DAMOR BHAGUBHAI DALSING Vs. COLLECTOR AND DISTRICT MAGISTRATE

JUDGEMENT

(1.) Heard learned advocate Mr. Samir Sojatvala with learned advocate Mr. B.T.Rao for petitioner and learned AGP Mr. N.D.Gohil appearing on behalf of respondent No.2.

(2.) According to the petitioner he was working as Chowkidar with the respondent No.1 since 12.4.1995 and his services were extended from time to time. The petitioner was required to go to see his wife and children when they were ill, however his leave was treated as leave without pay. Since last 5 years he is working as Chowkidar at the Collector's office bungalow and he has been given extension from time to time. He was given extension up to 31.12.1999. However, as he has proceeded on leave without prior permission, the services of the petitioner is terminated by the Collector without following any due process of law.

(3.) Learned advocate Mr. Sojatvala has submitted that the petitioner is selected after the due process of law and he remained absent for the period from 22.9.1999 to 4.10.1999 which was considered to be a misconduct as no prior permission was obtained by the petitioner and on that basis a show-cause notice dated 7.10.1999 was served to the petitioner and on that basis the order of dismissal has been passed without holding any departmental inquiry against the petitioner. Learned advocate for the petitioner has also submitted that when misconduct has been alleged against any employee and for that misconduct no departmental inquiry is held by the State authority and his services has been terminated without holding any departmental inquiry and without giving any opportunity of hearing to the employee then such order of dismissal is contrary to the principle of natural justice. Therefore, that order is required to be quashed and set aside. Learned advocate Mr. Sojatvala has further pointed out that at the time when this Court has issued rule on 1.11.1999, this Court has also granted interim stay of dismissal order and on that basis the petitioner is working with the respondent. Learned advocate Mr. Sojatvala has also pointed out that ad interim relief which was granted by this Court on 1.11.1999 is confirmed by this Court on 24.11.1999 with liberty to the respondent to apply for vacation/modification of the said order after filing a detailed parawise reply to the petition otherwise matter will rest in due course. Learned advocate Mr. Sojatvala has submitted that no such approach has been made by the respondent during the pendency of this petition. Therefore, in result petitioner is working with the respondent. He also submitted that though petitioner is working on the basis of the ad interim order with the respondent, more than four year have passed, even there is no complaint made by the respondent against the petitioner for the subsequent service from the date of dismissal order. Therefore, petitioner is sincerely working with the respondent and earlier incident of remaining absent without prior permission was because of illness of his wife and children and that is how no prior permission was obtained and, therefore, respondent has passed dismissal order without holding any departmental inquiry against the petitioner. Learned advocate for the petitioner has also submitted that detailed inquiry as per rules is necessary even according to principle of natural justice when allegation of misconduct is alleged against the employee which is required to be proved by holding departmental inquiry. That was not done by the respondent and that is how according to him order of dismissal is required to be set aside. Learned advocate for the petitioner has relied upon decision of this Court in the case of GUJARAT STATE ROAD TRANSPORT CORPORATION V. CHANDULAL G. RASADIYA, 1993 (1) GLR 442.