( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 39 OF 2010 The Chief Executive Officer, Zilla Parishad, Latur. PETITIONER VERSUS Rajkumar s/o Pandharinath Padile, R/o Nalpeer, Taluka Udgir, District Latur. RESPONDENT …. Mr. V.R. Sonwalkar, advocate for the petitioner. Mr. V.D. Gunale, advocate for the respondent. …. [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th July, 2010] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally for disposal at the stage of admission. 2. The petitioner challenges order dated 8th April, 2010 rendered by learned Additional Divisional Commissioner, Aurangabad, in appeal No. DB-Appeal-Cell-68-2008 whereby penalty awarded to the respondent was reduced to the extent of stoppage of three (3) increments with effect on further ( 2 ) increments and also to consider the unauthorized absence of the respondent in the service, as extraordinary leave, instead of dismissal from service. 3. It is not necessary to elaborately set out the rival contentions. Suffice it to say that the respondent was admittedly in the employment of the Zilla Parishad, Latur as a multipurpose health worker (MPW). He was found absent from duty on various occasions. The Chief Executive Officer, Zilla Parishad issued him notices from time to time. His unauthorized absence from duty for various periods was not condoned. He was served with a show-cause notice dated 16th November, 2005. He did not submit any explanation. Eventually, departmental enquiry was initiated against him after issuance of notice dated 31st March, 2006. He submitted his explanation. According to him, he was absent from duty on account of illness. It was found that he was transferred to Primary Health Centre at village Andhori. He did not report to the duty. This lapse was committed by him during the pendency of the departmental enquiry. Consequent upon findings recorded during the departmental enquiry, which indicated that the respondent did not attend the duty and was found absent without any justification, the termination order was issued. ( 3 ) The respondent challenged the order of termination by filing appeal which is partly allowed by the learned Additional Divisional Commissioner and the order of dismissal is converted into the order impugned herein. 4. Heard learned counsel for the parties. 5. Mr. Sonwalkar would submit that the Zilla Parishad took appropriate view in the matter of punishment. He would further submit that unauthorized absence of the respondent impaired administration of the Zilla Parishad. He would submit that there was no substantial reason for the appellate authority to interfere with the order of penalty. He contended that the dismissal of the respondent is warranted in order to avoid any wrong measure to other employees. Per contra, Mr. Gunale would submit that the respondent was physically unable to attend the duty. He would further submit that if the order of compulsory retirement is replaced in place of the impugned order, then also the respondent has no much grievance. 6. The respondent was found absent from the duty on multiple occasions. It appears that there was also a charge ( 4 ) levelled against him regarding his disorderly behaviour under influence of alcohol. His grievance before the appellate authority that except statement of one employee by name Shri Kande, there was no other tangible material including medical certificate. One cannot be oblivious of the fact that an employee, particularly one who is attached to the Primary Health Centre, may have tendency to skip immediately if such kind of disorderly behaviour is noticed and the medical examination may be rather difficult in the given situation. Obviously, only because there was no medical examination conducted, it cannot be said that the charge of his disorderly behaviour under drunken condition was totally without material. On consideration of the relevant material, it is amply clear, therefore, that continuation of the respondent in service may be detrimental to the discipline of administration of the Zilla Parishad. Still, however, it also has to be noted that the respondent was not charged with any serious misconduct like misappropriation of funds and that his unauthorized absence was the main charge levelled against him. Considering these aspects of the matter, taking a much lenient view, likewise the appellate authority i.e. learned Additional Divisional Commissioner, is not warranted. ( 5 ) 7. Taking overall view of the matter, it would be appropriate and necessary to replace the order of dismissal by order of compulsory retirement. The ends of justice would meet if such order is rendered in as much as the respondent may be entitled to receive proportionate pension and his family will not be grave sufferer due to the alleged misconduct on his part. Hence, the petition is partly allowed. The impugned order is set aside. Instead of the order of dismissal, the penalty order shall be replaced by order of compulsory retirement of the respondent, with further direction that all admissible pensionary benefits and all consequential benefits may be made available to him by the Chief Executive Officer, Zilla Parishad, within couple of months. Rule made absolute accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp39-10