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Gujarat High Court · body

2017 DIGILAW 926 (GUJ)

N. G. Shaikh v. State of Gujarat

2017-05-01

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. The petitioner, by way of the present petition under Article 226 of the Constitution of India, has prayed for issuance of appropriate writ/order for quashing and setting aside the order of the respondent No. 2 granting unauthorized leave without pay instead of granting the medical leave and the order withholding an increment for period of one year without future effect. It is also prayed that the decision of the respondent No. 1 for not reconsidering the application for grant of medical leave may also be quashed and set aside and the necessary directions may be issued upon the respondent No. 2 to grant the medical leave for the period from 12.10.1996 to 25.03.1997 and to pay the emoluments for the said period of leave with interest. 2. The petitioner was working as Inspector of Motor Vehicles in the Office of RTO, Vadodara. By an Office Order No. 600/1996 dated 18.07.1996, the Director of Transport directed the petitioner to work at the Check Post, Jhalod, Dist.: Panchmahal on rotation till further orders. By an Office Order No. 739/1996 dated 27.08.1996, the petitioner was transferred on permanent basis at the said Check Post, Jhalod. The petitioner was suffering from hepatitis and malaria. Therefore, he applied for the medical leave for the period from 12.10.1996 to 29.01.1997. The petitioner has also submitted a Medical Certificate issued by Dr. G.B. Kapadia, which was countersigned by the Resident Medical Officer, G.M.S., Class-I, New Civil Hospital, Surat. The petitioner has originally applied for medical leave for the period from 12.10.1996 to 21.10.1996, but due to his prolonged sickness, he was required to extend the leave upto 29.01.1997, but the Assistant Regional Transport Officer, Dahod has converted the said medical leave into unauthorized leave without pay for the period from 12.10.1996 to 31.01.1997 by an Office Order No. 4/1997 dated 27.01.1997. Thereafter, the petitioner was transferred by the Director of Transport by an Office Order No. 81/1997 dated 31.01.1997 from Check Post, Jhalod to Gandhinagar in the Office of Assistant R.T.O. The Director of Transport has issued a show-cause-notice dated 04.03.1997 to the petitioner on the ground that the petitioner was unauthorizedly absent from duties from 12.10.1996. The petitioner was directed to show cause as to why the petitioner's services should not be terminated. The petitioner represented his case before the Director of Transport and replied the show-cause-notice on 10.03.1997. The petitioner was directed to show cause as to why the petitioner's services should not be terminated. The petitioner represented his case before the Director of Transport and replied the show-cause-notice on 10.03.1997. He also explained in person to the Director of Transport about his sickness and the extended prolonged medical treatment. He has also stated that his intention was not to evade the work/responsibility assigned to him, but circumstances were beyond his control and he could not join the duties on account of prolonged sickness. The Director of Transport again transferred the petitioner at Bardoli in the Office of Assistant Regional Transport Officer by an Office Order No. 268/1997 dated 19.03.1997 on a request made by the petitioner due to his ill-health. Thereafter, the Director of Transport has issued a show-cause-notice dated 11.09.1997 to the petitioner to show cause as to why the disciplinary action should not be taken against the petitioner for remaining unauthorizedly absent from 12.10.1996 and on the same day, the Director of Transport has issued an Office Order No. 793/1997 dated 11.09.1997 withholding an increment for a period of one year without future effect on the ground that the petitioner has used the political influence to get the transfer at the desired place. The petitioner replied the said show-cause-notice dated 11.09.1997 by letter dated 27.09.1997 explaining in detail the reason of his absence from duties with the Medical Certificate, which was countersigned by the Civil Surgeon. The petitioner, time and again, requested the respondent-authorities to reconsider the earlier decision, but the respondent-authorities did not reconsider the decision which was taken against the petitioner. The representation to reconsider the petitioner's case was replied by the respondent-authorities after a period of three years from the date of making representation. Hence, present petition is filed by the petitioner. 3. Mr. Ramkrishna B. Dave, learned advocate appearing for the petitioner, at the outset, submits that he does not press the prayer for quashing and setting aside the order of stoppage of increment for one year without future effect. But he wants to press the prayer to quash and set aside the order, whereby the medical leave is refused and the said period was treated as unauthorized absence from duty without pay. Mr. But he wants to press the prayer to quash and set aside the order, whereby the medical leave is refused and the said period was treated as unauthorized absence from duty without pay. Mr. Dave, learned advocate for the petitioner vehemently submits that the petitioner was not at all at fault, but circumstances were such that due to prolonged medical treatment, he could not join the duty. It is submitted that the petitioner submitted Medical Certificate countersigned by the Civil Surgeon, but the respondent-authorities have acted prejudicial without inquiring into the real fact about sickness of the petitioner. It is also submitted that the petitioner has requested to grant the medical leave on the basis of the Medical Certificate produced by him, but instead of granting the medical leave, the respondent-authorities have treated the said period as unauthorized absence without giving any opportunity to show cause as to why the said medical leave should not be granted and the said period may not be treated as unauthorized absence, and therefore, the said action of the respondent-authorities is in clear breach of the principles of natural justice and also violative of Articles 14 and 16 of the Constitution of India. Learned advocate for the petitioner further submitted that as provided in Rule 622 of the B.C.S.R, the respondent-authorities have rejected the application for medical leave of the petitioner without resorting to referring the case of the petitioner to the Medical Board, and therefore, the action of the respondent-authorities is contrary to the established procedural formalities and the said action is also illegal and unlawful. It is also submitted that the respondent-authorities have not considered the countersigned made by the Civil Surgeon ascertaining the sickness of the petitioner. Thus, the respondent-authorities have acted prejudicial against the present petitioner. It is submitted that the action of the respondent No. 1 is erroneous, unjust and improper and therefore, the same may be quashed and set aside. 4. Ms. Ritu Guru, learned Assistant Government Pleader appearing for the respondent-State, while opposing the present petitioner, tried to justify the order passed by the respondent-authorities. It is submitted that the order passed by the respondent-authorities is in accordance with law and there is no infirmity with the said order, and therefore, the said order may be maintained while rejecting the present petition. It is submitted that the order passed by the respondent-authorities is in accordance with law and there is no infirmity with the said order, and therefore, the said order may be maintained while rejecting the present petition. Learned AGP also submits that the petitioner did not join the duties and extend the leave without any prior intimation, and therefore, the said misconduct of the petitioner cannot be viewed lightly, and therefore, the respondent-authorities have passed an order granting unauthorized leave without pay instead of grant medical leave. It is submitted that the Assistant Regional Transport Office, Dahod passed an Office Order No. 4/1997 dated 27.01.1997 that the petitioner had applied for medical leave for the period from 12.10.1996 to 21.10.1996 without medical certificate and absent in the service till 31.01.1997 without any leave report. Therefore, said period of leave from 12.10.1996 to 31.01.1997 treated as unauthorized leave without pay for the period from 12.10.1996 to 31.01.1997. It is also submitted that in past, the respondent-authorities have also taken the departmental action against the petitioner withholding an increment for a period of one year without future effect on the ground that the petitioner has used the political influence to get the transfer at a desired place. 5. Regard being had to the above submissions and looking to the facts and circumstances of the present case, it appears that the petitioner was working as Inspector of Motor Vehicles in the Office of R.T.O., Vadodara. By an Office Order No. 600/1996 dated 18.07.1996, the Director of Transport directed the petitioner to work at the Check Post, Jhalod, Dist.: Panchmahal on rotation till further orders, but subsequently, the petitioner was transferred on permanent basis at the said Check Post, Jhalod. While discharging his duties at the said Check-Post, the petitioner became ill as he was suffering from hepatitis and malaria, and therefore, he applied for the medical leave for the period from 12.10.1996 to 21.10.1996, but the petitioner could not be recovered during the said period, and therefore, he applied for extension of medical leave upto 31.01.1997. It appears that the petitioner has produced Medical Certificate countersigned by the Resident Medical Officer, G.M.S. Class-I, New Civil Hospital, Surat. The said certificate produced by the petitioner was not properly appreciated and considered by the respondent-authorities. It appears that the petitioner has produced Medical Certificate countersigned by the Resident Medical Officer, G.M.S. Class-I, New Civil Hospital, Surat. The said certificate produced by the petitioner was not properly appreciated and considered by the respondent-authorities. On the contrary, the respondent-authorities have rejected the request and instead of granting the medical leave, the said period was treated as unauthorized absent from duties. Looking to the facts and circumstances stated in the petition which was also supported by the documentary evidence as such Medical Certificate countersigned by the RMO of the New Civil Hospital, this Court is of the view that the case of the petitioner ought to have been considered by the respondent-authorities for grant of medical leave. Moreover, it also appears that before passing an order of converting medical leave into unauthorized leave without pay, no show-cause-notice ever was issued upon the petitioner nor any opportunity of being heard was given to the petitioner. As it emerges from the material on record, show-cause-notice was issued on 11.09.1997 and on the same day, the Director of Transport issued office order withholding an increment for a period of one year without future effect. The petitioner replied to the show-cause-notice and requested time and again to reconsider the decision and accordingly, grant medical leave. But the respondent-authorities did not consider the request made by the petitioner. As it emerges from the material on record that no show-cause-notice was ever given prior to refusal of medical and treating the period as unauthorized absence without pay, and therefore, the said action of the respondent-authorities is in clear contravention of the principles of natural justice, and therefore, this Court is of the view that on this ground alone, the order passed by the respondent-authorities deserves to be quashed and set aside. Moreover, as provided in Rule 622 of the BCSR, the respondent-authorities have rejected the application for medical leave of the petitioner without referring the case to the Medical Board. Thus, the said action of the respondent-authorities is also against the established procedure laid down in the Rule. 6. In view of the aforesaid facts and circumstances, this Court is of the view that the impugned decision of the respondent-authorities deserves to be set aside. 7. With the aforesaid observations and directions, the present petition stands partly allowed. The impugned order is ordered to be quashed and set aside. 6. In view of the aforesaid facts and circumstances, this Court is of the view that the impugned decision of the respondent-authorities deserves to be set aside. 7. With the aforesaid observations and directions, the present petition stands partly allowed. The impugned order is ordered to be quashed and set aside. The respondent-authorities are directed to treat the period from 12.10.1996 to 31.01.1997 as medical leave (commuted leave) and it shall not be treated as unauthorized absent without pay. Rule is made absolute accordingly.