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2012 DIGILAW 77 (RAJ)

Prakash Kachhawa v. State of Rajasthan

2012-01-05

GOPAL KRISHAN VYAS

body2012
Hon'ble VYAS, J.—In this writ petition filed by the petitioner, the petitioner has prayed for quashing verbal termination order dated 31.3.2001 and prayed that the respondents be directed to reinstate the petitioner in service with all consequential benefits. 2. As per facts of the case, for filling up 2 vacant posts in the Motor Accident Claims Tribunal, Ajmar an advertisement was issued on 15.3.2000 whereby applications were invited for recruitment on the posts of Class IV employee. The petitioner being eligible applied in pursuance of the said advertisement and he was found suitable, therefore, after following the procedure laid down in the Rajasthan Class IV Service (Recruitment & Conditions of Service) Rules, 1963. The appointment was made on temporary basis along with other candidate Narsingh Ram in the pay-scale of 2550-55-2660-60-3200. In the order of appointment, it was observed that the appointment is purely on temporary basis for three months. The tenure of appointment was further extended from time to time. 3. Thereafter, on 21.10.2000 a notice Annex. R/4/3 was given to the petitioner that he remained willfully absent from duty from 4.9.2000 to 7.9.2000 which is misconduct, therefore, explanation may be filed within three days. On the next day, another notice was given to the petitioner seeking explanation why he remained absent from duty from 18.9.2000 to 21.9.2000. The petitioner filed his reply to the notice dated 21.10.2000 and submitted that he became ill, therefore, he did not attend office for 4 days. 4. On 16.3.2001, again, notice was given to the petitioner that he is willfully absent from duty with effect from 8.12.2000. Thereafter, vide communication dated 31.3.2001, the Judge, Motor Accident Claims Tribunal, Ajmer sent communication to the Law Secretary, Government of Rajasthan, Jaipur that due to the reason that the petitioner Prakash Kachhawa remained absent from duty inspite of giving repeated warnings, therefore, his services have been terminated. No formal order of terminating the services of the petitioner has been placed on record by either of the parties. The only assertion is made with regard to forfeiture of the services of the petitioner and terminating his services with effect from 31.3.2001 is mentioned in Annex. R/4/8 which is filed along with the reply by the respondents. 5. No formal order of terminating the services of the petitioner has been placed on record by either of the parties. The only assertion is made with regard to forfeiture of the services of the petitioner and terminating his services with effect from 31.3.2001 is mentioned in Annex. R/4/8 which is filed along with the reply by the respondents. 5. Learned counsel for the petitioner submits that appointment was made against substantive vacancy after following procedure laid down in the rules and term of appointment of the petitioner was extended from time to time. It is pointed out by learned counsel for the petitioner that action has been taken against the petitioner for terminating his services under Rule 86 of the Rajasthan Service Rules which is evident from communication dated 31.3.2001 sent by the Judge, Motor Accident Claims Tribunal, Ajmer to the Law Secretary, Government of Rajasthan, Jaipur that services of the petitioner have been terminated after forfeiting the petitioner's past services under Rule 86; meaning thereby, the petitioner was substantively appointed, therefore, if any action was to be taken against the petitioner the procedure laid down in the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 was to be adopted; but, without following the procedure laid down in the Rules of 1958 the petitioner's services have been terminated by verbal order which is totally illegal. Therefore, the termination of the petitioner's services with effect from 31.3.2001 may be quashed and petitioner may be reinstated with all consequential benefits. 6. Per contra, learned counsel for respondent No. 2 submits that appointment was made on purely temporary basis for fixed term and petitioner remained will fully absent from duty, therefore, action was taken against the petitioner under Rule 86, Rajasthan Service Rules and after taking action against the petitioner the matter was forwarded to the Law Department vide Annex. R/4/8 dated 31.3.2001, in which, it was specifically mentioned that action has been taken in Rule 86 of the RSR because he remained absent from duty for more than one month, therefore, no case is made out for interference. The petitioner is guilty of willfully remaining absent from duty, therefore, this writ petition may be dismissed. 7. After hearing learned counsel for the parties, I have perused the entire record of the case. 8. The petitioner is guilty of willfully remaining absent from duty, therefore, this writ petition may be dismissed. 7. After hearing learned counsel for the parties, I have perused the entire record of the case. 8. Upon perusal of the record, it is abundantly clear that an advertisement was issued for filling up 2 vacant posts in accordance with Rules of 1963. The appointment was made on substantive basis but for providing appointment on probation generally in the advertisement it is stated that appointment is to be made on temporary basis. In this case, although it is stated that applications are invited for filling up 2 vacant posts but further it is stated that appointment is to be made purely on temporary basis. The fact, however, remains that procedure for substantive appointment was followed, in which, the petitioner was found suitable, therefore, he was provided appointment. 9. From the above facts, it is abundantly clear that appointment was made against substantive vacancy, that too, after following procedure laid down in the rules, therefore, for taking action against the petitioner it is observed in the communication dated 31.3.2001 by the Judge, Motor Accident Claims Tribunal, Ajmar that services of the petitioner have been terminated and past services forfeited accordance with Rule 86 of the Rajasthan Services Rules. This fact also given strength to the fact that appointment was made against substantive vacancy, therefore, RSR was applicable upon the petitioner. 10. I have perused Rule 86, R.S.R. which runs as under:- "Rule 86. Absence after expiry of leave: (1) A Government servant who is absent from duty without leave or before leave applied for has been auctioned by the competent authority shall be treated to have remained wilfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. (2) (a) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra-ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave. (b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. (3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. (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 the sub-rule are invoked." 11. Upon perusal of Rule 86(3), it emerges that for terminating the services of an employee who remained willfully absent from duty the departmental inquiry under the Rules of 1958 is required to be conducted but, in this case, apparently no inquiry was conducted against the petitioner who remained wilfully absent from duty for more than one month; meaning thereby, the termination of the services of the petitioner is obviously against the spirit of Rule 86(3) of the Rajasthan Service Rules. Therefore, in my opinion, the termination of services of the petitioner with effect from 31.3.2001 is not sustainable in law. 12. Hence, this writ petition is allowed. Impugned verbal termination of the services of the petitioner with effect from 31.3.2001, so, also, order/communication dated 31.3.2001 (Annex. R/4/8) are hereby quashed and set aside. The petitioner shall be reinstated in service forthwith all consequential benefits. However, the petitioner shall be paid 25% back-wages along with all other service benefits.