Harilal Hirjibhai Vaselia vs State Of Gujarat & 2 on 3 August, 2016

[Cites 13, Cited by 1]

Gujarat High Court

Harilal Hirjibhai Vaselia vs State Of Gujarat & 2 on 3 August, 2016

HC-NIC Page 1 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a former employee of the Panchayat, has prayed for the following reliefs:

"14 A) Your Lordships be pleased to admit and allow this petition;

B) Your Lordships be pleased to issue a writ in the nature of mandamus or any other appropriate writ, order or direction against the respondents quashing and setting aside the dismissal order No. G.P./AARO/A3/HHV/6011/07 dated 23.07.2007 read with amended order No.G.P./A3/HHV/SUDHARO/911/07 (AnnexureA colly) dismissing the petitioner from Panchayat service from 23.7.2007 being illegal and void ab initio;

(1) because the order of dismissal is a major penalty which cannot be imposed without conducting departmental inquiry in the manner provided in Rule8 of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997 which is not held in the present case;

(2) because no chargesheet was given to the petitioner and the petitioner is not given an opportunity of being heard before 1.7.2007 on which date the petitioner has retired from panchayat service due to superannuation;

(3) because the petitioner is a retired employee of panchayat service from 1.1.2007, the petitioner cannot be dismissed from 23.7.2007 i.e. after the date of retirement as the respondent has no such authority or powers;

(4) because the case of the petitioner is covered under the judgment and orders issued by the Hon'ble High Court of Gujarat, the Hon'ble High Court of Rajasthan and the Hon'ble Supreme Court as referred in paras 10.3, 10.6 and 10.7 of the memo of petition;

(BA) In view of the facts and circumstances, an appropriate writ, order or directions be issued directing the respondents to pass necessary orders and treat the petitioner's services continued between 22/2/1994 to 4/5/1997, and pay the arrears of salary and other benefits with interest thereon, and to start paying pensionary benefits with interest thereon, and, C) pending hearing, admission and final disposal of this petition, Your Lordships be pleased to issue necessary direction to the respondents to prepare the papers for pension and other retiral dues to which the petitioner is entitled as requested by the petitioner is entitled as requested Page 2 of 16 HC-NIC Page 2 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT by the petitioner vide his letter dated 16.12.2008 (AnnexureB);

D) alternatively, Your Lordships will be pleased to issue an order of suitable direction to the respondents to consider the representation made by the petitioner on 2.7.2010 Ann.E and take a decision on the basis of various contentions taken therein by the petitioner and reasoned order under each of the contentions raised therein;

E) Any other relief which is suitable and necessary in the circumstances of this case, be granted."

2 The case of the writ applicant may be summarized as under:

2.1 The writ applicant joined the services of the Junagadh District Panchayat as a 'Malaria Surveillance Worker' on 4th June 1973 at the Zonal Office, Rajkot. It appears that one First Information Report was lodged against the writ applicant for the offence punishable under Sections 406, 440 read with 114 of the Indian Penal Code. The writ applicant was arrested in connection with the said F.I.R. and remained in the police custody for about four days. It also appears that he was placed under suspension. The order of punishment was reviewed by the department, and thereafter, the writ applicant was once again reinstated in service.

2.2 It appears that from 1st October 2003 to 10th September 2007, the writ applicant remained absent from service without any sanction of leave.

2.3 In such circumstances referred to above, the Chief District Health Officer, District Panchayat, Junagadh passed the impugned order dated 23rd July 2007 at Annexure: "A" to this petition dismissing the writ applicant from service. Rule 6(6) of the Gujarat Panchayat Services (Discipline and Appeal) Rules, 1997 was made applicable.



         2.4    Although an appeal is granted, yet the writ applicant thought fit to 


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challenge the order passed by the Chief District Health Officer directly by filing this writ application.

3 On 21st October 2010, the following order was passed:

"Heard learned Advocate Mr.D.P.Vora for the petitioner.

2. It is an unfortunate case wherein a person petitioner, who was recruited in the year 1973, assigned to the District Panchayat. The petitioner served without any complaint whatsoever till 1994.

2.1 Unfortunately, in the year 1994, he was implicated in a criminal case for the offence under Sections 406, 420 and 114 of the Indian Penal Code. He was arrested and was kept in Central Jail, Jamnagar from 22.02.1994 to 25.02.1994, which resulted into his suspension. The Department did not think it fit to hold any departmental inquiry, but after periodical review of the case, deem it proper to reinstate him in service in 1997. Since 1997 the petitioner was working till 2003, when the coaccused in that criminal case overpowered him and made him to leave Junagadh. The petitioner fled to Maharashtra. As per the information available, the petitioner and his wife were the only persons hiding themselves from those antisocial aliments until he could come back to Jnuagadh in November 2007.

2.3 In the meantime, the petitioner reached the age of superannuation on 31.07.2007. The Department unilateral dismissed him from service.

3. Learned Advocate for the petitioner vehemently submitted that the dismissal is a major penalty and Department could not have imposed the same without following due procedure of law.

4. The matter requires consideration.

RULE returnable on 01.12.2010.

NOTICE as to interim relief returnable on the same day.

5. During the pendency of this petition, it will be open for the Department to look into the matter with due sympathy to the petitioner, who is having 30 years of unblemished service to his credit, as it is informed by the learned Advocate for the petitioner that the Criminal Case has also resulted into acquittal in the year 2010.

Prima facie, there does not appear to be any reason for a person to flee away, leaving his service at stake."





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         4     On  behalf  of  the  Panchayat,  an affidavitinreply  has been  filed 
         inter alia stating as under:


               "4      It   is   most   respectfully   submitted   that   the   petitioner   was   placed

under the District Panchayat Office under the District Panchayat department in the year 1977. It is submitted that initially, the petitioner was appointed as Malaria Surveillance Worker by the Zonal Officer, Rajkot in the year 1973 and thereafter the petitioner was placed under the District Panchayat office in the year 1977. It is also submitted that the petitioner continued to work with the District Panchayat in the Malaria branch from 1977 till 1994.

5 It is most respectfully submitted that a criminal complaint came to be filed against the present petitioner on 31/1/94 for the offences U/s. 406, 420, 120 of IPC for which he was arrested on 21/2/1994 and was kept under judicial custody from 22/2/94 to 25/2/94. Since the petitioner was in judicial custody he came to be suspended from his services and was placed under suspension and his head quarter was fixed at Arab during his period of suspension. Thereafter the petitioner was reinstated after suspension.

6 It is most respectfully submitted that the petitioner thereafter was working at Primary Healthy Centre at Chuda as Malaria Surveillance Worker. That from 20/2/2003 the petitioner without informing the department or taking any leave from the competent authority had remained absent from services. Since the petitioner was absent from his services for a long time show cause notices under the Gujarat Panchayat Services (Discipline and Appeal) Rules 1997 were issued to the petitioner by the Medical Officer, Chuda. An effor was also made by the concerned officer to serve to the said notices to the petitioner to his place of residence at head quarter. A public notice was also issued on 20/4/2006 in the daily newspaper informing the petitioner to join his services and remain present on or before 27/4/2006. It was stated in the said show cause notice published in the newspaper that in case the petitioner does not resume his services by 27/4/2006 the medical officer, P.H.C., Chuda shall be constrained to take appropriate action under Rule 6 of the Gujarat Panchayat Services (Discipline and Appeal) Rules 1997. It is submitted that the petitioner had failed to respond to the legal notice and the public notice issued by the competent authority and had failed to resume his duties.

7 It is most respectfully submitted that thereafter under Rule 8 of Gujarat Panchayat Services (Disciplinary and Appeal) Rules, 1997, a representation was made by the Medical Officer, P.H.C., Chuda to the Secretary, Gujarat Panchayat Seva Pasandgi Board for taking appropriate disciplinary action against the petitioner. The Secretary, Gujarat Page 5 of 16 HC-NIC Page 5 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT Panchayat Seva Pasandgi Board under Rule 6(6) of Gujarat Panchayat Services (Discipline and Appeal) Rules 1997 had directed the Respondent herein to dismiss the petitioner. After receiving the order from the Secretary, Gujarat Panchayat Seva Pasandgi Board the petitioner was once again asked to submit his reply against the said order but the petitioner had not replied to the said notice, neither had resumed his services. The petitioner in spite of service of several show cause notices, public notices had not bothered to either reply them or had neither resumed his duties which goes to show the conduct of the petitioner. The petitioner is not fit to be a government servant as the conduct of the petitioner that he has taken the entire episode very lightly and in a casual manner.

8 It is most humbly submitted that looking to the service book of the petitioner the date of the birth of the petitioner is 1/7/1949 and according to the same, the petitioner would retire on 31/7/2007 and the present dismissal order was served on 23/7/2007. It is submitted that it is not true that the dismissal order of the petitioner has been served to him after his retirement. It is also submitted that since the petitioner was not available in spite of issuing several notice/public interest notice the department was not in a position to serve the said dismissal order to the petitioner. It is submitted that according to the service book of the petitioner the petitioner was to retire on 31/7/2007 and admittedly the dismissal order was served to the petitioner before his retirement i.e. 23/7/2007.

9 It is respectfully submitted that according to Rule 14(1) of the Gujarat Panchayat Services (Discipline and Appeal) Rules, 1997 the officers specified in the list of District Panchayat, item No.1`8 (column No.2) the present respondent is competent officer to pass the order of dismissal. It is also submitted that according to the notification dated 17/6/1997 the concerned officer by the said notification was empowered to pass the said order of dismissal.

10 It is most respectfully submitted that as per the order passed by the Secretary, Gujarat Panchayat Seva Pasandgi Board, the petitioner was dismissed from services and hence is not entitled for any retiremental benefits. Even otherwise the petitioner has not availed the remedy available to him to file an appeal against the order of dismissal under Rule 14(1) of Gujarat Panchayat Services (Discipline and Appeal) Rules 1997 and has directly approached this Hon'ble Court. It is further submitted that when an efficacious remedy is available to the petitioner the petitioner is required to avail that remedy instead of approaching the Hon'ble Court. It was specifically stated in the order of dismissal that the petitioner can prefer an appeal within a period of 45 days with the concerned appellate authority which is District Development Officer. The petitioner without availing the said remedy of filing an appeal before the Page 6 of 16 HC-NIC Page 6 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT District Services Tribunal has directly approached this Hon'ble Court. It is submitted that the petition requires to be dismissed only on this ground that when an appropriate efficacious remedy is available of appeal the petitioner ought to have availed that remedy."

5 Mr. Nirzar Desai, the learned counsel appearing for the writ applicant submits that the impugned order passed at a point of time when the writ applicant was in the State of Maharashtra. According to Mr. Desai, his client was to attain the age of superannuation on 30th June 2007. The impugned order is dated 23rd July 2007. According to Mr. Desai, no opportunity of hearing was given before the passing of the impugned order. Mr. Desai submits that his client had put in almost thirty years of unblemished service, but on account of harassment at the end of few antisocial elements, his client was compelled to leave the town and go in the hiding. In such circumstances, Mr. Desai, prays that the impugned order be quashed and the authority concerned be directed to give an opportunity of hearing to the writ applicant and thereafter pass a fresh order.

6 On the other hand, this application has been vehemently opposed by Ms. Acharya, the learned counsel appearing for the Panchayat. She has raised a preliminary objection as regards the maintainability of this writ application on the ground of availability of an efficacious alternative remedy. According to Ms. Acharya, the impugned order is appelable under Rule 14 of the Rules 1997.

7 Ms. Acharya submits that the writ applicant wilfully remained absent from service for a period between 1st October 2003 and 10th September 2007. This fact has not been disputed by the writ applicant and therefore, there was no question of giving any opportunity of hearing to the writ applicant before the passing of the impugned order.




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         8     Ms.   Acharya   submits   that   there   being   no   merit   in   this   writ 
         application, the same be rejected. 


         9     In Krushnakant B. Parmar v. Union of India and another [2012

(3) SCC 178], the Supreme Court in paras 15 to 21 held as under:

"15. Rule 3(1)(ii) and Rule 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a Government servant and reads as follows:

"Rule 3 General.

(1) Every Government servant shall at all times

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant."

16. In the case of appellant referring to unauthorised absence, the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether 'unauthorised 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 can not be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, 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 unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

19. In the present case, the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but Page 8 of 16 HC-NIC Page 8 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.

20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani v. Union of India and others reported in (2006) 5 SCC 88 : (AIR 2006 SC 3475 : 2006 AIR SCW 2096) wherein this Court held:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasicriminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasijudicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty."

10 In Krushnakanth (supra), the Supreme Court took the view that 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. The absence from duty without any application or prior permission may definitely amount to unauthorized absence, but it does not always mean wilful. In a departmental proceeding, if the allegation Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT of unauthorized absence from duty is made, then the disciplinary authority is obliged to prove that the absence was wilful and in the absence of such finding, the absence will not amount to misconduct.

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 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 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.




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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 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 recourse to disciplinary action in regard to the unauthorized absence. Such disciplinary proceedings may lead to Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT 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).

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 Page 12 of 16 HC-NIC Page 12 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT secondary role that the administrator was, on the material before him, irrational 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, wellrecognised 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 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 twoJudge 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.





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         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 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 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 Page 14 of 16 HC-NIC Page 14 of 16 Created On Sat Aug 06 03:12:29 IST 2016 C/SCA/9415/2010 JUDGMENT 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 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.

15 With the above, this writ application is disposed of. Direct service is permitted.




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                                                                     (J.B.PARDIWALA, J.)
         chandresh




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