ASHOK M VANIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India the petitioner has challenged the decision dated 18/10/2008 to treat the period between 04/10/2008 till the petitioner resumed his duty as unauthorised absent without pay.

(2.) IT is to be noted that the petitioner was transferred from Baroda to Vanthali by order dated 25/09/2008 and in fact was relieved from Baroda on 31/10/2008 and within 10 days the petitioner was required to resume the duty, at the place where he was transferred on or before 14/10/2008. Neither the petitioner resumed the duty at the transferred place nor the petitioner submitted any application for leave and/or any application to extend the time for resuming the duty at the transfer place. There was no intimation at all by the petitioner. Under the circumstances, when the petitioner did not resume the duty within the permissible stipulated time i. e. on or before 14/10/2008 and even after waiting for a further period of 4 days, when neither the petitioner resumed the duty nor there was any intimation from the petitioner, the Development Commissioner passed the impugned order dated 18/10/2008.

(3.) SHRI Supehia, learned advocate appearing on behalf of the petitioner has submitted that as the mother of the petitioner was sick, the petitioner submitted an application on 21/10/2008 alongwith the medical certificate dated 21/10/2008 and thereafter the petitioner resumed the duty on 23/10/2008. Shri Supehia, learned advocate appearing on behalf of the petitioner has submitted that the petitioner was having 10 days time to resume the duty and, therefore, atleast for the said period of 10 days, leave of the petitioner has to treated as leave on medical ground and/or earned leave. Shri Supehia, learned advocate appearing on behalf of the petitioner has heavily relied upon Rule 16 of the Gujarat Civil Services (Joining Time, Foreign Service, Deputation out of India, Payment during Suspension, Dismissal and Removal) Rules, 2002. It is further submitted that the petitioner has 300 days earned leave to his credit and 226 days medical leave i. e. commuted leave to his credit and, therefore, the aforesaid period of leave for the period between 04/10/2008 till the petitioner resumed the duty ought to have been considered. The aforesaid cannot be accepted. It is to be noted that the petitioner was supposed to resume the duty on or before 13-14/10/2008 but neither the petitioner resumed the duty at the transferred place nor there was any communication by the petitioner. Only after the impugned decision dated 18/10/2008 to treat the period after 04/10/2008 as unauthorised leave without pay, the petitioner all of a sudden woke up and submitted an application on 21/10/2008 with the medical certificate of his mother dated 21/10/2008. Even considering the medical certificate produced by the petitioner, which is dated 21/10/2008, it does not specify the period of medical treatment taken by his mother. If the petitioner was not in a position to resume the duty then the petitioner ought to have submitted an application either for extension of time to resume the duty and/or should have submitted the application for leave on or before 14/10/2008. As stated hereinabove, till 21/10/2008, there was no communication by the petitioner at all. Merely because the petitioner had 300 days earned leave to his credit and 226 days medical leave i. e. commuted leave to his credit that doesn't mean that the petitioner can resume the duty at any time he likes and pray to consider the absence by treating the same as leave without pay or to adjust the leave for the aforesaid period.