Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 852 (JK)

Gurdev Singh v. State of J&K

2018-10-26

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner, in this petition, prays for the following relief:- (a) To quash and set aside Order No. DHSJ/Legal/4020 dated 31.07.2010 passed by the respondent No.2, by the issuance of a writ, order or direction in the nature of Certiorari; (b) To command and direct the respondents to treat total period w.e.f. 31.10.1995 to 28.04.2009 as on duty and may be taken into account for the purpose of granting him pensionary benefits by the issuance of a writ, order or direction in the nature of Mandamus. 2. Briefly stated, the facts are that the petitioner while serving as Mechanic in Malaria Section in the office of Chief Medical Officer, Kathua applied for and was granted leave w.e.f. 01.08.1995 to 29.10.1995 for a period of 90 days by the respondent No.3. The petitioner was also granted permission to go abroad (USA) to see his relative vide Administrative Department’s Order No. MD (NG)/116/94 dated 26.09.1994 for a period of three months with a rider that he would not seek any employment there. The petitioner availed of the leave but did not report back on duty on the expiry of sanctioned leave and, thus, remained unauthorisedly absent till 07.03.2000. He, however, reported for duty on 08.03.2000, but was not allowed to join. The concerned authority took up the matter with the Administrative Department and in response the Administrative Department vide its letter dated 11.01.2001 wrote to the respondent No.2 that the proposal sent by him had not been agreed to. The respondent No.2 was further advised to take further necessary action after completing all the formalities as required under rules for proceeding against the petitioner for his remaining unauthorisedly absence from the duties. The petitioner felt aggrieved of the aforesaid communication of the Administrative Department and assailed the same in SWP No.1145/2001. The matter remained subjudice in the Court till the aforesaid writ petition was disposed of by this Court vide its judgment dated 02.04.2008. This Court while disposing of the writ petition (supra) directed the respondent No.2 to take a decision in the light of order dated 11.01.2001 issued by the Administrative Department within a period of two months. It was also provided that after the requisite decision is taken, the same would be communicated to the petitioner. This Court while disposing of the writ petition (supra) directed the respondent No.2 to take a decision in the light of order dated 11.01.2001 issued by the Administrative Department within a period of two months. It was also provided that after the requisite decision is taken, the same would be communicated to the petitioner. The petitioner was also held entitled to an opportunity of being heard and leading evidence in defence in case the respondent No.2 choses to hold an inquiry. The operative portion of the judgment dated 02.04.2008 passed in SWP No.1145/2001 is for facility of reference reproduced hereunder:- “In view of the above, this petition is disposed of with a direction to the Director Health Service, Jammu to take a decision in the light of order dated 11.01.2001 issued by the Under Secretary to the Government, Health and Medical Education Department within a period of two months. After the decision is taken, the same shall be communicated to the petitioner. In case some inquiry is to be held, then the petitioner shall also be afforded an opportunity of hearing and leading evidence in defence.” 3. It is further seen that pursuant to the judgment (supra) the respondent No.2 initiated an inquiry and constituted an Inquiry Committee for the purpose of holding the inquiry. The Committee submitted its report on 24.03.2009 to the respondent No.2. The Inquiry Committee after going through the record and the statement observed as under :- “That the official proceeded abroad after obtaining sanction for 90 days EL. That no notice was served to the person in question in spite of the fact home address being recorded in the service book and the address where he was to visit in USA too recorded in the record. That a telegram for extension of leave is in the record. That the medical certificate issued by the treating Doctor revealing his illness is enclosed. That the official reported back before five years of absence from duty. That the family including a widow daughter is dependent on him.” 4. That a telegram for extension of leave is in the record. That the medical certificate issued by the treating Doctor revealing his illness is enclosed. That the official reported back before five years of absence from duty. That the family including a widow daughter is dependent on him.” 4. Eventually, the Committee made the following recommendations:- “Keeping in view the above mentioned facts, dependency of family/widow daughter of the official depend upon him, it is recommended that he may be allowed to join his services and the period of unauthorised absence from duty i.e. w.e.f. 30.10.1995 to 07.03.2000 be treated as “DIES NON” and the period w.e.f. 08.03.2000 till date i.e. when he reported back to join his duties and was awaiting his joining be treated as leave whatsoever kind due to him on compassionate grounds.” 5. The respondent No.2 vide Order dated 22.02.2010 read with its order dated 31.07.2010 treated the period of absence of the petitioner w.e.f. 30.10.1995 to 07.03.2000 as “Dies Non” and w.e.f. 08.03.2000 to 28.04.2009 as leave whatsoever kind due to him. The petitioner is not happy with the aforesaid order and is, therefore, in this Court with his grievance as projected in the instant writ petition. The petitioner seeks to treat the period w.e.f. 30.10.1995 to 28.04.2009 as on duty and also that the same be taken into account for the purpose of granting him retiral benefits. 6. The respondents have filed their reply and have recounted the factual antecedents leading to the issuance of impugned communications. It is stated that the petitioner has no grievance against the inquiry conducted by the Committee constituted by the respondent No.2 nor is he challenging the recommendation made by the committee. The impugned order issued by the respondent No. 2 is only in pursuance of the recommendation made by the Committee and, therefore, cannot be challenged without first challenging the report of Inquiry Committee. In the reply affidavit, the respondents have also submitted that in passing the impugned order, the respondent No.2 has taken a lenient view and permitted the petitioner to join back the duties and that the case of the petitioner was fit to invoke Article 128 of CSR Vol.1, which would have entailed the loss of appointment. It is submitted that the Inquiry Committee has not fully exonerated the petitioner but has taken note of the family circumstances and other mitigating circumstances into consideration. It is submitted that the Inquiry Committee has not fully exonerated the petitioner but has taken note of the family circumstances and other mitigating circumstances into consideration. 7. Having heard learned counsel for the parties and perused the record, I see no illegality or infirmity in the impugned order. To be fair to the learned counsel for the petitioner, it may be placed on record that the learned Senior counsel appearing for the petitioner at the outset submitted that the petitioner is not seriously aggrieved of the treatment of period of his actual absence from duty w.e.f. 30.10.1995 to 07.03.2000 as ‘dies non’. He, therefore, submits that he is only aggrieved of portion of the order impugned whereby his period w.e.f. 08.03.2000 till 28.04.2009 has been treated as leave of whatsoever kind due to him. It is submitted that the petitioner after overstaying the leave for almost 5 years reported for duties on 08.03.2000 but was not permitted to join on the plea that the matter had been taken up with the Administrative Department for appropriate instructions. It is, thus, submitted that the Administrative Department took almost 9 years to conclude the inquiry and pass appropriate orders and therefore, the petitioner cannot be made to suffer for the lapse committed by the respondents. It is, thus, submitted that the petitioner right from 08.03.2000 onwards was all along willing and ready to join his duties but was prevented to do so by the respondents in spite of the fact that his services had not been terminated nor any inquiry into his conduct had been initiated. 8. Appreciating the rival contentions in the backdrop of the factual matrix of this case, it is clear that the petitioner who had been sanctioned leave for three months with permission to go abroad did not report back for duties for almost 5 years. He had virtually lost the employment because of his remaining unauthorisedly absence for petty long time without seeking further extension of leave. There is some telegram made by the petitioner for extension of leave, which was taken into consideration by the Inquiry Committee for taking lenient view but in my opinion that was not sufficient to remain absent from the duties. In order to avail leave or its extension there ought to be proper sanction by the competent authority. There is some telegram made by the petitioner for extension of leave, which was taken into consideration by the Inquiry Committee for taking lenient view but in my opinion that was not sufficient to remain absent from the duties. In order to avail leave or its extension there ought to be proper sanction by the competent authority. The Inquiry Committee was alive to this situation, therefore, rightly recommended that the period of absence from 30.10.1995 to 07.03.2000 be treated as ‘dies-non’. It is true that since the services of the petitioner had not been terminated and therefore, the respondents should have ordinarily permitted the petitioner to join, place him under suspension and order inquiry into the matter. This obviously was not done by the respondents, but the reasons given by the respondents for not doing so also cannot be said to be totally illogical or absurd. The matter was immediately taken up by respondent No.2 with the respondent No.1 for appropriate instructions in the matter. The Administrative Department was quick to respond and asked the respondent No.2 to hold inquiry into the matter. May be, the inquiry could have been concluded without much waste of time, but the petitioner with a view to avoid any inquiry into the matter and straightway get back to the service, immediately invoked the writ jurisdiction of this Court by way of SWP No. 1145/2001. As the ill luck would have it, this petition remained pending for almost 7 years and was eventually disposed of on 02.04.2008 directing the respondents to go ahead as per the decision of the Administrative Department dated 11.01.2001. Immediately, the respondents appear to have constituted the Inquiry Committee. The Inquiry Committee conducted the inquiry after affording full opportunity of hearing to the petitioner and made its recommendations. The petitioner virtually accepted the recommendations of the Inquiry Committee which had taken compassionate view in the matter having regard to the family and other circumstances of the petitioner. He did not call in question the Inquiry Report or the recommendations made by it. The respondent No.2 accepted the recommendations of the Inquiry Committee in toto. Normally, it was expected that the petitioner would accept the order passed by the respondent No.2 impugned in this writ petition. As a matter of fact, the petitioner accepted the impugned order, joined back his duties and ultimately, retired on superannuation w.e.f. 31.01.2012. The respondent No.2 accepted the recommendations of the Inquiry Committee in toto. Normally, it was expected that the petitioner would accept the order passed by the respondent No.2 impugned in this writ petition. As a matter of fact, the petitioner accepted the impugned order, joined back his duties and ultimately, retired on superannuation w.e.f. 31.01.2012. Till his superannuation he never voiced any grievance against the order impugned. He chose to file the instant writ petition well after his pensionary benefits had been settled. This petition was filed on 24.09.2012. Although, I am not inclined to reject this petition on account of delay and laches and 2-1/2 years’ period to assail the order impugned may not be fatal, yet having regard to the conduct of the petitioner and his acquiescence in the order impugned, he may not be entitled to any relief in this writ petition. Even on merits, I do not find that any of the rights of the petitioner have been violated. The respondents have not declared the period w.e.f. 08.03.2000 to 28.04.2009 as ‘dies-non’ but have treated the same as leave of whatsoever kind due to him. This would also not mean that the period of his service w.e.f. 08.03.2000 to 28.04.2009 is not to be reckoned as a qualifying period for the purpose of pensionary benefits. 9. Viewed from any angle, I find that the order impugned issued by the respondent No.2 read with subsequent order issued on 31.07.2010 is just equitable and fair in the facts and circumstances of the case. 10. Before I close, it would not be out of place to take judicial notice of the fact that there has been tendency in some of the government employees to seek leave for short duration with permission to go abroad on the pretext of meeting their relations and then taking gainful employment therein and overstaying their leave without further permission from the employer. Such employees would stay abroad for many years and then come back to the State and file the writ petitions. Taking shelter of the technicalities and lacunas left out by the employer, inadvertently or deliberately, many such employees manage their reinstatement in service and in some cases, they get all the back wages. This phenomenon is not recent but is prevalent in the State since long. Taking shelter of the technicalities and lacunas left out by the employer, inadvertently or deliberately, many such employees manage their reinstatement in service and in some cases, they get all the back wages. This phenomenon is not recent but is prevalent in the State since long. It is high time that the Government takes note of this menace and deal it with iron hands, of course, in conformity with law. Such employees, who take the government for granted and exploit the technicalities of law, deserve no leniency. The connivance of the officers of the Government at the decision making level in facilitating their joining back also cannot be ruled out. This has caused serious loss to the public exchequer and has bred indiscipline in the Government service. 11. Apart from the anguish, I have expressed hereinabove, the case of the petitioner does not stand, anywhere, on merits as discussed above. The writ petition is therefore, devoid of any merit and deserves dismissal. Ordered accordingly. 12. Let a copy of this judgment be brought to the notice of the Chief Secretary of the State for taking appropriate measures in this regard.