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SCA/995720/2000 1/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9957 of 2000
HONOURABLE
MR.JUSTICE KS JHAVERI
======================================================
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 ?
======================================================
ASSISTANT
AGRICULTURE DIRECTORSOIL CONSERVATION & 3 - Petitioner(s)
Versus
KANTILAL
NARSANGBHAI KAVI - Respondent(s)
======================================================
Appearance
:
MR JASHWANT K. SHAH, AGP, for
Petitioners
MR DA BAMBHANIA for
Respondent
======================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 14/11/2008
ORAL
JUDGMENT
1.0 The
petitioners have challenged the order dated 7th February
2000 passed by learned Member, Gujarat Civil Services Tribunal,
Gandhinagar in Appeal No.258 of 1997 whereby the appeal was allowed
and it was ordered to count the period of approximately six years and
to fix the pension of the respondent accordingly.
2.0 The
respondent joined the service as Agriculture Assistant from 9.5.1961.
He wanted to take voluntary retirement from service and therefore
gave notice on 11th October 1989. But there was no reply
to the said notice for a period of four months and therefore the
respondent joined duty on 12th March 1990. The petitioners
paid salary to the respondent upto 28th February 1990,
but his salary from 1st March 1990 to 10th
March 1990 in respect of medical leave was not sanctioned. The
respondent was also not paid any amount from 12th March
1990 to 8th March 1997. However, there is an entry in his
service book on 11th December 1996 and 26th
March 1997 that he is treated on unauthorized absence on duty. After
various correspondences the authority sanctioned his pension, but
deducted or not accounted his 6 years service. Because of this his
pension is fixed at Rs.2100/- instead of Rs.6625/-. Hence the
respondent filed Appeal No.258 of 1997 before Gujarat Civil Services
Tribunal, Gandhinagar, which allowed the appeal as stated
hereinabove.
3.0 Mr.
Jashwant K. Shah learned AGP appearing for the petitioners submitted
that the Tribunal has failed to consider the aspect that the
respondent has not given any notice for his voluntary retirement as
per Rules and Regulations. It is submitted that the respondent was on
earned leave from 1st February 1990 to 28th
February 1990 for sickness of his wife, and during this period he had
contested election without the knowledge of the employer. A
departmental inquiry was held and even though he was exonerated, he
thereafter did not resume his duty with effect from 1.3.1990 and
therefore he is not entitled to the benefits in question.
4.0 As
against the above contentions, Mr.D.A. Bhambhania, learned Advocate
for the respondent submitted that the respondent has tendered his
application for voluntary retirement as per the provisions of rules
and regulations, but the petitioners have not accepted the same. In
fact the respondent was not permitted to resume duties on the ground
of proposed inquiry and pending decision of posting on account of
intra departmental disputes. He submitted that the respondent was
exonerated by the Inquiry Officer and in the year 1996 he was posted
in Surendranagar and on 31.7.1997 he attained the age of
superannuation. Thus, he had retired from service without any blemish
and therefore there was no reason for the authority not to count the
period of six years. He, therefore, submitted that the petition
deserves to be dismissed.
5.0 As
a result of hearing and perusal of the record, certain aspects are
not in dispute. The respondent has submitted notice for voluntary
retirement and this was not accepted and the respondent joined duty.
An inquiry was initiated, but ultimately the respondent was
exonerated in the Departmental Inquiry. Thereafter he has gone to
join duty and his letter for reporting duty was on record before the
Tribunal. There were inter se disputes about the duties of the
respondent. Ultimately the respondent was granted pension and other
benefits, but deducting six years service. The Tribunal did not
believe the say of the petitioners that the respondent had not gone
for duties. Inter departmental correspondence clearly shows that the
respondent had gone to the office but they were in dilemma as to
where he should be posted. The correspondence also shows that the
petitioners were seeking guidance from one another as to where the
respondent should report.
6.0 The
ultimate finding of the Tribunal is that there is absolute inaction
on the part of the department for absence of the respondent. There
was no notice, no statements or not even a notice seeking the
explanation of the appellant. There is no order by competent
authority for absence and there is no order for not considering the
said period in pensionary service. Without such order there should
not be any endorsement in the service book. It is evident there was
no notice of inquiry and reduction was made for which no explanation
is tendered. I am in complete agreement with the findings recorded
and conclusion arrived at by the Tribunal.
7.0 In
view of the above, I am of the view that the petitioners have failed
to point out any material on record to take a different view of the
matter. The Tribunal has considered the matter in detail and the
findings could not be controverted by the petitioners on any count.
8.0 Mr.
Bhambhania, learned Advocate for the respondent has submitted that
the petition is not maintainable in absence of any provision for an
appeal against the appellate authority and in support of this
contention he has relied upon a decision of this Court dated 5th
December 1987 passed in Special Civil Application No.6003 of 1987.
The said decision considered various provisions of law and found that
neither the Panchayat Rules nor the Civil Services Tribunal Act
provide for an appeal by the concerned officer. The Court held as
under:
It
is pertinent to note that neither the Panchayat Rules nor the Civil
Services Tribunal Act provide for an appeal by the concerned officer.
When the Legislature did not think it proper to provide for an appeal
by the officer whose order has been set aside in appeal and when the
rule-making authority also did not think it proper to provide for an
appeal by the officer whose order was set aside by the Appellate
Authority, it is doubtful whether the officer whose order has been
set aside by the Appellate Authority can approach this Court by
filing an Application under Article 226 or 227 of the Constitution.
It is in this light that probably this Court dismissed the Special
Civil Application earlier by observing that the D.D.O. had no locus
standi. Even if we may say so that he has locus standi to file such a
petition, in my opinion, such a petition should not be entertained.
An Officer whose order has been set aside by the Appellate Authority
is bound by the said decision and he cannot make a grievance before
any other authority that the Appellate Authority has wrongly set
aside his order. If there are any remarks made against that officer
while disposing of the appeal by the Appellate Authority, he may
certainly have some remedy for getting the remarks expunged. But when
the matter is decide don its own merits, the officer whose order is
set aside cannot, by any stretch of imagination, approach this Court
and say that the orders of the Appellate Authority are not correct
either on facts or on law. In that sense, the D.D.O. has no locus
standi to file this petition. This petition, therefore, deserves to
be rejected on this ground alone.
9.0 Thus,
an officer whose order has been set aside by the Appellate Authority
is bound by the said decision and there is no provision to file an
appeal against such decision. Even on this ground also the present
petition deserves to be dismissed.
10.0 In
the premises aforesaid, I do not find any merits in this petition.
The petition is therefore dismissed. Rule is discharged with no order
as to costs.
[K.S.
JHAVERI, J.]
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