Bombay High Court
Ramchandra Gabaji Patil vs State Of Maha & Ors on 2 September, 2016
Bench: R.V. Ghuge
WP/1193/2004
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1193 OF 2004
Ramchandra Gabaji Patil,
Age 53 years, Occ. Service
R/o Mandal, Tq. Amalner,
District Jalgaon. ..Petitioner
Versus
1. The State of Maharashtra
2. Additional Commissioner,
Nasik (Inquiry Officer,
Zilla Parishad Employees),
Nasik Division, Nasik.
3.The Chief Executive Officer,
Zilla Parishad, Dhule. ..Respondents
...
Advocate for Petitioners : Shri Deshmukh R.M.
AGP for Respondent 1 : Shri Kutti P.N.
Advocate for Respondent 3 : Shri Choudhary N.S.
Respondent 2 : Served
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: September 02, 2016
...
ORAL JUDGMENT:-
1. The petitioner is aggrieved by the order dated 3.10.2001, by
which, his appeal against his removal from service has been set aside
by respondent No.2 - appellate authority.
2. Grievance of the petitioner is that he was prevented from
reporting for duties from 7.10.1987. He had submitted an application
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dated 16.11.1987 praying for resumption of duty. Thereafter, he
orally met respondent No.3 - establishment for joining duties. He
then filed an application dated 10.12.1999, 13.12.1999 and made oral
requests for reporting for duties. He has received the charge sheet,
in which, his absence has been mentioned. He was not given the
opportunity to cross-examine the witnesses of the department. He
was not permitted to engage an Advocate for defending him in the
enquiry.
3.
Learned Advocate for respondent No.3 submits that the
analysis of the evidence available can be seen in the impugned order.
In fact, the petitioner had tendered an application dated 23.3.2000,
in which, he admitted his unauthorized absence and submitted that
he was suffering ailments as a consequence of which he was not
aware of his own existence. He, therefore, submits that in this
backdrop, the management could have concluded that the petitioner
had abandoned employment. Yet, he was subjected to the enquiry.
4. Considering the submissions of the learned Advocates, I have
gone through the petition book with their assistance.
5. Declining an opportunity to cross-examine a witness, in itself,
would not vitiate the enquiry ipso facto, unless the said event is
tested on the touchstone of prejudice. Only if it appears that
WP/1193/2004
prejudice would be caused to the delinquent by the refusal to cross-
examine a witness, it could be construed that the principles of
natural justice have been violated.
6. In the backdrop of the submissions of the learned Advocate for
the petitioner, his applications themselves would indicate as to
whether the petitioner was unauthorizedly absent or not. There is no
dispute that oral requests cannot be considered in matters of
unauthorized absenteeism since it is word against word.
7. In the instant case, the petitioner submits that he had
tendered an application on 16.11.1987. His second application is
dated 10.12.1999, which is after 12 years. He has filed another
application dated 23.3.2000, wherein, he has conceded that he was
absent on account of having a mental illness and as such, could not
attend duties.
8. Considering the admitted position as above, even if the
petitioner was said to have been deprived of the opportunity to
cross-examine the witness in the enquiry, it would not affect the
result of the enquiry since the petitioner himself has admitted that
he was unable to report for duties for a period of more than 12 years
due to mental imbalance. There is no dispute that the leave was not
sanctioned inasmuch as, there was no written application placed
WP/1193/2004
before the establishment in between 17.11.1987 and 10.12.1999. This
period of absence cannot be condoned by concluding that the
punishment of dismissal from service is shockingly disproportionate to
the gravity of the misconduct.
9. In the light of the above, this petition, being devoid of merits,
is therefore, dismissed. Rule is discharged.
ig ...
( RAVINDRA V. GHUGE, J. )
akl/d
