Gujarat High Court
Jayant Dwarkadas Patel vs State Of Gujarat on 1 August, 2025
NEUTRAL CITATION
C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13723 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 13849 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14499 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 14493 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
Approved for Reporting Yes No
==========================================================
JAYANT DWARKADAS PATEL
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS NIRALI Y OZA & MR ANURAG R RATHOR, ADVOCATES for the
Petitioner
MR HENIL M. SHAH for the Respondent(s) No.1, 2, 3 - State Authorities
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 4 - GPSC
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 01/08/2025
COMMON ORAL JUDGMENT
1.1 Since all these petitions involve identical question of law and facts, the submissions made and averments raised by the learned advocates for the respective parties are identical and common and the petitioner is the same, with consent of the learned advocates, all these matters are heard together by this Court.
Page 1 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined 1.2 These petitions are filed by one petitioner under Articles 226 and 311 of the Cconstitution of India inter alia praying to pause and set aside the impugned orders dated 03.04.2018, 21.04.2017, 12.02.2020 and 14.07.2017 issued by the Joint Secretary, Forest and Environment Department as well as to pay the pension, arrears of pension along with all consequential retirement benefits.
2. Heard learned advocates. Rule returnable forthwith.
With the consent of the learned advocates, these petitions are decided together finally.
3.1 Learned advocate Ms.Nirali Y. Oza and Mr. Anurag R. Rathor for the petitioner have submitted that the authorities had in a very unjust manner, handed over six charge-sheets to the petitioner on the last day of his service, for an incident which had taken place around four years ago, which is unjust; and that the authorities failed to consider the aspect that the petitioner was in service for a period of about 31 years with unblemished record and surprisingly, all the charge-sheets were served upon the petitioner; and that the authority has passed very harsh orders against the petitioner by deducting Rs.4,000/- for 5 years, Rs.2,000/- for 4 years, 100% stoppage of pension and Rs.1,000/- for 3 years, respectively; and that without appreciating Rule 23 of the Page 2 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined Gujarat Civil Services (Pension) Rules, 2002 ('the Rules, 2002' for short) have passed the impugned orders; and that the authority without following the Rules 9 and 10 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 ('the Rules, 1971' for short) have passed the impugned orders;
and that the impugned orders are passed almost after a delay of seven years as the authority took seven years to conclude the departmental inquiry, which should be concluded within 180 days as per Rules 8 and 9 of the Rules, 1971;
and that as per Government Resolution dated 28.07.1993 that in cases where a recommendation of the Gujarat Public Service Commission ('the GPSC' for short) is required, to be taken within 30 days from the receipt of such recommendation, but in the present case, the recommendation was asked for on 15.09.2016 and the GPSC has replied on 28.11.2017 and it is beyond 30 days; and that number of inquiries initiated against the petitioner on the same day, which itself shows the modus operandi of the respondents.
3.2 It is further submitted that it is not the petitioner who is the final authority when it comes to sanctioning the documents etc., but it is the Deputy Forest Officer who had approved all the vouchers, bills, etc., after the petitioner had sent them for approval; and that the Disciplinary Authority has failed to examine the relevant witnesses; and that with a Page 3 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined view to evade the applicability of Rule 24(2)(b) of the Rules, 2002, which bars departmental proceedings in respect of any event which took place more than four years before such institution; and that the respondent authorities have acted arbitrarily in the present case; and that the impugned orders are non-speaking orders and are passed in the year 2017, 2018 and 2020 i.e. after about 7 to 9 years from the date of retirement; and that pension is a continuous cause of action and non payment of pension to the petitioner is violative of Articles 21 and 300A of the Constitution of India and it is a substantial right of the employee; and that denial of pension is infringement of right in rem and not in persona; and that there is non-compliance of Rule 9(17) of the Rules, 1971. It is submitted that the petitioner has retired on 30.11.2011, is at present 72 years old and is not receiving pension. It is submitted that these petitions may be allowed.
3.3 In support of their submissions, they have relied upon the following decisions :
(i) 2016 (0) GUJ SC 1987 - V.P. Jinjuwadia versus State of Gujarat
(ii) 2017 (0) GPU GUJ SC 15610 - Ali Miya Ghulam Rasul Sheikh versus State of Gujarat
(iii) 2016 (0) GHC 33022 - H.S. Gosai versus Gujarat Water Supply and Sewage Board Page 4 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined
(iv) 2017 (0) AIJEL HC 238131 - K.C. Mehta versus State of Gujarat
(v) 2016 (0) AIJEL HC 237071 - N.R. Pardeshi versus State of Gujarat
4.1 Per contra, learned AGP Mr. Henil M. Shah for the State has vehemently opposed these petitions. He has drawn the attention of this Court towards the affidavit in reply filed by the State Authorities and has submitted that the present petitions are not maintainable on the ground that the petitioner has an alternative efficacious remedy under Rule 18 of the Rules, 1971; and that these petitions suffer from the vice of delay and latches of three years; and that the petitioner has remained negligent, lethargic and indolent in an unusual for the period of three years and have approached this Court after considerable lapse of time; and that the impugned orders passed under Rules 9, 10 and 11 of the Rules 1971 do not call for any interference by this Court in exercise of extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India;
and that the petitioner has not challenged the charge-sheet/s and thus the charge has attained finality in law; and that it has been apparent from the records that the petitioner has incurred huge loss to the State Government and attempted to embezzle the funds of the Government, which is proved by the authorities; and that there are serious charges levelled Page 5 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined against the petitioner regarding siphoning of Government funds by creating bogus vouchers and thereby collected amount from the others and dereliction in his duties and negligence in cultivation proceedings, lack of honesty, etc.;
and that the authorities have followed the procedure as per the Rules and after obtaining the appropriate advice from the GPSC, passed the impugned orders.
4.2 He has further submitted that the petitioner has not been able to show, and in fact, has not even urged that the orders passed by the authority are without jurisdiction or in violation of any principles of law or provisions of the Act;
and that the petitioner has not invoked the supervisory jurisdiction of this Court; and that the present petitions challenging the order passed by the respondents under the Rules, 1971 do not deserve consideration; and that in the rarest of rare and exceptional circumstance, the Court may interfere so far as the quantum of the punishment is concerned and looking to the proved charges levelled against the petitioner; and that sufficient opportunities have been provided to the petitioner. He has submitted that these petitions may be dismissed.
4.3 In support of his submissions he has relied upon the following decisions.
Page 6 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined
(i) 2024 (0) AIJEL-HC 247858 - Harivadan Parshottambhai Patel versus State of Gujarat
(ii) 2020 (0) AIJEL-SC 65706 - Chairman/ Managing Director, U.P. Power Corporation Ltd., versus Ram Gopal 5.1 Learned advocate Ms.Roopal R. Patel for the Gujarat Public Service Commission has submitted that the role of respondent No.4 - GPSC is limited that has to be discharged in tendering advice to the Government on the aspect of quantum of punishment that can be imposed upon the petitioner, taking into consideration the gravity of proved charges against him; and that on conclusion of the departmental inquiry, as per the Rule, advice of the GPSC was sought for by the Disciplinary Authority on the aspect of quantum of punishment; and that taking into consideration the gravity and seriousness of the charges levelled against the the petitioner, little dereliction and negligence in duty, financial losses caused to the Government, lack of honesty in performing the duties and keeping in view the valid reasons provided by the Disciplinary Authority for imposing of punishment, since the punishment proposed by the department did not felt to be adequate by the GPSC, the GPSC tendered its advice and imposed punishment in question accordingly; and that it is imperative to consult the Page 7 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined GPSC in respect of matters concerning discipline in view of Article 320(3)(C) of the Constitution of India as well as Rule 12 of the Gujarat Public Service Commission (Exemption from Consultation), 1960.
5.2 She has further submitted that albeit, there is no method fixed so as to be followed by the GPSC qua Class-I and Class-II Officers, where, against whom, after holding inquiry by way of instruction, Resolution or Circular, Government has sought an advice; and that the GPSC in its discretion and keeping in view the merits of the case, either conquer or advice to increase or decrease the punishment as proposed by the Government after taking into consideration the principles of natural justice, rules prescribed in connection with the disciplinary inquiry, adequate opportunity provided to the delinquent, for his defense, financial loss caused to the Government, breach of Government's norms, seriousness of charges and validity of punishment, etc.; and that the role of the GPSC is not that of appellate, but, is in the nature of advisory, which may be accepted or rejected by the Government, and as such, is not binding to the Government;
and that the time period prescribed in the Government Resolution dated 20.07.1993 is a guideline, which is not mandatory in nature; and that the petitioner has been imposed with the punishment in view of Rule 24 of the Page 8 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined Rules, 2002; and that the GPSC is a formal party in these petitions, as the petitioner has not claimed any relief against the GPSC. She has submitted that appropriate orders may be passed.
6.1 I have considered the rival submissions made by the learned advocates for the respective parties. I have perused the documents available on record, including the affidavit in reply filed by contesting respondents. From the records, the picture which has emerged before this court is that, the petitioner was issued six different charge-sheets by the respondent authorities on the verge of his retirement for the misconduct, negligence, dereliction in duty and embezzlement of the huge Government funds. The petitioner has retired on 30.11.2011 by way of superannuation. The relevant details of the charge-sheets qua these petitions, as mentioned by the petitioner, are as under.
Sr. Date of Period of Particulars of Charges
No. Charge-sheet Charges
1. 08.11.2011 04.10.2007 1. Irregularities in regional plantation
to and negligence towards discharging his
(SCA-3723 of 13.05.2010 duties
2020) 2. Wastage of Government Funds and thereby causing loss to the Government Page 9 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined
2. 28.11.2011 04.10.2007 1. Embezzlement of Government funds to raised by biding of wood collected at (SCA-14499 13.05.2010 Hobernment Depot, sharing lesser of 2020) amount than the original amount in original bid slip and acting not in a proper and just manner
2. With n intention to conceal his wrongful act, the petitioner issued & printed bid slips whereby amount raised from original bid was entered and such record was added in a back dated manner with a view to defraud the Government
3. 29.11.2011 04.10.2007 1. Violating the financial rules to exhibiting indiscipline and also (SCA - 13.05.2010 conducting himself in a manner not 13849 of befitting an officer 2020) 2. Misusing the position and causing financial loss to the Government in distribution of saplings etc.
3. Exhibiting negligence and carelessness in plantation process and also conducting himself in a manner Page 10 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined not befitting an officers
4. Created duplicate Travel Allowance Bills despite being granted permanent granted allowance.
4. 25.10.2011 04.10.2007 1. Though no payment was made, the (SCA - to petitioner created bogus voucher/ 14493 of 13.05.2010 document thereby attempting 2020) embezzlement of the Government funds.
6.2 Accordingly, the departmental inquiries are conducted and after giving the sufficient opportunities to the petitioner to present his case before the inquiry officer concerned, the inquiry officer/s has submitted report/s before the Department. The petitioner did not challenge the legality, or veracity or initiation of the proceedings of the departmental inquiry before any forum at that time.
6.3 With regard to the said inquiry reports, the department has issued show-cause notice to the petitioner.
The petitioner has filed objections to it.
6.4 As per the Rules/Procedure, since the petitioner falls under the category of Class-I / Class-II, the department has sent a letter to the GPSC seeking advice.
Page 11 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined 6.5 The GPSC, being the advisory authority and not appellate authority, has advised to confirm the punishment as suggested by the department, except one punishment. The GPSC has advised the department to enhance the punishment in one case from Rs.1,000/- deduction in pension for 3 years, it should be 100% pension cut.
6.6 With regard to the punishment, the department has issued show-cause notice to the petitioner. The petitioner has replied the same. Ultimately, the department has passed the punishment orders. The details of which are as under.
Sr. Date of Date of Order of Particulars of Punishment
No. Charge-sheet Punishment
1. 08.11.2011 03.04.2018 Rs.4,000/- for 5 years
2. 30.10.2011 21.04.2017 Rs.2,000/- for 5 years
3. 29.11.2011 12.02.2020 100% Pension cut
4. 14.07.2017 25.09.2011 Rs.1,000/- for 3 years
6.7 The petitioner did not challenge any order of
punishment and/or confirmation of the punishment as
suggested by the GPSC. The show-cause notices were given to the petitioner at every stage of the departmental process, which is not challenged by the petitioner before any authority Page 12 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined or forum for the reasons best known to him.
6.8 As noted above, the punishment orders are of the year 2017/2018 and one is of the 2020, the petitioner sit idle over the said punishment for about three years. The petitioner has directly challenged the said impugned orders of punishment of the year 2017/2018 before this Court in the year 2020 and thereby tried to revive the stale cause.
6.9 Under Rule 18 of the Rules, 1971, there is an alternative remedy available to the petitioner, which the petitioner did not avail and directly approached this Court by filing these petitions. Therefore on this ground alone, these petitions need to be dismissed.
7.1 Looking to the seriousness of the proved charges noted above, petitioner being the responsible Officer, this court finds that the petitioner has not performed his duty as proved and thereby embezzled the huge Government funds.
At this stage, this Court does not think it proper to open its mind on these aspects, but also does not restrain to note that the petitioner has not performed is duty properly.
7.2 At this stage, it would be fruitful to refer to the decision of this Court in the case of Harivadan Page 13 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined Parshottambhai Patel versus State of Gujarat reported in 2024 (0) AIJEL-HC 247858, more particularly paras 6.1, 6.2 and 7 thereof, which read as under.
"6.1 While exercising jurisdiction under Article 226 of the Constitution of India, whether this Court should interfere in the departmental proceedings / punishment imposed by the disciplinary authority or not, is well described by the Honble Apex Court in case of Chennai Metropolitan (Supra), which is pressed into service by the learned AGP Ms.Pancholi, wherein the Honble Apex Court has clearly considered absenteeism as a grave misconduct. The Honble Apex Court has observed and held as under :
22. We have quoted in extenso as we are disposed to think that the Court has, while dealing with the charge of failure of devotion to duty or behavior unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is willful. On an apposite understanding of the judgment we are of the opinion that the view Page 14 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is willful even if the employee fails to show the compelling circumstances to remain absent.
23. In this context, it is seemly to refer to certain other authorities relating to unauthorized absence and the view expressed by this Court. In State of Punjab v. Dr. P.L. Singla[11] the Court, dealing with unauthorized absence, has stated thus: -
Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorized absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.
26. Thus, the unauthorized absence by an employee, as a misconduct, cannot be put into a straight-jacket formula for imposition of punishment. It will depend upon many Page 15 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined a factor as has been laid down in Dr. P.L. Singla (supra).
30. After so stating the two-Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment. It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was Page 16 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will. Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of habitual absenteeism is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.
31. Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an Page 17 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip, 2006 13 SCC 1 : -
In a case involving overstay of leave and absence from duty, granting six months time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same.
32. We respectfully reiterate the said feeling and re-state with the hope that employees in any organization should adhere to discipline for not only achieving personal excellence but for collective good of an organization. When we say this, we may not be understood to have stated that the employers should be harsh to impose grave punishment on any misconduct. An amiable atmosphere in an organization develops the work culture and the employer and the employees are expected to remember the same as a precious value for systemic development.
Page 18 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined
33. Judged on the anvil of the aforesaid premises, the irresistible conclusion is that the interference by the High Court with the punishment is totally unwarranted and unsustainable, and further the High Court was wholly unjustified in entertaining the writ petition after a lapse of four years. The result of aforesaid analysis would entail overturning the judgments and orders passed by the learned single Judge and the Division Bench of the High Court and, accordingly, we so do.
34. Consequently, the appeal is allowed and the judgments and orders passed by the High Court are set aside leaving the parties to bear their respective costs.
6.2 So far as the scope of interference by this Court is concerned, it would be appropriate to refer to the decision of this Court in case of Harilal Harjibhai Vaselia Vs. State of Gujarat & 2, reported in [2016] SCC OnLine Guj 2951 , wherein, this Court has observed and held as under :
11. Krushnakant (supra), later on, came to be considered by the Supreme Court in Chennai Metropolitan (supra).
The Supreme Court observed in paras 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 as under:
22. Learned counsel for the respondent has commended us to the decision in Krushnakant B. Parmar v. Union of India and another to highlight that in the absence of a finding returned by the Inquiry Officer or Page 19 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined determination by the disciplinary authority that the unauthorized absence was wilful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority.
In the said case, the question arose whether "unauthorized absence from duty" did tantamount to "failure of devotion to duty" or "behavior unbecoming of a Government servant" inasmuch as the appellant therein was chargesheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a Government servant. After adverting to the rule position the twoJudge Bench expressed thus:
"16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorized absence from duty"
amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may Page 20 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct."
23. We have quoted in extenso as we are disposed to think that the Court has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a Government servant, expressed the aforestated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record Page 21 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorized absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent.
24. In this context, it is seemly to refer to certain other authorities relating to unauthorized absence and the view expressed by this Court. In State of Punjab v. Dr. P. L. Singla the Court, dealing with unauthorized absence, has stated thus:-
"Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorized absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct."
25. Again, while dealing with the concept of punishment the Court ruled as follows:
"Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take Page 22 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence."
26. In Tushar D. Bhatt v. State of Gujarat and another, the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from official duty for more than six months because in the interest of discipline of any institution or organization such an approach and attitude of the employee cannot be countenanced.
27. Thus, the unauthorized absence by an employee, as a misconduct, cannot be put into a straightjacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in Dr. P. L. Singla (AIR 2009 SC 1149) (supra).
Page 23 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined
28. Presently, we shall proceed to scrutinize whether the High Court is justified in applying the doctrine of proportionality. Doctrine of proportionality in the context of imposition of punishment in service law gets attracted when the court on the analysis of material brought on record comes to the conclusion that the punishment imposed by the Disciplinary Authority or the appellate authority shocks the conscience of the court. In this regard a passage from Indian Oil Corporation Ltd. and another v. Ashok Kumar Arora is worth reproducing:
"20.At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of nonobservance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee."
29. In Union of India and another v. G. Ganayutham, the Court analysed the conception of proportionality in administrative law in England and India and thereafter addressed itself with regard to the punishment in disciplinary matters and opined that unless the court/tribunal opines in its secondary role that the administrator was, on the material before him, irrational Page 24 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined according to Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. And Council of Civil Service Unions v. Minister for Civil Service norms, the punishment cannot be quashed.
30. In Coal India Limited and another v. Mukul Kumar Choudhuri, the Court, after analyzing the doctrine of proportionality at length, ruled thus:
"19. The doctrine of proportionality is, thus, well recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.
20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.
21. In a case like the present one where the misconduct Page 25 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reason for his absence by stating that he did not have intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."
After so stating the two Judge Bench proceeded to say that one of the tests to be applied while dealing with the question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the major, magnitude and degree of misconduct and all other relevant circumstances after excluding irrelevant matters before imposing punishment.
31 It is apt to note here that in the said case the respondent had remained unauthorisedly absent from duty for six months and admitted his guilt and explained the reasons for his absence by stating that he neither had any intention nor desire to disobey the order of superior authority or violated any of the rules or Page 26 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined regulations but the reason was purely personal and beyond his control. Regard being had to the obtaining factual matrix, the Court interfered with the punishment on the ground of proportionality. The facts in the present case are quite different. As has been seen from the analysis made by the High Court, it has given emphasis on past misconduct of absence and first time desertion and thereafter proceeded to apply the doctrine of proportionality. The aforesaid approach is obviously incorrect. It is telltale that the respondent had remained absent for a considerable length of time. He had exhibited adamantine attitude in not responding to the communications from the employer while he was unauthorisedly absent. As it appears, he has chosen his way, possibly nurturing the idea that he can remain absent for any length of time, apply for grant of leave at any time and also knock at the doors of the court at his own will.
32 Learned counsel for the respondent has endeavoured hard to impress upon us that he had not been a habitual absentee. We really fail to fathom the said submission when the respondent had remained absent for almost one year and seven months. The plea of absence of "habitual absenteeism" is absolutely unacceptable and, under the obtaining circumstances, does not commend acceptation. We are disposed to think that the respondent by remaining unauthorisedly absent for such a long period with inadequate reason had not only shown indiscipline but also made an attempt to get Page 27 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined away with it. Such a conduct is not permissible and we are inclined to think that the High Court has erroneously placed reliance on the authorities where this Court had interfered with the punishment. We have no shadow of doubt that the doctrine of proportionality does not get remotely attracted to such a case. The punishment is definitely not shockingly disproportionate.
33 Another aspect needs to be noted. The respondent was a Junior Engineer. Regard being had to his official position, it was expected of him to maintain discipline, act with responsibility, perform his duty with sincerity and serve the institution with honesty. This kind of conduct cannot be countenanced as it creates a concavity in the work culture and ushers in indiscipline in an organization. In this context, we may fruitfully quote a passage from Government of India and another v. George Philip:
"18...In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization. Article 51A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders Page 28 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined which instead of achieving the underlying spirit and objects of Part IVA of the Constitution have the tendency to negate or destroy the same."
12. Having regard to the peculiar facts and circumstances of the case, I am inclined to quash the impugned order with a view to give one opportunity to the writ applicant to put forward his case before the authority. The authority concerned shall hear the writ applicant and thereafter take an appropriate decision in this regard. I may only say having regard to the length of service put in by the writ applicant that the authority concerned may also look into the Rule 10 of the Gujarat Civil Services (Pension) Rules 2002 which provides for premature retirement.
13. In the result, this writ application succeeds in part. The impugned order is hereby ordered to be quashed. The authority concerned shall hear the writ applicant at the earliest and pass an appropriate order thereafter in accordance with law. If the writ applicant is dissatisfied in any manner with the fresh order that may be passed by the authority concerned, then it shall be open for him to avail of an appropriate legal remedy before the appropriate forum in accordance with law.
14. The authority concerned shall issue notice to the writ applicant informing him the date of hearing and the place, and on that date, the writ applicant shall appear and make his submissions.
Page 29 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined
15. With the above, this writ application is disposed of. Direct service is permitted.
7. In view of the above referred facts and circumstances and the law laid down by the Hon'ble Apex Court, I am of the opinion that this Court is not sitting in appeal over the decision of the disciplinary authority and considering the seriousness of charge, the punishment imposed by the authority is not disproportionate to the charge which was proved against the petitioner and therefore, the present petition being devoid of any merits, is required to be dismissed and it is accordingly dismissed. Rule is discharged."
7.3 It would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of M/s. Godrej Sara Lee Ltd., versus the Excise and Taxation Officer-cum-Assessing Authority reported in 2023 LiveLaw SC 70, more particularly, paras 4 to 6 thereof, which read as under.
"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any Page 30 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self- imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition "not maintainable". In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the Page 31 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability"
and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.
5. A little after the dawn of the Constitution, a Constitution Bench of this Court in its decision reported in 1958 SCR 595 (State of Uttar Pradesh vs. Mohd. Nooh) had the occasion to observe as follows:
Page 32 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined "10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. ***"
6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy Page 33 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined provided by the statute. The same read as under:
(i) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is violation of principles of natural justice;
(iii) where the order or the proceedings are wholly without jurisdiction; or
(iv) where the vires of an Act is challenged."
7.4 In the case on hand, no principles of natural justice have been violated by the authorities, there is no jurisdictional error, even the petitioner has not challenged the vires of any Act and there is no violation of any fundamental rights of the petitioner. Therefore, the present case does not fall under the above criteria. On this ground also, these petitions need to be dismissed.
8.1 There is a delay in approaching this Court by the petitioner indisputably. The most of the impugned orders are of the year 2017/2018. The petitioner has challenged the same in the year 2020. At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case State of Orissa and Another versus Mamta Mohanty reported in (2011) 3 SCC 436, more particularly para : 54 thereof, which reads as under.
Page 34 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined "54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by teh Court in a similary cas as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."
8.2 Turning to gaze back to the facts of the present case as well as the misconduct, negligence and misappropriation of the huge Government funds as per the proved charges, since there is an alternative remedy available to the petitioner, This Court does not thing to interfere in the impugned orders by way of judicial scrutiny at this stage. In the present case, there is evidence on record, which the authority entrusted with the duty to hold the inquiry as accepted and reached evidence may reasonably support the conclusion that the delinquent officer is guilty of the charges.
Therefore, for the function of this Court to review the evidence and to arrive at an independent finding on the evidence, the Hon'ble Apex Court has observed many a time that the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there Page 35 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025 NEUTRAL CITATION C/SCA/13723/2020 JUDGMENT DATED: 01/08/2025 undefined is some legal evidence on which their findings can be based the adequacy or the reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in the proceeding for a writ under Article 226 of the Constitution of India.
9. For the reasons recorded above, these petitions need to be dismissed and are dismissed accordingly. The rule is discharged. Interim relief, if any, stands vacated.
(SANDEEP N. BHATT,J) M.H. DAVE Page 36 of 36 Uploaded by M.H. DAVE(HC00193) on Mon Aug 11 2025 Downloaded on : Fri Aug 15 23:04:41 IST 2025