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
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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
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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
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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
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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
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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
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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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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
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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
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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
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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,
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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
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
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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
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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
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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
