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2024 DIGILAW 362 (GUJ)

State Of Gujarat v. C. H. Karia

2024-02-21

N.V.ANJARIA, PRANAV TRIVEDI

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JUDGMENT : PRANAV TRIVEDI, J. The present Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the appellant – original respondent assailing the correctness of the judgment and order dated 24.01.2014 passed by the learned Single Judge in Special Civil Application No. 7658 of 2008. 2. The prayer made in the writ petition before the learned Single Judge by the original petitioner was to quash and set aside the impugned punishment order dated 20.06.2005 passed by Government of Gujarat, Health and Family Welfare Department as well as subsequent confirmation order dated 05.08.2006 passed by the Government of Gujarat. 3. The learned Single Judge held that the order of punishment dated 20.06.2005 as well as its subsequent confirmation order dated 05.08.2006 passed by the Government Gujarat is reduced and modified to the extent that there shall be forfeiture of 10% of total pension with permanent effect. It was further directed to the present appellants – original respondent to make payment of pension and pensionary benefits as well as other retiral admissible dues within a period of 12 weeks from the receipt of this order passed by the learned Single Judge, failing which, 6% interest thereon from the date of his superannuation till the date of actual realization of the amount by the petitioner. It is this direction which is challenged in the present appeal. 4. The factual matrix leading to the filing of the writ petition is that the respondent – original petitioner joined the services of the Health Department, Government of Gujarat as Class-III employee and was duly promoted to the post of Class-II in the year 1983. In the year 1996, the petitioner was granted commuted leave of 46 days. Pursuant thereto the petitioner requested for further leave of one year on various grounds. However, the same was not granted and the petitioner remained absent from duty for the period from 26.07.1996 to 09.03.1998. Pursuant to the absenteeism, a show cause notice was issued and subsequently in the month of January, 2003, inquiry officer submitted his report holding that the charges leveled against the petitioner were proved. On 31.05.2003, the petitioner retired from the service on attaining the age of superannuation. Pursuant to the absenteeism, a show cause notice was issued and subsequently in the month of January, 2003, inquiry officer submitted his report holding that the charges leveled against the petitioner were proved. On 31.05.2003, the petitioner retired from the service on attaining the age of superannuation. In the meantime, against the said show cause notice, the petitioner on 01.06.2003 had made an application for grant of ad-hoc pension and thereafter on 26.02.2005 the authorities imposed punishment whereby 100% pension and other pensionary benefits were ordered to be forfeited. 4.1. Pursuant thereto, the petitioner made a representation/appeal for reconsideration of the impugned order of punishment, which came to be rejected vide order dated 05.08.2006, in which circumstances the petitioner preferred writ petition being Special Civil Application No. 7658 of 2008, which came to be partly allowed. However, being dissatisfied with the said order, the present appellant – original respondent preferred present Letters Patent Appeal. 5. We have heard learned Assistant Government Pleader Mr. Sanjay Udhwani for the appellant, learned advocate Mr. Vaibhav Vyas for respondent no. 1 and learned advocate Ms. Roopal Patel for respondent no.2. 6. It has been contended by learned Assistant Government Pleader Mr. Sanjay Udhwani that the learned Single Judge failed to appreciate that the petitioner was holding a post of Medical Officer Class-II and he being gazette responsible officer, ought not to have taken leave which was not sanctioned. It was further contended that the petitioner had not remained present on his duty and it is settled law that ‘no work no pay’ and as such, the petitioner is not entitled for allowance for the said period. On such pretext the learned Assistant Government Pleader has submitted that the appeal be allowed and impugned order passed by the learned Single Judge be quashed and set aside and further may forfeit 100% pension and pensionary benefits of the petitioner. 7. Per contra, learned advocate Mr. Vaibhav Vyas has contended that the petitioner had applied for leave for a period of one year commencing from 20.09.1996 to 18.09.1996 on the ground of illness of his father and after the death of his father, the petitioner once again submitted his leave report seeking leave for a period of eight months with regard to mental condition of his mother which was not considered and thereafter departmental proceedings were initiated. It was further submitted that in response to the inquiry report, the petitioner made a representation on 06.10.2003. However, after a period of more than one and half year, the authorities had issued major punishments of forfeiture of 100% pension and pensionary benefits without application of mind and had violated the principles of natural justice. It was further contended that the order passed by the authorities was a non-speaking order. Learned advocate Mr. Vyas has therefore, submitted that as per the Rules, consultation of the Gujarat Public Service Commission (GPSC) was required in the matter which was done, however, the advice of GPSC of 04.06.2005 was not supplied to the petitioner before passing the order of punishment. Thus, the petitioner was deprived of his legitimate right of making representation to the disciplinary authority with regard to such advice by the GPSC. Therefore, as per the settled position of law, the action of the respondent authority as regarding supplying advise of GPSC before passing the order of punishment was illegal and in gross violation of the principles of natural justice. 7.1. To substantiate his submission, learned advocate Mr. Vyas has relied upon the decision of the Hon’ble Apex Court in the case of Krushkant B Parmar v. Union of India & Anr., reported in (2012) 3 SCC 178 and (ii) in the case of Coal India Ltd., & Anr., v Mukul Kumar Choudhari & Ors., reported in (2009) 15 SCC 620 . As such, it was therefore, submitted by learned advocate Mr. Vyas that the appeal be dismissed. 8. Having considered the submissions made by learned advocates appearing for the respective parties and having gone through the material on record, there is no dispute about the fact that the petitioner had applied for leave for a period of one year due to ill health of his father as well as mental condition of his mother. The other fact which is also not in dispute is that the petitioner had applied for voluntary retirement in the year 1983 and the application as regards voluntary retirement was not rejected within the prescribed period of limitation. Therefore, if the allegations as regards unauthorized absenteeism from the duty are there, the authorities are required to prove that the absenteeism is willful. Therefore, if the allegations as regards unauthorized absenteeism from the duty are there, the authorities are required to prove that the absenteeism is willful. However, if the absenteeism is the result of complete circumstance under which it was not possible to report for duty or perform the duty, then such absenteeism cannot be held to be willful. It is a fact that the petitioner had applied for leave due to ill health, hospitalization and compelling circumstances of his parents. Therefore, it was not proper on the part of the authority to come to a conclusion that the absenteeism is willful. 9. Further, one major question of law would be whether it was admissible for the authorities to give such harsh punishment of 100% forfeiture of pension and other pensionary benefits without following due procedure of law of supplying copy of the advice of the GPSC to the petitioner. It is now settled law that the Rules require consultation with the GPSC and after obtaining advice, such advice has to be provided to the Government servant before imposing any penalty. If such requirement is not satisfied, then the entire decision of imposition of punishment is vitiated and is liable to be set aside. Thus, not providing a copy of the advice of the GPSC would result into violation of the principles of natural justice and, therefore, we concur with the observations made by the learned Single Judge. 10. In view of the aforesaid circumstances, we are of the considered view that the appeal preferred by the authorities is meritless and same is required to be dismissed. However, the authorities are directed to make payment of pension and pensionary benefits as well as other retirement dues to the petitioner treating the services from 26.07.1996 till 09.03.1998 as continuous services. Such payments shall be made within a period of four weeks from the date of receipt of writ of this Court. The payment shall be made after giving interest @ 6% on the amount from the date of superannuation till the actual date of realization. 11. With the aforesaid observation, the present Letters Patent Appeal stands dismissed. No order as to costs.