Gujarat High Court
Poonambhai Bijalbhai Machhi vs The State Of Gujarat on 22 January, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21825 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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POONAMBHAI BIJALBHAI MACHHI
Versus
THE STATE OF GUJARAT & ORS.
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Appearance:
MR DIPAK R DAVE(1232) for the Petitioner(s) No. 1
MR VAIBHAVKUMAR I BHOI(12030) for the Petitioner(s)
No. 1
MR ADITYA DAVDA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,4
MR. ALKESH N SHAH(3749) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 22/01/2025
ORAL JUDGMENT
1. Heard learned advocate Ms. Nidhi Trivedi and learned advocate Mr. Hem Dave appearing for the petitioner, learned Assistant Government Pleader Mr. Aditya Davda appearing for the respondents Page 1 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined No.1 and 4 and learned advocate Mr. Alkesh N. shah appearing for the respondents No.2 and 3.
2. Considering issue involved in the petition, with the consents of learned advocates appearing for the respective parties, the matter was taken up finally. Hence, issue RULE. Learned Assistant Government Pleader Mr. Aditya Davda waives the service of rule on behalf of the respondents No.1 and 4. Learned advocate Mr. Alkesh Shah waives the service of rule on behalf of the respondents No.2 and 3.
3. By way of this petition, the petitioner has prayed for following reliefs :-
"(A) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction to
(i) Hold and declare that action of the respondents in not allowing the petitioner to continue in service is illegal, arbitrary and against the provisions of law with the further direction to the respondents to treat the petitioner as continuous in service until the date of his retirement.
(j) hold and declare that the petitioner is entitled to receive all consequential benefits and wages from 16.10.2018 till Page 2 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined the date of his retirement i.e. 30.5.2022;
(ii) hold and declare that the petitioner shall be entitled to receive pension and other terminal benefits including gratuity, leave encashment etc. counting his entire service from 16.07.1984 till the date of his retirement i.e. 30.05.2022 and further may be pleased to direct the respondents to fix the pension of the petitioner accordingly;
(iii) direct the respondents to pay all terminal benefits including gratuity, leave encashment of the petitioner considering his date of retirement as 30.05.2022;
(iv) direct the respondents to pay arrears as above with 9% interest;
(B) Pending the admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondents to fix the pension of the petitioner on the basis of his retirement i.e. 30.05.2022;
(C) Any other and further relief or relief to which this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted."
4. Subsequently, the petitioner has filed an affidavit dated 9.12.2024 which reads as under :-
"I, Poonam Machhi s/o. Shri Bijalbhai Machhi, aged about 60 years, the petitioner hereinabove, having address as mentioned in the cause-title of this Page 3 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined petition, do hereby solemnly affirm and state on oath as under.
1. That I being the petitioner am fully conversant with the facts and circumstances of the case.
2. I state that I was appointed as a junior clerk in the office of respondent no.3 with effect from 04.07.1984 and I have served for more than 20 years i.e. till 25.01.2006. I state that in case this Hon'ble Court so directs to consider me as having been voluntarily retired with effect from 26.01.2006 and if I am given all the retirement benefits, pension etc. considering length of my services from 16.07.1984 to 25.01.2006, I am ready to accept the same without proceeding further with other claim/prayers made in the captioned petition.
I state that what is stated hereinabove is true to the best of my personal knowledge, information and belief and I believe the same to be true and correct.
Solemnly affirmed at Ahmedabad on this 9th day of December, 2024."
5. Upon instruction, learned advocate Ms. Nidhi Trivedi further clarifies that if the petitioners service from 16.7.1984 to 25.01.2006 is considered for the retiral benefits and pension considering the length of service, the petitioner does not want to press any other prayers and therefore, in light of above Page 4 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined affidavit, the matter was heard and now being decided.
6. Brief facts of the petition stated by learned advocate Ms. Nidhi Trivedi are as under :-
6.1 The petitioner was appointed as Junior Clerk in the office of Sardar Sarovar Narmada Nigam Limited at Bodeli Main Canal, Sub Division No.1/2 and vide office order dated 4.7.1984, he was appointed and he resumed his duties with effect from 16.7.1984. The petitioner availed the benefits of first higher pay scale with effect from 14.9.1993 and subsequently, he was transferred to Saurashtra Canal Sub Division No.3/5-C at Dhangadhra.
7. In the year 2005, on account of his family circumstances, he applied for leave from 24.12.2005 till 25.01.2006 i.e. for 33 days, as his parents were severely ill and the petitioner himself also was not keeping good health.
Thereafter, on account of above illness, though Page 5 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined the petitioner's leave was sanctioned only up to 25.01.2006, the petitioner did not resume the duty and remained on unauthorized leave. In the meantime, the parents of the petitioner expired in 2009 and 2010 respectively. On 2.5.2006, the respondents communicated to the petitioner to resume his duty within a period of eight days. However, when the petitioner went to resume the duty after four years after the aforesaid letter was written in the year 2010, he found that the entire sub-division where the petitioner was working was transferred and allocated to Kutch sub-division No.2/6-A at Bhachau. Thereafter, the petitioner was not allowed to resume the duties. The petitioner once again tried to resume the duty in the year 2018 but he was not allowed to resume the duty and thereafter, on 30.5.2022, the petitioner attained the age of superannuation but in the meantime, though he continued to made representations to the respondents to allow him to resume the duties, he was not permitted to resume duties. The Page 6 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined resultant effect was that after the petitioner proceeded on leave in the month of December, 2005 for a period of 33 days, after the sanctioned leave period was over, for quite some time the petitioner did not resume the duty and thereafter, after a long time when the petitioner tried to resume the duty, he was not permitted to resume the duty under the respondents No.2 and 3 and ultimately, he reached the age of superannuation. However, what is noteworthy is a fact that during all this time, though there was unauthorized absenteeism right after 25.1.2006, not even a show cause notice was issued to the petitioner nor any departmental proceedings had taken place against the present petitioner and therefore, though the petitioner did not resume duty after 25.1.2005, till the petitioner attained the age of superannuation there were no departmental proceedings or even show cause notice against the present petitioner for unauthorized absenteeism.
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NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined
8. The respondents did not pass even any formal order, either terminating the services or allowing the petitioner to superannuate and therefore under this background the aforesaid affidavit dated 9.12.2024 was filed by the petitioner.
9. In light of above background learned advocate Ms. Nidhi Trivedi submitted before this Court that in absence of there being any proceedings for absenteeism or even show cause notice issued by the respondents, looking to the affidavit filed by the petitioner when the petitioner has already put in 22 years services right from 1984 to 2006, the said services are required to be considered for the purpose of retiral benefits and pension and in absence of there being any adverse order or initiation of any proceedings against the present petitioner, the petitioner's past services of 22 years cannot be wiped out and therefore, when the petitioner has confined his retiral benefits only between a period from Page 8 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined 16.7.1984 to 25.1.2006, considering the above continuous services rendered by the petitioner for almost about 22 years, the respondents are required to be directed to take that service into consideration and pay the petitioner all the retiral benefits within some stipulated time as today, there is no adverse order against the petitioner or even any departmental inquiry is not even initiated and therefore, there is no question of pendency of any departmental inquiry against the present petitioner.
10. Learned advocate Mr. Alkesh N. Shah appearing for the Sardar Sarovar Narmada Nigam Limited (SSNNL) vehemently opposed the petition and submitted that the petitioner has remained on unauthorized leave for a period of more than 12 years as even if the petitioner's version is believed then also for the first time a serious attempt to resume the duty was made by the petitioner in the year 2018 though the petitioner's leave was sanctioned only up to Page 9 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined 25.1.2006. He submitted that the conduct of the petitioner dis-entitled himself to avail any retiral benefits. He submitted that in case if such person who has not even bothered to resume the duty after the leave period was over is allowed to get the retiral benefits, other employees would be encourage to follow such practice and therefore, he prayed for dismissal of petition with costs.
11. Learned Assistant Government Pleader Mr. Aditya Davda appearing for the respondent - State also vehemently opposed the petition and submitted that looking to the conduct of the petitioner, the petition is required to be dismissed.
12. However, both learned Assistant Government Pleader Mr. Aditya Davda as well as learned advocate Mr. Alkesh Shah could not point out from the record that at any point of time, even the show cause notice for prolonged absenteeism Page 10 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined was given to the petitioner or that there was any departmental inquiry initiated against the present petitioner. The record does not indicate that at any point of time, the respondents had initiated any proceedings against the present petitioner or that his services were terminated or he was superannuated by passing any specific order.
13. In view of above background, I have heard learned advocates appearing for the respective parties and perused the record. On perusal of record as well as considering the submissions, undisputed fact which emerges are the fact that despite the petitioners continuous absenteeism right after 25.1.2006 though the respondent asked the petitioner to resume the duty with a period of eight days vide communication dated 2.5.2006, after 2.5.2006 the respondents did not take any concrete action against the present petitioner or even to initiate departmental inquiry against the petitioner. On the contrary, Page 11 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined the record indicates that the officers of the respondent Corporation were not even aware about the fact about whether the petitioner is facing any departmental proceedings or not. As can been seen from the communication placed on record by the petitioner. In view of above, the Court has reason to believe and more particularly, when the reply is filed by the respondents No.2 and 3 but along with reply also nothing comes on record to indicate that except for transferring the petitioner any other actions were taken by the respondents in respect of continuous absenteeism of the present petitioner. Hence, in absence of there being any departmental proceedings or any order whereby some punitive actions are taken against the present petitioner. I don't see any reason to dismiss the petition which would result into wiping out the petitioners service of 22 years if the petition is dismissed.
14. It is also an undisputed fact that the Page 12 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined petitioner has performed his duty in the cadre of Junior Clerk right from 16.7.1984 till 25.1.2006. In between, the petitioner was also granted the benefits of first higher pay scale and the length of the service of the petitioner is 22 years. Therefore, if the petition is considered in view of affidavit submitted by the petitioner on 9.12.2024 whereby the petitioner has agreed that if his services from 16.7.1984 to 25.1.2006 is considered for retiral benefits and for the purpose of pension, the petitioner would waive all other rights and challenges as stated by learned advocate Ms. Nidhi Trivedi, upon instructions, the aforesaid proposal seems to be reasonable simply for the reason that in absence of there being any proceedings when there are no punitive action taken against the present petitioner or even the proceedings are also initiated against the present petitioner, though the petitioners conduct cannot be said to be a conduct which one would expect from an employee but at the same time, the respondents Page 13 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined also have set idle and did not take any action against the petitioner and that is sufficient to come to the conclusion that both parties have set idle for one reason or another, one in resuming the job and another in taking timely action against the petitioner.
15. Therefore, considering overall facts and circumstances of the case, the present petition is required to be allowed partly. The respondents cannot wipe out the services of 22 years rendered by the petitioner from 16.7.1984 to 25.1.2006 and therefore, they are required to consider the aforesaid service of around 22 years of the petitioner for the purpose of retiral benefits and pension and therefore, respondents are directed to calculate and pay retiral benefits including pension to the petitioner for the above period, looking to his length of service, as per his entitlement. Considering the fact that it is an undisputed fact that right from 24.12.2005 till the Page 14 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025 NEUTRAL CITATION C/SCA/21825/2023 JUDGMENT DATED: 22/01/2025 undefined petition was preferred, the petitioner did not resume the services, the petitioner shall not be entitled to any interest and therefore, the actual benefits flowing in favour of the petitioner for the above period are required to be paid by the Corporation as early as possible but preferably within a period of six months from the date of receipt of the above order.
16. With the aforesaid direction, the petition is partly allowed. Rule made absolute to the aforesaid extent only. No order as to costs.
(NIRZAR S. DESAI,J) Pallavi Page 15 of 15 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:35:49 IST 2025