Gujarat High Court
Ushaben Purusottamdas Popat vs President / Honorary Secretary on 13 June, 2024
Author: A. S. Supehia
Bench: A.S. Supehia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 482 of 2015
In R/SPECIAL CIVIL APPLICATION NO. 8492 of 2003
With
R/LETTERS PATENT APPEAL NO. 280 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 19162 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 280 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 19162 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the YES
judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
USHABEN PURUSOTTAMDAS POPAT
Versus
PRESIDENT / HONORARY SECRETARY & ORS.
==========================================================
Appearance:
MS MAMTA R VYAS(994) for the Appellant(s) No. 1
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MS VENU H
NANAVATY(7458) for the Respondent(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 24
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Date : 13/06/2024
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present appeals are filed under Clause 15
of the Letters Patent, 1865. The captioned
Letters Patent Appeal No.482 of 2015 in Special
Civil Application No.8492 of 2003 emanates from
the judgement and order dated 30.09.2014 passed
by the learned Single Judge (Coram : Hon'ble Mr.
Justice G.R. Udhwani), wherein and whereby the
learned Single Judge had remanded the matter back
to the District Education Officer (DEO) after 16
years by quashing and setting aside the impugned
orders, whereas Letters Patent Appeal No.280 of
2017 in Special Civil Application No.19162 of
2015 emanates from the judgement and order dated
10.01.2017, wherein and whereby the learned
Single Judge (Coram : Hon'ble Ms. Justice Sonia
Gokani) has again remanded the matter to the DEO.
BRIEF FACTS :
2. The appellant as of now is more than 78 years
of age. She was appointed as a teacher in the
year 1977. She was subsequently appointed as a
Principal in the school run by the respondent
No.1 on 07.01.1986. Thereafter, she was suspended
by the order dated 27.11.1998 in the
contemplation of the departmental inquiry and
thereafter, a show-cause notice dated 12.12.1998
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was issued to her. It appears that Application
No.29 of 1999 was filed by before the Gujarat
Education Tribunal ("the Tribunal") assailing the
departmental inquiry. It was the case of the
appellant that some relevant documents were not
supplied to her and the same were supplied after
the order passed by the Tribunal and ultimately,
a charge-sheet dated 10.02.1999 has been issued
to her.
3. After holding a regular departmental inquiry,
the appellant was dismissed. The same was
approved by the DEO vide order dated 12.10.1999
by invoking the power under the provisions of
Section 36(1)(b) of the Gujarat Secondary
Education Regulation, 1972. The same was subject
matter of challenge before the Tribunal by the
appellant vide Application No.382 of 1999. The
Tribunal, by the judgement and order dated
25.02.2003 dismissed the said application along
with Application No.250 of 1999. Thus, both the
applications were dismissed by the Tribunal by
recording that "Except for the period of absence
of applicant at the head quarter, for rest of the
period till the date of her dismissal the
management shall pay 50% salary difference to the
applicant within a period of one month."
4. Being aggrieved and dissatisfied by the
judgement and order of the Tribunal dismissing
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the applications, the appellant filed the
captioned writ petition being Special Civil
Application No.8492 of 2003 assailing the
impugned order of dismissal, approval order of
the DEO as well as order of the Tribunal. By the
judgement and order dated 30.09.2014, the learned
Single Judge quashed and set aside the impugned
order of dismissal, approval order of the DEO as
well as order of the Tribunal and remanded the
matter to the inquiry committee for refrence to
the DEO.
5. We may notice at this stage that when such
order was passed, the appellant-petitioner had
crossed the age of superannuation and she was 69
years of age. The issue of remand was relating to
the provisions of Regulation 27A(6)(5)(10)(1)
and(2) of the Code of Conduct introduced vide
resolution dated 20.05.1992, which pertains to
completion of inquiry within stipulated period of
150 days. Thus, after the impugned orders were
quashed and set aside, the matter was remanded.
The DEO passed a fresh order, after examining
Rojkam and the facts, on 30.12.2014, wherein it
was held that the departmental proceedings were
held within a period of 150 days. The said order
dated 30.12.2014 passed by the DEO, pursuant to
the directions issued by the learned Single
Judge, was assailed by the appellant in the
captioned writ petition being Special Civil
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Application Special Civil Application No.19162 of
2015. By the order dated 10.01.2017, the learned
Single Judge again remanded the matter to the DEO
by observing that he ought to have examined the
matter as directed earlier by the learned Single
Judge in Special Civil Application No.8492 of
2003. When such order was passed, the appellant
had almost crossed the age of 72 years. Being
aggrieved by the said direction of remand, the
appellant filed the captioned appeal being
Letters Patent Appeal No.280 of 2017 assailing
the directions issued vide judgement and order
dated 10.01.2017 by the learned Single Judge in
Special Civil Application No.19162 of 2015.
SUBMISSIONS ON BEHALF OF THE APPELLANT :
6. Today, when we have taken the matters for
final hearing, since the appellant is ill and is
also more than 78 years of age, learned advocate
Ms.Mamta Vyas appearing for the appellant has
submitted that on the earlier occasions, the
management and the appellant had tried to settle
the dispute and in fact, on two occasions terms
of settlement were also supplied to this Court.
She has also referred to the affidavit dated
10.02.2024 filed by the appellant, which is on
record and has submitted that as per the contents
of such affidavit, the appellant is ready and
willing to forgo the back wages for a period from
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the date of dismissal i.e. 13.10.1999 till the
date of superannuation i.e. 31.10.2004 and the
appellant will not claim any further benefits in
future. She has submitted that in light of the
aforesaid affidavit and statement made by the
appellant, the respondent-State Government may be
directed to grant her pensionary benefits,
including gratuity and leave encashment etc. for
a period, for which she has rendered service.
7. Learned advocate Ms.Vyas has further
submitted that after the impugned orders i.e.
order of dismissal, order of the DEO approving
the dismissal order and order of the Tribunal
were quashed and set aside by this Court vide
jdugement dated 30.09.2014, the DEO has passed
the impugned order dated 30.12.2014. It is
submitted by her that, the order of dismissal
passed by the management and approving the same
by the DEO have not remained in existence and the
issue was only confined to finding of the
accountability of delay in concluding the
departmental proceedings within 150 days. She has
submitted that the subsequent order passed by the
learned Single Judge dated 10.01.2017 in Special
Civil Application No.19162 of 2015 was uncalled
for as the appellant had already reached the age
of 70 years and the learned Single Judge ought to
have confined the observations to the validity of
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the impugned order passed by the DEO after
remanding the matter by the first judgement and
order dated 30.09.2014 passed in Special Civil
Application No.8492 of 2003. While referring to
the judgement and order dated 30.09.2014, she has
submitted that the learned Single Judge has
already opined and recorded that the inquiry was
not completed within a period of 150 days and
hence, the inquiry should have been dropped as
per the provisions of the resolution. Thus, it is
urged that in view of the subsequent development
in light of the undertaking, which is given by
the appellant of forgoing the back wages, the
State Government may be directed to grant her
retirement benefits.
SUBMISSIONS ON BEHALF OF THE MANAGEMENT:
8. Learned advocate Ms.Venu Nanavati appearing
for the respondent No.1 has submitted that as per
the undertaking given by the appellant, she would
not be claiming any back wages from the
management and issue is only confined to the
payment of retirement benefits such as pension,
leave encashment etc., which falls within the
domain of the State Government. She has submitted
that in fact, there were serious charges against
the appellant, for which she was dismissed and
the Tribunal has also confirmed such dismissal
however, ultimately, the learned Single Judge in
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the captioned writ petition being Special Civil
Application No.8492 of 2003 has quashed and set
aside the impugned orders and remanded the matter
to the DEO and it is only the DEO, who has to
pass the order recording the finding of fact of
completion of departmental proceedings within a
period of 150 days. She has submitted that the
order of the DEO is further assailed by the
appellant in Letters Patent Appeal No.280 of 2017
and since the appellant has confined her relief
for the grant of pensionary benefits, it would be
the DEO, who would have to justify his order,
wherein a categorical finding has been recorded
after going through the Rojkam that the
departmental proceedings are held within a
mandatory period of 150 days, as specified in the
aforenoted resolution. She has further contended
that in fact, right from the order of dismissal
and till the departmental proceedings, including
the order of the Tribunal, it was the fault of
the appellant in prolonging the departmental
proceedings. She has further submitted that in
the judgement and order dated 30.09.2014, the
learned Single Judge has recorded that in fact,
the appellant has prolonged the departmental
proceedings and she is responsible for such
delay.
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SUBMISSIONS ON BEHALF OF THE STATE:
9. Learned AGP Mr.Trivedi appearing for the
State Government has submitted that after the
matter was remanded by the learned Single Judge
vide judgement and order dated 30.09.2014, after
examining the issue of completion of the
departmental proceedings, the DEO has passed the
fresh order, as per the direction issued by this
Court, wherein it is opined that the departmental
proceedings were in fact, concluded within a
prescribed period of 150 days and hence, the
departmental proceedings are held to be valid and
once they are valid, the consequential dismissal
order passed by the management and approval order
of the DEO stood confirmed. It is contended that
once the dismissal order is confirmed, the
appellant would not be entitled to any retirement
benefits including pension. It is submitted that
the DEO has examined the Rojkam and a categorical
finding has been arrived at holding that the
inquiry proceedings are in harmony with
Regulation 27A(6)(10)(1)and(2). Thus, it is urged
that since the departmental proceedings are held
in accordance with law and in line with the
statutory regulations and the appellant since has
been dismissed from service, she is not entitled
to any benefit, even if the management agrees to
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such proposal, as canvased by the appellant in
the affidavit.
ANALYSIS AND OPINION:
10. Before, we deal with the rival submissions
advanced by the learned advocates appearing for
the respective party, it is worth to note that
neither the Management nor the State Government
has assailed the judgement and order of the
learned single judge dated 30.09.2014 passed in
Special Civil Application No.8492 of 2015 before
higher forum. The appellant has challenged the
same since the learned Single Judge had remanded
the matter instead of modifying the punishment
order looking to her age.
11. The facts, as narrated hereinabove relating
to the proceedings, which are undertaken by the
respective parties, are undisputed. The appellant
was appointed as a Principal in the school run by
respondent No.1 on 07.01.1986 and was dismissed
from service vide order dated 13.10.1999. The DEO
granted approval for the dismissal as ordered by
the management on 12.10.1999, which was subject
matter of challenge before the Tribunal by the
appellant by filing Application No.382 of 1999.
The Tribunal vide order dated 25.02.2003 rejected
the said application along with one another
application being Application No.250 of 1999,
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which was filed by the appellant challenging the
inquiry proceedings and the order of closing her
right of cross-examination. Being aggrieved by
the said judgement and order rejecting the
applications filed by the appellant, she
preferred the writ petition being Special Civil
Application No.8492 of 2003. By the judgement and
order dated 30.09.2014, learned Single Judge
(Coram: Hon'ble Justice G.R. Udhwani) set aside
the orders, which were assailed in the writ
petition i.e. dismissal order, approval order of
the DEO and order passed by the Tribunal.
12. At this stage, we may incorporate the
observations made by the learned Single Judge in
the judgement and order dated 30.09.2014. The
same are as under:
"43. In light of Regulation 27(A) (4) (5) it is
required to ascertained as to whether the enquiry was
held in compliance with the same.
44. As indicated above Enquiry Committee was
constituted on 31st January 1999. The procedure
adopted after constitution of the Enquiry Committee
is required to be closely examined.
45. The first meeting of the Enquiry committee was
held on 10th February 1999 on which date the charges
were framed which was protested by the delinquent for
want of original papers. The chairman ruled that the
charges be framed on the basis of the material
available and that the original document will be
produced at the time of enquiry. On consideration of
documents and other material, the charge sheet was
framed.
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46. On the said date, it is stated in the report that
the charge sheet accompanied by the documents at item
1 to 246 were dispatched to the delinquent by
registered post A.D; and that these proceedings were
signed by representative of the petitioner. The
delinquent was required to respond to the charge
sheet within 15 days. The delinquent replied to the
same on 11th March 1999 i.e. after about a month of
dispatch of material to her. The documents at items 1
to 44 were resent to her as per the aforesaid report.
The report also shows that on 13th March 1999 again
various documents as desired by Mr. Vyas the
representative of the delinquent was sent to her. The
report also refers to the compliance of order dated
10th February 1999 and 4th March 1999 passed by the
Tribunal for supplying the document to the
petitioner.
47. The presenting officer produced the evidence
before the Enquiry Committee on 1st April 1999 ie
after about 60 days of the constitution of the
committee on 31st January 1999. On 3rd April 1999, 27
additional documents were produced by the management.
Copies thereof were supplied to the petitioner.
48. The report further refers to the fact that the
delinquent was thereafter given an opportunity to
inspect the documents which was done by her. It
appears that at the instance of the petitioner,
agenda of minutes books were produced for her
inspection which inspection was not undertaken by
her. The report also refers to few more opportunities
given to the delinquent for inspecting the record and
an opportunity to cross examine the presenting
officer which was earlier closed to which, however,
no detailed reference is made in the report.
49. It appears from the report that upon instructions
to the presenting officer the statements of 8
witnesses came to be produced on 17th June 1999 i.e
after about 4 months of the constitution of the
committee. The delinquent was allowed three days to
cross-examine them which she could not do and
therefore her right to cross-examine was closed.
Again on 10th June 1999 evidence of statements of 10
witnesses were produced and the delinquent was asked
to cross examine them by 14th June 1999 for which, it
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is stated in the report that she did not remain
present. Similarly on 14th June 1999 two more
statements of witnesses came to be produced and the
delinquent was allowed 4 days time to cross examine
them for which also she did not remain present. It
appears that in pursuance to the letter dated 6 th
July 1999 of the petitioner, she was allowed to
cross examine the witnesses on the condition that
such exercise shall be done on day to day basis. The
report notes that such opportunity was not
appropriately utilised by the delinquent and cross-
examination of witness was prolonged for unnecessary
longer duration. It appears that on 14th July 1999 an
opportunity to the delinquent to produce the evidence
and the witnesses was given and ultimately the matter
was fixed for arguments on 21st July 1999.
50. What is apparent from the above discussion is
that while the petitioner consumed a time of 30 days
instead of 15 days for replying to the charge sheet,
the management commenced the effective proceedings
only after 3 months of the constitution of the
committee and thereafter the evidence was produced by
it in several installments. During such exercise, the
outer limit of 150 days was also crossed. Thus, a
reference to DEO as contemplated in sub clauses 1 and
2 of Regulation 27 (4) (5) (10) was necessary to
determine the liability on the erring party. The
management however, failed to adopt the said
procedure. Consequently, the responsibility of delay
on the erring party could not be fixed by the DEO. As
indicated above consequence could have either
benefited the management or the delinquent and thus,
a prejudice can be presumed to have been caused to
one of them by not making a reference to the DEO at
the crucial stages.
51. The Tribunal According to it did notice the
aforesaid facts. There was substantial compliance
with the rules and regulations and that the
regulation was directory in nature. A legal document
spelling out consequence of default in action cannot
be regarded as directory. In above view of the matter
the inquiry can be said to have been vitiated on
expiry of 150 days from the date of constitution of
the committee. It is therefore, appropriate to remand
the matter to the enquiry committee for referring to
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the DEO for examination of the matter under
Regulation 27 (4) (5) (10) (1) (2) of the Code of
Conduct as introduced by resolution dated 20th May
1992. The submission that this Court may instead of
remanding the matter particularly petitioner when is
69 years of age, the modify the punishment cannot be
accepted in view of the fact that the fact of inquiry
rests on the decision of D.E.O under above said
regulation. Therefore, the question of looking at the
quantum of punishment does not arise at this stage.
Under the circumstances it is not necessary for this
Court to delve upon other issues in detail.
52. In the result, the impugned orders cannot be
sustained. They are therefore, quashed and set aside.
However, in view of the above fact since this Court
is inclined to remand the matter to the enquiry
committee for reference to DEO who will have to
decide the matter within a time bound period,
reinstatement of the petitioner in service is not
required to be ordered."
13. A fair reading of the aforesaid observations
made by the learned Single Judge envisage that
after discussing the provisions of Regulation
27(A)(4) more particularly, sub-clauses 5, 6, 7,
8, 9 and 10, wherein time bound schedule is
provided to initiate and concluding the
departmental inquiry within a period of 150 days
against a teacher by the management and
consequences thereof for non-compliance is also
specified in such regulation.
14. The entire scheme of regulation is known as
the Gujarat Secondary and Higher Education
Regulation, 1974. Regulation 27(A) came to be
introduced by the resolution dated 20.05.1992
along with some other regulations.
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15. The learned Single Judge has discussed the
entire scheme of Regulation 27(A)(6), which
contemplates procedure for imposing major penalty
and after discussing the same, learned Single
Judge has given categorical finding that "while
the petitioner consumed a time of 30 days instead
of 15 days for replying to the charge sheet, the
management commenced the effective proceedings
only after 3 months of the constitution of the
committee and thereafter the evidence was
produced by it in several installments. During
such exercise, the outer limit of 150 days was
also crossed. Thus, a reference to DEO as
contemplated in sub clauses 1 and 2 of Regulation
27 (4) (5) (10) was necessary to determine the
liability on the erring party. The management
however, failed to adopt the said procedure.
Consequently, the responsibility of delay on the
erring party could not be fixed by the DEO.".
16. Regulation 27(A)(6)(10) is translated and be
read as under:
"(10) The concerned employee shall submit his written
explanation by RPAD/ by hand within 10 days of
receiving such show cause notice and after the
explanation to showcase notice is submitted by the
employee or even if the employee deliberately does
not submit the explanation within the prescribed
time, the Board of Directors shall decide about the
punishment against the concerned employee in a
meeting of the Board of Trustees or in the executive
meeting of the Board and thereafter, action shall be
taken against him as per Section 36 (1)(b) of the
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Act. The representative appointed by the Board of
Directors shall be the convenor of the inquiry
committee and he shall conduct all the proceedings of
the inquiry committee. The inquiry committee has to
complete the inquiry within 150 days of its first
meeting. If the inquiry is not completed within the
time limit, the District Education Officer can take
the final decision as under regarding the party who
may be at fault:
(1) If the employee has made a deliberate mistake,
then he can declare the inquiry complete.
(2) He may declare the inquiry to be dropped, if
there has been willful default made by the Board of
Directors."
17. Thus, the DEO is required to examine the
aforesaid aspects with regard to the delay in
completion of the departmental proceedings. In
case, if it is found that an employee has
deliberately procrastinated the inquiry
proceedings, the same may be construed as completed
and alternatively, if the same is done at the end
of the management, inquiry is to be construed as
dropped.
18. Learned Single Judge in the order dated
30.09.2014 has categorically held that "while the
petitioner consumed a time of 30 days instead of
15 days for replying to the charge sheet, the
management commenced the effective proceedings
only after 3 months of the constitution of the
committee and thereafter the evidence was produced
by it in several installments. During such
exercise, the outer limit of 150 days was also
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crossed. Thus, a reference to DEO as contemplated
in sub clauses 1 and 2 of Regulation 27 (4) (5)
(10) was necessary to determine the liability on
the erring party. After making such observation it
is held that " In above view of the matter the
inquiry can be said to have been vitiated on
expiry of 150 days from the date of constitution
of the committee." The learned single judge has
quashed and set aside the impugned order of
dismissal and also subsequent orders confirming it.
Finally, the learned Single Judge has remanded the
matter to the DEO. It appears that since the
appellant was 69 years of age, a request was made
for modifying the quantum of punishment, however,
the learned Single Judge has recorded that the same
cannot be gone at this stage. Thus, a categorical
finding has been recorded by the learned Single
Judge holding that the inquiry was vitiated by
observing that though the petitioner (appellant)
consumed time of 30 days instead of 15 days for
replying to the charge-sheet, the management
commenced the proceedings only after three months
of the constitution of the committee. Despite this
observation, after remanding of the matter, the DEO
passed the order dated 30.12.2014, holding that the
inquiry is initiated and completed within mandatory
period of 150 days. The consequence of such finding
as prescribed in the aforementioned regulations
will be against the appellant, whereas if in case
it was held that the inquiry proceedings travelled
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beyond 150 days, then the such proceeding is
construed to be dropped.
19. The appellant again approached this Court
challenging the aforesaid order of DEO. Vide
judgement and order dated 10.01.2017, the learned
Single Judge has again remanded the matter to the
DEO since it was found that the DEO did not act as
per the directions issued earlier by the learned
Single Judge in the judgement and order dated
30.09.2014. Being aggrieved, the petitioner again
assailed the said judgement and order in Letters
Patent Appeal No.280 of 2017.
20. In light of the aforesaid facts, the issue
which falls for deliberation before us is whether
the appellant is entitled to the retirement
benefits as she has reached at the age of
superannuation long back on 31.10.2004. The case as
noted hereinabove, indubitably suggests that the
order of dismissal dated 13.10.1999, approved by
the DEO vide order dated 12.10.1999 and the order
of the Tribunal dated 25.02.2023 are quashed and
set aside by recording the finding that mandatory
period of 150 days in conducting the departmental
proceedings violated, and the reference was
necessitated to the DEO for determining the
liability of either of the party for
procrastinating the inquiry proceedings.
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21. The impugned order of the DEO dated 30.09.3014
calls for interference, in light of the observation
made by the learned Single Judge in the judgement
and order dated 30.09.2014. In paragraph No.45 of
the said judgement and order, the learned Single
Judge has categorically held that the first meeting
of the Inquiry Committee was held on 10.02.1999,
whereas the DEO has recorded a contrary finding
that the first meeting was held on 13.03.1999 and
the inquiry proceedings culminated on 21.07.1999,
which is within a period of 150 days. A bare
reading of the impugned order dated 30.12.2014
reveals that the DEO has considered the date of the
second meeting as the first meeting, which was held
on 13.03.1999, for arriving at the conclusion that
the same is held within a period of 150 days, which
runs contrary to the findings recorded by the
learned Single Judge in the judgement and order
dated 30.09.2014. From the impugned order dated
30.12.2014 passed by the DEO holding that the
inquiry proceedings were in fact held within a
period of 150 days, it is noticed by us that no
further order, either approving or disapproving the
punishment order of dismissal, has been recorded.
It is pertinent to note that, finally, the DEO,
while concluding the proceedings, has recorded that
there is no need to further take decision, as
required under the Regulation 27(A)(6)(10)(1)(2).
Thus, he has not recorded any decision, as to
whether the disciplinary proceedings / inquiry got
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vitiated or not, and the order or dismissal would
ultimately be worthy of approval. Such aspect is
not dealt with either by the respondent-Management
or by the DEO and no findings are recorded therein.
Learned Single Judge had already quashed and set
aside all the orders, including that of the
Tribunal and such findings and directions of
setting aside the impugned orders have become
final, and they were non est. Thus, the appellant
has to be treated in service till she reached at
the age of superannuation i.e. on 31.10.2004 in
wake of the fact that her dismissal order and the
order of the DEO approving the same and the order
of the Tribunal have been quashed and set aside by
the learned Single Judge vide judgement and order
dated 30.09.2014. Since the appellant has already
crossed the age of superannuation in the year 2004,
in such circumstance, the State Government cannot
contend that the order dated 30.12.2014 passed by
the DEO would in fact revive the order of dismissal
as also the approval order dated 12.10.1999 with
retrospective effect along with the judgement and
order of the Tribunal confirming such orders. The
authorized officer, under the provision of Section
36(2) of the Gujarat Secondary and Higher Secondary
Act, 1972 is required to pass necessary order
within 45 days from the receipt of proposal from
the Management regarding dismissal, removal and
reduction of rank of the employee, and in case such
officer does not intimate his decision to the
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Management, then such decision of the Management is
deemed to have been approved. In the present case,
the learned Single Judge, after quashing the orders
of dismissal and approval, has not issued further
directions reserving rights in favour of the DEO or
the Management to pass fresh orders in this regard.
It appears that the DEO was conscious of such
directions, and also of the fact that the appellant
had crossed the age of superannuation and was 68
years of age, and hence, he did not form any
opinion while passing the impugned order dated
30.12.2014.
22. In view of the aforesaid undisputed facts,
since the order dated 30.12.2014 passed by the DEO
was not in line with the directions issued by the
learned Single Judge i.e. judgement and order dated
30.09.2014 subsequently, when such order was
assailed by the petitioner in the captioned writ
petition being Special Civil Application No.19162
of 2014, the learned Single Judge vide order dated
10.01.2017 has fell in error in further remanding
the matter again to the DEO on the very same reason
and for the very same examination of the fact.
23. The learned Single Judge, again while
remanding the matter vide judgement and order dated
10.01.2017, should have examined the aspect that at
the time of passing the order, the petitioner
(appellant) had already crossed the age of 70 years
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and this further resulted in delay. The issue which
was raised in the writ petitions was required to be
laid quietus looking to the age old controversy. A
litigant cannot be made to spin the wheel of
litigation, more particularly he or she is a senior
citizen and also in light of the controversy which
is spanning for decades. Thus, the order dated
10.01.2017 passed in the captioned writ petition
being Special Civil Application No.19162 of 2015 is
liable to be quashed and set aside and the impugned
order dated 30.12.2014 passed by the DEO will also
meet the same fate.
24. So far as the captioned Letters Patent Appeal
No.482 of 2015 is concerned, wherein the petitioner
has assailed the judgement and order dated
30.09.2014 passed in Special Civil Application
No.8492 of 2003, we are of the opinion that the
said judgement and order does not require
interference. However, at this stage learned
advocate Ms.Mamta Vyas has submitted that she does
not press the appeal in view of the statement made
by the appellant in the affidavit and in view of
the subsequent development.
CONCLUSION AND DIRECTIONS:
25. Since the appellant has already filed an
undertaking before this Court and has categorically
made a statement that she would not claim any wages
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for the period as mentioned hereinabove from the
date of dismissal (13.10.1999) till the date of
superannuation (i.e. 31.10.2004), the only
direction, which is required to be issued is with
regard to payment of retirement benefits. She has
reached the superannuation on 31.10.2004 hence, the
respondent No.1-Management is directed to prepare
her pension papers and forward them to the higher
authorities within a period of 04 (weeks) weeks. If
such papers are received, the State Government is
directed to sanction the pension and retirement
benefits of the appellant within a period of 2
weeks. Ultimately, the entire exercise is to be
carried out right from preparing the pension papers
till the actual payment of pension to the appellant
within a period of 06 (six) weeks. She will also be
entitled to the retirement benefits accordingly for
the service, which she has rendered since she has
reached the age of superannuation on 31.10.2004. In
case, the respondents do not pay her retirement
benefits within the time as directed by us, such
retirement benefits shall further carry interest @
12% p.a. It is further clarified that as per the
undertaking, the appellant will not be entitled to
any salary from 13.10.1999 till 31.10.2004 however,
this period shall be treated as notional for the
purpose of fixing of pension and retirement
benefits.
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26. It is clarified, in case the appellant, due to
her old age and ill-health, is unable to attend the
office of the respondents, they shall make an
alternate arraignment for getting her paper signed
at the place of her convenience.
27. Under the circumstances, the judgement and
order dated 10.01.2017 passed by the learned Single
Judge in Special Civil Application No.19162 of 2015
and order dated 30.12.2014 passed by the DEO are
hereby quashed and set aside.
28. Letters Patent Appeal No.482 of 2015 stands
disposed of as not pressed. Letters Patent Appeal
No.280 of 2017 is allowed.
Registry to place a copy of this order in the
connected matters.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(MAUNA M. BHATT,J)
NVMEWADA/27
