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Gujarat High Court · body

2019 DIGILAW 814 (GUJ)

Jamnadas M. Kothadia v. State of Gujarat

2019-09-17

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. The present petition has been filed challenging the order dated 23.01.2007 as well as the order dated 15.10.2008, whereby, the respondent had declined to consider the case of the petitioner for voluntary retirement. 2. The order dated 23.01.2007 was passed by the respondent authorities dismissing the petitioner from service since the petitioner had proceeded on leave without informing the superior and without obtaining any sanction. 3. It is case of the petitioner that he was desirous of going to the United States of America since his children were studying and, therefore, he applied for leave for the period between 16.02.2004 to 08.10.2005 and since he was required to leave urgently, he proceeded on leave on 16.02.2004 without obtaining any sanction. 3.1. It is submitted that the petitioner thereafter applied for leave from United States of America seeking extension. By the order dated 20.04.2006, the respondent framed charges against the petitioner, however, it is submitted that the aforesaid chargesheet was not received by him. He received the same for the first time on 18.09.2006 and vide letter dated 20.09.2006, he responded to the same that since he had not received any response to the application and the tickets had already been booked, in immediate circumstances, he was required to leave. It is further submitted that the petitioner had applied for voluntary retirement, however, the respondent authority without deciding such application, passed the impugned order of removing him from the service. 4. Learned advocate Ms. Disha Shelat appearing for the learned advocate Mr. Mitul Shelat for the petitioner has submitted that by the impugned order dated 08.10.2008, this Court had directed the respondent authorities to consider the case of the petitioner for voluntary retirement and accordingly, the case of the petitioner was considered, however, the request of the petitioner seeking voluntary retirement was declined vide order dated 15.10.2008 on the ground that since the petitioner has proceeded on leave without obtaining sanction from the authorities, the order of removal does not further require to be reconsidered. 4.1. Learned advocate Ms. Shelat has further submitted that the respondents should have allowed the petitioner to take voluntary retirement from service and the action of the respondent in response of the same is illegal. Thus, she has submitted that the impugned orders are required to be quashed and set aside. 5. Per contra, learned Assistant Government Pleader Mr. 4.1. Learned advocate Ms. Shelat has further submitted that the respondents should have allowed the petitioner to take voluntary retirement from service and the action of the respondent in response of the same is illegal. Thus, she has submitted that the impugned orders are required to be quashed and set aside. 5. Per contra, learned Assistant Government Pleader Mr. Raval has submitted that the petitioner applied for leave for the period from 16.02.2004 to 15.02.2005 for a period of 365 days and the same remained undecided by the authorities and the petitioner proceeded on leave and he again made an application for period from 16.02.2004 to 08.10.2005 for 236 days by making an application dated 06.02.2004. 5.1. Learned Assistant Government Pleader Mr. Raval has submitted that without giving any application to the respondent authorities, the petitioner proceeded on leave and he remained absent from 16.02.2004 and hence the chargesheet was issued to him. It is submitted that the chargesheet was sent to the address of the petitioner where he was residing in the United States of America by R.P.A.D. He has submitted that however, the cover was returned with remarks "unclaimed". It is submitted that the petitioner again claimed the voluntary retirement and since he proceeded on leave without sanction, it would amount to abandonment of service. 5.2. Learned Assistant Government Pleader Mr. Raval has submitted that the voluntary retirement of a Government employee is governed by provisions of the Gujarat Civil Services (Pension) Rules, 2002 and the Government employee on completion of 20 years of qualifying service by giving a notice not less than three months in writing and the same is subject to the acceptance under Rule 50(1) of the Pension Rules, 2002. 5.3. Learned Assistant Government Pleader Mr. Raval has further submitted that being a Class-II Gazetted Officer, the petitioner did not even bother for obtaining the prior permission of the authority before proceeding on long leave in the United States of America. It is further submitted that in the previous year of 2002-03, the department sanctioned the leave of the petitioner from 24.10.2002 to 10.04.2003 for the same purpose and within a year, the petitioner again proceeded to the United States of America and did not care about the duty towards the State Government. 5.4. Learned Assistant Government Pleader Mr. It is further submitted that in the previous year of 2002-03, the department sanctioned the leave of the petitioner from 24.10.2002 to 10.04.2003 for the same purpose and within a year, the petitioner again proceeded to the United States of America and did not care about the duty towards the State Government. 5.4. Learned Assistant Government Pleader Mr. Raval has submitted that there were three departmental inquiries which were also pending against him, when he proceeded to the United States of America without prior sanction of the State Government. These departmental inquiries were concluded vide orders dated 03.03.2004, 16.03.2004 and 26.04.2006 by imposing the penalty of stoppage of increments with future effect. 5.5. Learned Assistant Government Pleader Mr. Raval has submitted that the petitioner could have resumed his duty even after one year or two years and only after his period was regularized in accordance with law, the petitioner could have applied for voluntary retirement as per the Rules. However, he continued on unauthorized absence until he was removed form the Government service by the order dated 23.01.2007 and when he realized that he would be penalized for such a gross indiscipline, he applied only on 18.06.2006 for the voluntary retirement with effect from 15.02.2004. He has further submitted that an advance notice is necessary by the Government employee in case, he would like to retire from the service and since the same was bereft in the present case, no notice was issued, the case of the petitioner could not have been considered for voluntary retirement. 5.6. Learned Assistant Government Pleader has further submitted that the petitioner was summoned by the authorities to resume his duty by various notices dated 08.07.2004, 02.12.2004, 05.03.2005 and 07.05.2005 and he has been served with the address at the United States of America and though he was served, he ignored the notices and never resumed his duty after February, 2004 and hence, the State Government, after obtaining necessary advice from the Gujarat Public Service Commission removed him from service, as he was not interested in Government job. Thus, he has submitted that the impugned orders may not be interfered with. 5.7. Learned Assistant Government Pleader Mr. Raval has placed reliance on the judgment rendered by this Court in the case of Joint Director of Agriculture (Soil Conservation) Vs. Thus, he has submitted that the impugned orders may not be interfered with. 5.7. Learned Assistant Government Pleader Mr. Raval has placed reliance on the judgment rendered by this Court in the case of Joint Director of Agriculture (Soil Conservation) Vs. Vadilal Khatubhai Patel, reported in 2017 (3) G.L.H. 715 as well as in the case of Chennai Metropolitan Water Supply And Sewerage board and Others Vs. T.T. Murali Babu, reported in (2014) 4 SCC 108 . 6. I have considered the submissions advanced by the learned advocates for the parties. The documents pointed out by them are also considered. 7. It is not in dispute that the petitioner went to the United States of America without obtaining any sanction from the respondent authorities and he remained on leave from 16.02.2004 till he was removed from service after issuance of chargesheet. There were various notices issued to him on 08.07.2004, 02.12.2004, 05.03.2005 and 07.05.2005 asking him to resume on duties. The petitioner also subsequently receive the chargesheet dated 20.04.2006 but did not care to come to India for resuming his duties. Though he was served, he did not respond to the same and thus, it can be presumed that he was not interested in the Government job and he had abandoned the service. After imposition of the penalty of removal, he applied for voluntary retirement. The voluntary retirement of the Government employee under the provision of Rule 48 of the Gujarat Civil Services (Pension) Rules, 2002 reads as under: "(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." 8. Rule 48 mandates that the Government employee, on completion of 20 years of qualifying service, may by giving notice for not less than three months in writing to the appointing authority retire from service and the same can only be permitted on acceptance by the appointing authority. Thus, there is discretion on the State Government to accept the request of voluntary retirement and the Government employee cannot claim voluntary retirement as a matter of right. 9. Thus, there is discretion on the State Government to accept the request of voluntary retirement and the Government employee cannot claim voluntary retirement as a matter of right. 9. In the present case, the petitioner had earlier also proceeded on leave, when he went to the United States of America in the year 2003, the leave was also sanctioned. From the conspectus of the aforesaid facts, it can be presumed that the petitioner was never interested in the employment of the State Government as he continued to live in the United States of America despite there being consecutive notices issued to him which were served upon him at the address of America. The petitioner thus, can be said to have committed gross negligence as well as misconduct in service by settling in the United States of America without obtaining any sanction from the respondent authorities. 10. The chargesheet was issued to the petitioner under the provisions of Gujarat Civil Services (Conduct) Rules, 1971. This Court in the case of Vadilal Khatubhai Patel (supra) while examining the provisions of Gujarat Civil Service (Conduct) Rules, 1971 and the Discipline and Appeal Rules, 1971 in case of Government employee, who had remained absent from his duty unauthorizedly without obtaining any permission has observed thus: "(11) In the present case, the petitioner authority has relied upon the Discipline and Appeal Rules for dismissing the respondent from service. 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." The aforesaid Rule obliges the government servant to maintain absolute integrity and devotion to his duty which the petitioner has blatantly violated. (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." The aforesaid Rule obliges the government servant to maintain absolute integrity and devotion to his duty which the petitioner has blatantly violated. Rule 3A of the said Rules states that the government servant shall not act in a discourteous manner. The petitioner remained willfully absent from duty and he never cared to report or resume the duties. 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 unauthorizedly. He is not worthy of any sympathy. 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 conduct of a government employee working under the State Government is governed by 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 willfully remaining on unauthorized leave. (12) So far as the contention of the learned advocate appearing on behalf of respondent that he could not have been dismissed by the petitioner, as he was on deputation with the Corporation is also misconceived. It is pertinent to note that the petitioner had informed the GLDC and after obtaining the permission to take necessary action against the respondent, the respondent was dismissed from service. The respondent had all the opportunities to tender his explanation when he was given various notices as well as the public notice. The public notice was issued on 06.08.1999 calling upon the respondent to present himself for defending the case failing which ex parte action will be taken against him. The respondent ignored the same and acted in complete defiance. Thereafter, the inquiry was conducted by the Corporations and after approval of the GLDC, the petitioner passed the order of penalty. In my considered opinion, it cannot be said that the petitioner had acted in complete violation of principles of natural justice. The respondent was given full opportunity to represent his case, but he disregarded the same. Thereafter, the inquiry was conducted by the Corporations and after approval of the GLDC, the petitioner passed the order of penalty. In my considered opinion, it cannot be said that the petitioner had acted in complete violation of principles of natural justice. The respondent was given full opportunity to represent his case, but he disregarded the same. The petitioner can be said to have complied with procedural formalities, but it was the respondent who can be said to have been acted in defiance. Hence, the penalty imposed upon the respondent does not suffer from any violation of natural justice or it cannot be said the same is passed in complete disregard to the Rules. (13) An employee working in a department is expected to adhere to the Conduct Rules and to the working environment of the department. He has to maintain absolute honesty and integrity so that his acts may not result into any predicament to the smooth functioning of the department. The respondent has exhibited a recalcitrant behaviour by which the working of the petitioner department had suffered a lot. Earlier also he had remained absent for 88 days, and thereafter had continuously remained absent. Thus, he said to be a habitual absentee who had utter disregard for his duties. In view of the conduct demonstrated by the respondent, it cannot be said that the penalty of dismissal imposed upon him is disproportionate. In my considered opinion, the Tribunal has grossly erred in setting aside the penalty imposed upon the petitioner. The observation of the Tribunal recommending voluntary retirement was also unwarranted in wake of such gross facts." 11. Thus, as observed by this Court, an employee working in the Government service is expected to adhere to the Conduct Rules and to the working environment of the department. The unauthorized absenteeism cannot be tolerated since the same would affect the administration of the department. In the present case, the petitioner remained on unauthorized leave for a considerable time and did not resume his duties despite various opportunities granted to him. Thus, it can be said that he did not maintain absolute integrity or devotion to his duty as required under the Conduct Rules, 1971. 12. The order of removal was passed under the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The chargesheet as per the procedure prescribed under Rule 9. Thus, it can be said that he did not maintain absolute integrity or devotion to his duty as required under the Conduct Rules, 1971. 12. The order of removal was passed under the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The chargesheet as per the procedure prescribed under Rule 9. It is pertinent to note that the petitioner has not challenged the impugned orders on the ground of any procedural illegalities or irregularities. The writ petition is bereft of the pleadings with regard to the violation of statutory rules. Thus, the scope of judicial review as regards the quantum of punishment would be very limited and the Court cannot go into correctness of the choice of the administration. In the case of Damoh Panna Sagar Rural Regional Bank Vs. Munna Lal Jain, reported in 2005 (10) SCC 84 , after survey of decision on the issue of interference in the orders of punishment imposed on the employees and examining the Wednesbury's Principle, the Supreme Court has held thus: "14. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision." Thus, in wake of any pleadings challenging the violation of statutory rules, this Court cannot interfere with the punishment of removal imposed on the petitioner and further direct the respondents to convert the same to voluntary retirement." 13. On the backdrop of the aforesaid observations and analysis, the writ petition fails. Rule discharged. Interim relief, if any, stands vacated. No costs.