JUDGMENT :

1. For the purposes of this judgment, facts of Special Civil Application No.1542 of 2019 will be considered.

2. State of Gujarat is in appeal against the order of the Gujarat Civil Services Tribunal, Gandhinagar, dated 13.03.2018, by which, the Tribunal has modified the order of compulsory retirement inflicted on the respondent on 01.06.2015 to that of three increments with future effect.

3. Facts in brief would indicate that the respondent no.1 was working as a clerk in the office of the Mamlatdar on being declared surplus, he was reappointed as a clerk with the Government Polytechnic at Porbandar. He was thereafter promoted as a senior clerk on 21.11.1995. On 23.07.2002, the petitioner was transferred to the Government Engineering College, Bhuj. For having remained absent for a period of 528 days without permission, for the period from 01.09.2003 to 10.02.2005, the petitioner was inflicted with the penalty of stoppage of two increments with future effect by an order dated 10.09.2007. It appears that thereafter, for leave for the period from 22.05.2009 to 08.06.2010, departmental proceedings were initiated against the petitioner by issuing a notice on 21.05.2010. A departmental proceedings were held and by an order dated 01.06.2015, the order of compulsory retirement was passed. That was a subject matter of challenge in appeal before the Tribunal which by the impugned order reduced the penalty as aforesaid.

4. Mr. Soaham Joshi learned AGP would assail the order of the Tribunal and make the following submissions:

4.1 He would submit that the respondent no.1 was a habitual absentee. In the earlier part of his service tenure, when he had remained absent from 01.09.2003 to 10.02.2005, he was visited with the penalty of stoppage of two increments with future effect.

4.2 He would therefore submit that for the period in question from 22.05.2009 to 08.06.2010, when the respondent no.1 remained absent for a period of 383 days. He remained absent without making any application for leave. Therefore, it was rightly treated as leave unauthorized, for which, charge-sheet was issued, the respondent did not contest the proceedings before the departmental authorities and looking to his past misconduct, the punishment of compulsory retirement was imposed on 01.06.2015.

4.3 Mr. Joshi would further submit that the Tribunal clearly fell in error when it was a specific case of the department that he had not made any application or had informed the department of his absence and the Tribunal therefore could not have sought support from Rule 11 of the Gujarat Civil Services (Leave) Rules and Rule 60 thereof to hold that the respondent in fact, though later in point of time, had informed the department of his ailing mother, the penalty was just and proper. Even in the earlier round, penalty of absence was proved, for which, he was penalized and on the ground of proportionality, the Tribunal should not have reduced the rigors of penalty and modified it to penalty of stoppage of three increments with future effect.

4.4 In support of his submissions, Mr. Joshi would also rely on the further affidavit filed by the State wherein departmental proceedings' papers are produced viz. the charge-sheet and certain other documents showing that for the period from February 2008, the petitioner had been consistently absent in the earlier part of time and for the period of 383 days in question looking to his consistent habitual absence, the punishment of compulsory retirement was appropriate.

5. Mr. Karathiya learned counsel appearing for the respondent would submit that the order of the Tribunal need not be interfered with as for the absence of 383 days, even according to the case of the department, the petitioner had on 09.06.2009 made an application invoking Rule 60 of the leave Rules 2002, the department itself on 29.03.2011, addressed a letter to the Commissioner of Technical Education informing him of such an application being made by the respondent and point