Gujarat High Court
Mohasinbhai A Chuniya vs State Of Gujarat & 2 on 16 June, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri
C/LPA/1301/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1301 of 2011
In SPECIAL CIVIL APPLICATION NO. 15534 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
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 ?
5 Whether it is to be circulated to the civil judge ?
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MOHASINBHAI A CHUNIYA....Appellant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHIVANG M SHAH, ADVOCATE for the Appellant(s) No. 1
MS NISHA THAKORE AGP for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
Page 1 of 4
C/LPA/1301/2011 JUDGMENT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 16/06/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. This Letters Patent Appeal is filed against the judgment and order passed by the learned single Judge in Special Civil Application No.15534/2008 dated 13.06.2011.
2. Mr. Shivang Shah learned counsel for the appellant submitted that the appellant had rendered more than 27 years' service and that the penalty of dismissal from service is very harsh looking to the misconduct committed by him. He submitted that the penalty of dismissal from service may be substituted by imposing some minor penalty.
3. Ms. Nisha Thakore learned AGP submitted that the learned single Judge has rightly dismissed the writ petition since the appellant was found to be guilty of unauthorized absenteeism. She submitted that the respondent-authority has power to hold enquiry even if the case of delinquent for Voluntary Retirement is accepted. She, therefore, submitted that the present appeal may not be entertained and may be rejected.
4. We have heard learned counsel for both sides and Page 2 of 4 C/LPA/1301/2011 JUDGMENT have perused the documents on record. It is an admitted position that the appellant had remained absent from duty for 74 days without any prior sanction, which is unbecoming of a Government servant. The appellant has not disputed the findings of the inquiry officer. Before the learned single Judge, specific contention was raised by the appellant regarding the power to initiate enquiry after the acceptance of the proposal of the delinquent for voluntary retirement, which has been rightly negatived by the learned single Judge. We find no infirmity or illegality with the impugned order passed by the learned single Judge insofar as the legal aspects of the case are concerned.
5. However, we believe that the penalty of dismissal from service imposed by the respondent-authority and confirmed by the learned single Judge to be harsh and disproportionate considering the fact that the appellant had rendered more than 27 years' of service and was found guilty of unauthorized absenteeism of 74 days. No charges of embezzlement or corruption were levelled against the appellant. In our opinion, if the penalty of dismissal from service is substituted by imposing the penalty of stoppage of Two increments with future effect, the same would meet with the ends of justice. The learned single Judge accepted 01.07.2006 to be the date on which the appellant voluntarily retired from service and the said date shall now be considered as the date on Page 3 of 4 C/LPA/1301/2011 JUDGMENT which the substituted penalty was imposed on the appellant and his services and retirement benefits shall be computed accordingly.
6. For the foregoing reasons, the appeal is partly allowed. The penalty of dismissal from service is substituted by imposing the penalty of stoppage of Two increments with future effect, which shall come into force with effect from 01.07.2006. The appellant shall be deemed to have voluntarily retired from service with effect from 01.07.2006 with the penalty of stoppage of two increments with future effect meaning thereby, that the application of the appellant for voluntary retirement shall be deemed to have been accepted on the date when he was dismissed from service. The retirement benefits shall be paid within a period of six months from the date of receipt of writ of this order. The appeal stands disposed of accordingly.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) Pravin Page 4 of 4