SCA/7499/1998 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7499 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ASHOKKUMAR CHELJIBHAI ATOS - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR GM JOSHI for Petitioner(s) : 1, MR SUNIT SHAH GP with MS ASMITA PATEL AGP for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 07/05/2008 ORAL JUDGMENT SCA/7499/1998 2/6 JUDGMENT 1) This petition under Article 226 of the Constitution of India is filed by the petitioner with the following main prayer :- “(A) This Hon'ble Court be pleased to issue a Writ of Mandamus or in the nature of Mandamus or any other appropriate Writ, Direction or Order quashing and setting aside the impugned communication dated 9.9.1997 at Annexure “N” and further be pleased to direct the Respondent to treat the date of joining i.e. 10.12.1982 as the date of appointment for all practical purposes including seniority, promotion and other benefits”. 2) Brief facts of the case are that, the petitioner was appointed as a Gujarati Typist vide order dated 3.12.1982 passed by the Office of the Collector, Banaskantha. The petitioner resumed his duty on 10.12.1982. Thereafter, the petitioner passed sub- service examination on 9.7.1985. The petitioner applied for loss of pay leave from 2.12.1985 to 10.2.1986 on medical grounds and the same was extended from time to time. Ultimately, when the petitioner wanted to resume duty on 9.12.1987, he was not allowed to resume duty and he was informed by letter dated 23.12.1987 that his name was deleted from the list of Gujarati Typists by order dated 2.5.1987 passed by the respondent No.2. 3) Thereafter, the petitioner has filed Appeal No.366 of 1990 before the Gujarat Civil Services Tribunal (for short, `the Tribunal') challenging the decision dated 2.5.1987 deleting his name from the list of Gujarati typists. The Tribunal by order dated 4.4.1991 set aside the order passed by the respondent No.2 and remanded the matter to the Collector with a direction to restore the name of SCA/7499/1998 3/6 JUDGMENT the petitioner in the list of the Gujarat typists and permit him to resume the duty at any place under the Collector, Banaskantha within a period of 15 days from the receipt of the order. The Tribunal further observed that the petitioner will not be entitled to any back wages. The petitioner was not reinstated by the respondent, as directed by the Tribunal, but he was reappointed by order dated 6.5.1991. The petitioner, vide letter dated 13.8.1991, requested the respondent No.2 for condoning the break between 1.9.1985 to 6.5.1999. The respondent No.2 rejected the request by letter dated 19.10.1991. 4) The petitioner filed Appeal No.462 of 1991 challenging the order of the respondent No.2. The Tribunal vide order dated 11.6.1992 granted reinstatement without back wages only. The Tribunal further observed that “the Tribunal never intended to take away all his rights which he has earned during his service tenure i.e. continuity of service, increments, earned leave, etc.” 5) On 26.12.1991 the petitioner was served with charge sheet for remaining absent without getting the leave sanctioned for the period from 2.12.1985 to 30.10.1986. The petitioner submitted his reply on 15.10.1992. Inquiry Officer was appointed and Inquiry Report was submitted on 26.2.1993 holding that the charges levelled against the petitioner proved and the petitioner was dismissed from service by order dated 7.7.993. 6) The petitioner preferred Appeal No.412 of 1993 before the Tribunal and the Tribunal vide order dated 11.2.1994 set aside the order of the SCA/7499/1998 4/6 JUDGMENT respondent No.2 and remanded the matter for de novo proceedings from the sate of defect. Thereafter, de novo inquiry was initiated and the Special Officer vide report dated 27.7.1994 held that the charges were levelled because of vengeance and not proved. However, the respondent No.2 disagreeing with the findings of the Inquiry Officer, issued final show cause notice dated 8.11.1994, calling upon the petitioner as to why he should not be dismissed from service. The petitioner submitted his reply on 3.1.1995. Thereafter, the respondent No.2 by order dated 1.11.1995 imposed punishment of stoppage of two increments without future effect and by order dated 9.10.1997 the petitioner was informed that the break of 2840 (from 2.11.1985 to 6.5.1991) days would not be condoned. Hence, the present petition. 7) On 5.5.2008 after hearing learned counsel for the parties, this Court has passed the following order:- “Pursuant to the order dated 21st April 2008, Mr. J.S. Prajapati, Resident Deputy Collector, Banaskantha, at Palanpur, the deponent of the affidavit dated 6th July 2005, is present. Heard learned advocates for the parties at length. The justification put forth by the deponent in the affidavit for passing the impugned order dated 7th September 1997 cannot be accepted, since the same are contrary to three different orders passed by the Gujarat Civil Services Tribunal [for short, 'the Tribunal] more particularly the order dated 11th June 2002, whereby, the Tribunal, while allowing Appeal No.462 of 1991, clarified its earlier order dated 4.4.1991 in Appeal No.366 of 1990 and held that the Tribunal never intended to take away rights of the petitioner, which he had earned during his service tenure, namely, continuity of service, increments, earned leave, etc. SCA/7499/1998 5/6 JUDGMENT However, the respondents continued to treat the period after 31.10.1986 as period of unauthorized absence, which was beyond the purview of the authority. The period of unauthorized absence, for which the departmental enquiry was initiated, was from 2.12.1985 to 30.10.1986. Hence, the affidavit in question, reiterating the stand of the respondents, which was negatived by the Tribunal, deserves to be set right. Time is granted to the respondents to take corrective measures so that the averments made in the affidavit in question justifying the action contrary to the orders of the Tribunal may not be adversely construed against the deponent of the affidavit by this Court while passing the final order. S.O. to 7.5.2008”. 8) Today, Mr.Sunit Shah, learned Government Pleader appearing for respondent authorities tendered his unconditional apology on behalf of the Government Pleader's office and on behalf of Mr.J.S.Prajapati, Resident Deputy Collector, Banaskantha at Palanpur and submits that there was no justification for certain averments made in the affidavit, which are contrary to the directions given by the Gujarat Civil Services Tribunal in its orders. Mr.Sunit Shah, learned Government Pleader, further submits that the concerned Authority will pass appropriate order treating the services of the petitioner as continuous from 10.12.1982 granting seniority and other consequential benefits and so far as order dated 1.11.1995 passed by the District Collector, Banaskantha imposing punishment of stoppage of two increments without future effect under Section 6(2) of the Gujarat Civil Services Discipline and Appeal SCA/7499/1998 6/6 JUDGMENT Rules, 1971 is concerned, no further action is required to be taken qua the charge sheet and the proceedings initiated therein. 9) In view of the above admitted facts and circumstances of the case and in view of the statement made by learned Government Pleader, this Special Civil Application is allowed and the respondent authorities shall pass appropriate order as per the statement made by learned Government Pleader within a period of 15 days from the date of the receipt of the writ of this order. Rule is made absolute to the above extent only. 10)Direct service is permitted. (ANANT S. DAVE, J.) *pvv