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Rajasthan High Court · body

2008 DIGILAW 2405 (RAJ)

Sayeed Mohammed Shakeel v. State of Rajasthan

2008-10-24

H.R.PANWAR

body2008
Hon ble PANWAR, J.—By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the order Annexure-8 dated 4th January, 2006 and also a direction to the respondents to reinstate him in service with all consequential benefits. (2). Briefly stated the facts to the extent they are relevant and necessary for the decision of the writ petition are that the petitioner was appointed by the Medical & Health Department of State of Rajasthan on the post of Medical Officer Department of State of Rajasthan on the post of Medical Officer on ad hoc basis in the year 1988. The petitioner underwent the process of selection through Rajasthan Public Service Commission (for short "the RPSC" hereinafter) and was subsequently, appointed on the post of a Medical Officer in the year 1990. By order Annexure-1 dated 18th December, 1996, the petitioner was sent on deputation to Saudi Arabia after the sanction having been accorded for such deputation by his Excellency the Governor of Rajasthan. In the order Annexure-1, it has been made clear that the period of deputation is of one year with effect from the date of his relieving. It has further been made clear that in no case he or she will stay beyond the period of deputation without prior permission of the Government of India and the respondent-Department of Medical & Health (FW). It has also been made clear that the resignation while abroad will not be accepted in any circumstances. Apart from these, other conditions were also mentioned therein regarding Pay and Allowances, Lien, Medical Attendance, Leave, Joining Time Pay, Leave Salary, Pension Contribution etc. In pursuance of the order Annexure-1, the petitioner came to be relieved by order dated 25th May, 1997 passed by the Superintendent, Maharana Bhupal Government Hospital, Udaipur vide Annexure-2. The petitioner jointed his services at King Fahad College Riyadh, Kingdom of Saudi Arabia. Thereafter, the petitioner requested for extension of his deputation period through the competent Authority at the King Fahad College, Riyadh to the Indian Embassy in Saudi Arabia and on such request having been processed, the deputation period of the petitioner was extended for a further period of one year by the respondent-Department vide order Annexure-3 dated 30th June, 1998 on the same terms and conditions as mentioned in the order Annexure-1. The petitioner again requested for extension of his deputation period through the same agency as in the case of Annexure-3 by his letter dated 8th May, 1999. However, no further extension was granted to the petitioner by the respondents and the request of the petitioner was rejected by the State Government, which was informed to the Indian Embassy vide communication dated 25th June, 1999. The petitioner again made efforts for extension of deputation period but he was again informed that the period of deputation cannot be extended and he was required to join the duty in the respondent Department vide communication dated 22nd October, 1999. Thereafter, the petitioner received communication dated 25th July, 2001 issued by the respondent Department communicating the petitioner that in spite of expiry of the period of deputation on 30th May, 1999, he had not reported back to service of State without getting his leave sanctioned and therefore, a show cause notice was issued to the petitioner as to why disciplinary proceedings may not be initiated against him vide Annexure-6 dated 25th July, 2001. The petitioner said to have made an application to the Authorities at King Fahad College, Riyadh to relieve him vide Annexure-7. Thereafter, a notice was published in the newspaper by the respondent-Department requiring the petitioner to show cause as to why his services may not be terminated/treating him to have resigned from the service with effect from the date he remained absent i.e. 30th May, 1999. On the petitioner s having been failed to show cause, his services came to be terminated by the respondent-Department vide order impugned Annexure-8 dated 4th January, 2006 in exercise of power under Sub-rule (4) of Rule 86 of the Rajasthan Service Rules, 1951 (for short "the RSR" hereinafter) holding him guilty of unauthorised absence i.e. w.e.f. 30th May, 1999. Hence, this writ petition. (3). A reply to the writ petition has been filed by the respondent-State and except the fact of petitioner having been sent on the deputation to the King Fahad College Riyadh, Kingdom of Saudi Arabia initially for a period of one year and thereafter, it was further extended for one year, the rest of the contentions raised by the petitioner have been denied. The respondents came with a very specific case that in exercise of power under Rule 86(4) of the RSR, the respondents are fully justified in passing the order impugned Annexure-8. The respondents came with a very specific case that in exercise of power under Rule 86(4) of the RSR, the respondents are fully justified in passing the order impugned Annexure-8. (4). I have heard learned counsel for the parties. (5). It is contended by learned counsel for the petitioner that the petitioner was sent on deputation to Saudi Arabia by the respondent for a period of one year, which was extended for one year. In normal course, the period of deputation for Foreign services is 5 years and the petitioner sought extension for a period of one year which the respondents declined. Learned counsel further contents that the petitioner had to deposit his passport with the Authorities of Saudi Arabia which was not made available to the petitioner and therefore, he could not return India and resume his duty. It is further contended that notice published in the newspaper in India cannot be said to be an intimation to the petitioner since undisputedly the petitioner was at Saudi Arabia and therefore, it was no notice. The order impugned Annexure-8 came to be passed without affording an opportunity of hearing to the petitioner and therefore, it violates the principles of natural justice. Lastly, it was contended that the petitioner was not staying at Saudi Arabia at his own but he stayed there as Authorities of King Fahad College Riyadh was not releasing his passport, which was in their possession, resulting the petitioner having failed in returning the country and joining the duties at respondent Department. Learned counsel for the petitioner has relied on the decisions (i) Jai Shanker vs. State of Rajasthan, AIR 1966 SC 492 , (ii) Kailash Chand Sethi vs. State of Rajasthan & Ors., (1993) 3 WLC 188 (Raj.), (iii) Nena Ram vs. State of Rajasthan & Ors.,2003(4) RLW 2244, (iv) Dinesh Chandra Sharma vs. State of Rajasthan & Ors., 1990 RLR (II) Rajasthan 714 and (v) Sujata Malhotra vs. State of Rajasthan & Ors., 2002 (3) DNJ 1104 (Raj.). (6). Learned counsel appearing for the respondents contended that so far as Annexure-7 is concerned, the endorsement made in Annexure-7 in Arabi language do not indicate that the passport has been detained by the authorities of King Fahad College Riyadh. On the contrary, it was the petitioner, who deposited the passport with the said Authority for safety. (6). Learned counsel appearing for the respondents contended that so far as Annexure-7 is concerned, the endorsement made in Annexure-7 in Arabi language do not indicate that the passport has been detained by the authorities of King Fahad College Riyadh. On the contrary, it was the petitioner, who deposited the passport with the said Authority for safety. It is further contended that the petitioner willfully stayed at Saudi Arabia for his gainful employment and thus, abandoned the service. According to learned Additional Government Counsel, Sub-rule (4) of Rule 86 of RSR in clear term empowers the respondent Authority to conclude that the petitioner has resigned from the service on being absence for such a long period. Even the genuineness of the application Annexure-7 and endorsement thereon has been disputed and it was contended that the passport of a person visiting to abroad any of the country is always remain with him and there could be no such procedure either in the country or the abroad for depositing a passport with the Authorities of the country to which the person visits or happened to be went on deputation and therefore, the Annexure-7 is nothing but a made-up story by the petitioner. Learned Additional Government Counsel has relied on a decision of Hon ble Supreme Court in (i) Aligarh Muslim University & Ors. vs. Mansoor Ali Khan, (2000) 7 SCC 529 , (ii) Syndicate Bank vs. General Secretary, Syndicate Bank Staff Association & Anr., (2000) 5 SCC 65 , (iii) State of Rajasthan & Anr. vs. Mohd. Ayub Naz, (2006) 1 SCC 589 = RLW 2006(2) SC 1084, (iv) S.L. Kapoor vs. Jagmohan & Ors., 1980(4) SCC 379 and a decision of this Court in Suleman Khan vs. State of Rajasthan & Ors., in S.B. Civil Writ Petition No. 6850/2005, decided on 4th December, 2007. (7). I have given by my thoughtful consideration to the rival submissions made by learned counsel for the parties. (8). In Jai Shanker vs. State of Rajasthan (supra), the Hon ble Supreme Court held that the removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service Regulation that any individual, who absents himself without permission, after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the selection of the competent authority. (9). (9). In Dinesh Chandra Sharma vs. State of Rajasthan & Ors. (supra), this Court held that the termination of services on the ground of absence from duty for more than one month without holding the enquiry as contemplated under Rule 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short "the CCA Rules" hereinafter) is illegal. (10). In Sujata Malhotra vs. State of Rajasthan & Ors., (supra) while considering the case of removal from service on the ground of absence from duty after expiry of leave, the Division Bench of this Court held that the Disciplinary Authority failed to record good and sufficient reasons for passing the impugned order imposing punishment of removal from service against the petitioner therein. In that case, the petitioner therein applied for extra-ordinary leave on ground of her sudden sickness, sickness of her newly born daughter and accident of her husband at Nigeria, the leave Sanctioning Authority had failed to exercise its statutory duty as contemplated under Rule 86 of the RSR for grant or sanction of leave. (11). In Nena Ram vs. State of Rajasthan & Ors. (supra), this Court held that the major penalty of removal from service could not have been imposed without holding enquiry and affording opportunity of hearing to the delinquent. (12). In Kailash Chand Sethi vs. State of Rajasthan & Ors. (supra), this Court held that the forfeiture of 12 years past service of the petitioner therein on the ground of wilful absence from duty amounts to major penalty of removal from service as envisaged under Rule 14 of the CCA Rules and such penalty is not imposable without initiation of disciplinary action and without charge of wilful absence from duty. (13). Per contra, the learned Additional Government Counsel has relied on certain decisions of the Hon ble Supreme Court referred hereinabove. (14). In State of Rajasthan & Anr. vs. Mohd. (13). Per contra, the learned Additional Government Counsel has relied on certain decisions of the Hon ble Supreme Court referred hereinabove. (14). In State of Rajasthan & Anr. vs. Mohd. Ayub Naz (supra), the Hon ble Supreme Court while relying on a number of its earlier decision in Om Kumar vs. Union of India, (2001) 2 SCC 386 , B.C. Chaturvedi vs. Union of India, (1995) 6 SCC 749 , V. Ramana vs. A.P. SRTC, (2005) 7 SCC 338 , held as under:- "We are of the opinion that a government servant who has willfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court, has no right to receive the monetary/retiral benefits during the period in question. The High Court has given all retiral benefits which shall mean that a lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was willfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent. (15). In Syndicate Bank vs. General Secretary, Syndicate Bank Staff Association & Anr. (supra), the Hon ble Supreme Court dealt with a similar case and held that where a show cause notice is served upon the delinquent employee and the employee chooses not to respond to the said notice even after expiry of the notice-period, the employer has a right to presume that the employee does not want to say anything and he is no more interested in the services of the employer. The Court observed as under:- "It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are: (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. There are two essential elements of natural justice which are: (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, e.g., a party must have due notice when the tribunal will proceed; the tribunal should not act on irrelevant evidence or shut out relevant evidence; if the tribunal consists of several members they all must sit together at all times; the tribunal should act independently and should not be biased against any party; its action should be based on good faith and order (sic) and should act in a just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above." (16). It has further been held that undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the Bank is concerned. The conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief the High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the award and the Hon ble Supreme Court held that termination of service without holding any departmental enquiry is not violative of principles of natural justice. (17). In Aligarh Muslim University vs. Mansoor Ali Khan (supra), while considering the case of automatic termination of services under the relevant rules for unauthorized absent but without affording opportunity thereunder, the Hon ble Supreme held that such termination did not violate principles of natural justice but not necessarily vitiated the termination order and in that case, the employee obtained two years extraordinary leave to join a job in a foreign country. He sought extension of leave by further two years but was granted extension for only one year with the warning that no further extension would be granted and that in case of overstaying, he would be deemed to have vacated the office. The employee, despite this warning, joined a fresh two year job in the foreign country and on account of omission to join after the expiry of the third year of leave, the order deeming him to have vacated his office came to be passed. In those circumstances, the Hon ble Supreme Court held that issuance of notice to him would not have made any difference and, on admitted facts, only one view was possible that absence of notice caused no prejudice to him and was, therefore, not vitiative of the termination order. It was further held that the conduct of the employee in ignoring the employer s warning disentitles him to relief under Article 226 of the Constitution. The Hon ble Supreme Court while considering the Aligarh Muslim University Revised Leave Rules, 1969 more particularly Rule 5(8)(i) providing deemed vacation of the post under such rule, further held that the order passed without calling for explanation is not invalid, as such, an absence is an abandonment of the post. It was further held that the absence of notice when only one conclusion could be drawn not vitiates the action taken without notice. (18). In S.. Kapoor vs. Jagmohan & Ors. (supra), while considering the requirements of principles of natural justice, the Hon ble Supreme Court held that the requirement of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. This does not suggest that the opportunity need be a "double opportunity" that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegation which might lead to a certain action being taken against him. If that is made known that he is being required to meet the allegations which might lead to a certain action being taken against him. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegation which might lead to a certain action being taken against him. If that is made known that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. It was further held that the admitted or undisputed facts has been relied on the same conclusion. Whether principles of natural justice are observed or not is absolutely no ground for its exclusion. (19). In Suleman Khan vs. State of Rajasthan & Ors. (supra), this Court observed as under:- "This Court has no hesitation in concluding that the petitioner had voluntarily abandoned the job at his sweet will and desire; and then, by way of this petition, has only made an attempt to take a chance to litigate against the Department concerned. The present one being clearly a case of voluntary relinquishment of the job, the petitioner is not entitled for any relief in the extra-ordinary writ jurisdiction." (20). In the said judgment, this Court further observed as under:- "When the fact of abandonment of service as a question of intention is to be determined in the light of the surrounding circumstances as observed by the Hon ble Supreme Court in the case of G.T. Lad & Ors. vs. Chemical and Fibres of India Ltd., (1979) 1 SCC 590 , the surrounding circumstances of the present case with the admitted fact situation show nothing but a specific intention to abandon the service. Admittedly, for good 14 years, the petitioner choose not to attend on the duties and as noticed above, without any valid reason. The reason as stated now in the year 2005 in this petition, to somehow resurrect the concluded matter, where the petitioner abandoned the job in the year 1991, and where the Department after taking all care to serve him notices for joining and to serve him charge-sheet, ultimately passed the order of termination as late as on 22.5.2000, could only be said to be an after-thought, rather in eyewash and a futile attempt at abuse of the process of law." (21). In Dr. In Dr. S.K. Agrawal vs. J.N.V. University & Ors., S.B. Civil Writ Petition No. 1468/1999, decided on February 15, 2001 considering the similar controversy wherein the petitioner therein on his application was granted extraordinary leave only for a period of one year to serve in abroad i.e. Kuwait and thereafter, the petitioner therein applied for extension of leave for another two years which was further extended by the employer for a period of two years. The petitioner therein again applied for extension of the leave which was declined by the respondent University employer asking the petitioner to join the duties immediately failing which he would be treated as willfully absent from duty. Despite this warning, the petitioner therein failed to return and join the duty with the employer. On the contrary, he entered into further contract with the Kuwait unilaterally without taking prior permission of the respondent-University and without there being grant of leave. Ultimately, the respondent-University terminated the services of the petitioner therein on the ground that he abandoned the services. That order came to be challenged before this Court. This Court reached to the inescapable conclusion that the petitioner remained willfully absent after taking the maximum permissible Extraordinary Leave. He entered into contract with Kuwait University without permission of the respondent University. He had been informed that his application for extension of leave stood rejected. He was given an opportunity to come back and join. Petitioner did not avail it. He was served with a show cause notice, to which he submitted his reply which was not found satisfactory by the University. The facts still remains undisputed and, thus, in the fact-situation, holding inquiry could have been a mere useless formality. Nor petitioner could point out as to how his cause has been prejudiced by not holding the full- fledged inquiry. (22). In Chairman, Board of Mining Examination & Chief Inspector of Mines & Anr. vs. Ramjee, AIR 1977 SC 965 , the Hon ble Supreme Court observed as under:- "Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. If fairness is shown by the decision-maker to the man proceeded against, the form, features and fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter." (23). This view was reiterated by the Hon ble Supreme Court in Union of India vs. P.K. Roy & Ors., AIR 1968 SC 850 ; Channa Basappa Happali vs. State of Mysore, AIR 1972 SC 32 and Kumaon Madnal Vikas Nigam Ltd. vs. Girja Shankar Pant & Ors. (2001) 1 SCC 182 wherein the Hon ble Supreme Court held that doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application would depend upon the scheme and policy of the statute and relevant circumstances involved in a particular case. (24). In Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational Appellate Tribunal & Anr., (1999) 7 SCC 332 , the Hon ble Supreme Court observed as under:- "Giving an opportunity or an enquiry is a check and balanced concept that no one s right to taken away without giving him/her opportunity or when enquiry in a given case or where the statute requires. But this cannot be in a case where allegations and charges are admitted and no possible defence is placed before the Authority concerned. What enquiry is to be made when one admits violations....In case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and inspite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order." (25). In K.L. Tripathi vs. State Bank of India, AIR 1984 SC 273 , Hon ble Supreme Court held that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. In K.L. Tripathi vs. State Bank of India, AIR 1984 SC 273 , Hon ble Supreme Court held that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with, and so on so forth. (26). The decision of this Court in S.K. Agrawal vs. J.N.V. University (supra) dated 15th February, 2001 came to be challenged before a Division Bench of this Court in D.B. Civil Writ Petition No. 444/2001, which came to be dismissed by order dated 17th July, 2001. The Division Bench of this Court observed as under:- "In the totality of the facts and circumstances, we are of the opinion that the conduct of the petitioner in showing total lack of commitment to the assignment with the parent university, and his consistent desire to remain absent from teaching job beyond the maximum period of five years permissible under the leave rules has displayed total lack of responsibility and commitment and then seeking relief by keeping the material documents back from the Court and not placing correct facts about the extra ordinary leave availed by him and only placing material for three years availing extra ordinary leave and trying to make out a ground that he could have still been permitted two years extra ordinary leave about which otherwise there is not a whisper in the pleading challenging the correctness of the fact mentioned in Annexure-10 that the petitioner has availed five years extra ordinary leave and beyond which he is not entitled, he cannot be allowed further leave. This goes to show that the petitioner is keeping material facts back from the Court and trying to seek remedy by not disclosing fully and truly of all requisite facts necessary for evaluating the contentions raised before the Court. (27). In the instant case, undisputed fact emerging from the pleadings of the parties and the record is that the petitioner was initially sent on deputation for a period of one year to Saudi Arabia. (27). In the instant case, undisputed fact emerging from the pleadings of the parties and the record is that the petitioner was initially sent on deputation for a period of one year to Saudi Arabia. However, on the request of the petitioner, the period of deputation was further extended by one year. While extending period of deputation by one year, it was made clear to the petitioner that there shall not be any further extension to the deputation and on expiry of period of deputation, he was required to report back and join the duty with the employer. Thus, the period of his deputation was only two years; one year the original granted and one by extension and thereafter, he was to report back to the duty. The petitioner himself remained stayed at Saudi Arabia beyond the period of deputation and voluntarily absented from duty. It is not the case of the petitioner that he remained jobless at Saudi Arabia. On the contrary, the petitioner was under the gainful employment with the King Fahad College Riyadh, Kingdom of Saudi Arabia and did not return even after the passing of the order impugned. The respondent-employer issued notice to the petitioner including publishing the notice in the newspaper showing the intention of the employer that if the petitioner failed to report back to the duty and join the employer, his services will be treated as having resigned from the service. Thus, despite all these, the petitioner was bent upon not to resume the duty with the employer but remained in gainful employment with the King Fahad College Riyadh at Saudi Arabia and therefore, the respondents were justified in considering and deeming the petitioner having resigned from the service which are from the date he voluntarily remained absent/without leave i.e. 30th May, 1999. (28). Sub-rule (4) to Rule 86 of RSR which came to be inserted in the Rule 86 of the RSR w.e.f. 20th August, 2001 reads as under:- "86(4) Unless the State Government in view of the special circumstances of the case, determines otherwise a State Government employee who remains absent from duty for a continuous period exceeding five years other than on foreign service, whether with or without leave, shall be deemed to have resigned from service. Provided that a reasonable opportunity to explain the reasons for such absence shall be given to the employee before the provisions of this sub-rule are invoked." (29). Thus, sub-rule (4) of Rule 86 of RSR clearly provides that if the government servant remaining absent without leave for a continuous period exceeding five years shall be deemed to have resigned from service and what more is required is that an opportunity to explain the reason for such absence is to be given to the government servant which in the instant case as emerging from the record was given to the petitioner to explain the reason or rather he was warned by a communication that the period of deputation shall not be extended beyond the period which it had been extended and the petitioner was required to report back to the duty. This fact was well within the knowledge of the petitioner that not reporting duty on expiry of the period of deputation would amount to voluntarily absent without leave, and therefore, in my view, the respondents were justified in passing the order impugned. The decisions relied on by learned counsel for the petitioner turn on their own facts and are of no help to the petitioner in view of the catena of decisions of Hon ble Supreme Court referred hereinabove. (30). For the reasons stated above, I do not find any merit in the writ petitioner. The writ petition is, therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Stay petition also stands dismissed.