R B TANDEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.D.M.Devnani, learned Assistant Government Pleader, waives service of notice of Rule on behalf of respondents Nos.1 and 3 and Mr.Rajesh Chauhan, learned advocate, who appears on behalf of Mr.H.S.Munshaw, learned advocate, waives service of notice of Rule for respondent No.2. On the facts, and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

(2.) This petition, under Articles 226 and 227 of the Constitution of India, has been preferred with a prayer to quash and set aside the orders dated 18.03.2010 and 25.02.2011, respectively passed by respondent No.1, whereby, 100% pension cut has been imposed upon the petitioner and the application for review preferred by the petitioner has been rejected.

(3.) The brief facts of the case are that the petitioner was working as an Auxillary Nurse Midwife (ANM), having joined as such in Block Health Office at Pardi on 23.08.1984. According to the petitioner, after the death of her husband on 21.08.1986, there was no member of the family, except the petitioner, to look after her two children. The entire burden of maintaining the family fell upon her shoulders. For these reasons, the petitioner remained absent from duty and could only put in about 12 years' service till her date of retirement. It is further the case of the petitioner that she had also undergone medical treatment for depression. As a cumulative result of the above factors, she could not report for duty regularly. The petitioner has remained absent, unauthorisedly, for 4263 days from 01.04.1992 to 31.03.2006. A Chargesheet was issued to the petitioner for unauthorised absence in the year 1996 and a departmental inquiry followed, on 27.06.2005. As per the report of the Inquiry Officer dated 13.03.2006, the charges levelled against the petitioner were found to be proved. The disciplinary authority accepted the report of the Inquiry Officer and inflicted the penalty of dismissal from service upon the petitioner, as per the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997. The recommendation of respondent No.3, Gujarat Panchayat Service Selection Board (respondent No.3), was sought regarding the penalty inflicted upon the petitioner as she had superannuated in the meanwhile, on 31.03.2006. The Chief District Health Officer, District Panchayat, Valsad (respondent No.2), issued a show cause notice dated 49.09.2008, inter alia, indicating that since the petitioner had retired, the penalty of removal from service was not to be imposed. However, the petitioner was asked to show cause as to why a cut in her pension be not imposed, as prescribed under the Gujarat Panchayat Service (Pension) Rules. By letter dated 18.09.2008, the petitioner prayed that she may be granted full pension since the disciplinary proceedings have been set aside. By communication dated 04.09.2009, respondent No.3, considering the papers of the departmental inquiry and the Gujarat Panchayat Service (Pension) Rules, 2002, advised respondent No.2 that a penalty of a cut in the pension of the petitioner, at the rate of Rs.100/per month, for a period of one year, may be imposed. By order dated 09.09.2009, respondent No.2, imposed the penalty of a pension cut of Rs.100/per month for a period of one year. After having passed the said order, respondent No.2 proceeded to cancel his own order dated 09.09.2009, vide order dated 06.11.2009, on the ground that he did not have the power to impose penalty, which can only be imposed by the State Government. Thereafter, respondent No.2 forwarded the file to the Development Commissioner, who, in turn, submitted the file to the State Government. According to the petitioner, the State Government (respondent No.1) has passed the impugned order dated 18.03.2010 (AnnexureA to the petition), directing that the entire pension of the petitioner be withheld, without granting her an opportunity of hearing. The petitioner preferred an application dated 20.09.2010, for review of the order dated 18.03.2010, which has been rejected by the impugned order dated 25.02.2011 (AnnexureB to the petition). Aggrieved by the aforestated orders, the petitioner is before this Court.