CWP/470/2001 of RAJIV MAHENDRU Vs STATE on 29 December 2008

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.: 470 of 2001

Reserved on 25.11.2008

Date of decision: 29.12.2008.

Dr. Rajiv Mahendru

… Petitioner.

Versus

State of H.P. and another. …Respondents

Coram

The Hon’ble Mr.Justice Deepak Gupta, J.

The Hon’ble Mr. Justice V.K.Ahuja, J.

Whether approved for reporting?[1] No.

For the petitioner: Mr. Surender Sharma, Advocate.

For the respondents : Mr. Ram Murti Bisht, & Mr. Rajesh Mandhotra, Dy. Advocate Generals.

Per Deepak Gupta, J.

This writ petition is directed against the order of the learned H.P.State Administrative Tribunal dated 24[th] April, 2001 whereby the original application filed by the present petitioner was rejected.

The brief facts necessary for the decision of the case are that the applicant, who is a doctor, joined service on contract basis with the State of Himachal Pradesh on 19.2.1986. The services of the petitioner were regularized with effect from 28[th] April, 1988. The petitioner thereafter applied for admission in the Doctor of Medicine Degree (M.D) course as an in service candidate. He was selected for undergoing the M.D. course and executed a bond to serve the State of Himachal Pradesh for a period of five years after completing his M.D.

On completion of the M.D. course, the petitioner was posted at Community Health Centre, Bharmour, which is in a tribal area of Himachal Pradesh. The petitioner worked there for a very short period of about six months. Even during this period, he applied for and was sanctioned commuted leave of 80 days. Thereafter, the petitioner applied for 61 days earned leave from 2.4.1996 to 1.6.1996, which was sanctioned. He got his leave extended for 90 days but thereafter the petitioner did not join service. According to the petitioner, on 18.2.1997, 14.12.1997 and 10.8.1997 he submitted application for extension of time. According to the petitioner, he submitted his joining report on 7.9.2000 and thereafter another joining report on 26.9.2000. On 6.10.2000 the respondent-State issued an office order whereby the services of the number of doctors who had willfully absented themselves from duty without approval of the competent authority were terminated. In the said order, it was also mentioned that since the whereabouts of the doctors were not known to the department and no response had been received by the department from the said doctors in response to the communication sent by them it was not possible and reasonably practical to hold a normal departmental inquiry and therefore, the holding of the inquiry was dispensed with under Article 311 of the Constitution of India.

Most of the facts are undisputed. However, according to the respondents, the petitioner never sent the applications for grant of leave on 18.2.1997, 14.12.1997, 13.8.1998 and 10.8.1999. The respondents, however, admit that on 26.9.2000 the petitioner did submit an application to join and on this application the respondent No.2, i.e. the Director of Health Services informed the F.C.-cum-Secretary (Health) to the Government of Himachal Pradesh that the respondent had been on unauthorized leave right for more than four years.

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 Director Health services sent a communication on 5[th] 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.

A large number of authorities have been cited by Shri Surinder Sharma, learned counsel for the petitioner. We may only refer to two of them i.e. Ex. Constable Chhote Lal vs. Union of India and others (2000) 10 SCC 196 and Tarsem Singh vs. State of Punjab and others, (2006) 13 SCC 581.

The law is well settled that there must be justifiable reasons not to hold a departmental inquiry. In the present case, the reasons were that the whereabouts of the petitioner were not known. Just because he approached one of his superior office a few days before his termination will not mean that the decision not to hold the enquiry was improper, especially, when this fact was not known to the authority who was passing such an order.

Even if we were to hold that enquiry has wrongly been dispensed with, we are of the considered opinion that in the facts and circumstances of the case, the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Till date, the petitioner has not given any valid reason for his unauthorized absence. Here is a person who works on contract, takes advantage of his service to get admission in M.D. course as an “in service” candidate, fills a bond to serve the State for a period of five years and thereafter when he is posted to a tribal area to serve the people living in remote areas he does the vanishing act and remains absent for more than four years. We are of the opinion that he has failed to show that he had ever applied for extension of leave and that the letters purportedly sent for extension of time have been manufactured at a later stage. Even otherwise, what prevented the petitioner who was admittedly living in Panchkula, a bare three hour’s drive from Shimla, from coming to Shimla and personally handing over the letters and informing his employer about the reasons why he required leave.

Keeping in view the entire facts of the case, we had at one stage called upon the State to reconsider the matter. We in our order had clearly held that the manner in which the doctor abstained from his place of posting did not behove an officer of the rank of a doctor. We had made certain suggestions and thereafter, the Principal Secretary (Health) to the Government of Himachal Pradesh had appeared in Court and had stated that the State is willing to re-employ the petitioner but the period during which the petitioner did not actually work should not be counted either for the purpose of back wages or for any other purpose like pension, etc. and the period should be treated as dies non. The petitioner has not agreed to this proposal. It is obvious that the purpose of the petitioner in filing the present petition is that in case his old period is regularized even if without back wages, he would be entitled to pension. The petitioner served the State for only about six years. It would be a travesty of justice to giving the benefit of pension by taking his period of absence into account. The petitioner did not accept the proposal of the State. Even if we have held that the order dispensing with the enquiry was illegal we would have naturally directed that the State can still hold a fresh inquiry and the intervening period should be treated as dies non. Since the petitioner has not accepted this proposal, there would be no purpose served in passing such an order.

In view of the above discussion, we find no merit in the petition, which is accordingly dismissed.

( Deepak Gupta ), J.

December 29, 2008 ™

( V.K Ahuja ), J.