RAJUBHAI ISHWERBHAI GARASIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr. Pathak, the learned advocate appearing for the petitioner and Mr. Pandya, the learned Assistant Government Pleader who is appearing for the respondent authorities. In this petition, the petitioner has challenged two orders. One is the order of punishment dated 21st September, 1998 which is at page 13 wherein the punishment of removal from service has been imposed by the DSP Valsad and the another is the order passed in appeal by the appellate authority on 29th June, 1999 wherein the appeal of the petitioner against the order of removal dated 21.9.1998 has been rejected by the appellate authority.

(2.) This petition was admitted by this court by issuing rule thereon by order dated 27th December, 2000. The respondents have filed their reply to the present petition.

(3.) As per the facts of the present petition, the petitioner was working with the respondents as unarmed police constable and had completed long service with the respondents. It was alleged against the petitioner that he remained absent without prior permission of the authority for a period from 8thNovember, 1994 to 12th October, 1995 for a period of about 339 days in all for which he was served with a charge sheet on 22.10.1996 wherein it has been alleged against him that (1) he remained absent without prior permission for a period of 339 days continuously and (2) he is having habit to remain absent without prior permission in past and, therefore, he was served with the charge sheet wherein it has been clarified that in past, for 23 times, the petitioner had remained absent without prior permission of the authority and for that some minor penalties were imposed against the petitioner in past by the department. On the basis of the charge sheet, departmental inquiry was initiated against the petitioner and the report of the inquiry officer was submitted on 29.11.1997 and, thereafter, the petitioner was served with the notice to show cause on 18.6.1998 which was replied by the petitioner on 21.8.1998. At this stage, it is required to be noted that in reply, the petitioner has made only two request for consideration of the respondent authorities that that in view of the gravity of the alleged misconduct of remaining absent without prior permission and also having past record about similar misconduct, punishment of removal is harsh and unjustified and he also suggested about his poor economical condition and, thereafter, the petitioner was personally heard by the competent authority on 9.9.1998 and ultimately the competent authority passed order of removal against the petitioner against which appeal was preferred by the petitioner which too was rejected by the appellate authority wherein it was pointed out by the petitioner that for the period of his absence of 339 days, the competent authority has sanctioned leave without pay, meaning thereby his leave has been sanctioned for unauthorized absence. This fact was highlighted by the petitioner in his appeal before the appellate authority by relying upon the judgment of the apex court and other judgments. Detailed reply was filed by the petitioner and it was requested to consider his economical condition and the compelling circumstances of ill ness and the adverse family circumstances for which he was compelled to remain absent for 339 days without prior permission. He also suggested in appeal that because of the illness, he was remaining absent from duty which was justified by the certificate of his fitness produced by him at the time of joining after remaining absent for 339 days. and on that basis, he was granted leave without pay for the said period by order dated 21.10.1995 and that order has been noted in his muster roll by the competent authority. The appellate authority passed an order on 29thJune, 1999 and considering the appeal, it has concluded that the charges levelled against the petitioner have been found to have been proved by the inquiry officer and also considering his past record, wherein misconduct of similar nature were committed and he was punished in past, there is no scope to modify the order of punishment and, therefore, the appellate authority rejected the appeal. The petitioner, therefore, filed the present petition before this court.