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IN THE HIGH COURT OF GUJARAT
C.L. Soni, J.
J.T. Rahti - Petitioner
Versus
State of Gujarat & Ors. - Respondents
Special Civil Application No. 6836 of 2007
Decided On : 04-09-2013
Constitution of India,1950 - Article 226 -Voluntary retirement - Pension - Back wages - The case of the petitioner is that he was in the service of Government of Gujarat since 1.2.1984 and since October, 1989, he had been working on the post of Employment Officer Class-II and the Government of Gujarat, Labour and Employment Department is the appointing authority for the post of Employment Officer Class-II - The petitioner has averred that on completion of 20 years of service, it was open to him to ask for voluntary retirement by giving three months notice to the appointing authority as per Rule 48 of the Gujarat Civil Services (Pension) Rules 2002 (hereinafter referred to as 'the Rules) - The petitioner has thus prayed for release of pension and other benefits to him and to quash and set aside the charge-sheet issued subsequent to the effective date for remaining absent from service - Appeal - Held, Court would render the subsequent action of the respondents of service of charge-sheet for the allegation of remaining absent after 30.9.2005, ineffective in the eye of law - It is required to be noted that the petitioner clearly indicated to the respondents that he would not attend the service after effective date of voluntary retirement - However, non-attendance of the duty was taken as unauthorized absence and the petitioner was served with the charge-sheet on such ground - If the petitioner was entitled for voluntary retirement with effect from 30.9.2005, as held above, the petitioner was justified in not attending his duty after 30.9.2005 and therefore, there was no question of charge-sheeting the petitioner with allegation of unauthorized absence - Therefore, the charge-sheet served upon the petitioner on such ground cannot stand scrutiny of law and is required to be quashed and set aside - It is held and declared that the petitioner has retired from service with effect from 30.9.2005 as per the notice dated 30.6.2005 at Annexure-A for voluntary retirement under Rule 48 of the Rules - The respondents are directed to finalise the pension case of the petitioner and confer upon him all the benefits of pension and other retiral dues - Petition allowed.
Facts of the case:
The case of the petitioner is that he was in the service of Government of Gujarat since 1.2.1984 and since October, 1989, he had been working on the post of Employment Officer Class-II. It is his case that the Government of Gujarat, Labour and Employment Department is the appointing authority for the post of Employment Officer Class-II. The petitioner has averred that on completion of 20 years of service, it was open to him to ask for voluntary retirement by giving three months notice to the appointing authority as per Rule 48 of the Gujarat Civil Services (Pension) Rules 2002 (hereinafter referred to as 'the Rules). The petitioner served such notice on 30.6.2005 to the appointing authority for voluntary retirement effect from 30.9.2005. The petitioner has further averred that the appointing authority has not refused to grant permission to the petitioner for voluntary retirement before the effective date of retirement i.e. 30.9.2005. The petitioner has averred that after the petitioner made application for voluntary retirement, he was served with charge-sheet dated 18.8.2005 for initiating departmental inquiry against him. It is the case of the petitioner that the Director of Employment and Training, Gujarat State, sent one communication to the Government on 6.9.2005, copy whereof was sent to the petitioner stating that since the charge-sheet was served to the petitioner, the application of the petitioner was filed. The petitioner has raised a contention that since the retirement of the petitioner has become effective from 30.9.2005 and therefore, second charge-sheet for absenteeism given to him is an illegal action on the part of the respondents. The petitioner has thus prayed for release of pension and other benefits to him and to quash and set aside the charge-sheet issued subsequent to the effective date for remaining absent from service.
Findings of the case:
Court would render the subsequent action of the respondents of service of charge-sheet for the allegation of remaining absent after 30.9.2005, ineffective in the eye of law - It is required to be noted that the petitioner clearly indicated to the respondents that he would not attend the service after effective date of voluntary retirement - However, non-attendance of the duty was taken as unauthorized absence and the petitioner was served with the charge-sheet on such ground - If the petitioner was entitled for voluntary retirement with effect from 30.9.2005, as held above, the petitioner was justified in not attending his duty after 30.9.2005 and therefore, there was no question of charge-sheeting the petitioner with allegation of unauthorized absence - Therefore, the charge-sheet served upon the petitioner on such ground cannot stand scrutiny of law and is required to be quashed and set aside - It is held and declared that the petitioner has retired from service with effect from 30.9.2005 as per the notice dated 30.6.2005 at Annexure-A for voluntary retirement under Rule 48 of the Rules - The respondents are directed to finalise the pension case of the petitioner and confer upon him all the benefits of pension and other retiral dues
Result:
Petition allowed
JUDGMENT :
C.L. Soni, J.
The petitioner has prayed for following relief in para 7(A) to (D) of the petition filed under Article 226 of the Constitution of India:-
(B) quash and set aside the charge sheet dated 2.12.2006, and
(C) award the cost of the petition, and
(D) pending admission and final disposal of this petition, the Honourable Court may be pleased to restrain the respondent authorities from proceeding further with the departmental inquiry pursuant to the charge sheet dated 2.12.2006.”
2. The case of the petitioner is that he was in the service of Government of Gujarat since 1.2.1984 and since October, 1989, he had been working on the post of Employment Officer Class-II. It is his case that the Government of Gujarat, Labour and Employment Department is the appointing authority for the post of Employment Officer Class-II. The petitioner has averred that on completion of 20 years of service, it was open to him to ask for voluntary retirement by giving three months notice to the appointing authority as per Rule 48 of the Gujarat Civil Services (Pension) Rules 2002 (hereinafter referred to as ‘the Rules). The petitioner served such notice on 30.6.2005 to the appointing authority for voluntary retirement effect from 30.9.2005. The petitioner has further averred that the appointing authority has not refused to grant permission to the petitioner for voluntary retirement before the effective date of retirement i.e. 30.9.2005. The petitioner has averred that after the petitioner made application for voluntary retirement, he was served with charge-sheet dated 18.8.2005 for initiating departmental inquiry against him. It is the case of the petitioner that the Director of Employment and Training, Gujarat State, sent one communication to the Government on 6.9.2005, copy whereof was sent to the petitioner stating that since the charge-sheet was served to the petitioner, the application of the petitioner was filed. The petitioner has raised a contention that since the retirement of the petitioner has become effective from 30.9.2005 and therefore, second charge-sheet for absenteeism given to him is an illegal action on the part of the respondents. The petitioner has thus prayed for release of pension and other benefits to him and to quash and set aside the charge-sheet issued subsequent to the effective date for remaining absent from service.
3. The petition is opposed by affidavit-in-reply filed on behalf of respondent Nos.1 and 2. It is mainly stated in the reply that after the petitioner issued notice for voluntary retirement on 30.6.2005, the Director of Employment and Training replied vide letter dated 6.9.2005 stating that the departmental inquiry was pending against the petitioner and therefore, the application of the petitioner was not acceptable. It is further stated that there was a conscious decision of not accepting the application of the petitioner for voluntary retirement on account of initiation of the departmental inquiry by serving charge-sheet dated 18.8.2005 to the petitioner. It is also stated that since the petitioner had not reported for duty after 30.9.2005, the department had decided to penalise the petitioner for unauthorized absence and misconduct and therefore, the charge-sheet was prepared and sent to the petitioner. It is also stated that the petitioner had gone to U.K. without permission of the higher authority and he had not resumed duty though number of reminders were sent to him.
4. I have heard learned advocates for the parties.
5. Learned advocate Ms. Harshal Pandya for the petitioner submitted that since the petitioner completed qualifying service of 20 years, he became entitled for voluntary retirement under the Rules. Ms. Pandya submitted that Rule 48 of th
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