JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. G.M. Joshi for the petitioner and learned Assistant Government Pleader Mr. Swapneshwar Goutam for the respondent State. The petitioner is seeking reliefs from this Court under Article 14, 16, 226 and 311 of the Constitution of India and prayed to quash and set aside the impugned order dated 28.11.2007 and thereby to direct the respondent-Government to treat the petitioner as superannuated from his service with effect from 30.11.2007 with further direction to pay him all the retiral dues in accordance with law and consider the period of absence of the petitioner on duty as leave without pay or in any other appropriate manner. The petitioner has also prayed for the directions to the respondents to prepare the pension papers of the petitioner and pay him amount of gratuity and other benefits. 2. However, respondents have resisted such petition by filing affidavit in reply and thereby, they have disclosed facts with reference to some pending departmental inquiry. 3. The petitioner has amended the petition by adding prayer and thereby now, the petitioner has also prayed for a direction to quash and set aside the action of the respondent in initiating and conducting the departmental inquiry by charge sheet dated 28.02.2007 and subsequent actions thereto. The petitioner has also prayed for staying further proceedings of departmental inquiry by way of amended prayer. 4. While admitting the petition, vide order dated 29.09.2008, the Co-ordinate bench of this Court granted interim relief with respect to inquiry only. However, perusal of the record shows that practically, the inquiry which was referred by the respondent in their pleading was kept in abeyance by themselves and to that effect they disclosed on oath whereby; Mr. H.N. Chaudhary, holding the office of Under Secretary, Narmada Water Resources Water Supply and Kalpsar Department, at the relevant point of time filed such affidavit in reply on 24th September, 2008, perusal of the same is relevant not only for the purpose of clarifying the status of departmental inquiry but it also reflects the approach of concerned Government officer on oath. The relevant paragraph reads as under: "So far as the aspect of unauthorized absence is concerned, the same is subject matter of challenge in the present petition. The relevant paragraph reads as under: "So far as the aspect of unauthorized absence is concerned, the same is subject matter of challenge in the present petition. It is made clear herein that the authority has decided not to proceed further with the inquiry, till the petition is decided by this Hon'ble Court and further course would depend upon the outcome of the present petition." 5. Thereby, the respondent employer wishes to continue departmental inquiry against the present petitioner, whom they considered as resigned in the year 2007, by impugned order of the year 2008. Whereas in this petition against the decision of the employer, consideration of his absence as unauthorized absence from service has been challenged. At the same time, it could not be ignored that though as many as 3 departmental inquiries are stated to have been initiated as disclosed in para 6 of their affidavit in reply dated 03.04.2008, there is no disclosure in any manner whatsoever with respect to charges in all such departmental inquiries. However, pursuant to the statement in para 4 of the affidavit in reply, it cannot be presumed and assumed that the charges against the petitioner is regarding unauthorized absence. 6. During the course of submissions by both the sides, it becomes clear that in fact, there is no departmental inquiry based on charges with reference to unauthorized absence and therefore, prima facie, it becomes clear that no departmental inquiry has been held against the petitioner, so far as unauthorized absence is concerned. 7. It is undisputed fact that the petitioner has joined service of the respondent on 11.05.1973 therefore, considering his tenure of services, he has reached the age of superannuation and retirement on 30.11.2007. During such period he has completed 25 years of service. It is also undisputed fact that lastly the petitioner had served as Deputy Executive Engineer with the respondents. 8. It is the case of the petitioner that since most of the family members of the petitioner had shifted to foreign countries, the petitioner had proceeded for leave in the year 2002 to visit such foreign countries to meet his family members. The petitioner resumed his duty immediately after completion of leave period. 8. It is the case of the petitioner that since most of the family members of the petitioner had shifted to foreign countries, the petitioner had proceeded for leave in the year 2002 to visit such foreign countries to meet his family members. The petitioner resumed his duty immediately after completion of leave period. It is also submitted by the petitioner that thereafter because of his ailing mother, he was unable to join duties as Deputy Executive Engineer which requires continuous traveling for visiting all the sites and therefore he had tendered a proposal seeking VRS from 31.05.2003, vide his application dated 25.02.2003. Copy of such application is produced at Annexure - A wherein there is specific disclosure that the petitioner has rendered services of 30 years and he would like to apply for voluntary retirement from the service of the respondent because of personal reasons and on account of his inability to serve. 9. However, it is submitted that such prayers was rejected by the respondent on the ground that departmental inquiry was pending against the petitioner at that time. It is certainly clear that when the petitioner has voluntarily disclosed that he is unable to serve in the department because of his personal reason of health, it would be necessary for the respondent to complete the departmental inquiry at the earliest and take appropriate decision in accordance with law. However, his request was denied pursuant to the decision and outcome of departmental inquiry. In view of such fact the details of departmental inquiry need to be disclosed before the Court. Though, the petitioner has contemplated necessary information, and though some of the information is accepted by the respondents with reference to departmental inquiry, the respondents failed to disclose basic facts in such departmental inquiry including charges leveled against the petitioner in such departmental inquiry. 10. Meanwhile, since the petitioner was unable to serve, he applied for leave of 75 days, which was sanctioned by the competent officer vide order dated 11.09.2003. The petitioner has renewed his application for voluntary retirement again by his letter dated 17.10.2007. Thereafter, he again proceeded on leave for 125 days earned leave. 10. Meanwhile, since the petitioner was unable to serve, he applied for leave of 75 days, which was sanctioned by the competent officer vide order dated 11.09.2003. The petitioner has renewed his application for voluntary retirement again by his letter dated 17.10.2007. Thereafter, he again proceeded on leave for 125 days earned leave. Meanwhile, considering the tenure of services of the petitioner, when he was due to be retired at the age of superannuation on 30.11.2007, before such date the petitioner has on 17.10.2007, 27.10.2007 and 16.11.2007 requested the respondents to permit him to resume duties. The petitioner resumed his duties for couple of days so that he can be superannuated on 30.11.2007 and requested for granting leave as leave without pay for the period, during which he could not join office duties. At this stage initiation of departmental inquiry, which was alleged to have been pending or to initiate departmental inquiry for such unauthorized absence of 1222 days as allowed by the respondents is nothing but selective steps by the respondents. As submitted by the petitioner, he was orally called by the respondents to make representation on 23.11.2007 as to why he should not be deemed to have resigned from services, as per the amended Rule 16 of Gujarat Civil Services (Leave) Rules, 2002. Therefore, the petitioner addressed a letter dated 23.11.2007 and requested the respondents to grant leave and pointed out that he wanted to voluntarily retire from services due to his ill health and inability to resume duty. 11. By the order dated 28.11.2007, the respondents have passed the detailed order of 7 pages directing the petitioner to resume his duties. Such impugned order dated 28.11.2003 is now disclosing that since the petitioner has remained absent from 01.10.2003 onwards and therefore, considering the amended Rule 16 of the Gujarat Civil Services (Leave) Rules, his absence is considered as Leave without pay. 12. On perusal of such impugned order, it becomes clear that after 30.09.2003 till the date, leave of the petitioner was sanctioned by the respondents. The petitioner has applied for further leave by letter dated 27.09.2003 with effect from 18.07.2003 for 167 days as earned leave. The disclosure in such order practically, confirms that all these leave were granted by the department at the relevant point of time. The petitioner has applied for further leave by letter dated 27.09.2003 with effect from 18.07.2003 for 167 days as earned leave. The disclosure in such order practically, confirms that all these leave were granted by the department at the relevant point of time. It is stated that on completion of such leave, instead of joining duties, the petitioner has again applied for leave initially on 26.12.2003, then again on 03.02.2004 and then again on 03.05.2007 for earned leave of 198 days, commuted leave for 89 days and again earned leave for 200 days and commuted leave for 130 days respectively. If the petitioner was absent from duty till 01.10.2003, then the department certainly should have communicated about such unauthorized absence and thereby instead of waiting for 5 years, they should have to taken steps immediately and they should have initiated departmental inquiry instead of waiting till 2007. 13. The impugned order thereafter discloses that notice was given on 17.05.2004 to the petitioner conveying that he should join his duties within 10 days, otherwise departmental inquiry would be initiated against him. Therefore, now it is clear that respondents are aware that if the petitioner does not join his duties within 10 days from 17.05.2004 then departmental proceedings would be initiated against him for not remaining present on duty. At the cost repetition, it is very much clear that no departmental inquiry had ever been initiated against the petitioner for unauthorized absence. Copy of such notice dated 17.05.2004 is annexed by the respondents with their affidavit in reply. Since petitioner had not remained present after completion of leave, notice was issued. It is disclosed in the impugned order dated 28.09.2003 and Show Cause Notice dated 17.05.2004 that in absence of petitioner on duty after 10 days from the receipt of such notice, departmental inquiry would be initiated. Therefore, if it was unauthorized absence between such period, there would be initiation of action against him and if no action was ever initiated for such long time, then such disclosure by the respondents is certainly against the factual details on record and thereby irregular and illegal. 14. Therefore, if it was unauthorized absence between such period, there would be initiation of action against him and if no action was ever initiated for such long time, then such disclosure by the respondents is certainly against the factual details on record and thereby irregular and illegal. 14. It is submitted that thereafter when again the petitioner has applied for further leave by his letter dated 14.07.2004 and 14.06.2004, again the respondents have conveyed to the petitioner to join his duties within 2 days, and if he fails to join duties, then action as per the Rule would be taken. The petitioner thereafter even applied for leave on 12.07.2004, 02.08.2004 and again for the period from 30.09.2004, for which dates of his leave application is wrongly stated in the impugned order. However, the fact remains that after disclosing the details regarding the different application seeking leave up to 30.11.2004, categorically discloses an order of completion of leave, therefore, there is reason to believe that leave was granted for such period. However, thereafter by letter dated 23.08.2004 (date is wrongly stated in the impugned order), no such allegations were placed on record. The respondents have conveyed to the petitioner that if he fails to join the duty immediately, then his absence would be considered as unauthorized and thereby necessary actions would be taken against him. Therefore again respondents reiterated that in case of unauthorized absence, they have to initiate departmental inquiry whereby by letter dated 27.08.2004, the petitioner was addressed a communication that his request for voluntary retirement, would be considered on completion of departmental inquiry. But, before considering the request of the petitioner for voluntary retirement and before completion of departmental inquiry, the impugned order is passed whereby petitioner was posed/considered as resigned from services and thereby all retirement benefits were denied to the petitioner. 15. It is evident from the above fact that leave of the petitioner was admittedly granted till May 2004 and therefore such decision is certainly arbitrary, illegal and unreasonable. From the impugned order, it becomes clear that the impugned order is passed in utter hurry. When the petitioner was otherwise going to be retired on superannuation and therefore just to avoid and extend reasonable benefits to him for his service of almost 25 years. 16. From the impugned order, it becomes clear that the impugned order is passed in utter hurry. When the petitioner was otherwise going to be retired on superannuation and therefore just to avoid and extend reasonable benefits to him for his service of almost 25 years. 16. The impugned order further confirms that the petitioner was called by the respondents to join duties immediately on account of work of Sardar Sarovar Scheme with disclosure that if he remains absent, his absence would be treated as unauthorized absence. Therefore it becomes clear that till September 2004, the petitioner was never considered as unauthorizedly absent from duty and his leave applications were treated as allowed. Similar was the situation even by the 26.11.2004, when similar notice was issued. 17. Thereafter, by letter dated 16.02.2005, the petitioner has applied for leave on medical ground, however, now for the first time by impugned order that was passed in the year 2007, respondents has come forward with a plea that such application for leave on medical ground is not accompanied by Civil Surgeon's Certificate and now for the first time in the impugned order it is stated that leave application dated 16.05.2005 is not accepted i.e. not granted. Therefore, when there is no disclosure of rejection of any previous leave applications, the previous leave applications were considered to have been granted. 18. Several facts on record makes it clear that on 29.05.2005, when the petitioner has applied for Earned leave and thereafter on 29.05.2006, 16.10.2006, 28.03.2007, 29.10.2007, there is no disclosure whether all such leaves were granted or refused. But after referring the petitioner's letters dated 17.10.2007 and 16.11.2007, it is stated by the respondents that as per the revised Rules, when the petitioner was not in duty for more than 1 year, he was considered absent from duty and therefore it was considered that he has resigned from the service. Ultimately, it was stated in the impugned order that since the petitioner was suffering from problems and joined duty only to get retiral benefits and since he has not joined duty even after the repeated notices, his absence was considered as unauthorized absence from duty and thereby provision of the Rule 16 of the Rules, which were amended by order dated 01.12.2006 are applied to the case of the petitioner for considering that he has resigned from the duty. The petitioner was considered as resigned from duty by letter dated 28.02.2007, whereas departmental inquiry was initiated against the petitioner only by order dated 01.03.2008 when such fact was disclosed only by letter dated 01.03.2008 i.e., after completion of more than 1 year. But such details was communicated to the petitioner only by letter dated 24.03.2008 wherein also only disclosure is with reference to Departmental Inquiry as Case No. 49 of 2008 conveying date, time and place where he was required to remain present for such departmental inquiry. Therefore, when departmental inquiry is pending for unauthorized absence, respondents have to wait for outcome of such departmental inquiry before issuing impugned order whereby the petitioner was considered as resigned from service. Therefore, it becomes clear that respondents are aware that they have to initiate departmental inquiry, but, as aforesaid, when the petitioner was about to retire on superannuation, the impugned order is passed without following law and Rules applicable to such situation. 19. If we peruse defense version in the form of affidavit in reply dated 03.04.2008 sworn by Under Secretary of the respondent, though, there is specific admission, by and large respondents have supported as usual, their action by reproducing the factual aspect, without realizing that whether such Rule is actually applicable in the case of the petitioner or not, in as much it is settled legal position that amendment in such Rules cannot be made applicable retrospectively. Such settled legal position does not require much discussion. However, learned advocate for the petitioner has referred to decision of the Hon'ble Supreme Court reported in (1989) 3 SCC 448 in the case of Pyarelal Sharma v. Managing Director & Others wherein while dealing with the termination of service and issue of dismissal, the Hon'ble Supreme Court has observed and held as under: "21. This takes us to the last point which we have discovered from the facts. Regulation 16.14 before amendment consisted of only clauses (a) and (b) relating to the abolition of post and unfitness on medical ground. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. The company had no authority to terminate the services of an employee on the ground of unauthorised absence without holding disciplinary proceedings against him. The regulation was amended on April 20, 1983 and grounds (c) and (d) were added. Amended regulation could not operate retrospectively but only from the date of amendment. Ground (c) under which action was taken came into existence only on April 20, 1983 and as such the period of unauthorized absence which could come within the mischief of ground (c) has to be the period posterior to April 20, 1983 and not anterior to that date. The show-cause notice was issued to Sharma on April 21, 1983. The period of absence indicated in the show-cause notice is obviously prior to April 20, 1983. the period of absence prior to the date of amendment cannot be taken into consideration. When prior to April 20, 1983 the services of person could not be terminated on the ground of unauthorised absence from duty under Regulation 16.14 then it is wholly illegal to make the absence during that period as a ground for terminating the services of Sharma. The date of show-cause notice being April 21, 1983 the unauthorized absence from duty which has been taken into consideration is from December 20, 1982 to April 20, 1983. Whole of this period being prior to the date amendment of Regulation 16.14 the same could not be made as a ground for proceeding under ground (c) of Regulation 16.14. The notice served on the appellant was thus illegal and as a consequence the order of termination cannot be sustained and has to be set aside." 20. Thereby, the Hon'ble Supreme Court has categorically held that the employer has no authority to terminate service of the employee on the ground of unauthorized absence without holding disciplinary proceedings against him and that amended regulation cannot operate retrospectively but, only from the date of amendment. If we peruse factual details of such reported case, it is almost similar to the factual details of the present case, in as much as, the petitioner before the Hon'ble Supreme Court is also considered as unauthorizedly absent from duty but, after discussing factual details and relevant provisions and decisions, the Hon'ble Supreme Court has held as above. While allowing the appeal of employee, it is ordered that employer shall pay 60% of the backwages to the petitioner. While allowing the appeal of employee, it is ordered that employer shall pay 60% of the backwages to the petitioner. Thereby it is very much clear that no one can be terminated without holding disciplinary inquiry against him when department came forward with allegation of misconduct or any other charges. 21. Whereas respondents are relying upon the decision in the case of Chennai Metropolitan Water Supply and Sewerage Board and Others v. T.T. Murali Babu reported in (2014) 4 SCC 108 wherein the Hon'ble Supreme Court has held that it is not an absolute proposition of law that whenever there is long unauthorized absence, it is obligatory on the part of disciplinary authority to record a finding that the said absence is willful even if, an employee fails to show the compelling circumstances to remain absent. However, if we see the entire judgment, there is nothing in the judgment which confirms that unauthorized absence can be presumed by the department solely on the basis of absence from duty because there is difference between absent from duty and unauthorized absence. So far as absent from duty is concerned, if there is reasonable explanation during proceedings in accordance with law i.e. Departmental Inquiry then it cannot be considered as unauthorized absence. What is decided by the Supreme Court is to the limited extent that for considering any absence as unauthorized absence, departmental inquiry conducted should prove willingness and ability of the concerned employee. Unauthorized absence of employee cannot be considered as misconduct and penalty cannot be imposed irrespective of facts since it depends on various factors. 22. Therefore, it is now clear that when second course is opted by the employer alleging misconduct, then they have to hold inquiry. In other words, unauthorised absence is to be considered as misconduct before imposing penalty, for which misconduct needs to be proved. 23. 22. Therefore, it is now clear that when second course is opted by the employer alleging misconduct, then they have to hold inquiry. In other words, unauthorised absence is to be considered as misconduct before imposing penalty, for which misconduct needs to be proved. 23. Respondents are also relying upon the judgment and order dated 15.06.2016 by this Court in the case of Yashvant Somabhai Brahmbhatt v. State of Gujarat wherein learned Single Judge has placed reliance upon the case of Chennai Metropolitan Water Supply and Sewerage Board and Others reported in (2014) 4 SCC 108 and held against the employee, but scrutiny of judgment shows that in that case also departmental inquiry was held, when the Court held in para 13 and took note of the fact that disciplinary authority showed some mercy by not imposing any major penalty. Therefore, in any case it cannot be said that the penalty of relieving from service is imposed without holding departmental inquiry and therefore, none of the above judgments would help the respondent in any manner. 24. So far as the proceedings of the departmental inquiries are concerned, respondents have failed to disclose requisite details of the departmental inquiry though it was pleaded in para 6 that 3 departmental inquiries were conducted against the petitioner when he was in service. However, out of three, two inquiries were concluded whereby first departmental inquiry was dropped by accepting explanation by the petitioner whereas in second inquiry, petitioner was exonerated. Both such orders are of 28.08.2003 and 03.09.2004, respectively. However, though it is pleaded that one departmental inquiry is pending against the petitioner, no further steps are taken to disclose the factual details of such inquiry and thereby, there is reason to believe that none of such departmental inquiries are having any substance, and they are referred only with a view to evade payment of retirement benefits and pension to the petitioner. However, it is also admitted position that the petitioner has resumed his duty immediately after the leave period. Thereby the submissions and defense by the respondents are contrary to the documents produced by the respondents. 25. Though, respondents have selected to produce letter dated 25.02.2003 addressed by the petitioner at Annexure R1, they have failed to produce a letter or communication rejecting such application on the ground of pendency of departmental inquiry. Thereby the submissions and defense by the respondents are contrary to the documents produced by the respondents. 25. Though, respondents have selected to produce letter dated 25.02.2003 addressed by the petitioner at Annexure R1, they have failed to produce a letter or communication rejecting such application on the ground of pendency of departmental inquiry. It seems that rejection order of such application is not produced on record and thereby, there is reason to believe that there is no such letter of rejection since nobody restricted the respondent from producing such letter on record. 26. The affidavit in reply thereafter reiterates contents of impugned order and therefore, it does not need to be elaborated again. Now, it is clear that impugned order was passed in utter urgency only to avoid grant of retirement benefits to the petitioner. 27. The petitioner has categorically reproduced the Rules applicable at the relevant time before the year 2006 which simply provides that no Government employee shall be granted leave of any kind for a continuous period exceeding 5 years except in view of exceptional circumstances. Such provisions which were applicable till it were amended in the year 2006 with effect from 01.12.2006, simply confirms that generally, leave cannot be granted beyond 5 years, but, in exceptional circumstances of the case, Government may grant leave beyond 5 years. However, amended Rule 16 in place of the above provision read as under: "16 - Maximum period of continuous leave (1) No government employee shall be granted leave of any kind for a continuous period exceeding five years. (2) A government employee shall be deemed to have resigned from service is, he: (a) is absent without authorization for a period of one year from the date of expiry of sanctioned leave or permission; or (b) is absent from the duty for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year. Provided that a reasonable opportunity to explain the reason for such absence shall be given to the government employee before the provisions of Sub-Rule (2) are invoked." 28. Provided that a reasonable opportunity to explain the reason for such absence shall be given to the government employee before the provisions of Sub-Rule (2) are invoked." 28. Therefore, bare perusal of the Rule makes it clear that it is having self contrary provision, in as much as when Clause-(b) of Sub-Rule (2) provide for deemed approval of resignation from service in case of unauthorized absence for period of one year from the date of expiry of sanctioned leave or permission, there is no need to have any further provision for leave exceeding 5 years. I have reason to say so because Clause - (b) of Sub-Rule (2) of Rule-16 provides that Government employees shall be deemed to have resigned from service, if he is absent from duty for continuous period exceeding 5 years, even if, the period of unauthorized absence is for less than 1 year, he can be considered to have resigned from the service. Therefore, though for the sake of argument even if, it is stated that there is reason for such clause for the cases where leave was granted for long period, the fact remains that immediately after the completion of leave whenever there is unauthorized absence on completion of 1 year of unauthorized absence, Government employer can indicate the fact of such rule so as to consider the employee as deemed to have resigned and therefore, though at present there is no question against the provisions, it becomes clear that such provision itself is unwarranted. In any case there is provision that reasonable opportunity to explain the reason of such absence shall be extended to the Government employee and therefore, in absence of providing reasonable opportunity in the case like present, the action of respondents cannot be sustained in the eye of law. In the present case, this amended rule is not applicable at all. As much as the respondents are concerned, the petitioner is absent from 01.10.2003 whereas this rule came into force with effect from 01.12.2006. 29. In view of above facts and circumstances, when respondents have yet not initiated departmental proceedings, it confirms that absence of petitioner cannot be treated as unauthorized absence, when the petitioner was not given reasonable opportunity to prove in such departmental inquiry, the reason of his absence. 29. In view of above facts and circumstances, when respondents have yet not initiated departmental proceedings, it confirms that absence of petitioner cannot be treated as unauthorized absence, when the petitioner was not given reasonable opportunity to prove in such departmental inquiry, the reason of his absence. Thereby when the petitioner has repeatedly and categorically conveyed to the respondent that he is unable to serve as he has to travel frequently and communication of respondent is also confirming that irrespective of their pleadings and observation in the impugned order that his leave applications were rejected and that they would not grant the leave to the person like petitioner who is unable to serve and thereafter, in the tenure of the petitioner with respondent, issued impugned orders, wherein there is no disclosure of the proper facts and circumstances; on the contrary, what is disclosed in the impugned order is that practically, several applications for leave by the petitioner was in fact never rejected and thereby considered to have been approved; but thereafter total period of absence was considered as unauthorized absence without initiating departmental inquiry. Therefore, it cannot be sustained in the eyes of law. 30. In view of the above facts and circumstances, discussion of several documents and factual details herein above, the petition needs to be allowed by quashing the impugned order. Thus, petition is allowed. The impugned order dated 28.11.2007 holding that petitioner is deemed to have been resigned from the service with effect from 01.10.2003 is hereby quashed and set aside which result into situation whereby respondents have to consider the absence of the petitioner as leave without pay for the period for which he was absent. Therefore, considering the total length of service including alleged unauthorized absence which is considered as granted by the respondents, are now required to calculate for retirement benefits and pension that may be payable to the petitioner pursuant to the quashing and setting aside the impugned order and treating that petitioner was superannuated with effect from 30.11.2007. Respondents shall complete such exercise from the date of receipt of this order within 4 months of retirement benefits and pension within 4 months without fail. If the respondents fails to do so then such amount shall carry 6% interest from due date. Rule is made absolute to the above extent. Petition Allowed.