C/SCA/11868/2017 ORDER DATED: 21/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 11868 of 2017 ========================================================== AHMEDABAD DISTRICT PANCHAYAT Versus D. S. SOLANKI & ORS. ========================================================== Appearance: MR HS MUNSHAW(495) for the Petitioner(s) No. 1 MS VYOMA K JHAVERI(6386) for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2,3 ========================================================== CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Date : 21/07/2025 ORAL ORDER 1. These facts are not in dispute. 2. The respondent No. 1 was appointed as Auxiliary Nurse Midwife in the petitioner Panchayat on 24.11.1969, she was due to attain the age of superannuation on 13.11.2003. 3. On 22.12.1988, the Respondent No. 1 made an application for grant of leave for a period of 6 months to facilitate her to go to the USA. This application was however, refused on 24.12.1998 on the ground that she had not obtained No Objection for foreign tour and that she had not given complete details and an undertaking that she would return to India. Despite this refusal of the application to grant the leave, nevertheless, the Respondent no. 1 proceeded to the USA. Page 1 of 5 C/SCA/11868/2017 ORDER DATED: 21/07/2025 4. It is a case of the Panchayat that despite issuance of several notices including the publication in the newspaper, the Respondent No. 1 did not respond and return to duty. Consequently, the Panchayat terminated the services on 25.11.2003. 5. This order of termination dated 25.11.2003 came to be challenged by the Respondent No. 1 on 23.03.2015 i.e. after a period of 12 years. It is obvious that the Respondent No. 1 had decided to file an appeal only after she returned from the USA, though the petitioner has not indicated the date on which she returned to India. The appeal filed by the Respondent No. 1, was however, rejected by the Appellate Authority on 14.05.2015 as being bereft of any merits. 6. Being aggrieved by this rejection of the appeal, the Respondent No. 1 approached the Tribunal and the Tribunal by the order dated 10.01.2017 has allowed the appeal, set aside the order of termination and directed payment of all retiral benefits to the Petitioner. As a consequence, the Panchayat is before this Court by way of this Writ Petition. 7. Learned Counsel appearing for the Panchayat, Shri Munshaw strenuously contended that the Tribunal has misdirected itself in entertaining the appeal filed by the Respondent No. 1. It is contended that the Tribunal ought not to have entertained the appeal and adjudicated the claim on its merits, when the order of termination of the C/SCA/11868/2017 ORDER DATED: 21/07/2025 year 2003 was challenged 12 years thereafter by filing an appeal. He submitted that this singular ground by itself ought to have dissuaded the Tribunal from entertaining the appeal. He also made submissions regarding the validity of the order of termination and sought to contend that the Panchayat was constrained to terminate her since there was no response from the Respondent No. 1 despite issuance of several notices including a publication made in the newspapers. 8. In response, learned Counsel appearing for the respondent No. 1, submits that the Tribunal was justified in allowing the appeal since it was indisputable that the service of Respondent No. 1 were terminated without conducting an inquiry. She contended that this fundamental defect was necessarily required to be corrected by the Tribunal by setting aside the order of termination and therefore, no fault could be found in the order of Tribunal. 9. As narrated above, it is not in dispute that the respondent No. 1 proceeded to USA after her application for grant of leave for a period of 6 months was rejected. The Respondent No. 1 had sought for leave only for the period of 28.12.1998 to 28.06.1999. If it was the intention of the respondent No. 1 that she would come back to the Country after 6 months, nothing prevented her from approaching her employer asking to be taken back for duty after the expiry of 6 months. It is to be noticed here that the Respondent No. 1 had applied for leave only for a period of C/SCA/11868/2017 ORDER DATED: 21/07/2025 6 months and not beyond. The Respondent No. 1 however, choose to disregard her own request and stayed away from service even after attaining age of superannuation. The Panchayat, rightly, in my view terminated the services of the Respondent No. 1 in the year 2003 i.e. 5 years after she had remained unauthorizedly absent. 10. It is not in dispute that the Panchayat did issue notices and also made a publication in the local newspaper. The argument of the Respondent No. 1 that the Respondent No. 1 was forced to shift her residence in view of certain difficulties in USA which resulted in non- communication of the orders cannot be a ground to be entertain either by the Tribunal or by this Court. If the Respondent No. 1 choose to remain unauthorizedly absent for nearly a half decade, her excuse that she could not receive the notice because she had changed her addresses would wholly untenable. 11. It is not in dispute that she had applied for leave of 6 months and she was therefore required to report back to the employer and seek for condonation of her absence, however, in this case, the Respondent No. 1 never chose to return during her entitlement to be in service and she only decided to prefer an appeal 12 years after she had been terminated and nearly 17 years after she has abandoned services. The Tribunal, in my view, without noticing this glaring fact has mechanically passed an order holding that the order of termination could not be sustained as it was C/SCA/11868/2017 ORDER DATED: 21/07/2025 not preceded by the department inquiry. 12. In a case of this nature, where an employee chooses to abandon her services for five years and thereafter chooses to prefer an appeal 12 years after an order of termination was passed, the exercise of discretion by the Tribunal was wholly improper. I am therefore of the view that the order of the Tribunal in entertaining the appeal and setting aside the order of termination cannot be justified in the facts and circumstances of this case. 13. In view of above, writ petition filed by the Panchayat is hereby allowed and impugned order passed by the Tribunal is quashed and set aside. Rule, if any, is made absolute. (NSSG,J) Mehul Desai Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: MEHULKUMAR BHIMABHAI DESAI(HCD0075), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 23/07/2025 11:50:04