IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 2739 of 1994
with
CIVIL APPLICATION NO. 4533 OF 1997
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B R ACHARYA
Versus
DIRECTOR
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Appearance:
1. Special Civil Application No. 2739 of 1994
MR IS SUPEHIA for Petitioner
GOVERNMENT PLEADER for Respondent No. 1, 2
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CORAM : MR.JUSTICE R.BALIA.
Date of Order: 05/05/97
ORAL ORDER
1.Heard learned counsel for the parties. The
petitioner has challenged the order dated 19.2.1994 by
which it has been ordered that petitioner’s services are
terminated with effect from 29.10.1989. The brief facts
leading to this order are that on 31.12.1993 petitioner
was required to show cause against his continuous absence
from duty since 18.10.1989 at the place of his transfer
and to take necessary consequential action in case
explanation is not accepted in accordance with CCA rules.
The petitioner has submitted his explanation on
14.1.1994.
2.The impugned order after giving history of the
previous litigation and references about the transfer
orders and various intimation to the petitioner for
joining the duty had passed the order by observing that
from his conduct it is presumed that the petitioner is
not willing to continue in service and there is no
necessity to hold an enquiry into the alleged misconduct
of remaining absent.
3.The order cannot but be termed an order of
termination of service and must conform to the norms
under Article 311, before such termination order can take
effect. The authority concerned has not resorted to any
of the provisos to Article 311(2) where the holding of
enquiry before dismissal/terrmination order, removal or
reduction in rank shall take place of a civil servant.
The opinion of the disciplinary authority, without going
into the question whether in the present case the
authority who has passed the order could be treated as
appointing authority, the same has also been challenged,
that he does not think it fit to hold an enquiry does not
absolve the authority from making enquiry in which
misconduct against the delinquent can be proved and to
pass necessary order thereafter, as the circumstances of
the case may warrant. Order on the face of it cannot be
sustained on its own telling and deserves to be quashed.
4.However, keeping in view the alleged conduct of
the petitioner in remaining absent from duty without
authority since October 1989, and keeping in view the
fact that petitioner had already attained the age of
superannuation, I deem it appropriate to quash the order
and direct the disciplinary authority to hold and
complete the enquiry into the alleged misconduct within a
period of 3 months from the date of receipt of this order
and make necessary orders in accordance with law. Since
the contention is about petitioner not discharging any
duty for the last so many years, claim of any emoluments
for that period or other service benefits like promotions
can be considered only after the enquiry into the alleged
misconduct of remaining wilfully absent from duty is
concluded in the light of findings reached thereon.
Rule made absolute accordingly. No order as to
costs.
Civil application is disposed off accordingly.
(Rajesh Balia, J)