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2003 DIGILAW 419 (GAU)

Krishna Sen v. State of Nagaland

2003-09-09

B.LAMARE, P.P.NAOLEKAR

body2003
JUDGMENT P.P. Naolekar, C.J. 1. Heard Mr. B. Devnath, learned Counsel for the Appellant and Mr. L.S. Jamir, learned Government Advocate for the State Respondents. 2. The Petitioner/Appellant herein was initially appointed on 20.07.82 by the Executive Engineer, PHED Store Division, Dimapur, Nagaland as Work charged Khalasi (Typist). Later on the Appellant was promoted by order dated 20th July, 1989 to the post of W/C Typist in the scale of pay of Rs. 450-11-530-12-670-EB-15-805/- P.M. plus all other allowances as are admissible from time to time, under the rules of Government of Nagaland with effect from 21.7.1989. This promotion order says that it is temporary and liable to be terminated at any time without any notice. The Petitioner/Appellant was sick and therefore applied for sick leave for treatment. She was granted medical leave on 6.11.97 upto 20.11.1997. It is the case of the Appellant that while taking treatment at Kolkata the Doctor had advised her to take further treatment and therefore she stayed at Kolkata even after the expiry of her medical leave. The Petitioner prayed for extension of her leave by Telegram message dated 13.01.1998. The Petitioner/Appellant continued to take the treatment and it is only on 1.5.1998 that she reported for duty. The official of the Department refused to accept her joining report and ultimately an order was passed discharging her service on 27.5.1998. The Petitioner/Appellant aggrieved by the order of discharge has approached the High Court by filing a writ petition. The learned Single Judge dismissed the petition on the ground that the Petitioner was a work charged employee and under Rule 48 of the Nagaland Public Works Department Code, the work charged employee is entitled only to have the casual leave on full pay for 12 days in a year and in addition another 15 days casual leave on medical ground on full pay in a year and therefore the Petitioner/Appellant cannot avail further leave beyond the period of leave which has the sanction of Rule 48 of the Nagaland Public Works Department Code. The Petitioner having exceeded the limited period leave and remained absent, she has violated Rule 48, and therefore, the order of termination of the service of the Petitioner was issued in accordance with law and no interference is called for. On this finding the learned Single Judge has dismissed the writ petition. The Petitioner having exceeded the limited period leave and remained absent, she has violated Rule 48, and therefore, the order of termination of the service of the Petitioner was issued in accordance with law and no interference is called for. On this finding the learned Single Judge has dismissed the writ petition. Aggrieved by the said order of dismissal the present appeal is filed. 3. It is submitted by the learned Counsel for the Respondents/State that the Petitioner/Appellant being a work charged employee she has no right over the post and therefore her services could have been terminated without giving any prior notice to that effect. The learned Counsel for the Appellant/Petitioner on the other hand, contended that the Petitioner's services has not been terminated on account of she being a work charged employee but the termination is on account of the fact that she has over stayed the leave thus the termination is on account of misconduct found against her which necessitates prior inquiry. 4. It is a settled principle of law that the temporary employee or work charged employee in the Nagaland Services have no specific right over the post and thus his or her service can be terminated by giving notice if it is required under the rules or by issuance of a simple termination order. It is equally settled that if the order of termination is not innocuous but it is being issued on account of certain misconduct found against the incumbent/employee then the employee is entitled to have the notice and hearing, that is, least, which is expected under the principle of natural justice. In the present case the fact clearly revealed form the return submitted by the State that her services have been terminated because of the fact that the Petitioner did not join her service after the leave period i.e. 21.11.1997 and she remained absent from duty for 160 days without any notice either to the Executive Engineer or to her Controlling Officer i.e. S.D.O. It is further alleged that the matter came to the knowledge of the Hon'ble Minister (PHED) during his visit to the office on 29.4.1998 and the same was reported to the Chief Engineer and thereafter the Chief Engineer has issued the order of termination on 27.5.1998. From this stand taken by the State Government two things are manifestly clear to this Court firstly the termination order was issued on account of the fact that the Petitioner overstayed the leave period without any notice to the authority concerned. Secondly, the Minister came to know about her absence and some instruction has been issued in regard to the service of the Petitioner/Appellant and the officer concerned has acted and the order of termination order of termination was issued on 27.5.1998. The reason stated for issuance of termination order in our view clearly reveals that the Petitioner's service have been terminated for misconduct and thus she was entitled to have hearing in the matter before the order could have been passed terminating the services of the Petitioner. 5. We do not agree with the reasoning given by the learned Single Judge that the leave of the work charged employee can only be 12 days in a year as casual leave and 15 days in a year as Medical leave. The leave mentioned in Rule 48 of the Nagaland Public Works Department Code is only the leave which is admissible on payment of salary, thus on sanction of 12 days casual leave or 15 days Medical leave the employee shall be entitled to salary of this period. This rule does not speak about the leave which can be taken by the work charged employee without payment of any salary nor it prohibits leave without pay. This interpretation of rule by us can be justified by the example - a Government employee fell ill, as per medical leave of 15 days which is sanctioned he has availed 15 days leave under the Rule, but he continue to remain absent from duty due to his continued illness. Simply because the employee remained absent from duty after the sanctioned medical leave period expired ipso facto cannot constitute in misconduct. The employee is entitled to explain to the employer the reasons for remaining absent after the expiry of the leave and if the employer is satisfied with the explanation of the employee, he may not have to impose the penalty of discharge or dismissal. On the other hand, if it is held that after expiry of 15 days medical leave the work charged employee shall not be entitled to leave in any circumstances, it will be a unreasonable decision. On the other hand, if it is held that after expiry of 15 days medical leave the work charged employee shall not be entitled to leave in any circumstances, it will be a unreasonable decision. In other way, if he is found guilty the employer can take necessary action. In this case it the admitted by the Petitioner that she has exceeded the sanctioned leave but she had informed her employer of the necessity for extension of her leave for medical treatment. This fact has, of course denied in the return submitted by the Respondent State. The facts alleged requires enquiry before ultimate order, after application of mind, by the appropriate authority to the fact of the case. But, in the facts revealed in this case, the authority could not have taken the action of termination/discharge of the service of the Petitioner. We have also noticed that the Petitioner/Appellant is in the service of the Department for the last 16 years as work charged employee. The State Government has not brought to our notice of any misconduct or misbehaviour of the Petitioner during the service career of the Petitioner with the State. Taking all the factors into consideration we are of the view that the order of discharge dated 27.5.1998 is not in accordance with law and liable to be set aside. 6. For the reasons stated above, the appeal is allowed. The order passed by the learned Single Judge on 9.12.1999 is set aside. Also the order of discharge dated 27.5.1996 is set aside. The State Government shall re-instate the Petitioner/Appellant in service within 7 (seven) days of the placement of this Court's order before the appropriate authority. The Petitioner/Appellant shall not be entitled to any back wages for the period she has not served the Department. In the circumstances of the case the parties shall bear their own costs. Appeal allowed