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Rajasthan High Court · body

2003 DIGILAW 965 (RAJ)

Anand Jain v. State of Rajasthan

2003-07-15

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition has been filed by the petitioner under Article 226 of the Constitution of India against the respondents on 9.8.2002 with a prayer that by an appropriate writ, order or direction, the impugned order dtd. 11.6.2002 (Annex.P/39) passed by the respondent No. 1 by which the petitioner was treated to have abandoned the service with effect from 28.7.83 and therefore his name was deleted from the role of Medical Officer be quashed and set aside. (2). The facts of the case as put forward by the petitioner are as under: i) That the petitioner was initially appointed on the post of Civil Assistant Surgeon vide order dtd. 3.9.80 (Annex.1) on urgent and temporary basis. ii) That the petitioner was thereafter selected by the Rajasthan Public Service Commission on the post of Civil Assistant Surgeon against the substantive vacancy of the Civil Assistant Surgeon. A selection list dtd. 20.12.80 (Annex.P/2) was issued by the Rajasthan Public Service Commission, in which the name of the petitioner was placed at serial No. 10. iii) That in pursuance of the select list dtd. 20.12.80 (Annex.P/2), vide order dtd. 26.3.81 (Annex.P/3), the petitioner was allowed to work at the Govt. Dispensary, Lakhasar (Churu). iv) That vide order dtd. 27.6.81, the petitioner was transferred from Govt. Dispensary, Lakhasar to P.B.M. Hospital, Bikaner. v) That while the petitioner was working as Civil Assistant Surgeon, Bikaner, he was sent on deputation for one year to Vivekanand Swasthya Samiti, Bhadra, Distt. Sri Ganganagar (hereinafter referred to as the Samiti) vide order dtd. 18.9.82 (Annex.P/5). vi) Further case of the petitioner is that in pursuance of order dtd. 18.9.82 (Annex.P/5), the petitioner was relieved on 30.10.82 from PBM Hospital, Bikaner and joined at the Samiti on 1.11.82. A copy of joining report is marked as Annex.P/6. vii) That on 28.10.83, the Samiti wrote a letter (Annex. P/7) to the Secretary, Medical and Health Department (respondent No. 1) that the deputation of Dr. Anand Jain might be extended for a further period of 3 years. viii) That the petitioner also gave his consent vide letter dtd. 28.10.83 (Annex.P/8) for extension of his deputation period with the Samiti. ix) Further case of the petitioner is that in pursuance of letter dtd. 28.10.83 (Annex.P/7) written by the Samiti, no communication was addressed by the respondents either to the petitioner or to the Samiti. viii) That the petitioner also gave his consent vide letter dtd. 28.10.83 (Annex.P/8) for extension of his deputation period with the Samiti. ix) Further case of the petitioner is that in pursuance of letter dtd. 28.10.83 (Annex.P/7) written by the Samiti, no communication was addressed by the respondents either to the petitioner or to the Samiti. x) Further case of the petitioner is that the petitioner wrote a letter dtd. 12.12.83 (Annex.P/9) to the respondent No. 2 (Director, Medical and Health Services, Jaipur requesting him that either the Samiti be directed to relieve him or his period of deputation be extended. xi) Further case of the petitioner is that he again wrote a letter 28.12.83 (Annex.P/10) to the Director, Medical and Health Services (respondent No. 2) and the Secretary, Department of Medical and Health (respondent No. 1) with the above request. Similarly he again wrote a letter dtd. 12.9.85 (Annex.P/11) to the respondent No. 2 (Director, Medical and Health Services) with the same request. xii) Further case of the petitioner is that thereafter he wrote a letter dtd. 13.9.89 (Annex.P/12) to the respondents requesting that either his period of deputation be extended or the Samiti be directed to relieve him. NOTE: With effect from 12.9.85 to 13.9.89, no communication was addressed by the petitioner to the respondents as per the case of the petitioner xiii) Further case of the petitioner is that the petitioner was relieved by the Samiti vide its letter dtd. 26.9.95 (Annex.P/13) and this letter was sent by the Samiti to the Secretary, Medical and Health Department (respondent No. 1). xiv) Further case of the petitioner is that Secretary of the Samiti issued a attendance certificate dtd. 26.9.95 (Annex.P/14) certifying that the petitioner had worked with the Samiti from 1.11.82 to 26.9.95. xv) Further case of the petitioner is that on being relied by the Samiti with effect from 26.9.95, his father fell ill and therefore, he sent his joining report to the respondent No. 2 (Director, Medical and Health Services) vide letter dtd. 6.10.95 (Annex.P/15) through U.P.C. NOTE: This joining report dtd. 6.10.95 (Annex.P/15) was sent through post and the petitioner did not report himself on duty even after he was relieved by the Samiti on 26.9.95. xvi) Further case of the petitioner is that his father expired on 12.11.95 and due to death of his father, the petitioner submitted an application dtd. 6.10.95 (Annex.P/15) through U.P.C. NOTE: This joining report dtd. 6.10.95 (Annex.P/15) was sent through post and the petitioner did not report himself on duty even after he was relieved by the Samiti on 26.9.95. xvi) Further case of the petitioner is that his father expired on 12.11.95 and due to death of his father, the petitioner submitted an application dtd. 13.11.95 (Annex.P/16) for granting him leave for two months. This application was also sent through post. xvii) Further case of the petitioner is that through applications dtd. 8.1.96, 3.4.96, 2.7.96, 8.10.96, 10.4.97, 7.10.97, 2.4.98, 5.10.98, 5.4.99, 4.10.99, 9.4.2000, 5.9.2000, 30.3.2001 (Annex.P/17 to P/29), the petitioner sought leave. xviii) Further case of the petitioner is that through letter dtd. 17.8.2001 (Annex.P/30), the petitioner himself reported for duty before the respondent No. 2 (Director, Medical and Health Services.). NOTE: Thus, after being relieved from the Samiti on 26.9.95, the petitioner did not report himself on duty and sent various applications through posts for grant of leave and thus, he remained on leave from 26.9.95 to 17.8.2001 as per his own case. xix) Further case of the petitioner is that thereafter on 7.9.2001, the petitioner again reported for duty before the respondent No. 2 (Director, Medical and Health Services.) Copy of joining report is marked as Annex.P/31. xx) Further case of the petitioner is that though he submitted joining report on 17.8.2001 and 7.9.2001 before respondent No. 2, but even then he was not allowed to join his duties. Therefore, he submitted an application dtd. 21.9.2001 (Annex/P/32) making a request to the respondent No. 2 (Director, Medical and Health Service) to permit him to join the duties. xxi) Further case of the petitioner is that he sent reminders dtd. 16.2.2002, 25.3.2002, 10.4.2002, 24.4.2002, 30.5.2002 and 10.6.2002 (Annex.P/33 to P/38 respectively). Thus, even upto 10.6.2002, the petitioner was not taken on duty. xxii) Further case of the petitioner is that through order dtd. 11.6.2002 (Annex.P/39), the respondents treated the petitioner to have voluntarily abandoned the service with effect from 28.7.83 and, therefore, his name was deleted from the services of the respondents. This order has been challenged in this writ petition. xxiii) Further case of the petitioner is that vide orders dtd. 23.12.98, 27.9.99 and 4.5.2000 (Annex.P/40 to P/42 respectively), similarly situated persons were taken back on duty, therefore, he should also have been taken back on duty. (3). This order has been challenged in this writ petition. xxiii) Further case of the petitioner is that vide orders dtd. 23.12.98, 27.9.99 and 4.5.2000 (Annex.P/40 to P/42 respectively), similarly situated persons were taken back on duty, therefore, he should also have been taken back on duty. (3). In this writ petition, following submissions have been raised by the learned counsel for the petitioner. i) That before passing the impugned order dtd. 11.6.2002 (Annex.P/39) no opportunity of hearing was afforded to the petitioner and, therefore, the same is violative of principles of natural justice. ii) Further more as per Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958) no penalty could be imposed without making an enquiry under the Rules of 1958 and, from this point of view also, the impugned order dtd. 11.6.2002 (Annex.P/39) is liable to be quashed and set aside. iii) That after availing leave, when the petitioner reported himself on duty through application dtd. 17.8.2001 (Annex.P/30), he should have been taken on duty and hence the action of the respondents in not taking him on duty shows that the respondents were biased and the impugned order dtd. 11.6.2002 (Annex.P/39) was discriminatory and violation of Articles 143 and 16 of the Constitution of India. iv) That there was no material with the respondents to show that the petitioner had voluntarily left the services and, therefore, the impugned order dtd. 11.6.2002 (Annex.P/39) by which the petitioner was treated to have abandoned the services voluntarily is perse illegal and from this point of view also, the impugned order dtd. 11.6.2002 (Annex.P/39) is liable to be quashed and set aside. (4). A reply to the writ petition was filed by the respondents and their main case is that the petitioner himself wrote a letter dtd. 28.2.83 (Annex.R/1) to the Minister Health and Family Welfare Department making a request that his deputation should be cancelled. Further case of the respondents is that through order dtd. 28.7.83 (Annex.R/2), the order of deputation on the petitioner was cancelled and he was directed to report at the Directorate. Further case of the respondents is that despite issuance of order dtd. 28.7.83 (Annex.R/2), he continued with the Samiti and thus, case of the petitioner that no response was given to the petitioner on his application/s is not correct. 28.7.83 (Annex.R/2), the order of deputation on the petitioner was cancelled and he was directed to report at the Directorate. Further case of the respondents is that despite issuance of order dtd. 28.7.83 (Annex.R/2), he continued with the Samiti and thus, case of the petitioner that no response was given to the petitioner on his application/s is not correct. Further case of the respondents is that since vide order dtd. 28.7.83 (Annex.R/2), the order of deputation of the petitioner to the Samiti was cancelled with effect from 4.3.83, therefore, there was no occasion for the petitioner to have worked with the Samiti and the petitioner had worked with the Samiti of his own accord. Further case of the respondents is that the fact that the petitioner waited for four long years from 12.9.85 to 13.9.89 itself shows that the petitioner was not willing to work in the respondent-Department. Further case of the respondents is that the respondents wrote letters dtd. 29.1.87, 16.2.1990 and 27.1.91 (Annex.R/3 to R/5 respectively) to the Secretary of the Samiti stating that the deputation period of the petitioner had come to an end with effect from 4.3.83 and thereafter the petitioner at his own did not report at the Directorate. Further case of the respondents is that since 28.7.83, the petitioner did not join the services of the respondents and consequently he had voluntarily abandoned his services and vide order dtd. 11.6.2002 (Annex.P/39) his name was deleted from the role of Medical Officer and thus, the order dtd. 11.6.2002 (Annex.P/39) was rightly passed. (5). A rejoinder was also filed by the petitioner in which it has been submitted that as per Rule 144A (7) of the Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules of 1951), it was the duty of the respondent - Department to issue a posting order atleast within 30 days before the expiry of period of deputation and if the deputation of the petitioner was cancelled through order dtd. 28.7.83 (Annex.R/2), then it was duty of the respondents to issue posting order within 30 days and since the posting order was not issued within 30 days, therefore, the respondents have violated the Rule 144A(7) of the Rules of 1951. 28.7.83 (Annex.R/2), then it was duty of the respondents to issue posting order within 30 days and since the posting order was not issued within 30 days, therefore, the respondents have violated the Rule 144A(7) of the Rules of 1951. Further more, as per Rule 86 of the Rules of 1951 in case of absent from duty without leave for more than one month, it was the duty of the respondents to take disciplinary action against such employee and as per reply of the respondents, if the petitioner did not report for duty with the directorate after passing of order dtd. 28.7.83 (Annex.R/2), he should have been given the charge-sheet regarding the absence from duty immediately after one month from the passing of order dtd. 28.7.83, but no such action was taken by the respondents and hence the order dtd. 11.6.2002 (Annex.P/39) is illegal and deserves to be quashed and set aside. (6). Heard and perused the record. (7). There is no dispute on the point that through order dtd. 18.9.82 (Annex.P/5), the petitioner was sent on deputation for one year to the Samiti. There is also no dispute on the point that through jointing report dtd. 1.11.82 (Annex.P/6), the petitioner joined his duties with the Samiti. (8). There is also no dispute on the point that the leave of the petitioner was never sanctioned by the concerned authority and he remained on leave without sanction. (9). There is also no dispute on the point that period of deputation of the petitioner was not extended. (10). At this stage, it is submitted that veracity of letter dtd. 28.2.83 (Annex.R/1) written by the petitioner to the Health Minister by which he made a request that he did not want to continue with the Samiti on deputation, cannot be doubted. Therefore, from the letter dtd. 28.2.83 (Annex.R/1), it is clear that he himself made a request to the Health Minister that he did not want to work with the Samiti. Similarly, the veracity of order dtd. 28.7.83 (Annex.R/2) cannot be doubted by which the order of deputation of the petitioner was canceled with effect from 4.3.83. In the order dtd. 28.7.83 (Annex.R/2) there is reference of the fact that this order was passed because the petitioner had himself shown his inability to work with the Samiti. Therefore, from this point of view, the veracity of letter dtd. 28.2.2003 (Annex.R/1) and order dtd. In the order dtd. 28.7.83 (Annex.R/2) there is reference of the fact that this order was passed because the petitioner had himself shown his inability to work with the Samiti. Therefore, from this point of view, the veracity of letter dtd. 28.2.2003 (Annex.R/1) and order dtd. 28.7.1983 (Annex.R/2) cannot be doubted. Thus, the case of the respondents that the period of deputation of the petitioner with the Samiti came to an end with effect from 4.3.83 stands established. (11). When this being the position, the case of the petitioner that he approached the respondents from time and time was mere formalities and actually he was not willing to join the duties with the respondents. This fact is further established from the fact that deputation of the petitioner with the Samiti was for one year and that one year expired on 31.10.83, but the petitioner remained in the job of Samiti from 1.11.82 to 26.11.95. This fact shows that actually he was happy with the services of Samiti and had no intention to go back to his parent Department i.e. the Medical and Health Department inspite of the fact that his deputation period had expired on 31.10.83. (12). Further more the fact that from 12.9.85 to 13.9.89, and from 13.9.89 to 26.9.95, there was no communication from the side of the petitioner with the respondents itself goes to show that he had no intention to work with the respondent - Department. (13). The fact that after being relieved from the services of Samiti on 26.9.95, the petitioner continuously sent leave applications upto 17.8.2001 and remained on leave upto 17.8.2001 without the leave being sanctioned by the concerned authority also goes to show that the petitioner had voluntarily abandoned the services of the respondents and for the purpose of formalities, he was sending the leave applications from time to time. A person might be ill for some time or a member of family might be ill for some time, but nobody would be ill from 26.9.95 to 17.8.2001 and if anybody says that he was prevented from joining the duty for such a long period on medical ground, that ground itself is false one. (14). Thus, the facts stated above only lead to the conclusion that the petitioner had no intention to join the services of the respondents. (15). (14). Thus, the facts stated above only lead to the conclusion that the petitioner had no intention to join the services of the respondents. (15). Now, in the facts and circumstances of the present case, the question for determination is whether passed of order dtd. 11.6.2002 (Annex.P/39) was justified or not and whether before passing the impugned order dtd. 11.6.2002 (Annex.P/39), regular enquiry was necessary or not. (16). Before proceedings further, legal position with respect to the word ``Abandonment of service has to be seen. (17). The Honble Supreme Court in the case of G.T. Lad vs. Chemical and Fibres of India Limited (1), has observed as under: ``In the Act, we do not find any definition of the expression `abandonment of service. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word ``abandon has been explained as meaning `to leave completely and finally, forsake utterly; to relinquish, ronounce; to give up all concern in something. According to Dictionary of English Law by Earl Jowitt (1959 edition) `abandonment means relinquishment of an interest or claim. According to Blacks law Dictionary `abandonment when used in relation to an office means `voluntary relinquishment. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is question of fact. Temporary absence is not ordinarily sufficient to constitute an `abandonment of office. (18). Thus, the definition of `abandonment of service can be defined in the following manner: ``Abandonment of service is a voluntary act of the employee which brings about cessation of relationship between the employer and the employee. It is always a question of intention of intention of the employee as to whether he intended to bring about such cessation. (19). Thus, whether there was intention of abandonment or not is a question of fact and that has to be inferred from the facts and surrounding circumstances of each case. It is always a question of intention of intention of the employee as to whether he intended to bring about such cessation. (19). Thus, whether there was intention of abandonment or not is a question of fact and that has to be inferred from the facts and surrounding circumstances of each case. Thus, it is a matter of inference to be drawn from the facts and surrounding circumstances of the case as to whether there has been a voluntary relinquishment on the part of the employee or not. (20). This Court is also aware of the fact that the temporary absence is not ordinarily sufficient to constitute an abandonment of service. (21). The Honble Supreme Court in the case of M/s Jeewan Lal Ltd. vs. Its Workman (2), has observed as under : ``. . . . . . . If an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cast a break in continuity of service. . . . . We would like to make it clear that . . . . . . . . there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee. (22). The Honble Supreme Court in another case of Shahoodul Haque vs. The Registrar, Co-operative Societies, Bihar (3), has ``The undenied and undeniable fact that the appellant had actually abandoned his post or duty for an exceedingly long period, without sufficient ground for his absence, is so glaring that giving him further opportunity to disprove what he practically admits, could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. It would prolong his agony. On the view we have adopted on the facts of the case, it is not necessary to consider the further question whether any notice for termination of service was necessary or duly given on the assumption that he was not punished We do not think that there is any question involved in this case which could justify an interference by us. . . . . . . . . . (23). Similar view has been taken by this Court in Vijay Singh Charan vs. Management, Shri Swetamber Nakoda Parshwanath Tirth Mewa Nagar and Anr. (4). (24). In Syndicate Bank vs. General Secretary, Syndicate Bank Staff Association and Anr. (5), and Aligarh Muslim University and Ors. vs. Mansoor Ali Khan (6), the Honble Supreme Court rules that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceased to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. (25). This Court in the case of Dr. S.M. Mansoory vs. State of Rajasthan (7), relying on the decision of Honble Supreme Court in the cases of Syndicate Bank (Supra) and Aligarh Muslim University has taken similar view and found the case of the petitioner in that case to be that of voluntarily abandonment of service and thus, his termination was found to be proper. This Court in the above case has further held that in the cases of abandonment of service, the State can remove name of concerned person from the register of its employees treating it a voluntary abandonment of service without holding a regular enquiry. (26). Thus, keeping the law laid down by this Court as well as Honble Supreme Court, if the case of the petitioner is examined, the impugned order dtd. 11.6.2002 (Annex.P/39) was rightly passed against the petitioner and the petitioner was rightly treated to have voluntarily abandoned the service because of following reasons: i) That through letter dtd. 28.2.83 (Annex.R/1), the petitioner made a request to the Health Minister that he did not want to work with the Samiti on deputation and thereafter on his request, vide order dtd. 28.7.83 (Annex.R/2) the order of deputation of the petitioner was cancelled with effect from 4.3.83, however, despite this, the petitioner remained in the job of the Samiti till 26.11.95. This fact show that the petitioner had no intention to go back to his parent department and therefore, it can be said that the petitioner had voluntarily abandoned the services of the respondents as after passing of order dtd. 28.7.83 (Annex.R/2), it was duty of the petitioner to report for duty to the respondents. This fact show that the petitioner had no intention to go back to his parent department and therefore, it can be said that the petitioner had voluntarily abandoned the services of the respondents as after passing of order dtd. 28.7.83 (Annex.R/2), it was duty of the petitioner to report for duty to the respondents. ii) That from 12.9.85 to 13.9.89 and from 13.9.89 to 26.9.95, there was no communication from the side of the petitioner to the respondents and this fact also goes to show that he had no intention to work with the respondent and thus it leads to the only conclusion that the petitioner had voluntarily abandoned the services of the respondents. iii) That even after being relieved by the Samiti on 26.9.95, the petitioner submitting his joining report vide letter dtd. 6.10.95 (Annex.P/15) and did not report for duty in person and further more from 13.11.95 to 17.8.2001, the petitioner continuously sent leave applications and remained on leave upto 17.8.2001. Thus, it is a case of absent from duty starting from 4.3.83 to 17.8.2001 i.e. for near about 17 years and that too without the leave being sanctioned and this fact also goes to show that the petitioner had actually abandoned the services of the respondents voluntarily and for the purpose of formalities, he was sending leave applications from time to time. (27). Thus the above facts clearly go to show that the petitioner had no intention to join the duty with the respondents and the above acts on the part of the petitioner constitute `abandonment of service on his part. Thus, from the facts and circumstances narrated above, an inference can be drawn that the petitioner had abandoned the services of the respondents voluntarily. (28). So far as the argument of the learned counsel for the petitioner that before passing the impugned order dtd. Thus, from the facts and circumstances narrated above, an inference can be drawn that the petitioner had abandoned the services of the respondents voluntarily. (28). So far as the argument of the learned counsel for the petitioner that before passing the impugned order dtd. 11.6.2002 (Annex.P/39) no regular enquiry was held nor any notice was given to the petitioner is concerned, the Honble Supreme Court in the cases of Syndicate Bank (supra), and Aligarh Muslim University (supra), has held that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceased to be in service and in such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities and, therefore, since the case of the respondents that the petitioner had voluntarily abandoned the service stands established, therefore, there was no need for the respondents to hold any enquiry or to give any notice to the petitioner. Therefore, there is no violation of Principles of Natural Justice in the case of the petitioner. It may further be stated here that even for permanent employee, if he had abandoned the service voluntarily, the question of holding enquiry does not arise and thus, the argument raised by the learned counsel for the petitioner that before passing impugned order regular enquiry should have been held and he should have been heard stands rejected. (29). So far as argument that there is violation of Rule 144A(7) and Rule 86 of the Rules of 1951 is concerned, this argument also stands rejected in view of the discussions just mentioned hereinabove. (30). So far as the argument raised by the learned counsel for the petitioner that other similarly situated persons were taken back on duty is concerned, it is submitted that the other persons referred to by the petitioner were not treated to have voluntarily abandoned their service and therefore, they were taken back on duty. However, since in the case of the petitioner, he was treated to have voluntarily abandoned the service, therefore, he was not taken back on duty and vide order dtd. 11.6.2002 (Annex.P/39) his name was deleted from the roll of Medical Officer. However, since in the case of the petitioner, he was treated to have voluntarily abandoned the service, therefore, he was not taken back on duty and vide order dtd. 11.6.2002 (Annex.P/39) his name was deleted from the roll of Medical Officer. Further more, the facts of the present case cannot be equated with the facts of those cases because whether it is a case of voluntary abandonment of service or not is a question of fact and each case has to be decided on its own merit. Therefore, this argument raised by the learned counsel for the petitioner also stands rejected. (31). For the reasons mentioned above, all the contentions raised by the learned counsel for the petitioner are answered and rejected and hence, the impugned order dtd. 11.6.2002 (Annex.P/39) does not suffer from basic infirmity or illegality and thus, the same does not require any interference of this Court under Article 226 of the Constitution of India and this writ petition deserves to be dismissed. Accordingly the present writ petition is dismissed. No order as to costs.