Petitioner challenged the exclusion of a 5-year service interruption from pension calculations via writ under Article 226. Court held statutory rules clearly defined interruption as breaking service. Petition dismissed for lack of merit and delay.
Petition dismissed; rule discharged; interim relief vacated; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/9972/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9972 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
==========================================================
ISHWARBHAI D PATEL
Versus
VADODARA MUNICIPAL CORPORATION
==========================================================
Appearance:
MS HARSHAL N PANDYA(3141) for the PETITIONER(s) No. 1 MR RONIT JOY FOR NANAVATI & CO.(7105) for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 10/12/2018
ORAL JUDGMENT
1.The present petition under Article 226 of the
Constitution of India is filed for the purpose of
seeking following reliefs :
Page 1 of 15
C/SCA/9972/2008 JUDGMENT
“A.Direct the respondent authority to
calculate the pension and gratuity of the
petitioner as per his retirement, and further be
pleased to direct the respondent authority to
make payment of arrears pursuant to the above
fixation of pension and gratuity.
AA.Quash and set aside the decision dated
14.8.2014, Annexure-J, to this petition, and
further be pleased to direct the respondent
authorities to pay pension and other retirement
dues considering 32 years service of the
petitioner as pensionable service, with all
consequential benefits with interest at the rate
which the Hon’ble Court may consider as just and
proper in the facts and circumstances of the
case, and
C.Direct the respondent authority to refund
the amount of Rs.16,370/- recovered from the
leave encashment of the petitioner,
D.Direct the respondent authority to refund
the amount of Rs.15,000/- withheld from the
gratuity of the petitioner.
E.Direct the respondent authority to pay
interest to the petitioner for the delayed
payment of above dues, as the rate which the
Hon’ble Court may consider as just and proper in
the facts and circumstances of the case, and
F. Award the cost of the petition,G.Pending admission and final disposal of
this petition, the Hon’ble Court may be pleased
to direct the respondent authority to refund the
amount of Rs.16,370/-, recovered from the
petitioner and Rs.15,000/- withheld from the
gratuity of the petitioner, and
H.Grant any other relief or pass any other
order which the Hon’ble Court may consider as
just and proper in the fats and circumstances of
the case.”
Page 2 of 15
C/SCA/9972/2008 JUDGMENT
2.It is the case of the petitioner that the
petitioner joined the services of respondent
authority on 3.12.1969 and thereafter, was working as
Deputy Engineer in the respondent corporation w.e.f.
23.5.1974 and then, the petitioner was appointed on
the next higher post i.e. Executive Engineer. The
petitioner had attained the age of superannuation in
December,2004 and accordingly, w.e.f. 31.12.2004 the
petitioner had retired from the service.
2.1It is the case of the petitioner that during the
passage of time in the employment, the petitioner was
served with a charge sheet on 12.2.1986, for which
the punishment of withholding of one increment with
future effect was already imposed vide order dated
1.3.1993 which is not the subject matter of present
petition, even according to the petitioner. In the
meantime, the order which has been passed on
1.3.1993, the authorities of the corporation had
treated the absence of duty w.e.f. 13.9.1979 to
20.5.1985 and was treated as leave without pay. The
petitioner, after retirement, had been paid the
pension and gratuity less than what the petitioner
entitled. This is on account of the fact that leave
period (according to the authority absent from duty)
of 5 years and 8 months has been excluded for
counting the pension, even though extraordinary leave
was sanctioned by the authority. It has also been
stated before the Court that in the month of
December,1999, the basic pay of the petitioner which
was fixed of Rs.11,950/- and the pay was accordingly
Page 3 of 15
C/SCA/9972/2008 JUDGMENT
fixed at Rs.10,000-325-15,200 and thereafter, regular
increments have also been released till the date of
his retirement. However, according to the petitioner,
the authority, after his retirement, had re-fixed the
pay at Rs.11,575/- for the month of December,1999
without issuing notice to the petitioner in this
regard and consequential recovery of Rs.16,317/- as
excess payment from leave encashment has been
deducted. The petitioner is not aware about this
fixation since the authority has unilaterally done
it, the petitioner applied before the authority under
the provisions of the Right to Information Act and
got the reply and it is only at that time it was
realized that without any formal order, such
reduction has taken place.
2.2It is further the case of the petitioner that a
notice was issued on 22.8.2005 which was responded by
the petitioner on 1.9.2005 which was duly received by
the corporation and even though no charge sheet is
issued to the petitioner, the corporation has
withheld the amount of gratuity of Rs.15,000/-
payable to the petitioner vide order dated 26.9.2005.
Despite the fact that several reminders have been
sent by the petitioner but, no attention was paid
which has constrained to approach this Court by way
of present petition under Article 226 of the
Constitution of India.
3.Initially, the Court on 14.11.2008 issued Rule
in the matter and interim relief in terms of
Page 4 of 15
C/SCA/9972/2008 JUDGMENT
Para.6(G) came to be granted which through out
appears to have been continued and with this
background, the present petition has come up for
final disposal.
4.Further, it appears that during the pendency of
the present petition, by virtue of interim measure,
vide order dated 20.6.2014, a direction was issued to
re-consider the case of the petitioner and passed a
fresh order, which reads as under :
“Pursuant to the order dated 16/06/2014, learned
advocate Mr. Dhaval G. Nanavati for the
respondent, on instructions of dealing person of
Vadodara Municipal Corporation, states that the
interim order has been complied with way back in
the year 2009.
Much time of about seven years has elapsed since
the petition is of year 2008.
At this juncture, suggestions made by learned
advocate Mr. Dhaval Nanavati, on instructions of
the dealing officers of Vadodara Municipal
Corporation, appeals to this Court that
undecided representations of the petitioner
shall be decided within a period of eight weeks
from today by passing reasoned order and the
petitioner, if so choose, may supplement the
said representations by fresh copies, to be
supplied to the Vadodara Municipal Commissioner
or the authorities concerned within a period of
one week from today.
If the order is passed, it should be a reasoned
order and preferably after giving an opportunity
of oral hearing to the petitioner so as to prove
his case.
It goes without saying that the decisions of the
Page 5 of 15
C/SCA/9972/2008 JUDGMENT
representations shall be placed on record of
this Court as soon as the same are decided.
The petition shall come up for hearing on
28/08/2014.
If the decision is taken before the next date of
hearing and if it is in favour of the
petitioner, the petitioner may file a note
before the Registry to keep the matter on board
early. If the decision is taken against the
petitioner, the petitioner can challenge the
same in the same proceedings.
It goes without saying that the petitioner shall
cooperate with the proceedings.“
4.1It has been stated that after the said order,
the corporation has also taken a decision in this
regard, a xerox copy of which is produced on record
dated 14.8.2014. However, since the reason as is
appearing to be the same, the petitioner has assailed
such action by tendering draft amendment.
5.Mr.Harshal Pandya, learned advocate appearing
for the petitioner, has vehemently contended that two
major issues are arising in the present case about
non-consideration of period of 5 years and 8 months
for the purpose of pensionary benefits and secondly,
withholding of gratuity and the recovery of money
from the leave encashment appears to be contrary to
the principles of natural justice, since no hearing
was given and straightway, reduction has taken place
the same is bad in law. Learned advocate has further
contended that it is settled position of law that no
recovery can be effected without granting any
Page 6 of 15
C/SCA/9972/2008 JUDGMENT
opportunity to the petitioner and as such, the orders
of reduction of amount from leave encashment as well
as withholding of gratuity is without the authority
of law. It has been submitted that even by virtue of
the order which has been passed by this Court,
reconsideration has been made by the corporation but,
that is also not in true letter and spirit and the
earlier stand has been maintained by the authority.
On the contrary, the effect of Rules 25(5) and 34(2)
has not been properly construed and that of
GCSR,2002. As a result of this, the present petition
deserves to be allowed by granting the reliefs as
prayed for.
5.1It has further been contended that almost a
period of more than 35 years has been completed but,
the benefit has been granted by counting 29 years of
service only by not counting the period of 5 years
and 8 months and, therefore, the decision is ex-facie
arbitrary and contrary to the true interpretation of
Rule 34. In fact, the said Rule cannot be applied in
the present background of facts. It has further been
contended that apart from this, the law laid down on
the issue of grant of opportunity is quite well
recognized and ex-facie this principle has been
ignored by the authority and, therefore, even if by
virtue of order of this Court, a post decisional
hearing is given, the same is of no avail. As a
result of this, the relief prayed in the petition be
granted. Learned advocate for the petitioner has
further contended that at least by virtue of effect
Page 7 of 15
C/SCA/9972/2008 JUDGMENT
of Rule 25(5), the period of 3 months maximum which
is amenable to the petitioner be counted and instead
of 35 years, at least by counting 32 years service
the pensionary benefit may be directed to be paid.
Since Rule 25(5) is clearly suggesting, the authority
may be directed to count at least a period of 3 years
instead of 5 years and 8 months deduction. If these 3
years which are permissible in view of Rule 25(5),
appropriate direction be issued upon the authority.
5.2Apart from this, according to learned advocate
for the petitioner, the period of 5 years and 8
months has been considered and granted as the same is
treated as leave without pay and, therefore, it
cannot be construed as break in the service and the
said period is to be considered for the purpose of
grant of pensionary benefit. Apart from this, a
further contention has also been raised about
malafides against the petitioner that without any
order, straightway reduction of pay has been effected
and it is only when the application under Right to
Information Act is replied, it has been noticed that
reduction has taken place without any formal order
and, therefore, in this set of circumstance, the
action on the part of respondent authority deserves
to be corrected. It has further been submitted that
there was no question of withholding any recovery
since the petitioner was exonerated from the inquiry.
On the contrary, while considering this, the final
order also ought to have been taken note of before
taking any action. But here is a case in which for
Page 8 of 15
C/SCA/9972/2008 JUDGMENT
the purpose of period of payment of gratuity amount,
different service tenure is consider, whereas for the
purpose of pensionary benefit, a different period is
treated and, therefore, this is nothing but a clear
example of non-application of mind on the part of
authority. Hence, on this count alone, the impugned
order / action is required to be quashed and set
aside. No other submissions have been made.
6.To meet with the same, Mr.Ronith Joy, learned
advocate appearing for the corporation, has submitted
that the petitioner cannot make a grievance of
violation of principles of natural justice in view of
the fact that during the pendency of this petition,
by virtue of the order of this Court, a fresh
opportunity was given and after that, an order is
passed on 14.8.2014. A copy of the same is produced
on record after showing it to the learned advocate
for the petitioner. A bare reading of this order
indicates that opportunity as required has been
extended even by virtue of order of this Court.
6.1 In any case, the violation of principle of
natural justice cannot be treated to that extent that
it can become as unruly horse, as has been laid down
by the Apex Court and, therefore, when mere mistake
is corrected, it was not an order penal in nature
against the petitioner in any form. Additionally,
learned advocate has further submitted that the
petition itself is grossly delayed approximately for
a period of more than 4years and, therefore, by
Page 9 of 15
C/SCA/9972/2008 JUDGMENT
considering the principle of delay and latches, the
petitioner may not be entertained, more particularly
when there is no explanation about late approach to
the Court except a bare explanation of making
repeated representations. Learned advocate has
further contended that since there is a break of more
a period of 5 years, the effect of Rule 34(2) can’t
be ignored. However, it appears that a convenient
part has been read by the learned advocate whereas
subsequent part contained in sub-rule (2) has not
been read over. It is clearly mentioned in this part
that irrespective of any leave having been sanctioned
or dealt with, even exceeding five years period,
shall have to be treated as break.
6.2It has further been contended that entire
grievance appears to be centering around an order
dated 11.1.2005 reflecting on page-41 and unless and
until that order is assailed by the petitioner, no
consequential effect be given of any nature and,
therefore, the petition being devoid of merit,
deserves to be dismissed. Learned advocate has
submitted that since the effect of sub-rule (2) of
Rule 34 is given in its true letter and spirit, the
action cannot be said to be arbitrary and hence, the
petition being devoid of merit, deserves to be
dismissed. No other submissions have been made.
7.Having heard the learned advocates appearing for
the respective parties and having gone through the
material on record, some of the issues which are
Page 10 of 15
C/SCA/9972/2008 JUDGMENT
reflecting on the record, cannot be given a go-bye,
while arriving at an ultimate conclusion :
(1)Undisputedly, the period of leave which was
treated without pay has remained that of 5 years and
8 months in any case and further, the authority has
granted an opportunity to the petitioner and found
specifically even after hearing the petitioner that
the petitioner has not attended the duty for a period
of 5 years 8 months and 18 days and this has been
granted even by virtue of the order passed by this
Court dated 20.6.2014 and, therefore, in any case,
opportunity to representation has already been given
and after due consideration of such representation an
order came to be passed and as such there appears to
be no violation of principles of natural justice as
especially when petitioner himself has availed the
opportunity to represent.
(2) Further, a bare reading of Rule 34 is
indicating that even if any kind of leave which has
been granted but, if a period is exceeding 5 years
then the same shall have to be constituted as break
in service and shall be dealt with by virtue of sub-
rule (2) of Rule 34. Said Rule 34 reads as under :
“34.Interruption in service :(1) Unless there
are specific entries regarding break in service
in the service record of the Government
employee, all service from the date of entry to
the date of retirement shall be treated as
continuous – subject to the condition that in
case if there is interruption in service of a
Page 11 of 15
C/SCA/9972/2008 JUDGMENT
period of more than three months, the entire
interruption shall be disregarded while working
out the qualifying service, interruption upto
three months being treated as qualify service.
(2)All unauthorized absences not regularized
by grant of leave and all leave of any kind
granted for a continuous period exceeding five
years shall constitute a break in service and
shall be dealt with as per sub-rule(1).”
Here is a case where there is an undisputed
interruption in the service tenure for a period of 5
years 8 months and 18 days, has been found even after
granting an opportunity to the petitioner.
(3)An attention is drawn to the effect of Rule 25
contained in Chapter-V of the Gujarat Civil Services
(Pension) Rules,2002, particularly Rule (v) which
reads as under :
“25(v) All periods of leave including
extraordinary leave upto a maximum of thirty
six months during entire service.”
All periods of leave including extraordinary
leave maximum upto 36 months to be permissible for
treating the same as qualifying service. But then
this general proposition of qualifying service cannot
be read in isolation, particularly when Rule 34 has
clearly dealt with a specific issue of interruption
of service in which more than period of 5 years is
treated as vague. As a result of this, it does not
appear to be violation of any Rule by the respondent
authority in any form.
Page 12 of 15
C/SCA/9972/2008 JUDGMENT
8.The Court also cannot overlook the specific
grievance which has been raised by the learned
advocate for the respondent authority that this issue
has cropped up much earlier than filing of a petition
and from Annexure-J, a communication dated 14.8.2014
it is clear that by virtue of Resolution dated
1.3.1993, a period of 5 years 8 months and 18 days
has been sanctioned without pay as an extraordinary
circumstance. Now this fact is well within the
knowledge of the petitioner right from 1993 and
furthermore, the petitioner had already retired on
31.12.2004 and was very much aware about this
controversy which has been generated during the
passage of time and still, however, has chosen to
approach this Court after a period of more than 4
years which period appears to have not been explained
anywhere in the petition and, therefore, the petition
also not possible to be entertained on account of
principle of delay and latches for seeking equitable
reliefs. Of course, this is not a prime ground on
which the petition is not entertained. But this be a
relevant circumstance which cannot be unnoticed by
the Court.
9.Yet another circumstance which is visible from
the record is that during the pendency of this
petition, with a view to grant an opportunity to the
petitioner, who has already retired and almost 7
years have elapsed, the Court thought it fit to put
an end to the controversy. As a result of this, a
Page 13 of 15
C/SCA/9972/2008 JUDGMENT
suggestion which has been offered during the course
of hearing that undecided representation at least may
be dealt with, the Court vide order dated 20.6.2014
has issued direction and pursuant to the said
direction, an opportunity is undisputedly given to
the petitioner and thereafter, a reasoned order is
passed and, therefore, there appears to be no
perversity nor any manifest illegality in the
impugned action. Be that as it may, the effect of the
statutory provision has been given by the authority.
Accordingly, the discretion which has been vested in
law, which this Court would not like to disturb in
light of extraordinary jurisdiction.
10.It is a settled position of law that statutory
authorities must be given an opportunity to exercise
its discretion within the peripheral limits of
Statute and that appears to have been done. A reading
of rule which is applicable is suggestive of the fact
that authority’s decision has not resulted into
manifest illegality. Hence, the petition being devoid
of merit, does not deserve to be entertained. While
coming to this conclusion, the Court has also kept in
mind the settled proposition of law on exercise of
extraordinaryequitablejurisdiction.Hence,
following observations which are relied upon deserve
to be quoted hereinafter :
(1) A decision in case of Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar Agarwal , reported in (2013) 9 SCC 374 in paras 6 and 7, certain
Page 14 of 15
C/SCA/9972/2008 JUDGMENT
stipulations are provided as a guiding feature as in
which circumstance extra ordinary jurisdiction can be
exercised. The Court has considered the said
observation while taking this particular view.
11.In the premise aforesaid and in view of the
facts and circumstances hereinabove, the petition
being meritless, is dismissed. Rule is discharged.
Interim relief, if any, granted earlier stands
vacated. There shall be no order as to costs.
V.J. SATWARA
Page 15 of 15
3 issues framed by the court
Whether the exclusion of an interruption in service exceeding five years from pensionable service under Rule 34(2) of GCSR 2002 violated the principles of natural justice.
Whether the sanction of extraordinary leave without pay for more than three months could be counted as qualifying service under Rule 25(5) of GCSR 2002.
Whether the petition, filed more than four years after the relevant events without proper explanation, suffers from the vice of laches.
Colour shows how this judgement treated each authority
Sameer Suresh Gupta through PA Holder V/s. Rahul Kumar AgarwalRelied on¶97
(2013) 9 SCC 374 · Who else cites this
3 provisions across 2 enactments
ISHWARBHAI D PATEL
VADODARA MUNICIPAL CORPORATION
A.J. SHASTRI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court