Dilip N Bhatpuriya vs State Of Gujarat - Through ...
2021 Latest Caselaw 6007 Guj

       C/LPA/2245/2017                           ORDER DATED: 15/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 2245 of 2017

             In R/SPECIAL CIVIL APPLICATION NO. 15699 of 2010

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                       DILIP N BHATPURIYA
                               Versus
         STATE OF GUJARAT - THROUGH SECRETARY & 2 other(s)
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Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MS G R VIJAYALAKSHMI(5047) for the Appellant(s) No. 1
MR MEET THAKKER, AGP (1) for the Respondent(s) No. 1,2
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 15/06/2021

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ-applicant of a writ-application and is directed against the judgment and order passed by a learned Single Judge of this Court dated 01/11/2017 in the Special Civil Application No.15699 of 2010, whereby, the learned Single Judge declined to interfere with the order passed by the respondent - authorities terminating the services of the writ-applicant and accordingly, rejected the writ-application.

2. The facts giving rise to this appeal may be summarized as under:-

       C/LPA/2245/2017                              ORDER DATED: 15/06/2021




2.1    The writ-applicant came before this Court by filing a Special

Civil Application No.15699 of 2010 seeking the following reliefs:-

(A) Your Lordships may be pleased to issue writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari or any other writ, order or direction and declare that the order dated 11.12.2009 of the Respondent Authority is bad in law and Your Lordships may further be pleased to quash and set aside the said impugned order dated 11.12.2009;

(B) Pending this petition Your Lordship may be pleased to direct the respondent authority to give appoint the present petitioner at his native place of service with all consequential benefit as there were now only two years remaining in retiring of the petitioner;

(C) Your Lordships may be pleased to grant interim relief in terms of para 12(B) above;

(D) Your Lordships may be pleased to grant any other and further relief/s as may be deemed just and proper in the interest of justice and fitness of things.

2.2 It appears from the materials on record that the appellant [original writ-applicant] was serving as a Class-II Medical Officer with the State of Gujarat since 24.10.1981. As on date, when this Court is hearing the present appeal, the appellant has attained the age of superannuation. The appellant herein was served with a departmental chargesheet on the allegation of failure to report for duty or to put it in another words, failure to join the duty at the place where he was transferred last. In the departmental inquiry, the appellant was held guilty of the charges. The order passed by the respondents authorities terminating the services of the appellant was challenged before the tribunal. The tribunal declined to entertain the challenge on the ground of lack of jurisdiction. In

C/LPA/2245/2017 ORDER DATED: 15/06/2021

such circumstances, the appellant came before this Court by filing the above referred writ-application.

3. The learned Single Judge after due consideration of all the materials on record held as under:-

"6. On the other hand, learned AGP representing the respondent- State has submitted that will-full absence of the petitioner, continuously from 2007-08 till the date of filing of the petition does not deserve any leniency. There was no fault in the inquiry conducted against the petitioner and in absence of any fault having been found in the inquiry, the present petition is not maintainable and liable to be dismissed.

7. This Court has considered the submissions of both the sides. The fact that the petitioner has worked as Medical Officer Class-II with the health department is not in dispute. It is also not in dispute that he has been transferred frequently from one place to other. It could be seen that at one stage, petitioner has approached this Court by way of Special Civil Application No.29775 of 2007. This matter came to be disposed of vide order dated 10.12.2007 while holding as under:

3. In view of the above, the direction cannot be issued for permitting petitioner to resume duty at this stage, more particularly when the period of about two years is completed after the transfer order.

4. However, considering the facts and circumstances, it is directed that the respondent No.2 shall pass appropriate order in the disciplinary proceedings, and if the order of suspension is not passed against the petitioner, the matter shall also be considered for permitting him to resume duty. If the order of suspension is passed rights of the parties shall stand governed accordingly.

8. It will be relevant to note that after passing of the aforementioned order, the petitioner was issued appointment orders to join at PHC, Babarkot, District: Amreli. The petitioner committed irregularities in joining his duties as he had not met the officer from whom he was required to take charge, and rather moved an application for the grant of leave. It will be further relevant to note that petitioner has remained

C/LPA/2245/2017 ORDER DATED: 15/06/2021

continuously absent from the date of posting at the place in pursuance to the order passed by this Court.

9. The scope of this Court in interfering with the inquiry proceedings is very limited. There is no procedural irregularity or illegality pointed out by the petitioner as far as inquiry proceedings are concerned. In absence of any procedural lapse, this Court is not inclined to interfere with the inquiry proceedings and the impugned order passed against the petitioner; this is particularly so, when the petitioner himself is absent from duty despite intervention of the Court and fresh appointments orders having been issued. The petitioner was working in Health Department and has to perform important services including health care of the rural people where he was posted. It is a known fact that doctors are generally reluctant to work in the rural areas. As everybody wants the job at his door step. Keeping in view the totality of the circumstances and the manner in which the petitioner has remained absent from his duty, this Court is not inclined to interfere with the impugned order."

4. We have heard Ms. G.R. Vijayalakshmi, the learned counsel appearing for the appellant [appointed by the HCL Committee]; Mr. Premal Joshi, the learned counsel appearing for the respondent no.3

- The Chief District Health Officer, Amreli and Mr. Meet Thakker, the learned AGP appearing for the respondents nos.1 and 2.

5. We are of the view that no error not to speak of any error of law could be said to have been committed by the learned Single Judge in passing the impugned order, warranting any interference in this appeal. The only argument canvassed before us on behalf of the appellant is that the punishment of dismissal from service is not in commensurate with the gravity of the alleged misconduct. This aspect has been duly considered by the learned Single Judge. In our opinion as an appeal court, we should not go into the question of quantum of punishment.

C/LPA/2245/2017 ORDER DATED: 15/06/2021

6. In the result, this appeal fails and is hereby dismissed.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) A. B. VAGHELA