LPA/2289/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2289 of 2007 In SPECIAL CIVIL APPLICATION No. 29903 of 2007 With CIVIL APPLICATION No. 15443 of 2007 In LETTERS PATENT APPEAL No. 2289 of 2007 In SPECIAL CIVIL APPLICATION No. 29903 of 2007 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= SAROJ HASMUKHBHAI PARMAR - Appellant(s) Versus BHARAT SANCHAR NIGAM LIMITED & 5 - Respondent(s) ========================================================= Appearance : MR MS RAO for Appellant(s) : 1, MR US BRAHMBHATT for Respondent(s) : 1 - 6. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/2289/2007 2/5 JUDGMENT Date : 10/03/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal, preferred under Clause 15 of the Letters Patent, arises from the judgment and order dated 11th December, 2007 passed by the learned Single Judge in above Special Civil Application No.29903 of 2007. The appellant, writ petitioner, was the employee of the Government of India in its Post and Telegraph Department. On formation of the respondent, Bharat Sanchar Nigam Limited (hereinafter referred to as “the Nigam”) she opted to join service of the Nigam. Her option was accepted. Thus, she became the servant of the Nigam. The appellant preferred above writ petition on the premise that she had applied for voluntary retirement. In absence of express acceptance or refusal of the application, on expiry of the notice period on 12th July, 2005, she stood retired from service. She has, therefore, prayed that she be paid terminal benefits. She has also challenged the initiation of disciplinary proceeding against her, for remaining absent without leave, by LPA/2289/2007 3/5 JUDGMENT memorandum of charge issued on 7th November, 2006. The writ petition has been summarily rejected by the learned Single Judge. It is an admitted position that in the year 2000 the appellant had applied for leave of absence for a period of 2 months. On expiry of the period of leave, she was supposed to join her duty. She, however, remained absent without leave for more than 5 years. It is the claim of the appellant that she was not well and she was taking treatment at US of America. In support thereof she annexed medical certificates issued by one Dr. Rita Patel, Kaiser Foundation Hospitals, California, US of America suggesting that the appellant had been undergoing physical therapy. The said certificates are issued on 1st January, 2005 and 11th April, 2005. Similar certificates appear to have been issued in the years 2002, 2003 and 2004 by one Dr. Mahendra Patel, New York, US of America. It further appears that on account of her inordinately long absence from duty and staying abroad without permission, notice was issued to her by the Nigam on 12th April, 2005. She was informed that under the relevant leave rules, the Nigam could regularize LPA/2289/2007 4/5 JUDGMENT absence without leave maximum for a period of 5 years. Accordingly, her absence without leave from 16th May, 2000 till the date was regularized as extraordinary leave. She was warned that her absence beyond 15th May, 2005 would not be regularized. She was also given notice to report for duty on or before 15th May, 2005, failing which, the further period of absence would be treated as “diesnon”. Nevertheless, the appellant did not report for duty. Instead, she started writing that she had applied for voluntary retirement on 12th April, 2005. In view of her absence from duty, the disciplinary proceeding was initiated against her on 11th July, 2006, as recorded hereinabove. In response thereto, on 30th August, 2006, the appellant sent a communication that she had already applied for voluntary retirement on 12th April, 2005. As the said application was not processed, she was tendering resignation from service. She wrote that, “for the reasons of my own that I can not continue service further, I hereby tender my resignation from services unconditionally with immediate effect. This is in supersession of my Voluntary Retirement notice Dated.12—04-05.” It further appears that before the appellant resigned LPA/2289/2007 5/5 JUDGMENT from service, some correspondence went on. The Nigam gave repeated notices to the appellant to report for duty lest she would face the disciplinary proceeding. In the meanwhile, in the year 2005, the appellant has also acquired the citizenship of US of America. Thus, it is apparent that the appellant had gone abroad with an intention not to return back to join the service. She had practically abandoned the service. The medical certificates produced on the record of this proceeding also do not seem to be genuine. If so advised, the Nigam may make inquiry into the genuineness of the said medical certificates. We are of the opinion that the learned Single Judge has rightly rejected the writ petition. No case for interference is made out. The Appeal is dismissed in limine. Civil Application No. 15443 of 2007 stands disposed of. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) kdc