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2019 Supreme(Guj) 1110
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Jamnadas M. Kothadia – Appellant
Versus
State of Gujarat and Ors. – Respondents
R/Special Civil Application No. 27593 of 2007
Decided On : 17-09-2019
Advocate Appeared:
For the Appellant : Mitul K. Shelat
For the Respondents: Ronak Raval, AGP
Point of Law: A Government employee, on completion of twenty years qualifying service, may by giving notice of not less than three months in writing to the appointing authority retire from service.
(2) The notice of voluntary retirement given under sub rule 1 shall require acceptance by the appointing authority
Headnote:
Service Matter - Conduct Rules, 1971 - Gujarat Civil Services (Discipline and Appeal) Rules, 1971 - Respondent had declined to consider the case of the petitioner for voluntary retirement - Dismissing the petitioner from service since the petitioner had proceeded on leave without informing the superior and without obtaining any sanction - Challenging the violation of statutory rules – Power of Court
Facts of the case:
It is case of the petitioner that he was desirous of going to the United States of America since his children were studying and, therefore, he applied for leave for the period between 16.02.2004 to 08.10.2005 and since he was required to leave urgently, he proceeded on leave on 16.02.2004 without obtaining any sanction.
Finding of the Court:
Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision - Court cannot interfere with the punishment of removal imposed on the petitioner and further direct the respondents to convert the same to voluntary retirement
Result: Writ petition dismissed
JUDGMENT :
A.S. Supehia, J.
1. The present petition has been filed challenging the order dated 23.01.2007 as well as the order dated 15.10.2008, whereby, the respondent had declined to consider the case of the petitioner for voluntary retirement.
2. The order dated 23.01.2007 was passed by the respondent authorities dismissing the petitioner from service since the petitioner had proceeded on leave without informing the superior and without obtaining any sanction.
3. It is case of the petitioner that he was desirous of going to the United States of America since his children were studying and, therefore, he applied for leave for the period between 16.02.2004 to 08.10.2005 and since he was required to leave urgently, he proceeded on leave on 16.02.2004 without obtaining any sanction.
3.1. It is submitted that the petitioner thereafter applied for leave from United States of America seeking extension. By the order dated 20.04.2006, the respondent framed charges against the petitioner, however, it is submitted that the aforesaid chargesheet was not received by him. He received the same for the first time on 18.09.2006 and vide letter dated 20.09.2006, he responded to the same that since he had not received any response to the application and the tickets had already been booked, in immediate circumstances, he was required to leave. It is further submitted that the petitioner had applied for voluntary retirement, however, the respondent authority without deciding such application, passed the impugned order of removing him from the service.
4. Learned advocate Ms. Disha Shelat appearing for the learned advocate Mr. Mitul Shelat for the petitioner has submitted that by the impugned order dated 08.10.2008, this Court had directed the respondent authorities to consider the case of the petitioner for voluntary retirement and accordingly, the case of the petitioner was considered, however, the request of the petitioner seeking voluntary retirement was declined vide order dated 15.10.2008 on the ground that since the petitioner has proceeded on leave without obtaining sanction from the authorities, the order of removal does not further require to be reconsidered.
4.1. Learned advocate Ms. Shelat has further submitted that the respondents should have allowed the petitioner to take voluntary retirement from service and the action of the respondent in response of the same is illegal. Thus, she has submitted that the impugned orders are required to be quashed and set aside.
5. Per contra, learned Assistant Government Pleader Mr. Raval has submitted that the petitioner applied for leave for the period from 16.02.2004 to 15.02.2005 for a period of 365 days and the same remained undecided by the authorities and the petitioner proceeded on leave and he again made an application for period from 16.02.2004 to 08.10.2005 for 236 days by making an application dated 06.02.2004.
5.1. Learned Assistant Government Pleader Mr. Raval has submitted that without giving any application to the respondent authorities, the petitioner proceeded on leave and he remained absent from 16.02.2004 and hence the chargesheet was issued to him. It is submitted that the chargesheet was sent to the address of the petitioner where he was residing in the United States of America by R.P.A.D. He has submitted that however, the cover was returned with remarks "unclaimed". It is submitted that the petitioner again claimed the voluntary retirement and since he proceeded on leave without sanction, it would amount to abandonment of service.
5.2. Learned Assistant Government Pleader Mr. Raval has submitted that the voluntary retirement of a Government employee is governed by provisions of the Gujarat Civil Services (Pension) Rules, 2002 and the Government employee on completion of 20 years of qualifying service by giving a notice not less than three months in writing and the same is subject to the acceptance under Rule 50(1) of the Pension Rules, 2002.
5.3. Learned Assistant Government Pleader M
