Gujarat High Court
Vimal Deviprasad Pathak vs State Of Gujarat on 25 January, 2024
Author: N.V.Anjaria
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1307/2023 ORDER DATED: 25/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1307 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 7823 of 2023
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VIMAL DEVIPRASAD PATHAK
Versus
STATE OF GUJARAT
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Appearance:
MR HIMANSHU C DESAI(6832) for the Appellant(s) No. 1
MR. SANJAY UDHWANI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 25/01/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr. Himanshu Desai for the appellant and
learned Assistant Government Pleader Mr. Sanjay Udhwani for the
respondent No.1-State.
2. The petitioner, who was Forest Surveyor, was subjected to the
departmental proceedings pursuant to show cause notice dated 7.8.2020,
which culminated into order of punishment of compulsory retirement.
The charges levelled against the appellant was that he remained
unauthorisedly absent initially for 160 days, which stood enlarged to
2035 days, as the petitioner continued to remain absent. The challenge to
the order of punishment of compulsory retirement was made before the
Gujart Civil Services Tribunal, Gandhinagar in Appeal No. 83 of 2020
failed, as the appeal came to be dismissed on 11.2.2022.
2.1 It was the said order which was sough to be called in question by
filling writ petition, resulting into the judgment and order of learned
NEUTRAL CITATION
C/LPA/1307/2023 ORDER DATED: 25/01/2024
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single Judge dated 4.9.2023, now impugned in this Letters Patent Appeal.
3. The absence of the appellant-petitioner due to which he suffered
penalty of compulsory retirement, had in the background, another spell of
unauthorised absence committed by the appellant. It was the period from
2005 to 2010, durting which period, the petitioner remained absent from
service for total 1836 days. At that time, the penalty of dismissal pursuant
to departmental proceedings was imposed on the petitioner. The
dismissal was challenged by filling appeal before the Secretary, which
was decided on 10.6.2010.
3.1 Thereafter, Special Civil Application No. 10322 of 2011 was filed
by the appellant-petitioner challenging the dismissal order. While
disposing of the said petition on 16.8.2011, the court observed that the
request of the petitioner for voluntary retirement may be examined.
Learned advocate for the appellant submitted that he wanted to have
voluntary retirement from service at that point of time.
3.2 The voluntary retirement plea of the petitioner was not considered.
Therefore, the petitioner had to file Special Civil Application No. 10454
of 2018. When the order of compulsory retirement was challenged by the
petitioner before the Tribunal, the Tribunal took note of the fact that the
petitioner had concealed the pednency of the said petition against the
voluntary retirement. Be as it may.
4. Learned single Judge in the impugned judgment and order
succinctly observed thus,
"....having regard to the documents on record, it would appear that the
petitioner, has been imposed with punishment of compulsory retirement
from service more particularly on the ground that the petitioner had not
remained present in service for 2035 days. It would appear that the said
NEUTRAL CITATION
C/LPA/1307/2023 ORDER DATED: 25/01/2024
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period of absence was between 21.06.2011 to 16.01.2016 and whereas
before imposing the major penalty, the respondents had initiated the
departmental inquiry by issuing charge-sheet against the present
petitioner."
4.1 It was further observed to record,
"It would also appear from the perusal of the impugned order that prior
to the period of absence referred to hereinabove, the petitioner had
remained absent in service from 18.01.2005 to 30.01.2010 i.e for almost
1836 days and whereas while the petitioner at the relevant point of time
was removed from service, it appears that later on at his request he was
taken back and whereas it also appears that thereafter the petitioner had
repeated the same misconduct of remaining absent from service for
substantially long period of time. It would also appear from perusal of
the papers that during the said period, the petitioner had left the country
and for the period in question, the petitioner was not having any
reasonable cause for remaining absent except for the fact that the
petitioner was not present in the country at all."
5. The petitioner was not present in country and had gone abroad,
recorded learned single Judge. Considering all the relevant aspects, the
petition came to be dismissed.
5.1 The unauthorised absence of the petitioner for 2035 days was
hardly condonable. It was the absence in repeat.
6. The dismissal of the petition and confirmation of order of Gujarat
Civil Services Tribunal was just, legal and proper, on facts and in law.
No interference is warranted by this court in Letters Patent jurisdiction.
7. The Letters Patent Appeal is dismissed.
(N.V.ANJARIA, J)
(PRANAV TRIVEDI,J)
C.M. JOSHI
