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Madhya Pradesh High Court · body

2001 DIGILAW 54 (MP)

Anil Kumar Karandikar v. State of M. P.

2001-01-16

ARUN MISHRA

body2001
Judgment ( 1. ) THE petitioner claims sympathetic treatment. This is last submission, but, not least. The petitioner was appointed in the Pilot Project for a fixed period upto 30th September, 2000. He was appointed on 15-1-1999. He absented himself without taking leave from 11-10-1999. The petitioner applied for casual leave on 8-10-1999 of one day. On 11 -10-1999 he has filed an application for grant of casual leave upto 21-10-1999. Since the petitioner was working in the Pilot Project, he was required by the Chief Judicial Magistrate to file a proper application for sanction of earned leave along with the medical report. Petitioner applied for commuted leave for the period 11-10-1999 to 21-10-1999. He was informed that he was not entitled for such a leave as such he should apply for earned leave. It appears that the petitioner did not apply for earned leave. Hence, he was asked on 19-11-1999 to present himself on duty and to file explanation and to show reason why disciplinary action be not taken against him. The petitioner applied for leave from 8-10-1999 to 12-10-1999. Petitioner presented himself on 13-12-1999 and submitted application and thereafter again absented without leave. A notice was issued to him on 24-12-1999 as he absented continuously from 11-10-1999 which was an act of gross indiscipline and as such he should report on duty and file fitness certificate as per the rule. The petitioner in reply submitted on 5-1-2000 contended that he was not keeping well and as such was unable to submit a fitness certificate and was unable to report on duty and submitted that only after recovering, he may be in a position to submit a proper application alongwith fitness certificate. Ultimately as the petitioner was working on the pilot Project, which was started for quick disposal of cases, purpose of which was being defeated, his services were dispensed with on the ground that his services were no more required, order of removal P/13 was passed on 1-3-2000 which is the impugned order in the instant writ petition. ( 2. ) IN the return filed by the respondent Nos. 2 and 3, it is contended that the appointment was purely a temporary appointment for specific period. It was to end automatically on expiry of the pilot Project. The period of Pilot Project had come to an end, as such the petition is rendered infructuous. ( 2. ) IN the return filed by the respondent Nos. 2 and 3, it is contended that the appointment was purely a temporary appointment for specific period. It was to end automatically on expiry of the pilot Project. The period of Pilot Project had come to an end, as such the petition is rendered infructuous. Petitioner submitted an application for commuted leave, to which he was not entitled. Petitioner was advised to submit an application for earned leave, which he did not prefer. He did not report for duty even after notice dated 24-12-1999 and continuously absented himself. As the petitioner continuously remained absent from duty, the work of Pilot Project suffered adversely. The petitioner was posted with the Chief Judicial Magistrate, Balaghat and due to his continuous absence, the Chief Judicial Magistrate First class was facing great hardship in accomplishing the task under project as apparent from reports Annexure-R/1. The appointment of the petitioner was purely temporary and he, on the ground of his alleged illeness, was not performing his duties thus defeating the very object of employing the additional manpower for completing the Project, which is the speedier Justice by deciding more cases in a particular year, for which additional pay is also sanctioned. The petitioner was required to show-cause. No regular departmental enquiry was required to be conducted in the facts and circumstances of the case. ( 3. ) LEARNED counsel for the petitioner Shri Sunil Choubey submits that no departmental enquiry was conducted. Petitioner, as a matter of fact, was ailing and had sufficient reason for his absence. The persons who were appointed in Pilot Project were subsequently taken in the regular establishment. In any case, the petitioner is entitled for sympathetic treatment. He places reliance on the decision of the Supreme Court in Scooters India Ltd. v. M. Mohammad Yaqub and Anr. (2001) 1 SCC 61 to contend that an enquiry is necessary into the cause of absence consistently in accordance with the principle of natural justice, even if a provision is there in the standing order governing the service which provides automatic termination of the service on overstaying leave, such provision of standing order cannot be used to effect automatic termination of the service. He further place reliance on a decision of this Court in W. P. 2394/2000 (Ms. He further place reliance on a decision of this Court in W. P. 2394/2000 (Ms. C. Amolik v. State of M. P. and Ors.), in which various other decision of the Supreme Court were considered. The Supreme Court in Laxman Dundappa Dhamanekar and Anr. v. Management of Vishwa Bharata Seva Samiti and Anr. , (2001 AIR SCW 3786) laid down that if any teacher remains absent without any leave, it is open to the Management to terminate the services of such teachers only after complying with the provisions of the Act and the rules or principles of natural justice. In Laxman Dundappa Dhamanekar (supra) the Apex Court held that when there is no provision either in the Act or the rules providing for automatic termination of services of a teacher on account of being absent without leave. If any teacher remains absent without any leave, it is open to the Management to terminate the services of such teachers only after complying with the provisions of the Act and the rules and principles of natural justice. In that case, their Lordships observed that: "in the present case, we do not find any provision either in the Act or Rules providing for automatic termination of service of a teacher in the event of a teacher remaining absent without leave. In the absence of such a provision in the Act or Rules, the alleged deemed termination of services of the appellants without giving any opportunity to the appellants was unlawful and deserves to be set aside. " ( 4. ) THERE is no dispute with the proposition of law, which is well settled, as laid own by the Supreme Court. The question is whether the principles of justice were complied with in the instant case? Principle of natural justice cannot be fitted in strait jacket formula. They have to be given meaning and understood and applied in the facts situation available in a given case taking due note of nature of appointment its purpose and urgency of cause for which appointment was made is also one of relevant consideration. The applicability of the principles has to be considered in the context, in which they are invoked. The Petitioner was appointed for and was working in Pilot Project, which is meant for speedier justice as enshrined under Article 39 of the Constitution of India. It was a case of fixed term appointment. The applicability of the principles has to be considered in the context, in which they are invoked. The Petitioner was appointed for and was working in Pilot Project, which is meant for speedier justice as enshrined under Article 39 of the Constitution of India. It was a case of fixed term appointment. Pilot Project was upto September, 2000. Petitioner was issued show cause notice consistently in accordance with principle of natural justice. He was required to explain his conduct. He was given ample opportunity to show-cause and to report on duty, however, he did not report on duty. It is clear that the petitioner absented from 8-10-99 till 12-12-99 and again absented w. e. f. 13-12-99 till 1-3-2000, the date of termination. Petitioner did not care to submit any medical certificate inspite of notice dated 24-12-1999, in reply, the petitioner submitted evasively that he was ill. Petitioners absence was tolerated for long period though his appointment was of such a nature even one day absence was going to adversely affect the quick disposal of the case by the Chief Judicial Magistrate, as Pilot Project is meant for wiping out arrears and old pending cases. The petitioner did not function w. e. f. 8-10-1999 till 1-3-2000 for about five months. It appears that his case was dealt with too much of latitude. Petitioner submitted that he was suffering with Malaria, which is not an ailment which can continue for such a long period. Whatever, that may be, considering the principle of natural Justice in the context and nature of the work and purpose, I am of the considered opinion that principles of natural justice were fully complied with and the removal of the petitioner in the circumstances cannot be termed to be arbitrary in any manner. The very purpose of short term appointment stood frustrated; thwarted by absence. Absence for any cause was enough to terminate and employ other person for the short term purpose. ( 5. ) THE submission of the petitioner that certain persons who were appointed along with the petitioner were later on taken on regular establishment, cannot give a right to the petitioner to submit that his absence should have been tolerated in the Pilot Project, considering the nature of the appointment its urgency and it was fixed term appointment. ( 5. ) THE submission of the petitioner that certain persons who were appointed along with the petitioner were later on taken on regular establishment, cannot give a right to the petitioner to submit that his absence should have been tolerated in the Pilot Project, considering the nature of the appointment its urgency and it was fixed term appointment. Thus, it is apparent that no right accrues to the petitioner for being taken in the regular establishment on the basis of contract appointment. ( 6. ) LIKE drowning fish catching the last straw, learned counsel for the petitioner submits that sympathy clause of equitable jurisdiction should be invoked. Considering the nature of the appointment and the purpose for which the petitioner was appointed, no sympathy is invocable in the extra ordinary writ jurisdiction of this Court to give a relief which law does not provide. ( 7. ) THE writ petition is without merit and same is dismissed. Costs on parties.