The absence of evidence for departmental proceedings rendered the dismissal arbitrary, necessitating the appellant's retirement benefits to be fixed as per notional service.

JUDGMENT :

(A.S. SUPEHIA, J.)

1. On 01.10.2024, this Court had passed the following order.

“Learned advocate Mr. Shastri shall produce the original record by the next date of hearing and a photocopy of the said record shall be supplied to learned advocate Mr. Kharadi and to this court also. The appellant shall also give his service details by filing additional affidavit by the next date of hearing. S.O. to 23.10.2024.”

2. Thereafter, the matter has been adjourned on numerous occasions. Today, when the matter is taken up for hearing, learned advocate Mr.U.M. Shastri, appearing for the respondent Nos.2 and 4, has submitted that despite best efforts having being made, the respondent-authorities, have failed to trace out the record of the departmental/Tribunal proceedings.

3. ADMIT. Learned advocate Mr.U.M.Shastri, waives service of notice of admission on behalf of the concerned respondents.

4. The present Letters Patent Appeal filed under Clause 15 of the Letters Patent, 1865, is directed against the order dated 07.11.2017 passed by the learned Single Judge disposing of the captioned writ petition filed by the appellant seeking a direction to complete the departmental inquiry and payment of subsistence allowance within the stipulated period and also by way of an amendment, a prayer clause was inserted seeking quashing and setting aside the decision taken by the Education Tribunal on 15.12.2009.

5. The learned Single Judge by the impugned order dated 07.11.2017 has disposed of the writ petition by issuing some clarificatory direction with regard to the subsistence allowance.

6. Learned advocate Mr.Kharadi, appearing for the appellant, at the outset, has submitted that after the dismissal order dated 21.04/05.2005 was set aside by the Appellate Authority, no departmental proceedings were either continued or initiated afresh and hence, the appellant was constrained to file the writ petition being Special Civil Application No.15770 of 2012, which was disposed of by the order dated 11.12.2012 directing the present appellant to file a detailed representation and the respondents were directed to decide the same on or before 21.01.2013. It is submitted that after the present appellant – original petitioner made a representation dated 20.12.2012, surprisingly, he was issued a letter dated 28.12.2012 referring some proceedings of the Tribunal, which the present appellant is unaware of. He has submitted that thus in view of the curious facts and in absence of the documents, the respondents were required to pay pension and retirement benefits to the appellant. It is urged by learned advocate Mr.Kharadi, that the learned Single Judge has failed to appreciate the aforesaid facts in its true perspective, hence the same may be quashed and set aside.

7. Per contra, learned advocate Mr. U.M. Shastri, appearing for the respondent-authorities has submitted that the impugned order passed by the learned Single Judge may not be interfered with as the respondents are not having any documentary evidence to point out as to whether any departmental proceedings are held or not. It is submitted that the original record is not available, and hence, the appellant cannot be reinstated in service.

8. We have heard the learned advocates appearing for the respective parties.

9. In the additional affidavit filed by the appellant, it is mentioned that the present appellant, on attaining the age of superannuation, has superannuated on 31.05.2023.

10. The facts, which are established from the pleadings, are that the appellant was serving as a Primary Teacher at village Kadvabariya, Taluka Kandana, District Panchmahals and was suspended by the order dated 08.10.2010 in view of the contemplation of the departmental proceedings. The charge appears to be that the appellant, while he was serving as a Assistant Teacher, had illegally withdrawn the GPF amount of 4 employees by forging the papers. Ultimately, the appellant was dismissed from the services by the order dated 21.04/05.2005