( 1 ) THE petitioner V. I. Khalifa of Surendranagar has filed the present Special Civil Application for the issuance of a writ order or direction under Art. 226 of the Constitution of India for quashing the order of his dismissal dated 17-5-1985 and confirmed on 10 The copies of the two orders are at Annexures `a and `c to the petition.

( 2 ) THE facts shortly stated are that the petitioner joined as a Peon with the Surendranagar District Co-operative Bank Ltd. Patdi Branch in the year 1961. Since then he was working as a Peon at Patdi Branch till 10-6-1985 when he was posted as a Peon at the Limdi Branch of the Bank. The petitioner was a Class IV servant drawing a salary of Rs. 648. 00 and D. A. with House Rent Allowance etc. per month. On 17 the petitioner was served with an order dismissing him from service on the ground that he had intentionally remained on leave without pay for more days than allowable under settlement which leave without pay was termed as a serious misconduct by the respondent. The grievance of the petitioner is that before passing the impugned dismissal order the petitioner was not given a show-cause notice nor was he given an opportunity to render an explanation as to the alleged misconduct.

( 3 ) THE petitioner submitted an application dated 29-5-1985 to the respondent explaining the reasons for being on leave. Taking into consideration his explanation the order of dismissal was temporarily suspended and the petitioner was directed to report to Limdi Branch of the Bank. A copy of this order is at Annexure `b to the petition. It was expressly stated in the said order that in order to revise the earlier order that in order of suspension was put into abeyance temporarily and that the petitioner was to report on duty subject to a condition that the period of his leave shall be considered as leave without pay. The petitioner then served at Limdi Branch from 10-6-1985 till 10 When he was served with a further order of dismissal. The petitioner alleges that the impugned orders of dismissal are against the principles of natural justice inasmuch as prior to the passing of the order the petitioner was not given show cause notice and no opportunity was given to him to explain why he went on leave without previous permission.

( 4 ) THE respondent has filed an affidavit-in-reply contesting the petition. It is contended on facts that petitioner had been in the constant habit of remaining absent without obtaining leave. The impugned order was not passed in violation of the principles of natural justice but in fact it was to do him justice that the order of dismissal was suspended. However he did not show any improvement in his conduct and therefore his dismissal was required to be latter on confirmed. It is contended to which no affidavit in rejoinder is filed that in all the petitioner remained on unauthorised leave for a total period of 114 days. Perusal of Annexure `a i. e. the earlier order of dismissal dated 17 discloses that the petitioner was entitled to enjoy a leave of 365 days inclusive of the days he was entitled to be on leave without pay whereas he had in all enjoyed a leave of 479 days till 5-2-1982. It is therefore contended that since the petitioner did not improve his conduct even after he was given an opportunity to do so the respondent was constrained to put an end to his service with it. It is denied that the finding of misconduct of the petitioner is contrary to the evidence on record. Since the petitioner was apprised of his conduct of remaining on unauthorised leave time and again there is no question of breach of the rule of audi alteram partem. It is also contended that being on an unautharised leave is a disputed question of fact which could only be properly decided in the proceedings under the B. I. R. Act.

( 5 ) TWO preliminary questions are raised by the respondent. The respondent is not `state as envisaged in Art. 12 of the Constitution of India and therefore it is not a