A.f. Cordeiro v. State

D.M. DHARMADHIKARI, C. J.

(1) THE facts of this case are rather peculiar and strange. The petitioner Dr. A. F. Cordeiro was appointed as Medical Officer Class-II after due selection on 29. 9. 1968 and was posted in Primary Health Centre, District Panchayat, Panchmahals. It is the case of the petitioner that some unknown persons forged his signature and submitted a resignation in his name from service. Consequent thereupon that letter of resignation dated 24. 1. 1976 was accepted on 24. 6. 1976. The petitioner remained out of government service but thereafter was reappointed in the year 13. 3. 1978 again on the post of Medical Officer Class-II but on adhoc basis and pending selection of regular candidates. The petitioner was relieved of his services under his ad hoc appointment on 28. 1. 1980 as regularly selected candidate through GPSC had been appointed.

(2) THE petitioner has been continuously representing his case to the department that he had never tendered any resignation from service and he was wrongly relieved from service earlier on 24. 6. 1979 on the basis of acceptance of his letter of resignation.

(3) AFTER due consideration of his representation, the State Government, Department of health and Family Planning by order and in the name of the Governor of Gujarat passed a resolution on 16. 6. 1982. The resolution (As rendered into English from Gujarati) reads as under : Govt. of Gujarat health and Family Planning Deptt. Sachivalay, Gandhinagar. Dated: 16th June, 1982. Resolution dr. A. F. Cordeiro, Ex-Medical Officer, GPSC Class II-S. H. Unit, Alkund, Distt. Dang has resigned vide letter dated 24. 6. 1976. He was taken on service as ad hoc for the period between 13. 3. 1978 to 27. 1. 1980. But there after as the GPSC Candidate were made available he was relieved from 28. 1. 1980. Dr. A. F. Cordeiro has time and again represented to take back him an duty and after hearing him personally he has submitted that the fact of tendering resignation from 24. 1. 1976 is not true. On detailed inquiry, it is found that, the resignation tendered vide letter dated 24. 1. 1976 is not given by Dr. A. F. Cordeiro. Considering the aforesaid facts and the request of Dr. A. F. Cordeiro, Dr. A. F. Cordeiro is again taken back on duty as Medical Officer, Public Health Service Class II and is located to District Panchayat on deputation. The order with regard to regularise the absent period of Dr. Cordeiro will be passed hereinafter this resolution is issued on the basis of the approval given on the file of Finance and g. T. D. Dated 5. 10. 1981 and 27. 11. 1981. By the order of Governor of Gujarat sd/-R. C. Jani section Officer health and Family Planning Deptt. As is stated in the resolution taken in favour of the petitioner, accepting his case that he had never tendered resignation, he was taken back on duty on his original post of medical Officer Class II. In the said resolution, it is mentioned that "the orders with regard to regularising the period of absence from service of the petitioner will be passed in due course".

(4) AFTER waiting for a reasonable period for the passing of orders regularising his period of absence from service, the petitioner has approached this Court by way of this special Civil Application. On 16. 2. 1982 during the pendency of this application, directions were made to to the State Government to pass an order with regard to regularising the period of absence from the services of the petitioner in terms of resolution dated 16. 6. 1982 passed in his favour directing him to resume his service and duties as medical Officer Class II.

(5) ON the time bound directions given by this Court, a second resolution was passed by the State in its concerned department in the name and under order of the Governor dated 16. 4. 1990. The said resolution, part of which has been assailed in this application by amendment, reads as under : Resolution dr. A. F. Cordeiro, Medical Officer Class-II, S. H. Unit, Gharkhadi, Distt. Dang (At present under District Panchayat, Kutch-Bhuj) who remained absent without prior intimation, for the period between 1. 10. 1973 to 9. 4. 1974 and dated 4. 12. 1974 to 19. 3. 1978, and therefore, the said period is treated as unathorised absence and therefore the said period will be treated as break in service and will not be counted for Pensionable service. 2. The absence of Dr. Cordeiro for the period between 22. 2. 1980 to 13. 3. 1980 is regularised as under : 1. Dated 22. 2. 1980 to 13. 3. 198021 days as earned leave. 2. Dated 4. 3. 1980 to 4. 5. 1980 51 days as half earned leave. 3. Dated 5. 5. 1980 to 7. 2. 1982, 644 days leave without pay. Under the Name and Order of Governor of Gujarat section Officer health and Planning Department

(6) THE applicant by amendment of this application has mainly assailed the portion of the resolution which states that the period of absence from duties due to acceptance of his resignation which in fact he never rendered would be "treated as unathorised absence and will be treated as break in service and will not be counted for pension able service".

(7) LD. Counsel appearing for the petitioner submits that the above mentioned part of the order (underlined in the quoted resolution above) is not only illegal but highly unjust. The State Government accepted the case of the petitioner that he had never tendered any resignation and the letter of resignation on which the State Government acted was by someone who had foraged his signature. The petitioner was therefore allowed to rejoin his service on his original post. The period of his absence was directed to be regularised. It is contended that his absence from service was not an act of his volition but he was compelled to remain away from duties because a forged resignation letter was accepted and he was relieved. It is submitted that the period of his absence may be treated as dies-non meaning that it would not be treated valid for payment of any salary to him or a leave period. The principle of "no work no pay" may be applied for that period but in any way the said period of his absence cannot be treated as an unathorised absence for being treated as a break in services. It is submitted that the said period in any case could be directed to be counted for pensionable service.

(8) MR. B. L. Jani, Ld. AGP made some attempts to support the impugned resolution passed by the Government on 16. 4. 1990.

(9) AFTER considering the arguments advanced by the Learned Counsel by the petitioner, I find that there is great substance in the same. As the facts reveal and have been accepted by the earlier resolution of the Government dated 16. 6. 1982, the petitioner had never tendered any resignation and he was denied opportunity to serve for the period in question which has been treated as period of his unauthorised absences. The petitioner having been compelled by force of circumstances to remain out of service on the basis of a forged resignation, the said period cannot be treated against him as a period of unauthorised absences. In any case, there is no legal or factual justification to treat the said period as "a break in service" so as not to be counted even for pension.

(10) THE above mentioned facts reveal that for a part of the period of his absence he is not held entitled to any salary and for the remaining part of his alleged absence he had already worked on ad-hoc basis and has been paid salary in that status. The entire period of his absence from his regular service on the basis of acceptance of resignation may therefore be treated as dies-non but for the limited purpose of denying him salary or wages for the period of absence on the principle of "no work no pay". This Court however finds shockingly unjust and illegal to treat the period of his absence as unathorised and a break in service to deny him that period for being counted even for pensionable service.

(11) WHEN by earlier resolution dated 16. 6. 1982 the decision was taken to regularise his absence, the period of his absence could have been treated as die-snon only to deny him salary for the period. After considering his letter of resignation to be forged and permitting him to rejoin on his post his absence could not be alleged to be unauthorised and in any case could not be treated to be a break in service. On resumption of his service under resolution dated 16. 6. 1982, he would be deemed to be in continuous service and the entire period has to be counted for the purpose of pension, seniority and terminal benefits.

(12) CONSEQUENT to the discussions aforesaid, this Special Civil Application succeeds and is hereby allowed. The impugned resolution dated 16. 4. 1990 (particularly the underlined portion) Supra to the extent it treats the period of his absence as unauthorised and a break in service and not to be counted for pensionable service is hereby quashed.

(13) THE respondents representing the Government of Gujarat are directed to treat the petitioner as being continuously in service from the date of his initial appointment on the post of Medical Officer Class II dated 29. 9. 1968 and he be granted seniority and all other terminal benefits inclusive of pension etc. by treating it so. The petition succeeds. Rule made absolute. The petitioner is also entitled to costs from the respondents which are quantified at Rs. 500/ -.