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Thus, it can be seen that the unauthorized absenteeism has been dealt with by the Board in two different ways; firstly under regulation 113 it has been considered as a ground to render concerned employee liable to summarily discharged without following any proceedings under the Board's conduct, discipline and appeal procedure when the absence from duty is continued one and despite warning it is not resumed; and secondly it has been treated as minor lapse or delinquency entailing imposition of certain punishments. In other words, in the first category the unauthorized absenteeism is neither treated as misconduct nor as minor lapse or delinquency; whereas in the second category it has been treated as a minor lapse and delinquency requiring imposition of one of the aforesaid punishments. lause 5 provides for procedure for dealing with minor lapses and delinquencies and also the competent officer to take action against the defaulting employee. It reads as follows :-

In the instant case the unauthorized absenteeism has been considered as minor lapse or delinquency as per the Establishment Manual of the Board and at the same time it has also been considered as act of misconduct or breach of discipline as per the service regulation which can be visited with appropriate punishment prescribed in the Regulations. It is also contained in Regulation 113 where the act of unauthorized absenteeism is considered to be a ground for passing order of discharge from the service without following any procedure. It is, therefore, incumbent upon the Court to see by lifting the veil and find out whether the action terminating service of concerned employee has been taken by way of discharge simpliciter, in reality is by way of punishment. If that be so, then as stated above by the Apex Court, the procedure of affording hearing to the concerned employees is required to be followed.

Passage from Apex Court's decision quoted above would also show that for want of compliance of principles of natural justice provisions like Regulation 113 have been described as arbitrary and discriminatory.

III Whether it is unreasonable.

6. As seen above, there are two sets of provisions dealing with unauthorized absenteeism. There is fallacy between the two provisions and that is when the unauthorized absenteeism is considered as an act of default falling in the category of minor lapse and delinquency, the punishment that can be imposed is absolutely trivial, and the concerned employee has even got a right to appeal against order of punishment in case of imposition of fine of more than Rs.5/-. But when such absenteeism is neither act of misconduct nor it is considered to be a minor lapse or delinquency, remedy under Regulation 113 can be resorted to and the resultant effect is depriving person of his job causing his economic death. Thus in cases, even when the concerned employee has a valid and justifiable ground to remain absent, he has no chance to explain it and the consequence is very serious i.e. termination of service. Considering the facts of the present cases, it will be very clear that even when the concerned employee has been working on the permanent post for more than 20 years, his service can be terminated by following regulation 113 and the termination would be termed as simple discharge closing all the doors for the concerned employee. It is one thing to say that it is a simple discharge from service not stained with any stigma so as to cause no problem to the concerned employee in getting employment elsewhere. However, whether practically this is feasible when the person is driven to find out another employment say at the age of 45 years. What could be the prospects of such person getting an employment elsewhere is anybody's guess. Board will find the replacement immediately but the employee may not be able to have such job even for the rest of his life.

14.3. The aforesaid case of this petitioner clearly projects in what manner regulation 113 can be misused and how it is discriminatory. First of all despite an appreciation of his service by his immediate superior officer, he was twice thrown out of the Circle against the Board's own policy, apparently because he was an eyesore to some of the officers. The second aspect is that despite the assurance having been given to the competent Civil Court to continue the petitioner at Jamnagar and thereupon making him to withdraw the application for interim relief, within short time he was prevented from performing his duty at Jamnagar and was asked to go to Kothara in Kutch district. Thus, the officers had gone to the extent of even not honouring the assurance that was given to the Court with a view to see that the petitioner was driven out of the Circle to a distant place in Kutch district. Further that when the petitioner lodged the protest and did not resume at Kothara, it was considered to be unauthorized absenteeism and recourse to Regulation 113 was taken. There was no intention on the part of the petitioner to abandon or relinquish the service. When in these circumstances the petitioner had expressed his willingness to work at Jamnagar, it was difficult to comprehend why such absenteeism was considered as an 'intention to abandon the service of the Board.' This aspect has been dealt with by me in detail only with a view to show what mischief can be played under the guise of exercising power under this regulation and what scope it gives to the dissatisfied officers to get rid of unwanted employees without following the regular procedure.