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2012 DIGILAW 322 (HP)

S. K. JAIN v. STATE OF HIMACHAL PRADESH

2012-05-31

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT V.K. AHUJA, J 1. This is an appeal filed by the appellant against the judgment of the learned Single Judge dated 13.5.2010, vide which the writ petition filed by the appellant against the order of the respondents regarding removal of the appellant from service, was dismissed. Briefly stated, the facts of the case are that the appellant hereinafter referred to as the petitioner filed an Original Application u/s 19 of the H.P. Administrative Tribunals Act, 1985, which was subsequently registered as CWP(T) on abolition of the H.P. State Administrative Tribunal. The petitioner alleged that he challenged the order dated 9.11.1994 passed by the Commissioner-cum-Secretary (Health), to the Government of Himachal Pradesh, vide which he imposed the penalty of removal from service of the petitioner. It was alleged by the petitioner that he was working as Dental Surgeon in Civil Hospital, Sunder Nagar, District Mandi. Against his transfer order to Kelong, he filed Original Application No. 1052 of 1990. The same was taken for hearing on 6.9.1990 and the Tribunal treated the Original Application as representation to the Government and directed that the representation be decided within a period of four weeks from the date of the order. The petitioner meanwhile continued to discharge his duties as Dental Surgeon in Civil Hospital, Sunder Nagar. 2. It was further alleged that the said representation was rejected by the authority and the petitioner filed another Original Application, which was registered as Original Application No. 84 of 1991. The same was taken up for hearing on 27.7.1992 and the order of rejection as alleged was stayed by the Tribunal. The said stay was ultimately vacated since the learned counsel for the petitioner sought permission to withdraw the Original Application and the copy of the order is dated 27.7.1992, which was annexed as Annexure A-2 with the Original Application. It was further alleged that the petitioner went on sanctioned leave on 6.1.1992 and the station leave was sanctioned upto 10.1.1992. He alleged that he could not join his duties after the expiry of leave on account of his ill health. He allegedly reported this to the Medical Officer-Incharge, Sunder Nagar, telegraphically on 11.1.1992. He alleged that he could not resume his duties since his father suffered an attack and was bed ridden. Then the sister of the petitioner fell ill and died on 7.9.1993. He allegedly reported this to the Medical Officer-Incharge, Sunder Nagar, telegraphically on 11.1.1992. He alleged that he could not resume his duties since his father suffered an attack and was bed ridden. Then the sister of the petitioner fell ill and died on 7.9.1993. The petitioner alleged that he could not join his duties due to his illness as well as of his family members. However, he alleged that he had been sending medical certificates alongwith leave to the concerned authority from time to time, but no details of the same were given nor any copies were attached with the petition. It was alleged that the respondents chose to suspend the applicant/petitioner vide their order dated 28.6.1992. Neither inquiry was conducted nor any show cause was issued to the petitioner. The petitioner sent so many applications and copies of two representations were attached as Annexures A-4 and A-5 with the Original Application. It was alleged that the petitioner was served the order of removal from service on 9.11.1994 (Annexure A-6) and no inquiry was conducted. A notice was allegedly issued in the newspaper i.e. 'Tribune' dated 9.9.1992, but the same was never published and no notice was issued at the two addresses available with the respondents. Respondent No. 3 was allegedly appointed as an Inquiry Officer, who was aware of the addresses of the applicant/ petitioner and the wilful absence of the petitioner from duty was not proved. Therefore, the order of removal from service of the petitioner was challenged by the petitioner. The petition was decided by the learned Single Judge vide his impugned judgment and he dismissed the writ petition filed by the petitioner. 3. Being aggrieved, the present appeal has been preferred by the petitioner. 4. The learned Single Judge in his judgment has clearly mentioned the fact that the petitioner proceeded on casual leave with effect from 6.1.1992 to 10.1.1992, but thereafter did not report for duties nor applied for leave and was willfully absenting himself from duties. These facts have not been disputed by the petitioner that he did not take any leave subsequent to the first order and had been absenting from the duties right till the date of order of removal from service. These facts have not been disputed by the petitioner that he did not take any leave subsequent to the first order and had been absenting from the duties right till the date of order of removal from service. It is also on record that a notice was published in the 'Tribune' dated 9.9.1992 asking the petitioner to join his duties within 15 days from the date of publication of notice, failing which, action of removal from service will be initiated. He neither resumed his duties nor any communication was received from him in this regard, about which there are no specific allegations made in the application filed by the petitioner. 5. The ground taken by the petitioner during the course of the arguments was that two addresses were available with the authorities and they did not issue any notice to him at the given addresses. He did not make any allegations in the Original Application that notices were not issued to him at the addresses available to him nor proved it from the record of the respondents during the pendency of the writ petition. This Court sitting in appeal cannot determine this question of fact and has to proceed as per the record available in the writ petition filed by the petitioner. No record has been placed on record by the petitioner in regard to the applications for leave, if any, sent by him after 1992. A photo coy of the letter written by him dated 16.3.1994 was attached with the Original Application file, in which he alleged about the illness of his father, sister, her death and there is no proper application submitted by him for leave accompanied by the medical certificates, if any. He had attached a photo copy of the medical certificate from some Clinic at Mandi and absence from duty for 3 months and 2 days was justified from 6.3.1992 to 30.6.1992 and he was fit to join his duties on 1.7.1992. However, the petitioner did not prove the said certificate or attach the original certificate and he was also fit to resume his duties on 1.7.1992, but did not resume the duties till the order of removal from service. One photo copy of the certificate was also attached in regard to absence from 11.1.1992 to 4.2.1992 and another certificate recommending leave from 5.2.1992 to 5.3.1992. One photo copy of the certificate was also attached in regard to absence from 11.1.1992 to 4.2.1992 and another certificate recommending leave from 5.2.1992 to 5.3.1992. Thus, he had failed to establish that he had reasonable cause to be absent from duties, but still the question arises as to whether an employee has a right to remain absent from duty without applying for leave and getting the same sanctioned from the competent authority. 6. This question has been duly considered by the learned Single Judge in his judgment and he had referred to a judgment passed by a Division Bench of this Court in CWP No. 470 of 2001 titled Dr. Rajiv Mahendru Vs. State of H.P. and another and the observations made therein were also reproduced, which are relevant and are being reproduced as under:- "The main contention raised on behalf of the petitioner is that the respondents were aware of the address of the petitioner and had sent a communication to the wrong address and also that prior to 6.10.2000 the respondents were aware that the petitioner had submitted his application for rejoining and therefore, the order dispensing with the enquiry issued on 6.10.2000 was illegal and unconstitutional. At the outset, we may mention that there is no manner of doubt that the petitioner had proceeded on unauthorized leave. Mere sending of application for extension of leave does not give an employee right to be absent. Leave is a privilege which may be granted or refused by the employer. The employee has no right to remain on leave. Interestingly, neither in the so called applications for extension of leave nor before this Court the petitioner has given any reason for remaining on leave for more than four years. The only vague excuse given is that due to adverse family circumstances, he could not rejoin duties. What were these adverse family circumstances have not been spelt out. We also cannot lose sight of the fact that the order dated 6.10.2006 must have been passed on the basis of some noting and communication of earlier dates. The petitioner was granted leave from 2.4.1996 to 1.6.1996. This leave was extended upto 21.11.1996. He was expected to join duty on 22.11.1996. He did not do so and has only reported back on duty on 26.09.2000. The petitioner was granted leave from 2.4.1996 to 1.6.1996. This leave was extended upto 21.11.1996. He was expected to join duty on 22.11.1996. He did not do so and has only reported back on duty on 26.09.2000. The Director Health services sent a communication on 5th October to the F.C.-cum-Secretary (Health) seeking guidelines as to whether the petitioner should be permitted to resume duty or not. There is no proof as to when this letter was received in the office of the F.C.-cum-Secretary (Health) to the Government of Himachal Pradesh. However, it can be reasonably presumed that this letter could not have been received prior to the issuance of the notification dated 6.10.2000. As on 6.10.2000, the F.C.-cum-Secretary (Health) had no intimation of the address or whereabouts of the petitioner. It is not disputed that communication was sent to the permanent address of the petitioner as recorded in his service book that he should rejoin his duties. According to the petitioner he was no longer living at his permanent address but was living at Panchkula and his employer, i.e. the Director Health Services was aware about this address. We are unable to accept this contention. It is true that the petitioner in some communications has shown his address as that of Panchkula but he never thought it fit to get his permanent address in the service record changed from Amritsar to Panchkula. The employer was only expected to send the communication to the permanent address available with it in the record. This communication was definitely sent to the permanent address available with the respondents and, therefore, there is no error in the finding of the employer that an enquiry was not feasible in this case." 7. Coming to the facts of the case as observed above, an employee has no right to remain absent from duties. It is not the duty of the employer to chase the employee, who absented himself from duty. The resort to proclamation i.e. publication of notice in a newspaper is always made if the employee fails to turn up inspite of the notices issued to him. It is not the duty of the employer to chase the employee, who absented himself from duty. The resort to proclamation i.e. publication of notice in a newspaper is always made if the employee fails to turn up inspite of the notices issued to him. The strict provisions of Order 5 Rule 20 C.P.C. are not required to be proved that firstly the petitioner should prove that due notices were sent and then resort was made to the provisions of Order 5 Rule 20 C.P.C. In case, the petitioner had any doubt that no notices were issued to him, he could have summoned the record and proved this fact in which he failed. It is, therefore, clear that due publication of notice had taken place and presumption can be drawn of due service and in case, the whereabouts of the petitioner are not known to the department or he is not traceable at the given address, a regular inquiry can be dispensed with and the resort can be had to the Article 311 (2), of the Constitution of India, which provisions were invoked in the present case. The learned Single Judge had considered all the factors and had come to a right conclusion that there was no merit in the petition filed by the petitioner and, therefore, the impugned judgment calls for no interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly, so also the pending miscellaneous application(s), if any. However the parties are left to bear their own costs.