Gujarat High Court Case Information System
Print
LPA/1536/2004 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1536 of 2004
IN
SPECIAL
CIVIL APPLICATION No. 11075 of 2003
WITH
CIVIL
APPLICATION No. 6413 of 2004
IN
LETTERS
PATENT APPEAL No. 1536 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA Sd/-
HONOURABLE
MR.JUSTICE K.A.PUJ
Sd/-
===================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
===================================
MOGHJIBHAI
B PATEL - Appellant
Versus
ORIENTAL
INSURANCE COMPANY LTD & 1 - Respondents
===================================
Appearance
:
MR KB PUJARA,
SENIOR ADVOCATE WITH MR
AY KOGJE WITH MR SK GADHAVI for Appellant.
RULE SERVED for
Respondent No. 1.
MR PRAKASH K JANI for Respondent No. 2.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 31/01/2011
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
The
appellant – original petitioner has invoked Clause 15 of the
Letters Patent to challenge the order dated 16.07.2004 of learned
Single Judge of this Court, whereby his petition was dismissed with
cost quantified at Rs.2,500/-.
The
grievance of the petitioner, in effect was that he was wrongly
denied withdrawal of his application for voluntary retirement and
the main issue of fact was that whether the appellant had withdrawn
his application for special voluntary retirement before his
application was accepted and acted upon. The appellant had relied
upon his letter dated 25.03.2003 which was alleged to have been sent
under Certificate of Posting, and again relied upon it to submit
that the respondent could not have legally accepted the proposal
after its withdrawal was communicated in writing. Learned Single
Judge has clearly held that in absence of any evidence to the
contrary, that communication dated 25.03.2003 appear to be an
after-thought and a concocted document. In view of the repeated
agitation on the same issue of fact, this Court (Coram :- Hon’ble
Mr. Justice Bhagwati Prasad, as His Lordship then was, and Hon’ble
Mr. Justice Bankim N. Mehta) appears to have verified the facts
pursuant to which following order dated 19.02.2010 was made herein
:-
“An
affidavit was filed on behalf of the appellant that two employees,
namely Shri J.D. Joshi, Branch Manager, and Shri C.S. Jadav, Record
Clerk, have admitted before him that the document in question, i.e.
his withdrawal from VRS, is on record of the office of the Oriental
Insurance Company, Palanpur Branch. Both the officers were called in
the Court. They are present in the Court. They denied of having
admitted
the existence of application before the appellant. Consequence of the
affidavit and their denial will be seen at the time of hearing of
the appeal.
Record
was also brought to our notice by learned counsel of the Oriental
Insurance Company. The record, as produced, does not contain the
document in question.
All
these facts will be considered at the time of hearing of the
appeal.”
After
hearing learned Senior Counsel Mr. K. B. Pujara at length, it was
clear that the respondent did not receive the so-called
communication dated 25.03.2003 and the appellant is by now already
retired and has already received the benefits under the Special
Voluntary Retirement Scheme. We do not find any reason to take a
view different from the view taken by learned Single Judge. In
fact, the above order has buttressed the finding that the respondent
had not received any communication dated 25.03.2003 as alleged and
in fact, such communication addressed to the Branch Manager, even if
received, could not have been effective as held by learned Single
Judge.
In
the above facts and circumstances, we do not find any merit in the
appeal and hence, it is dismissed with no further order as to costs.
Civil
Application does not survive in view of the above order and stands
disposed accordingly.
Sd/-
[D. H. WAGHELA, J.]
Sd/-
[K. A. PUJ, J.]
Savariya
Top