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Rajasthan High Court · body

2015 DIGILAW 265 (RAJ)

Prakash Kachhawa v. State of Rajasthan

2015-01-29

PRAKASH GUPTA, SUNIL AMBWANI

body2015
Judgment : 1. We have heard Shri Rishipal Agarwal, learned counsel appearing in Special Appeal No.496/2012, representing the Judge, Motor Accident Claims Tribunal, Ajmer (for short, 'Judge, MACT'), and Shri Suresh Kashyap & Shri Tanveer Ahmed, learned counsels appearing for Shri Prakash Kachhawa, the employee, in Special Appeal No.1308/2012. 2. These two Special Appeals, filed by the Judge, MACT and the employee namely, Shri Prakash Kachhawa, arise out of the judgment and order of learned Single Judge dated 05.01.2012, by which he had allowed the writ petition filed by Shri Prakash Kachhawa serving as a Peon on temporary basis in the office of Judge, MACT, Ajmer against verbal termination of his services on 31.03.2001. Learned Single Judge held that the Judge, MACT did not follow the procedure prescribed under Rule 86(2) (a) and Rule 86(3) of the Rajasthan Civil Services (Classification, Control & Appeal Rules, 1958 (for short, 'Rules of 1958'), in terminating the services of the petitioner. The verbal termination order/communication dated 31.03.2001 was quashed and set aside with directions that the petitioner shall be reinstated in service forthwith with all consequential benefits. Learned Single Judge, however, confined the back wages to 25% along with all other service benefits. 3. The facts, admitted to both the parties, are that Shri Prakash Kachhawa was selected by direct recruitment and appointed as Class-IV in the Judge, MACT, Ajmer in pursuance to the selections vide advertisement dated 15.03.2000, in which he was found suitable. He was given appointment after his selection, following the procedure laid down in the Rajasthan Class-IV Service (Recruitment & Conditions of Service) Rules, 1963. The appointment was made along with one another candidate Shri Narsingh Ram in the pay scale Rs.2550-55-2660-60-3200. The appointment order provided that the appointment is purely on temporary basis for a period of three months, and that his tenure can be extended from time to time. 4. The petitioner remained absent from service duty from 04.09.2000 to 07.09.2000, for which a notice was given to him on 21.10.2000. He again remained absent from duty from 18.09.2000 to 21.09.2000, for which a notice was given to him on the next day i.e. 22.10.2000. The employee submitted his 3 explanation stating therein that he was ill, and thus he could not attain his duties. He also requested for leave for absence on account of illness for these dates. He again remained absent from duty from 18.09.2000 to 21.09.2000, for which a notice was given to him on the next day i.e. 22.10.2000. The employee submitted his 3 explanation stating therein that he was ill, and thus he could not attain his duties. He also requested for leave for absence on account of illness for these dates. The leave of absence was allowed on both the occasions with warning. 5. On 16.03.2001, again a notice was given to the employee that he is willfully abstaining from duties with effect from 08.12.2000, and that thereafter vide the communication dated 31.03.2001, the Judge, MACT, Ajmer informed the Law Secretary, Government of Rajasthan, Jaipur that due to the absence of Shri Prakash Kachhawa from duty in spite of giving repeated warnings, his services have been terminated. No formal order of termination of services of the petitioner was prepared and placed on record in the writ petition by either of the parties. The only assertion made is with regard to abandonment and forfeiture of the services of the petitioner, on which his services were terminated on 31.03.2001. 6. In the writ petition, it was stated by the petitioner that he was remained present throughout and was working. His presence was, however, not recoded after 08.02.2000. He was sent to perform duties at the residence of the parents of the Judge, MACT at Kota, where he was treated badly, and was also beaten up by them. In paragraph Nos.4 to 7 of the writ petition, it is stated by the petitioner as follows: “4. That the respondent No.2 had taken the services of the petitioner at the home of her mother and father residence at Kota where he was ordered to go and serve there and his attendance was made at Ajmer office. The petitioner as per the directions of respondent No.2 went to Kota and to work at house and he was engaged cooking food, washing cloths, cleaning house ect. The mother of respondent No.2 harassed the petitioner and abused him and at some time gave beating to him. The petitioner was tourchered there by the mother of respondent No.2. He told there that he is going to Ajmer. 5. That on 8.12.2000 mother of respondent No.2 gave beating him and on the same day petitioner returned to Ajmer from Kota. At that time the Presiding Officer was on leave. The petitioner was tourchered there by the mother of respondent No.2. He told there that he is going to Ajmer. 5. That on 8.12.2000 mother of respondent No.2 gave beating him and on the same day petitioner returned to Ajmer from Kota. At that time the Presiding Officer was on leave. The Presiding Officer came on 13.12.2000, again on 15.12.2000 petitioner was told to go to Kota, the petitioner refused then he was warned/threatened that if he wanted to remain in employment he had to go Kota otherwise his services will be terminated. Then petitioner's attendance was not marked in the register and he was not allowed to make attendance in the attendance register. Although petitioner worked up to 15.12.2000 but thereafter he was not allowed to work. The petitioner used to go daily to attend the office but he was not allowed and ultimately on 31.3.2001 his services were terminated and no termination letter was given to him. The petitioner made complaint against the Presiding Officer before the Chairman, Human Rights Commission and copy of which was sent to the Hon'ble Chief Justice, Rajasthan High Court. A copy of the complaint dated 18.4.2001 is submitted herewith and marked as Annexure-2. 6. That in response to this complaint, the Hon'ble Registrar General (Vigilance) send a communication to petitioner on 19.1.2002 directing him to submit an affidavit in support of his complaint dated 18.4.2001 within 15 days after receipt of the letter. A copy of letter dated 19.1.2002 is submitted herewith and marked as Annexure-3. 7. That the petitioner worked up to 15.12.2000 but his attendance was marked in the register up to 8.12.2000, thereafter he continued to go to office to work and marked attendance but he was not allowed and ultimately on 31.3.2001 he was asked that his services have been terminated and such note has been made in the attendance register itself. The petitioner was not given termination letter in writing w.e.f. 31.3.2001 his services were terminated without any reason and without any order.” 7. In the para-wise reply to the writ petition, it is stated in reply to paragraph Nos.4 & 5 as follows: “4. That the contents of para No.4 and 5 of the writ petition are denied being false and incorrect. It is denied that services of the petitioner were engaged for working at the house of he parents of the answering respondent at Kota. That the contents of para No.4 and 5 of the writ petition are denied being false and incorrect. It is denied that services of the petitioner were engaged for working at the house of he parents of the answering respondent at Kota. The allegations are wholly false and incorrect. In fact the parents of the answering respondent were residing with her at Ajmer. The petitioner was performing his duties at office and was marked present. It is denied that the petitioner had ever worked at Kota. The mother of the answering respondent is paralyzed, hence the question of her harassing and beating the petitioner does not arise. The petitioner has concocted a false story. It is submitted that the petitioner was being not marked present on the dates, he reported for duty at the office. The petitioner absented w.e.f 8.12.2000. The complaint dated 18.4.2001 filed as Annex.2 alleged to have been made to the Human Rights Commission is denied for want of knowledge as the same was never served upon the answering respondent. It seems that in pursuance to the aforesaid complaint, the petitioner was called upon to file an affidavit in support of the allegations vide Annex.R-3, which the petitioner never tendered, knowing fully well that his allegations were false. The petitioner is thus seeking to raise an issue, which is absolutely not concerned with the employment as Peon. 5. That the contents of para no.6 of the writ petition need no reply. The petitioner, however, has failed to disclose as to whether the petitioner had submitted his affidavit in pursuance to the communication dated 19.01.2002 or not. The fact that the petitioner did not dare to submit his affidavit itself shows that the petitioner was well aware that the allegations being made by him were false and concocted. It is worthwhile to mention at this juncture that the petitioner had also submitted a complaint to this Hon'ble Court. The Registrar General (Vigilance), Rajasthan High Court, Jodhpur vide its Communication No.16/2002/403 dated 1.05.2002 sought comments from the answering respondent. The comments were forwarded to the Registrar General (Vigilance) by the answering respondent's office vide Communication No.79/F-4/5/02-DRT-III dated 3.06.2002. A photostat copy of the comments above stated are annexed herewith and marked as ANNEXURE-R/4/11.” 8. The Registrar General (Vigilance), Rajasthan High Court, Jodhpur vide its Communication No.16/2002/403 dated 1.05.2002 sought comments from the answering respondent. The comments were forwarded to the Registrar General (Vigilance) by the answering respondent's office vide Communication No.79/F-4/5/02-DRT-III dated 3.06.2002. A photostat copy of the comments above stated are annexed herewith and marked as ANNEXURE-R/4/11.” 8. It is pertinent to mention that the petitioner Shri Prakash Kachhawa (appellant herein) has made a representation to the Registrar General of this Court, on which the comments of the Judge, MACT, Ajmer were asked for, as she in the Rajasthan State Judicial Services. The Officer gave a reply stating therein that the employee had willfully absented from duty from 04.09.2000 to 07.09.2000, for which he was given a warning. He again remained absent from 18.03.2000 to 21.09.2000, for which he submitted an application for leave for absence with medical certificate, on which his leave was sanctioned with warning. He thereafter, remained absent from duty for the third time from 08.12.2000 to 31.02.2001, without any notice. A notice was sent to him on 15.03.2001, on which the process server submitted a report that the employee has set up a 'Dhaba' in front of the Janana Hospital, from which he is earning Rs.200/- per day, and that he stated that he is not interested in service. In the circumstances, after perusal of the report of the process server, and considering the fact that the petitioner was a Class-IV employee appointed temporarily, and that he has remained absent for the third time without sufficient cause, after considering the warnings given to him, his services were not extended, and were terminated on 31.03.2001. The Judge, MACT also submitted a reply denying that she had deputed the employee to serve her father and mother. She stated that his mother is about 71 years and 7 suffering from brain haemorrhage and her right side of body is paralyzed. A female employee was deputed to serve her, she denied that her mother had beaten up the employee. 9. Learned Single Judge, after considering the facts of the case, found that a departmental enquiry under Rule 86(3) was necessary before terminating the services of the petitioner. A female employee was deputed to serve her, she denied that her mother had beaten up the employee. 9. Learned Single Judge, after considering the facts of the case, found that a departmental enquiry under Rule 86(3) was necessary before terminating the services of the petitioner. On the facts brought on record, it could not be said that the petitioner had abandoned the employment, and that it was not possible to hold the enquiry, or that his conduct was such, that no enquiry was contemplated under Rule 86 of the Rajasthan Service Regulations. The writ petition was allowed with benefit of only 25% of back wages giving rise to these Special Appeals. 10. Learned counsel appearing for the Judge, MACT-appellant submits that in the facts and circumstances of the case, in which the employee had remained willfully absent from duty from 04.09.2000 to 07.09.2000, and thereafter from 18.09.2000 to 21.09.2000, and in both the cases, his leave was sanctioned with warning, and thereafter he remained absent for 08.12.2000, and had not returned back to the duties, the employee has intentionally abandoned the service, on which no enquiry was required to be conducted. He has relied upon the judgment of Supreme Court in Vijay S.Sathaye vs. Indian Airlines Ltd. & Ors. [Special Leave Petitions (C) Nos.24220-24221 of 2007 decided on 06.09.2013], in which it was held as follows: “9. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring, any order to be passed by the employer.” 11. It is submitted that the petitioner was a temporary employee, and was on probation. His conduct had clearly demonstrated that he was not entitled for extension of his temporary services, and thus he was terminated from service after informing the State Government. 12. Learned counsel appearing for the employee has supported the judgment of learned Single Judge on the findings of the necessity of the enquiry, and relief given for reinstatement in service forthwith with all consequential benefits. 12. Learned counsel appearing for the employee has supported the judgment of learned Single Judge on the findings of the necessity of the enquiry, and relief given for reinstatement in service forthwith with all consequential benefits. He has, however, challenged the part of the order, by which only 25% of the back wages with all other service benefits were awarded. 13. It is submitted that the employee was always present, available and was in fact working with the parents of the Judge, MACT, at Kota. Since he could not satisfy their demands of domestic work, and was abused and beaten up on any pretext, he came back to work in the office of Judge, MACT, at Ajmer on 08.12.2000, where he remained present to attend duties but his presence was not marked, and he was shown absent. The Judge, MACT decided to treat him as absent and consequently, she terminated the services of the petitioner. It is submitted that a Government servant, appointed on a substantive post cannot be terminated by oral orders. The appointment by way of direct recruitment on a substantive post, even if made on temporary basis, does not take away the rights of the employee for a departmental enquiry under Rule 86 of the Rules of 1958. There is no concept of oral termination of service of any employee in the employment of the State Government. 14. Rule 86 of the Rules of 1958 provides as follows: “86. Absence after expiry of leave:—(1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained willfully 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 regularized 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 regularized by grant of leave due by the authority to grant leave. (b) Willful 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 willfully remains absent from duty for a period exceeding one month and if the charge of willful 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 this sub-rule are invoked.” 15. Sub-rule (1) of Rule 86 of the Rules of 1958 provides that where a Government Servant is absent from duty, either after sanction of leave or without taking leave, and remain willfully absent from duty, 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. Sub-rule (2)(a) provies that 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 extraordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave. Sub-rule (2)(b) provides that wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. Under sub-rule (3) in both the provisions of sub-rule (1) & (2), the disciplinary authority is required to initiate departmental proceedings under Rules of 1958 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. 16. 16. In the present case, the employee had stated in his affidavit supporting the written application made by him to the Registrar General of the High Court that he was not absent, and was actually present on all the dates. He was serving the parents of the Officer at Kota upto 08.12.2000, after which he returned to Ajmer where he was shown absent, despite his presence in office. He was not served with any notice, nor refused to attend to his duties. The evidence of service of notice on him shows that in fact, he was available, and that at best, an inference could be drawn that he had refused to receive the notice. In any case, on such allegations the disciplinary enquiry under sub-rule (2)(b) of Rule 86 of the Rules of 1958 was contemplated against him. In no case, the inference of abondanment of service could be drawn against him, and that the Rules do not permit or provide for an oral termination of services, with intimation to State Government. 17. We are of the opinion that since the employee was neither serving on casual basis of on daily wages, and was appointed by direct recruitment on a substantive post on temporary basis, his services could not be dispensed with by oral orders. The departmental enquiry in such a case, was required to be held on his alleged willful absence from service as misconduct under Rule 86(3) of the Rules of 1958. A reading of Rule 86 does not leave any room to doubt that in case of unauthorised absence from duty exceeding one month, a departmental enquiry must be initiated against a Government servant. 18. We are unable to accept the submission of learned counsel appearing for the Judge, MACT, Ajmer-appellant that the employee had abandoned the services, or that he was not willing to serve. The report of the process server had established that he was available at Ajmer. His alleged statement that he was earning more from a Dhaba, could not have allowed the Judge, MACT to draw an inference that he had no intention to join his duties. In any case, his services could not be terminated without holding a departmental enquiry. The report of the process server had established that he was available at Ajmer. His alleged statement that he was earning more from a Dhaba, could not have allowed the Judge, MACT to draw an inference that he had no intention to join his duties. In any case, his services could not be terminated without holding a departmental enquiry. In the worst case, at least an order of termination in writing, should have been drawn against him, giving out the circumstances, in which the Judge, MACT had formed an opinion on the circumstances in which she had decided to terminate services of an employee. She could not have acted in an arbitrary manner in dispensing with services of a temporary Government servant. In Government employment there is no concept of oral termination of service. In the present case, the appellant was available in the city, and as alleged by him he was prepared to work in the office where he was posted, and was actually restrained from working. The termination of his services, without holding a departmental enquiry was thus illegal, arbitrary and in violation of Rule 86 of the Rules of 1958. In our view, the award of 25% of the back wages was not justified as he was prevented to attend to his duties. He was entitled to be reinstated with full back wages. On account of an interim order passed by this Court, he could not be reinstated. We are, however, of the view that since the grant of full back wages will entail payment of the wages for the period, for which he did not work, an award of 50% of the back wages would be justified. 19. The Special Appeal, filed by the Judge, MACT, Ajmer, is dismissed, whereas the Special Appeal, filed by the employee Shri Prakash Kachhawa is partly allowed to the extent that he shall be entitled to reinstatement along with 50% of the pay and allowances, which shall be paid to him. He will be reinstated within a month, with 50% of pay and allowance from 31.03.2001 upto the date of his reinstatement. A copy of this order will be placed in both files.