Vasantkumar Kesarbhai Parikh vs State Of Gujarat
2022 Latest Caselaw 2150 Guj

    C/LPA/919/2021                            ORDER DATED: 23/02/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/LETTERS PATENT APPEAL NO. 919 of 2021

          In R/SPECIAL CIVIL APPLICATION NO. 2989 of 2021
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                     VASANTKUMAR KESARBHAI PARIKH
                                Versus
                           STATE OF GUJARAT
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Appearance:
HARSH A VYAS(9330) for the Appellant(s) No. 1
Ms. DIXA U PANDYA(9412) for the Appellant(s) No. 1
Ms. Dhwani Tripathi, Asst.GOVERNMENT PLEADER                      for    the
Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
                    Date : 23/02/2022
                      ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1.0. Heard Ms. Dixa Pandya, learned advocate for the appellant and Ms. Dhwani Tripathi, learned Assistant Government Pleader for the respondent State authority on advance copy.

2.0. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 13.07.2021 passed by the learned Single Judge in Special Civil Application No.2989 of 2021 confirming the order dated 17.05.2010 in Appeal No.274 of 2007 passed by the Gujarat Civil Services Tribunal, the appellant has preferred this intra Court appeal under Clause 15 of the Letters Patent.

3.0. The following facts emerge from the record of this appeal are as under:

     C/LPA/919/2021                                ORDER DATED: 23/02/2022



3.1. That      the   petitioner   was      appointed   as     a    Clerk       on

26.11.1981 in Gujarat Public Service Commission by direct recruitment and then was posted as a Clerk in the Department of Health and Family Welfare, State of Gujarat. The record indicates that the appellant was promoted from the post of Clerk to Deputy Section Officer on 4.2.2006 and was transferred in the other Department i.e. Department of Urban Development and Urban Housing Department. It is the say of the appellant that he joined the Urban Development and Urban Housing Department on 7.2.2006. It is further the case of the appellant that his wife Kamlaben Parikh was required to undergo medical diagnosis since 2002 till 2006 because of cancer disease and the appellant could not remain present and attend his duties. The record indicates that the State of Gujarat - Urban Development and Urban Housing Department initiated departmental inquiry against the appellant on the main ground of absenteeism for 2091 days. After a full-fledged inquiry and acting upon the inquiry report of the Inquiry Officer, it was found that the charges against the appellant stood proved, for which, appellant was reverted back from post of Deputy Section Officer to Clerk in the minimum pay of Rs.3050 as provided under Rule 6(5) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said action of the respondent Department was challenged by appellant by filing an appeal before the Gujarat Civil Services Tribunal, which was registered as Appeal No.274 of 2007 and the said appeal came to be dismissed vide order dated 17.5.2010. Feeling aggrieved and dissatisfied with the same, the appellant had approached this Court under Article 226 of the Constitution of India by filing writ petition being Special Civil Application No.2989 of 2021, which came to be dismissed vide

C/LPA/919/2021 ORDER DATED: 23/02/2022

impugned order, against which, appeal is filed.

4.0. Ms. Dixa Pandya, learned advocate for the appellant has contended that for one alleged misconduct the appellant is meted out with double punishment firstly by reverting him from the post of Deputy Section Officer to Clerk and also denying the higher pay scale. Ms. Pandya also indicated that the respondents have not granted even any pensionary benefits, for which, separate petition is already filed by the appellant and the pensionary benefits have already been granted. Ms. Pandya, learned advocate for the appellant has relied upon the unreported judgments of this Court in the case of Kiritbhai Shankar Patel vs. State of Gujarat rendered in Special Civil Application No.19766 of 2015 and in the case of Kanubhai Kubavat vs. Joint Director of Education and others rendered in Special Civil Application No.13416 of 2003 to buttress her argument. On the aforesaid grounds, Ms. Pandya contended that the impugned judgment and order deserves to be quashed and set aside and the appellant be granted all benefits.

5.0. Per contra, Ms. Tripathi, learned Assistant Government Pleader has opposed this appeal and has contended that the findings of fact arrived at by the Tribunal are based upon true and correct interpretation of the evidence on record. Ms. Tripathi contended that as rightly observed by the Tribunal the appellant was a habitual absentee and almost for 8 years the appellant was absent from service unauthorizedly. Relying upon the provision of Rule 55 of the BCSR (as applicable then), Ms. Tripahti contended that the quantum of punishment does not require any interference. Mr. Tripathi contended that the very

C/LPA/919/2021 ORDER DATED: 23/02/2022

basis of the contention raised by the appellant that there is double punishment is de hors the fact and rule applicable. Mr. Tripathi contended that appeal being meritless, deserves to be dismissed.

6.0. No other and further submissions, contentions and grounds have been raised by the learned advocates for the respective parties.

7.0. The record indicates that full-fledged departmental inquiry was held and three charges were leveled against the appellant, out of which, charge nos. 1 and 2 stood proved. The authority after considering the evidence on record has considered the fact that there is no justification for such a long absence. It is an admitted position that as it emerges from the record and same is not disputed by learned advocate for the appellant that the appellant remained absent and was on leave without pay for 2091 days of LWP, 526 days of EL and 248 days of Half Pay leave. It has also come on record that after order impugned was passed the appellant did not attend his service. Even if the sympathetic view is taken by this Court, the fact remains that appellant was very much present even according to appellant in Ahmedabad or Gandhinagar. There is nothing on record to show that even a simple intimation about the reason, the appellant had remained absent is brought on record or even sent to the respondent no.1 department. There is a clear finding of fact that inquiry was conducted and there is no allegation that the inquiry is vitiated on any ground whatsoever and therefore, even in very limited jurisdiction of judicial review, we do not find that punishment imposed is in any manner disproportionate. The

C/LPA/919/2021 ORDER DATED: 23/02/2022

learned Single Judged has observed thus:

"7. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the respondent Authorities have followed necessary procedure as recorded in the order dated 4.7.2007 wherein necessary opportunity of hearing, charges which were levied against the petitioner were communicated and the petitioner was permitted to put up his response. After due procedure,as the Authority came to the conclusion that three charges against the petitioner were proved on the basis of evidence on record, the punishment of reversal was given. There is nothing on record to indicate that entire procedure for inquiry was in breach of any provision of law.

8. It is found that the departmental inquiry has been held as per the procedure. In the impugned order the respondent has discussed the grounds raised by the appellant and concluded that the circumstances under which the appellant justified his absence are not acceptable. Regarding the genuineness of the medical certificate produced by him, was a fake certificate before the authorities as confirmed by the Civil Hospital. Had it been genuine, he could have got a duplicate of the original issued. He has not done so as there was no medical certificate C/SCA/2989/2021 ORDER DATED: 13/07/2021 issued. Regarding unauthorized absence, a Govt. employee under the rules should submit leave application with reasons get the same sanctioned before proceeding on leave. Otherwise it is unauthorized absence. Asking for regularization subsequently does not justify the absence. It is pointed out that the appellant is a habitual absentee. By the time the impugned order was issued the appellant has been awarded with 2091 days of LWP, 526 days of E.L. and 248 days of Half Pay. Even after the order was issued he has not attended the office. Though the above facts are not on record, the petitioner had not taken any objection when the facts were presented. In any case the above mentioned facts describe the misconduct of the appellant. To sum up, the charges are proved. The quantum of punishment as decided by the disciplinary authority under the circumstances cannot be treated to non commensurating to the misconduct.

9. One more aspect that requires consideration is the

C/LPA/919/2021 ORDER DATED: 23/02/2022

lapse of time when the petitioner has approached this Court challenging the earlier order, it appears that the petitions have been filed by the petitioner only after attaining the age of superannuation. Therefore, it could be reasonably concluded that the intention of the petitioner was never to resume duty of his employment. The petitioner is facing another proceedings with regard to his reversal which was the subject matter of challenge."

8.0. We are in complete agreement with the observations so made, no case for interference unless concurrent findings of fact even otherwise was made. With respect to the judgment rendered in the case of Kiritbhai Shankar Patel (supra) and Kanubhai Kubavat (supra) relied upon by the learned advocate for the appellant are totally on a different factual basis and same are not applicable to the facts of the present case. No case for interference is made out. The appeal is therefore, liable to be dismissed and is hereby dismissed. However, there shall be no order as to costs.

sd/-

(R.M.CHHAYA,J)

sd/-

(HEMANT M. PRACHCHHAK,J) KAUSHIK J. RATHOD