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2016 Supreme(Guj) 1064
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. Subhash Reddy, V.M. Pancholi, JJ.
Popatbhai Bhimabhai Sutreja - Appellant
Vs.
Managing Director and Ors. - Respondents
Letters Patent Appeal No. 1190 of 2015 in Special Civil Application No. 4094 of 2014
Decided On : 08-06-2016
For the Appellant : Falguni D. Patel
IMPORTANT POINT
When medical leave was sanctioned by competent authority of respondent Corporation, it cannot be said that petitioner has remained absent without prior permission.
Headnote:
Bombay Civil Services Rules – Rule 161 – Letters Patent – Clause 15 – Inquiry – Appeal is filed under Clause 15 of the Letters Patent by the original petitioner against the judgment rendered by Single Judge in Special Civil Application by which learned Single Judge has dismissed the petition – Held, Court is of the opinion that said order is arbitrary, perverse and is nothing but a shortcut adopted by the respondent Corporation and instead of holding a departmental inquiry, straight way the impugned order is passed which is in nature of penalty – Same is required to be quashed and set aside – Court is of the opinion that the learned Single Judge has also not properly appreciated the important aspects and therefore the order of learned Single Judge is also required to be quashed and set aside – Impugned order passed by the respondent Corporation is quashed and set aside – Appeal Allowed (Paras 27, 28)
V.M. Pancholi, J.
1. This appeal is filed under Clause 15 of the Letters Patent by the original petitioner against the judgment dated 06.08.2015 rendered by learned Single Judge in Special Civil Application No. 4094 of 2014 by which learned Single Judge has dismissed the petition.
2. The factual matrix of the case is as under:
"2.1. It is the case of the appellant - petitioner that he was appointed on 24.11.1982 as Assistant Manager by the Gujarat State Civil Supply Corporation Ltd. Thereafter, he was promoted as Deputy District Manager in 1997 and thereafter he got promotion to the post of Manager. However, said promotion was not accepted by him due to certain social circumstances. In January 2012, the petitioner was detected with cancer and therefore he submitted leave report. Thereafter he was transferred from Junagadh to Gandhinagar and therefore he reported at Gandhinagar in April 2012, on completion of his first round of treatment for cancer. In July, 2013, he was again transferred to Junagadh for 9 months on his request. Thereafter, again he was transferred to Gandhinagar and he was told to remain present before the Medical Board. On 06.08.2013 certificate was issued by the Medical Board that petitioner was suffering from cancer and was in need of adequate treatment and rest. However, it is the case of the petitioner that he was not declared unfit for service by the Medical Board.
2.2. It is the case of the petitioner that on 29.10.2013 he was served with the show-cause notice calling upon him to show cause as to why he should not be punished for remaining absent and thereafter instead of initiating the inquiry against him, by an order dated 26.02.2014, he was made to retire prematurely. Petitioner has, therefore, preferred the aforesaid petition. The learned Single Judge dismissed the said petition by the impugned judgment and therefore the petitioner has preferred the present appeal."
3. Heard learned advocate Ms Falguni D. Patel for the appellant - petitioner and learned advocate Mr. H.S. Munshaw for respondent Nos. 1 to 3 and learned AGP Mr. Dhawan Jayswal for respondent No. 4.
4. Learned advocate Ms Falguni Patel appearing for the appellant contended that the order dated 26.02.2014 passed by the respondent - Corporation is non-speaking order and not in consonance with the condition stipulated in G.R. dated 28.07.1987. The respondent - Corporation has violated the principles of natural justice and without giving an opportunity of hearing the order of premature retirement of petitioner was passed and therefore on this ground the learned Single Judge ought to have quashed and set aside the said order.
5. Learned advocate Ms. Patel thereafter submitted that the respondent - Corporation has passed the impugned order which is not in public interest but the same was punitive in nature. At this stage, after referring to the show cause notice dated 29-30.10.2013 produced at Annexure-C, page 20 with the compilation, it is contended that the respondent authority has stated that the petitioner was asked to produce fitness certificate from the Medical Board. However, he has failed to produce such certificate. It is alleged in the show-cause notice that though the medical leave is over, petitioner has not produced any leave report before the Head Office, Gandhinagar and thereby petitioner has committed grave misconduct and violated the Conduct Rules of respondent - Corporation and therefore the petitioner was called upon to give explanation why penalty under Rule 6 of the Discipline and Appeal Rules should not be imposed. Thus, it is contended that after issuance of the said show cause notice, without following the procedure prescribed under the Discipline and Appeal Rules of the respondent - Corporation and without holding an inquiry against the petitioner straight way the respondent - Corporation has passed the impugned order of retiring the petitioner prematurely. The said order is punitive in nature and therefore the lear
