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Gujarat High Court
Judgename :K.A.PUJ
DARSHANA R DAVE - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 1913 of 2000
Decided On : 02/16/2006
Removal from service - Major penalty - Imposition of - Long absence without leave - Order of - Maintainability.
Head Note :
Service and Employment - Gujarat Civil Services (Discipline and Appeal) Rules 1971 - Rules 6 and 9 - Removal from service - Major penalty - Imposition of - Long absence without leave - Order of - Maintainability - There is no dispute about the fact that the petitioner remained unathorizedly absent between the period March 1995 to July 1997 - There is also no dispute about the fact that despite various notices reminders, charge-sheet public notice etc. the petitioner has not responded - However, it is clear from the record that respondent authorities as well as the Civil Service Tribunal have not given just and proper weightage to certain issues - It is no denying the fact that all these notices reminders charge-sheets etc. have been issued not on the address which is given in Service Book - Petitioner has alleged that because of sudden illness of her husband she had to rush to Nairobi - Her house of last residence remained closed - If the notices were issued on the address given in Service Book the communication might have been received by some one and through such service she could have given appropriate reply - There is some force in the said contention of petitioner but same would not absolve the petitioner from remaining on unauthorised leave for such a long period - These issues need consideration while considering the question of penalty - Another important aspect of the matter is her husbands illness and even the concerned Minister has also recommended to consider her case and take her back in service - Considering the judicial decisions in such cases Court held the order of removal is too harsh therefore, converted it to order of compulsory retirement to enable petitioner to get her retirement benefits - Constitution of India, 1950, Articles 14, 21 and 142.
Held :
The Court is of the view that there is no dispute about the fact that the petitioner remained unauthorizedly absent between the period from March, 1995 to July, 1997. There is also no dispute about the fact that despite various notices, reminders, charge-sheet, public notice etc, the petitioner has not responded to the same. The only question which can be considered by the Court is as to whether this unauthorized leave for more than two years did amount to misconduct or not? The respondent has proceeded on the footing that the petitioner has committed a serious misconduct, it was in violation of the orders and directions of the superior officer, amounting to insubordination and based on this conclusion, the order of removal was passed by the respondent authorities. The Civil Service Tribunal has also arrived at the same finding and confirmed the order of removal. However, there are certain issues which could have been considered by the respondent authorities as well as the Civil Service Tribunal which have neither been properly appreciated nor were given just and proper weightage. It has come on record that all these notices, reminders, charge-sheet etc, have been issued not on the address which is given in the Service Book. It is true that the same were issued on the address at where the petitioner was staying before going on leave. However, once the notices were issued on this address and when the same have come back with an endorsement "Left India" the respondent authorities should have made another attempt to serve the petitioner on the address which is given in the service book. It is the say of the petitioner that the address given in the Service Book is her parents address whereas after her marriage she was residing with her husband and the address on which the notices etc, were issued was her husbands address. It is only because of sudden illness of her husband she has to rush to Nairobi and the house remained closed. If the notices were issued on the address given in the Service Book the communication might have been received by some one and through such service the petitioner could have offered her explanation in respect of those notices. The failure of the respondent authorities to issue such notices on the address given in the Service Book would not absolve the petitioner from remaining on unauthorized leave for such a long period. However, considering the question of penalty all these issues are required to be looked into. Another important aspect of the matter is that the petitioners husband was seriously ill and because of her compelling circumstances she could not resume her duty during this period. Even the concerned Minister has also recommended to reconsider her case and take her back in the service. [Para 14]
Keeping the judicial decisions in mind this Court is of the view that the order of removal is too harsh especially when under compelling circumstances the petitioner had to remain on unauthorized leave for such a long period. It is, therefore, just and proper to convert the order of removal into the order of compulsory retirement so as to enable the petitioner to get her retirement benefits. Even otherwise, her Advocate has made an alternative submission that in case the Court is not inclined to quash the removal order the said order may be converted into the order of compulsory retirement and accordingly the Court directs the respondents to treat the removal of the petitioner from service as the compulsory retirement of the petitioner from service. It is, however, made clear that the petitioner should be entitled to avail the benefit of the leaves which were available to her credit and only after all such leaves are exhausted, the petitioner shall be treated as compulsorily retired from service. The respondent authorities shall grant to the petitioner all retirement benefits accrued to her as a result of this order and in accordance with law. [Para 21]
Law Laid Down :
High Court too can exercise power of review which inheres in every Court not to speak of a Court of plenary jurisdiction like a High Court.
Cases Law Analysis :
Shashi Chaudhary Dr. (Mrs.) vs. State of J & K, 1969 SLR 236 (SC-2) [Para 9];; R. Jeevaratnam vs. The State of Madras, 1967 SLR 657 (SC-3) [Para 9].-Distinguished
D.C. Chaturvedi vs. Union of India & Ors, 1995 (6) SCC 749 [Para 15];; R.M. Parmar vs. Gujarat Electricity Board, Baroda, 1982 (1) GLR 352 [Para 16];; Bhimsing Sardarsing vs. District Supdt. of Police & Ors., 1982 23 (2) GLR 410 [Para 17];; Sattuji Babaji vs. State of Gujarat & Anr., 1986 GLH (UJ) 46 [Para 18].-Relied on
Conclusion :
Inspite of failure of respondent authorities to appreciate some issues involved, petitioner can not be absolved from remaining on unauthorised leave for such a long period - Court therefore, converted the order of removal from service to one of compulsory retirement.
Cases Referred :
Union of India vs. D.S. Kharekar, 1998 (II) LLJ 748;; Pushpaben G. Patel vs. Secretary, 1998 (1) GCD 745.
Decided in Favour of :
Petitioner
Petition Disposed Accordingly
( 2 ) IT is the case of the petitioner that the petitioner was originally appointed as a Staff nurse and posted at Bapunagar General Hospital on 27. 4. 1981. The petitioner was made permanent in the cadre of Staff Nurse by order dated 6. 12. 1989 passed by the Direct of Medical services, Employees State Insurance Scheme, ahmedabad. The petitioners husband was seriously injured in a stabbing which took place during the period of riot in the city of ahmedabad. Though the petitioners husband recovered but he was required to take rest for long time and, thereafter, he went to Nairobi to stay with his parents. In the month of July, 1995 while the petitioner was on sick leave, she received a message about serious illness of her husband and immediately she rushed to Nairobi. In the circumstance, the petitioner has after reaching to Nairobi posted application for extension of leave. However, while the petitioner returned to India by April, 1997, it was found that the respondent No. 2 has passed order removing the petitioner from service on account of unauthorized absence from duty. On further inquiry, it came to her notice that since the petitioner was found to be on unauthorized absence from 11. 7. 1995, letter, reminder, show cause notice, charge-sheet etc, were issued against the petitioner for calling upon her to resume duty. However, in absence of response to the said communication, public notice was given in the local newspapers viz. Jansatta Loksatta and Young Leader dated 16. 11. 1996 and accordingly since she has failed to resume duty within a period of 15 days from the said notice, by passing order dated 1/3. 3. 1997 the petitioner was treated as relieved from the government service from 11. 7. 1995.
( 3 ) SINCE the decision of the Director of Medical services, Employees State Insurance Scheme, ahmedabad, to remove the petitioner from service was taken without following due procedure of law, though the said decision tantamount to imposing major punishment, the petitioner preferred an Appeal before the Civil Services tribunal, Gandhinagar. In the said Appeal, the petitioner raised several contentions and challenged the order of removal passed by the director of Medical Services. The Civil service tribunal, however, came to a conclusion that since the petitioner has shown disregard to call of duty, she was not entitled for reinstatement in service. The Tribunal has held that the petitioner be treated as removed from service with effect from 3. 3. 1997 instead of dated 11. 7. 1995. The petitioner thereafter filed review Application seeking review of the judgment of the Tribunal in Appeal No. 380/1997 and the said Review Application No. 1/1999 also came to be summarily rejected by order passed by the Tribunal on 30. 4. 1999.
( 4 ) IT is also the case of the petitioner that the petitioner could have preferred Special Civil application before this Court after the order of review passed by the Tribunal. However, since the order of removal was passed by the Director of Medical Services, who is head of
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