Maltiben Ratilal Battiwala vs State Of Gujarat
2022 Latest Caselaw 7238 Guj

    C/SCA/12473/2019                             JUDGMENT DATED: 22/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12473 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       MALTIBEN RATILAL BATTIWALA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR DIPEN DESAI(2481) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 22/08/2022

                            ORAL JUDGMENT

1. Draft amendment is granted. To be carried out

forthwith.

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

2. RULE returnable forthwith. Mr.Kurven Desai

learned AGP waives service of notice of Rule on

behalf of the respondent State.

3. With the consent of learned advocates for the

respective parties, the petition is taken up for

final hearing.

4. The present petition, as was initially filed for a

direction that the respondent authorities shall

permit the petitioner to resume the duties as

Senior Assistant pursuant to the judgment and

order dated 25.04.2019 passed by the Gujarat

Civil Services Tribunal in Appeal No.56 of 2019

and to pay her all back-wages and the

consequential outstanding dues with 12%

interest.

5. Facts in brief would indicate that the petitioner

was appointed as a Junior Clerk on 15.04.1986

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

and was thereafter promoted to the post of

Administrative Officer in September 2010. On

her not passing the CCC examination, she was

reverted to the post of Head Clerk on

17.06.2014. She remained absent for some

period of time due to the illness of herself and

her husband, as a result of which, invoking Rule

16 of the Gujarat Civil Services (Leave) Rules

2002, the department on 04.05.2017, passed an

order of deemed resignation. That order was

subject matter of challenge by the petitioner

before the Gujarat Civil Services Tribunal in the

appeal as referred to herein above. The Tribunal

by an order dated 25.04.2019 allowed the

appeal, quashed the order of 04.05.2017 and

directed the respondents to reinstate the

petitioner subject to a further direction that it

was open for them to hold a regular

departmental inquiry and pass appropriate

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

orders.

6. That order of the Tribunal was carried by the

State in appeal before this Court in Special Civil

Application No.16331 of 2021. The coordinate

bench of this Court by an order dated

29.10.2021, rejected the petition of the State.

The said order reads as under:

" Heard learned Assistant Government Pleader Shri Utkarsh Sharma on behalf of the petitioner- State.

By way of this petition the petitioner challenges an order dated 25.04.2019 passed by the learned Gujarat Civil Services Tribunal at Gandhinagar. The order impugned before the learned Tribunal was an order dated 04.05.2017 passed by the petitioner no.2 whereby the respondent's services had been brought to an end by exercising powers under Rule 16 of the Gujarat Civil Services ( Leave) Rules, 2002 more particularly by considering the absence of the respondent as deemed resignation.

It appears that the respondent had been working on the post of Senior Assistant, Class III at the Community Health

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

Center, Jambusar, District: Bharuch and whereas the respondent had sought for 10 days leave in the month of February 2015 and whereas the respondent had produced the certificate dated 01.03.2015 as regards the respondent being fit for duty. It appears that thereafter the respondent had further sought for leave on the ground of her illness and thereafter the respondent had not joined services for a considerably long period. The Superintendent, Community Health Center, Jambusar vide his letters dated 22.06.2015, 27.07.2015, 11.08.2015, 31.12.2015 and 03.02.2016 had issued notices to the respondent calling upon the respondent to join her services. It appears that ultimately vide a communication dated 01.09.2016, the Additional Director, Health and Medical Services, petitioner no.2 herein had issued a show cause notice to the respondent calling upon the respondent to explain why action under the Gujarat Civil Services ( Conduct) Rules, 1971 or the Gujarat Civil Services ( Leave) Rules 2002 should not be taken against the respondent.

It appears that the respondent vide her reply dated 14.09.2016 had brought to the notice of the petitioner that the respondent had joined services with effect from 11.04.1985 and she had served the Department for approximately 30 years without any cause for complaint. The petitioner had further pointed out that even after reversion of the respondent on account of her not passing the CCC examination, the respondent had joined her reverted place

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

and had worked for approximately 8 months. It is thereafter that since she had developed some physical ailment more particularly since she had some ailment with regard to her vertebra that the Doctor had advised the respondent not to carry out any strenuous work. The respondent had also brought to the notice of the petitioners that the respondent was facing adverse conditions at her home more particularly her husband being a diabetic, her daughter who was studying being physically challenged, her mother aged 78 years requiring care from the respondent and the in-laws of the respondent aged more than 80 years also requiring her care. The respondent had also pointed out that she was interested in working with the Department and since she has approximately 5 years service left, the Department could consider her case for being transferred at a location nearer to her residence where she could perform her duties effectively and also take care of the adverse circumstances at her home. The petitioner without considering any of submissions made by the respondent - employee appears to have passed an order dated 04.05. 2017 whereby the respondent's services have been brought to an end with deemed effect from 19.02.2015 as deemed resignation. The respondent-employee had challenged the said order before the learned Civil Services Tribunal and whereas the learned Civil Services Tribunal had upheld her challenge more particularly considering the fact that the petitioner State had not

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

given any reasons for not considering the request of the present respondent employee. Learned Tribunal had also considered the fact that the respondent employee had produced medical papers before the concerned authorities in her reply to the show cause notice and whereas no reason appears to have been given by the concerned authority for not considering such medical papers.

This Court has also considered the submissions made by the learned AGP Shri Sharma and has also perused the impugned decision of the learned Tribunal dated 25.04.2019. This Court has also perused the reply filed by the respondent - employee to the show cause notice issued by the petitioners.

Having regard to the findings by the learned Tribunal and having regard to the reply to the show cause notice by the respondent employee, this Court is of the considered opinion that no error appears to have been committed by the learned Tribunal which requires an interference from this Court. As noted hereinabove, the respondent- employee had informed the authorities concerned about her adverse circumstance at her residence more particularly her family members requiring care and attention. The respondent - employee had also informed the authority concerned about the physical ailment being faced by the employee herself more particularly the employee had shown her

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

willingness to join duty and whereas she had requested that she may be transferred to a place nearer to her residence. In the considered opinion of this Court an employee who has worked sincerely for 30 long years with the Department atleast has a right to make a request to the State authorities to consider her case showing her adverse circumstances and without taking into consideration any of the aspect, the case of the respondent, is treated as a case of abandonment of service and the respondent's service are brought to an end by terming the same as deemed resignation which in the considered opinion of this Court would not be reasonable.

Having regard to the same and having regard to the discussion hereinabove, this Court finds no error in the decision of the learned Civil Services Tribunal and therefore the petition is rejected in limine."

7. Despite the order so passed and even pursuant to

the orders of the Tribunal, the petitioner was not

reinstated in service and therefore in the

interregnum, she retired on superannuation on

21.08.2021 at the age of 58. Therefore, the

subsequent amendment in the petition by

incorporating para 8BB for a direction to the

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

respondent authorities to pay all terminal

benefits to the petitioner considering her length

of service from 11.04.1985 till the petitioner

reached the age of superannuation on

21.08.2021.

8. The narration herein above indicates that having

suffered an order of deemed resignation on

04.05.2017, though the petitioner succeeded

before the Tribunal inasmuch as the order was

set aside and the petitioner was directed to be

reinstated in service, even after a challenge to

the Tribunal's order by the State failed, the

respondent State did not reinstate the petitioner

in compliance of the order nor did it hold any

departmental proceedings thereafter.

9. Having reached the age of superannuation on

21.08.2021, the petitioner therefore has to be

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

treated in service and to be treated as having

superannuated with effect from 21.08.2021 and

therefore being entitled to all retiral benefits

including pension considering her length of

service from 11.04.1985 till the petitioner

reached the age of superannuation on

21.08.2021.

10. Mr.Kurven Desai learned AGP has placed on

record a communication dated 07.02.2022, by

which, it was even decided that no Letters Patent

Appeal shall be preferred against the order of

this Court dated 29.10.2021.

11. Accordingly, the petition is allowed in terms of

para 8BB. The respondents are directed to pay

all retiral benefits to the petitioner including

pension considering her length of service from

11.04.1985 to 21.08.2021 and other

C/SCA/12473/2019 JUDGMENT DATED: 22/08/2022

consequential benefits and arrears with interest

at the rate of 6%. The order shall be complied

within a period of 10 weeks from the date of

receipt of copy of this order, failing which, the

petitioner shall be entitled to 9% interest till the

realisation. Rule is made absolute accordingly.

Direct service is permitted.

(BIREN VAISHNAV, J) ANKIT SHAH