1. By way of the present writ petition, the petitioner State has assailed the judgment and order of the Gujarat Civil Services Tribunal, Gandhinagar (the Tribunal) dated 22.09.2004 passed in Appeal No. 415 of 2001, whereby the Tribunal has quashed and set aside the order dated 18.08.2000 terminating the services of the respondent, and it is further directed that the matter is remanded to the department for taking appropriate action under Discipline and Appeal Rules if deemed proper, after considering the observations made in the judgement.

2. The facts of the case as stated in the petition are that :

3. The respondent was appointed as an Agriculture Assistant in the year 1963. On 01.07.1982, he was sent on deputation with the Gujarat Land Development Corporation (GLDC) as an Agriculture Assistant. He proceeded on leave from 01.07.1993 to 24.09.1993, and thereafter, he filed an extension application for leave and never returned to resume his duties. The respondent was also served with various notices for resuming his duties. Lastly, a public notice was also given on 06.08.1999, which was published in the newspaper asking the respondent to resume his duties. Despite various notices, the respondent did not turn up for duties and his whereabouts were also not known to the Department.

4. A detailed inquiry was made by the Corporation, where the respondent was serving. The respondent also did not turn up in the departmental inquiry and ultimately by order dated 17.08.2000, he was (terminated) dismissed from service. The same was challenged by the respondent by filing Appeal No. 415 of 2001 before the Tribunal. The Tribunal set aside the dismissal order and directed the petitioner to take appropriate action under the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (the Discipline and Appeal Rules) if deemed proper. The Tribunal also observed that if the petitioner so desired the respondent can be treated as voluntary retired from service.

5. Learned Assistant Government Pleader Mr. Soni appearing on behalf of the petitioner-State has stated that the Tribunal has grossly erred in interfering with the order o dismissal as the respondent has remained defiant towards his service. He remained on unauthorized leave, despite giving various notices to him to resume his duties. Lastly, a public notice was also published, for securing his presence but he did not resume. He has stated that unauthorized absence can be said to be abandonment of service of the respondent. Hence, the Tribunal should not have interfered with the penalty of dismissal as the same is proportionate to the misconduct of the respondent. He has also stated that the respondent was also issued a charge-sheet dated 20.03.1989 for various irregularities and after holding a departmental inquiry, the charges were proved. He has stated that by order dated 25.05.2000, the penalty of stoppage of one increment was also imposed. He has stated that in order to avoid this penalty the respondent had left the country and had remained continuously absent and therefore, the order of the Tribunal deserves to be interfered with by this Court.

6. Learned advocate Mr. Dhirendra Mehta appearing on behalf of the respondent has contended that the judgment and order of the Tribunal does not require any interference. He has submitted that the Tribunal has rightly held that Rule 33 of the Bombay Civil Service Rules, 1959 (the BCSR) was amended and it was incumbent upon the disciplinary authority to hold departmental inquiry before dismissing the respondent from service since Rule 33 of the BCSR which provided for automatic termination was deleted. He has also relied upon the observations made by the Tribunal wherein the Tribunal has observed that the final decision was to be taken by GLDC, which was the Head of the Department of the respondent and not by the petitioner. He has also relied upon the observation made by the Tribunal that the respondent had applied for voluntary retireme