, which provides that the notice of voluntary retirement shall require acceptance by the appointing authority. Proviso to rule 48 states that if 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 same period. Learned advocate for the petitioner has pointed out that it is clear from the aforesaid rule that three months' notice is not mandatory but a Government servant may inform the State Government about his intention to retire from service on completion of qualifying service. He has submitted that there is no provision in law that a Government servant shall be compelled to continue in service irrespective of his continuous ill-heath and against his will. 9. Learned advocate for the petitioner has submitted that on 24.10.1996, the petitioner applied for voluntary retirement on giving three months' notice to the respondents and without recording any reasons in support of non-acceptance of voluntary retirement, the respondent authorities had arbitrarily, at the fag end of the date, refused the request of the petitioner for his voluntary retirement, which is absolutely arbitrary and is required to be deprecated. He has submitted that in spite of repeated applications for voluntary retirement, if the appointing authority does not take any decision either to grant or to refuse voluntary retirement and if a Government servant relieves himself from service on expiry of the notice period, such an act on the part of the employee cannot be said to be a misconduct under the Rules, which warrants disciplinary proceedings and dismissal from service. To buttress his arguments, the learned advocate for the petitioner has placed reliance on the following judgments: "(i) B.J. Shelat v. State of Gujarat & Ors., (1978) 2 S.C.C. 202 ; (ii) Jagdish Singh v. Punjab Engineering College, 2009 (7) S.C.C. 301 ; AND (iii) Rajubhai Ishwerbhai Garasia v. State of Gujarat, 2003 JX (Guj) 1589; (iv) State of Punjab v. Dr. P.L. Singla, (2008) 8 S.C.C. 469 ;" 10. Lastly, Mr. Chauhan has submitted that the petitioner will not claim any back wages in case the order of penalty is set aside. P.L. Singla, (2008) 8 S.C.C. 469 ;" 10. Lastly, Mr. Chauhan has submitted that the petitioner will not claim any back wages in case the order of penalty is set aside. He has further stated that as the petitioner is acquitted in the criminal case, he is entitled to all retirement benefits. No further contention is raised. 11. Per contra, Mr. Soni, learned Assistant Government Pleader appearing on behalf of the respondents has relied upon the affidavit-in-reply filed by the respondent authorities. He has stated that though the applications of the petitioner seeking for voluntary retirement from 31.03.1997 were rejected and outcome thereof was communicated to the petitioner, the petitioner remained absent from 31.07.1997 at his sweet will and convenience. Learned AGP Mr. Soni has also asserted that the petitioner has not produced the medical certificate about his illness and the application dated 09.04.1997 made by the petitioner is in fact can be said to an application for resignation. He has submitted that the conduct of the petitioner does not befit a Class-I Officer as the petitioner committed breach of rule 3(1)(2) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. He has further submitted that after considering the report of the Inquiry Officer dated 25.08.2003 a final order was passed on 16.05.2005, and thereafter, the petitioner was dismissed from service, which is legal, just and proper. 12. Heard learned advocates appearing on behalf of the respective parties. 13. Vide application dated 24.10.1996, the petitioner sought voluntary retirement w.e.f. 31.03.1997 citing personal reason. He has also stated that he would be completing 20 years of service as on 12.03.1997. On 04.02.1997, the Additional Director, Medical Services, informed the Additional Secretary, Health and Family Welfare department that an inquiry against the petitioner was pending and the inquiry report dated 19.05.1995 was also sent to the government in respect of the same. It is also stated that it is also contemplated to file the charge-sheet in the Court. By the Telegram dated 29.03.1997, the petitioner was informed that his application for voluntary retirement is rejected in view of the letter dated 27.03.1997 written by the government. The petitioner was also asked to remain on duty. Thus, the application of the petitioner was rejected before 31.03.1997, and he was also asked to remain on duty. By the Telegram dated 29.03.1997, the petitioner was informed that his application for voluntary retirement is rejected in view of the letter dated 27.03.1997 written by the government. The petitioner was also asked to remain on duty. Thus, the application of the petitioner was rejected before 31.03.1997, and he was also asked to remain on duty. Though the petitioner was aware of the same, he informed respondent No. 1, that he is not in position to remain present and may be relieved from service w.e.f. 30.04.1997. In the said letter also, the petitioner has not disclosed anything about his illness. In further defiance, the petitioner vide letter dated 31.07.1997 informed respondent No. 1, that he has decided not to continue in the government service and he got himself relived from service on 31.07.1997 and asked for sanction of the voluntary retirement and payment of his dues. The action of the petitioner can be termed as gross defiance to government service. An employee in a service cannot get himself relived without proper and legal sanction from the employer and if he chooses to do the same will amount to gross misconduct. While rejecting the application of the petitioner, he was informed to remain present but he chose not to do so. It will be apposite to refer to Rule 3 of Gujarat Civil Services(Conduct) Rules, 1971. "RULE 3: General .-(1) Every Government servant shall at all times (i) maintain absolute integrity, (ii) maintain devotion to duty, and (iii) do nothing which is unbecoming of a Government Servant. [Explanation.- A Government Servant, who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him, shall be deemed to be lacking in devotion to duty within the meaning of clause (ii).] RULE 3A: Promptness and Courtesy. No Government servant shall, (a) in the performance of his official duties, act in a discourteous manner. (b) in his official dealings with the public or otherwise adopt dilatory tactics or willfully cause delays in disposal of the work assigned to him." 14. The aforesaid Rule obliges the government servant to maintain absolute integrity and devotion to his duty which the petitioner has blatantly violated. Rule 3A states that the government servant shall not act in a discourteous manner. The aforesaid Rule obliges the government servant to maintain absolute integrity and devotion to his duty which the petitioner has blatantly violated. Rule 3A states that the government servant shall not act in a discourteous manner. The petitioner remained wilfully absent from 31.03.1997, and he never cared to report or resume the duties. Indubitably, the conduct of the petitioner acting in defiance to the directions of the State Government and getting himself relieved from service can be said to be discourteous. Thus, the absence of the petitioner prior to his application and subsequent thereto can be said to be an unauthorised absence from duty as his leave was not sanctioned by the authorities. Thus, the petitioner has violated the parameters laid down in the aforesaid Rules and can be said to have committed gross misconduct in remaining absent unauthorisedly and he is not worthy of any sympathy. Thus, the contention canvassed by the learned Advocate Mr. Chauhan that the act of the petitioner cannot be said to misconduct as the Gujarat Civil Services (Disciplinary and Appeal) Rules, 1971 does not contemplate any such misconduct is flawed and misconceived. The Discipline and Appeal, Rules, 1971 prescribe the procedure under which the minor or major penalties suggested therein are to be imposed on a government servant. The said Rules do not mention any misconduct. The conduct of a government employee working under the state government is governed by the Gujarat Civil Service (Conduct) Rules, 1971 which a government employee has to strictly adhere to. Any breach of the conduct rules will amount to misconduct. Hence, the petitioner on his volition has invited the order of dismissal by wilfully remaining on unauthorised leave. 15. Learned Advocate has placed reliance on the judgment of Jagdish Singh (supra) and Rajubhai Ishwerbhai (supra) for the proposition of law that if an employee is having unblemished record and he is not a habitual absentee, in that case the major penalty can be modified to minor penalty. The law explicated by the Apex Court in the said case will not apply to the facts of the present case as the petitioner got himself relived from service despite the rejection of his application for voluntary retirement. Moreover, he was also asked to remain on duty which he totally defied. 16. The law explicated by the Apex Court in the said case will not apply to the facts of the present case as the petitioner got himself relived from service despite the rejection of his application for voluntary retirement. Moreover, he was also asked to remain on duty which he totally defied. 16. The reliance placed on the judgement in the case of B.J. Shelat (supra) will not rescue the petitioner since he has dismissed from service after holding the departmental inquiry. The said judgment while dealing with the issue of voluntary retirement, has held that the it is incumbent on the government to communicate its decision withholding the voluntary retirement. In the present case the petitioner was conveyed that his application was rejected in 1997 but he did not thought it fit to challenge the same at the relevant time, and he has prayed for accepting his voluntary retirement after his dismissal. 17. In the judgment rendered by the Supreme Court in the case of State of Punjab v. Dr. P.L. Pingla, reported in 2008 (8) SCC 469 , the Supreme Court has held thus: "Where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence." In the present case the petitioner got himself relieved from service vide Letter dated 31.07.1997. He had demanded his retirement benefits also. Such an action of the petitioner is highly deplorable, and hence as per the observation of the Supreme Court, the penalty of dismissal cannot be said to be disproportionate to the misconduct. No leniency can be shown to the petitioner by converting the penalty of dismissal to that of any other penalty as canvassed by learned Advocate for the petitioner. 18. Learned Advocate for the petitioner, Mr. No leniency can be shown to the petitioner by converting the penalty of dismissal to that of any other penalty as canvassed by learned Advocate for the petitioner. 18. Learned Advocate for the petitioner, Mr. Chauhan has premised his arguments on Rule 48 of the Gujarat Civil Services (Pension) Rules, 2002, which states about retirement on completion of twenty years qualifying service. The petitioner in his application has not stated any provision of law under which he is seeking voluntary retirement. It is pertinent to note that the petitioner is seeking voluntary retirement w.e.f. 31.07.1997. The Pension Rules, 2002 will not apply in the case of the petitioner as they have come to force in 2002. Prior to 2002, the government employees working in the State were governed by the Bombay Civil Services Rules, 1959 and they were repealed by the Gujarat Civil Services Rules. It is pertinent to note that the petitioner did not challenge the action of the respondents of rejecting his application which was in the year 1997, and he remained lethargic. The petitioner has challenged the dismissal order dated 16.05.2005 and has prayed for voluntary retirement w.e.f. 31.07.1997. 19. The prayer in the petition is deliberately inartistically worded. In my opinion, the prayer for accepting the voluntary retirement suffers from delay and latches. The petitioner has sought acceptance of voluntary retirement after he was dismissed in 2005. Till the year 2005, the petitioner never thought it fit to challenge the rejection of his application of voluntary retirement and the same is challenged after a period of eight years. 20. Assuming that the Rule 48 of the Gujarat Civil Services (Pension) Rule, 2002 apply in the case of the petitioner then also the voluntary retirement of the petitioner is subject to acceptance of the government. Rule 48 reads as under: "RULE 48: Retirement on completion of twenty years' qualifying service (1) A Government employee on completion of twenty years' qualifying service, may, by giving notice of not less than three months in writing to the appointing authority, retire from service. Rule 48 reads as under: "RULE 48: Retirement on completion of twenty years' qualifying service (1) A Government employee on completion of twenty 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 sub-rule (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." Thus, it is obligatory that the notice of voluntary retirement given by an employee after completion of 20 years qualifying service shall require acceptance by the appointment. In the present case the respondent authorities have not accepted the notice of the petitioner and had asked him to resume his duties. The aforesaid rule does not mandate the government to accept the notice of voluntary retirement. The discretion is left to the government whether to accept the same or not. In the present case the petitioner was already facing a criminal case and the government did not think it fit to accept the voluntary retirement of the petitioner. Thus, in my considered opinion, the action of the respondent authorities in refusing to accept the voluntary retirement of the petitioner cannot be faulted with and the same is justified. Nevertheless, if the dismissal of the petitioner is justified then as a necessary corollary his case for accepting the voluntary retirement fails. 21. The acquittal of the petitioner in the criminal case will not in any manner absolve him from the misconduct as has been narrated above. The criminal prosecution and the disciplinary proceedings are based on entirely different foundations. The petitioner was prosecuted for offences under sections 304(A), 161, 165, 312 and 315 of the Indian Penal Code, whereas the disciplinary proceedings are held for remaining unauthorized absence. 22. The preceding observations and analysis precludes me from exercising the discretion conferred upon this Court under Article 226 of the Constitution of India in favour of the petitioner. Hence, the present petition deserves to be dismissed and is accordingly dismissed. RULE discharged. There shall be no order as to costs.