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2009 DIGILAW 644 (JK)

Fida Ahmed (Dr. ) v. State

2009-12-16

MUZAFFAR HUSSAIN ATTAR

body2009
1. Petitioner was appointed as Dental Surgeon. While being posted at Sub District Hospital Bureau Budgam, he proceeded on 60 days earned leave w.e.f 15th April 1997. The petitioner left the place of his posting without waiting for orders of the competent authority and without ascertaining as to whether the leave has been sanctioned or not. After the expiry of period of 60 days petitioner did not resume his duties. Consequently, the petitioner was on unauthorized absence from duty. Notice was issued by respondent No.2 dated 29.01.1998, wherein the petitioner was asked to resume his duties. When the notice did not evoke response, two more notices dated 31st Dec. 1998 and 24th August 1999 were sent to the petitioner at the address which was last left with the respondents. When these two notices did not evoke any response, a final notice was issued to the petitioner on 6th June 2000, informing him that he has remained unauthorizedly absent from duty for such a long period, he must show cause as to why action under Article 128 of J&K CSR may not be taken against him for remaining unauthorizedly absent. The petitioner did not responded to the notices, instead sought extension of leave telegraphically on 24th July 2000. 2. Government in order to deal with the case of the petitioner issued government order No.700-HME of 2000 dated 16.10.2000 and Additional Secretary to Government Health and Medical Education Department was appointed as Inquiry Officer to enquire into the case of petitioner. As the petitioner did not respond to the notices and telegraphically sought extension of leave, the Inquiry Officer proceeded with the enquiry and made recommendations for termination of services of petitioner. Agreeing with the recommendation of Inquiry officer, government order No. 206-HME of 2001 dated 23rd of March 2001 was issued, vide which the petitioners services were terminated which order is challenged in the writ petition. 3. Petitioner has placed on record an application dated 12th Oct. 2001, which is addressed to Director Health Services Kashmir and subject of the application is "termination of services". Petitioner in the application has after referring to the termination order stated that due to some circumstances he could not resume his duties after expiry of 60 days of earned leave. It is also mentioned in the application that petitioner kept the department informed by seeking extension in his leave. Petitioner in the application has after referring to the termination order stated that due to some circumstances he could not resume his duties after expiry of 60 days of earned leave. It is also mentioned in the application that petitioner kept the department informed by seeking extension in his leave. The petitioner reeling under the impression that despite the issuance of termination order he continued to be in service accordingly requested for allowing him to join the department. The Director was also requested that treatment which has been meted out to some doctors in the recent past by allowing them to resume their duties after remaining away from the duty for more than five years, be meted out to the petitioner as well. The petitioner has also placed on writ record the communication dated 26th Nov. 2001 issued by Administrative Officer Director of Health Services Kashmir informing the petitioner that there is no vacancy of Dental Surgeon(s) available in the department. The petitioner filed this petition on 21st of Feb. 2003 calling in question the order dated 23rd of March 2001 vide which he was terminated from services. 4. On notice reply affidavit was filed by the respondents. In the reply affidavit, details as summarized hereinabove about the petitioners conduct have been detailed out. It is also pleaded in the reply affidavit that the petitioner remained unauthorizedly absent from duty for a long period as purportedly he was earning petro dollars. 5. Heard ld counsel for parties. Considered the matter. 6. Mr. Reshi, ld. counsel for petitioner submitted that the impugned termination order is bad as same has been issued in cruel dis-regard to the protections available to the petitioner under Article 311 of the Constitution of India read with Section 126 of the Constitution of J&K. The ld counsel further submitted that the impugned termination order has been passed in breach of the statutory safe guards contained in Rule 33 of the J&K Civil Services (Classification Control and Appeal) Rules 1956, (for short rules of 1956). The ld counsel further submitted that neither any notice was served on the petitioner nor any enquiry has been conducted. Same stand has been taken by the petitioner in the rejoinder affidavit. The ld counsel further submitted that neither any notice was served on the petitioner nor any enquiry has been conducted. Same stand has been taken by the petitioner in the rejoinder affidavit. The ld counsel also referred to and relied upon AIR 1966 SC 1964, SLJ 1990 page 208, SLJ 2001 page 271, SLJ 1994, page 373, and stated that in view of the law laid down by the Honble Supreme Court and this Court, this writ petition deserves to be allowed and impugned order requires to be quashed. 7. Mr. A. M. Magray, Ld. Sr. AAG while responding to the submissions of Mr. Reshi, argued that the petitioner from the day first was unauthorizedly absent from duty. The ld. counsel further submitted that the notices were issued and served on the address which was last left with the respondents by the petitioner. Ld counsel further submitted that petitioner failed to respond to the notices and continued to remain unauthorizedly absence from duty. The government ordered for conducting of enquiry and the Inquiry officer after conducting the enquiry recommended for termination of petitioners service. The Ld. counsel further submitted, it is after considering the enquiry report and recommendations made therein, and in sequel thereto the petitioner was ordered to be terminated from services. The ld counsel submitted that as the petitioner did not respond to the notices issued, it appears that he was neither in the State, nor in the country but was earning petro dollars outside the country. 8. A pointed question was asked to ld counsel for petitioner as to whether any explanation has been given in the writ petition where the petitioner remained during the period of his absence from duty. The ld counsel in response to the question of the Court referred to para 3 of the writ petition, which is reproduced here-in-below:- "That, the petitioner proceeded the 60 days earned leave w.e.f 15.04.1997, but due to the un-avoidable circumstances cannot rejoin her duties to extended her leave from time to time. It appears the requests for extension of leave have not been accepted by the department un-justifiable which has resulted the issue of termination order terminating the services of the petitioner. Photostat copy of the order is appended herewith this petition for kind perusal of this Honble court as annexure P-1. It appears the requests for extension of leave have not been accepted by the department un-justifiable which has resulted the issue of termination order terminating the services of the petitioner. Photostat copy of the order is appended herewith this petition for kind perusal of this Honble court as annexure P-1. It is further submitted that the petitioner could not join his services for the circumstances beyond his control, the petitioner fell ill seriously and was advised by the Specialist Doctors. That he is not fit to join the services, and because of this fact the petitioner could not join his duties." 9. Perusal of para 3 of the writ petition and even the entire writ petition, does not disclose as to where the petitioner was during the period of his unauthorized absence from services. Even in the rejoinder affidavit nothing is said as to where the petitioner was during the period of his unauthorized absence from service. What is stated is that because of unavoidable circumstances the petitioner could not resume his duties, what were the unavoidable circumstances petitioner has not taken the court into confidence by pleading same in the writ petition or in the rejoinder affidavit. Petitioner has stated that he was ill, but from which ailment he was suffering is not disclosed and no evidence thereof is annexed with writ petition. Petitioner has taken contradictory stands. The petitioner responded to notices by sending telegrams seeking extension in period of leave, without giving any cause for seeking such extension. A Division Bench of this court in LPA 98/2005 decided on 29.10.2009 in case titled Dr. Mohammad Afzal Wani v. State of J&K and ors 2009 (Supp.) JKJ HC-369 has considered a like situation and has made following observations :- "In all the three writ petitions the appellant has not even made a whisper, not to talk of making of a lucid and candid statement as to where he was and what he was doing during the period of his unauthorized absence from duty. The laws are made and institutions created not only to resolve disputes between the parties, but also to maintain and preserve the moral fabric of the society. In fact the message conveyed by all the laws whether constitutional or local laws is that the moral fabric of the society shall be maintained and shall not be permitted to be damaged. The laws are made and institutions created not only to resolve disputes between the parties, but also to maintain and preserve the moral fabric of the society. In fact the message conveyed by all the laws whether constitutional or local laws is that the moral fabric of the society shall be maintained and shall not be permitted to be damaged. Every faith, philosophy and thought is based on one common concept that society be built on the edifice of ethics, morality and truthful values. The laws cannot be permitted to be misused and the process of the institutions, more particularly, of the courts of law cannot be allowed to be abused. Anyone who approaches the court of law for seeking settlement of the dispute raised by him is duty bound to come to the court with clean hands and make a clean breast of all the facts. Laws neither favour nor disfavour the party, but only stand by truth. A Government employee whose services are governed by rules is duty bound to obey the same. The unauthorized absence from duty is a serious misconduct and on proper enquiry thereof, an employee can suffer the punishment of dismissal from services as well.." 10. In view of the observations made by the Division Bench of this Court, it is to be presumed that petitioner was not in the country, but it appears was working in some foreign country. For seeking employment outside the country, the petitioner was required to seek permission from the State government as also from the Government of India. Petitioner has violated provisions of J&K Civil Services (Leave) Rules, 1979, and the J&K Govt Employees (Conduct) Rules, 1971. 11. When a person invokes the equitable jurisdiction of High Court, he has to come with clean hands to the court and disclose all the facts. In case petitioner does not disclose true and correct facts to the court and only seeks benefits on technical grounds it would tentamount to allowing the process of the court to be abused. 12. In this case, not only notice has been issued and served at the last address left by the petitioner which has been responded by sending telegram, even an enquiry has been conducted. The petitioner in the rejoinder affidavit has only stated that he has no knowledge of issuance of notice and conducting of any enquiry. 12. In this case, not only notice has been issued and served at the last address left by the petitioner which has been responded by sending telegram, even an enquiry has been conducted. The petitioner in the rejoinder affidavit has only stated that he has no knowledge of issuance of notice and conducting of any enquiry. The petitioner has not denied the conducting of enquiry and issuance of notice. 13. The judgments referred to and relied upon by the ld counsel for petitioner are based on the constitutional safe guards available to the government employee under Article 311 of the Constitution of India read with Section 126 of the Constitution of J&K. A permanent employee holding lien on a post cannot be dismissed from service without following the mandate of these constitutional provisions. The stand taken by the respondents in the reply affidavit, having not denied by the petitioner in his rejoinder affidavit does show that an enquiry has been conducted in this case, so the ground taken by the petitioner that there has been violation of the guarantees as contained in Article 311 Constitution of India read with Section 126 of the Constitution of J&K is not available to the petitioner. The law laid down by the Honble Supreme Court and this Court in the judgments (supra) in the fact situation of this case do not apply to the instant case. In all the judgments it has been stated that before terminating service of an employee, notice is to be issued and/or even an enquiry is required to be conducted. 14. One more important aspect which emerges in this case is that petitioner according to his own admission in terms of annexure P-2 of the writ petition had knowledge of the termination of his services on 12th Oct. 2001, but the writ petition is filed in the year 2003. Nothing is said in the writ petition or in the rejoinder affidavit as to why this delay was caused. 15. Administrative Officer vide communication dated 26.11.2001 informed the petitioner that there was no vacancy of Dental Surgeon(s) available in the department at that point of time. The petitioner had sought treatment which was given to persons who according to petitioner though remained absent from duty for more than five years, but were allowed to resume their duties. 15. Administrative Officer vide communication dated 26.11.2001 informed the petitioner that there was no vacancy of Dental Surgeon(s) available in the department at that point of time. The petitioner had sought treatment which was given to persons who according to petitioner though remained absent from duty for more than five years, but were allowed to resume their duties. The petitioner has not stated that the persons who were allowed to resume the duties, their services were terminated, same treatment cannot be meted out to him. Even no details are given about other cases. 16. In the facts and circumstances of his case it can be safely presumed that petitioner was not interested in resuming his duties and was working somewhere else. 17. A person who seeks benefit of the provisions of law has to make a clean breast of all the facts. 18. Unless leave is sanctioned by the competent authority in accordance with the rules a government employee cannot leave his post and place of duty. If a government employee by merely filing the leave application without the decision taken by the authorities thereon leaves the post and station, he leaves at his own risk and peril. 19. Article 128 of CSR provides that a persons unauthorized absence from duty after the end of leave, involves loss of appointment. In this case enquiry is conducted, unauthorized absence of petitioner is proved, which is misconduct in law. 20. For the above stated reasons this petition being meritless is dismissed.