JUDGMENT [ENTITY], J.
1. The case of the petitioner in short is that he was initially appointed on the post of Civil Assistant Surgeon on ad-hoc basis by the Ministry of medical and health, Government of Rajasthan w.e.f. 11.12.1970 and he served on the said post upto 9.7.1971 at P.H.C. Sanwar, District Udaipur and thereafter w.e.f. 10.7.1971 to 28.1.1973 on the same post at General Hospital, Bharatpur. During the period 29.1.1973 to 4.3.1973 the petitioner served in the same capacity in M.G. Hospital and as a lecturer in medicine in Dr. S.N. Medical College, Jodhpur. In the year 1974 the Government of India had requested to the State Government of Rajasthan to recommend suitable names of desirous candidates who were willing to serve as Medical Officers at [ENTITY] on deputation. Petitioner applied for the said post and conveyed his willingness to serve at [ENTITY].
2. On receipt of the list of selected candidates, the petitioner having been selected for the foreign assignment, the State Government initiated action to relieve such doctors who were willing to go abroad and directed the concerned authorities vide its order dated 18.10.1975 (Annexure-2) to utilise the services of such doctors who had conveyed their willingness to go abroad. Perusal of the said document reveals that the Deputy Secretary to the Government of Medical & Public Health Department, Jaipur had sent a communication to the Director of Medical & Health Services Rajasthan, Jaipur as well as to the principals of all the Medical Colleges in Rajasthan to relieve doctors who had been selected for foreign assignment to [ENTITY], since the said doctors were required to join [ENTITY]n government by a specified date. It was further directed that in case of temporary government servants, no objection certificate was issued after obtaining concurrence of the finance department for retention of their lien on the posts which they were holding or occupying prior to being relieved for their foreign assignment subject to the terms and conditions and were to be treated as on deputation. The case of the petitioner further is that immediately on expiry of the period of the deputation he was relieved from his assignment at [ENTITY] on 04.12.1975 and he reported to the Government of [ENTITY] on 5.12.75 but since his request for return, to India was not accorded to by government of Rajasthan, he continued to serve as Consultant Physician in Al Gella Maternity/ Al Khetra General Hospital at Tripoli upto 14.03.1993. The petitioner has further contended that during the period 04.12.1975 to 14.03.1993, he did not receive any single communication from the State of Rajasthan either directly or through Indian Embassy at [ENTITY] though his period of deputation had expired and that he should report back to duty at S.M.S. Hospital, Jaipur where he last served prior to his posting at [ENTITY], which practice was being consistently followed by the State Government for the return of Doctors from foreign postings who were sent abroad on deputation. Since the petitioner had become home-sick and was not in a position to leave [ENTITY] till he was called back by the State Government, whenever he contacted the Indian Embassy Consular Service at Tripoli ([ENTITY]), The was informed that no reply to his communications has been received from the State Government of Rajasthan and as such they expressed their helplessness to assist the petitioner in any manner. During the aforesaid period, the petitioner was getting his passport extended and renewed through the Indian Embassy at Tripoli from time to time as he was on deputation and had lien with the State Government of Rajasthan.
3. During the course of hearing learned Counsel for the petitioner contended at the Bar that although the maximum period of deputation which was envisaged under the Rules for any official who is sent on deputation from his parent department to another department either within India or outside on foreign assignment is five years but since the said period of deputation was not specified nor the respondent have formulated any guiddenes in this regard, it is not open to the respondents to contend that since he had remained at [ENTITY] at his option after the expiry of the deputation period by extending his stay at [ENTITY] beyond the period of five years w.e.f. 05.12.1975 to 14.03.1993, the respondents were not obliged to take back the petitioner on duty in Rajasthan. This fact is also fortified from the document Annexure-13 dated 14.03.1996 which is a letter from the petitioner to the Director, Medical & Health Services Rajasthan, Jaipur which is a joining report submitted by the petitioner to the respondents with a request to issue posting orders in favour of the petitioner, regard being had to the petitioner's seniority in the cadre of Civil Assistant Surgeons. Having failed to illicit any response from the Director, Medical & Health Services Rajasthan, Jaipur, the petitioner made another representation to respondent No. 2 dated 16.06.1993 vide Annexure-14 that he should be permitted to resume his duties at Jaipur but inspite of this the petitioner was not allowed to resume his duties and was directed to report to the Secretary, Medical & Health Department for posting orders.
4. Inspite of the afore stated position since the petitioner did not hear anything from the respondents, he finally served a notice of demand for justice through his counsel on the Secretary, Medical & Health Department, Jaipur as well as the Director of the said department on 13.09.1994. vide Annexure-15. It is only thereafter that he moved this Court by filing the instant writ petition on 27.10.1994.
5. In reply to show cause notice issued by this Court, while controverting the aforesaid contentions of the petitioner, the respondents in their reply have contended inter-alia that it was on the recommendation of the State Government that the petitioner was sent to [ENTITY] alongwith other selected candidates who had obtained No Objection Certificates from the concerned authorities to be sent on deputation abroad on sponsored terms and conditions and this fact however is not disputed by the respondents. The respondents have however vehemently denied that the petitioner was to be treated on deputation for the entire period till he was not called back by the State of Rajasthan and in fact the petitioner was awarded a contract of two years by the Ministry of Health and Medical Services department, government of [ENTITY] which was renewed, since the petitioner was sent on deputation to [ENTITY] only for a period of two years vide contract/ agreement (Annexure-R/l) dated 10.07.1973 and it was willingly accepted by the petitioner, it is not open to the petitioner to plead to contrary that he was not allowed to resume his duties with the Government of Rajasthan after the expiry of deputation period since he had over stayed at [ENTITY] entirely at his volition without obtaining any prior concurrence or approval of the Sate Government. The petitioner was in full know of the fact that his contractual period of assignment was only for a period of two years w.e.f. 4.12.1975 to 3.12.1977 and since it was not renewed by the State Government of Rajasthan beyond the said period, he should have reported back to the State Government at Jaipur immediately on the expiry of the said period and which he failed to do so. The respondents have further contended that the petitioner could have at the most stayed at [ENTITY] for a period of five years as per the standard terms and conditions of the Government of India by which the maximum period for foreign assignment allowable to a sponsored official under the Rules is five years and for non-sponsored officials the maximum period is two years. Thus the petitioner could have at the most stayed at [ENTITY] for a period of five years in all whereas it is surprising to note that the petitioner had overstayed at [ENTITY] for a period of 13 years upto 14.3.1993 without obtaining the prior approval and concurrence of the competent Authority.
6. I have heard learned Counsel for the parties at length, examined their rival claims and contentions as well as the relevant documents on the record.
7. Prima-facie I am of the opinion that once the petitioner was fully aware of the implications of the terms and conditions of the foreign assignment and this fact was fully made clear to him from the letter dated 10.7.1973 (Annexure R/3) as well as the letter dated 29.1.1988 from the Ministry of Personnel and Training, Government of India to the Chief Secretaries of all the States and union territories vide Annexure R/2 not to stay on a foreign posting beyond the specified period of deputation and hence in case of sponsored candidates like the petitioner it becomes a binding obligation on the part of the concerned official who has been sponsored by the State Government to a foreign Government on an assignment not to extend his stay beyond the period of deputation without taking express permission in writing from the concerned State Government which has sent such official on deputation abroad. The aforesaid fact is fully borne out from the document Annexure R/2 as referred to above. In para 4.6 of the Annexure [SECTION] dated 29.1.1985 which deals with duration of assignment on deputation of sponsored officials it has been provided that a sponsored official may be allowed to accept foreign assignment upto a maximum period of five years and a non-sponsored official upto a maximum period of two years during his entire career. In this regard I am of the view that the contention advanced by the learned Counsel for the petitioner that no period of deputation was specified is entirely baseless and is contrary to the record and rather I am of the view that the petitioner was in full know of the facts and before accepting this foreign assignment on deputation to [ENTITY] and after having accepted the said assignment as a sponsored official for a fix duration, i.e., five years which stood expired on 3.12.1980 if reckoned w.e.f. 4.12.1975, it was the mandatory requirement of the Rules for the petitioner to have reported back to the Government of Rajasthan immediately on the expiry of the said period while the contractual assignment was only for a period of two years unless renewed for further extended period and this fact is borne out from the documents dated 10.7.1973 (Annexure R/l) on the record. Hence it is not open to the petitioner to plead to the contrary to the Rules on to take a stand which is not borne out from the aforesaid document on the record I am further of the view that the terms of contractual assignments are binding on the concerned parties and once having accepted the foreign assignment subject to the terms and conditions as stipulated in such contractual appointments, it is not open to the defaulting parties to take undue advantage of the situations at first instance by overstaying in foreign country against the terms and condition of such contractual appointment and thereafter to plead that he was ready and willing to come back to India though not permitted to do so by the Government of India as it has happened in the instant case. I am of the view that in fact the petitioner had no business to overstay in [ENTITY] after the expiry of his deputation which is not only contrary to the State Government's instructions issued from time to time but is also contrary to the standing instructions of the Government of India as referred to above.
8. During the course of hearing learned Counsel for the petitioner has placed reliance upon the decisions reported in the matters of [PRECEDENT] , [PRECEDENT], [PRECEDENT].
9. I have examined the ratio of the aforesaid decisions of the apex court, punjab & Haryana High Court as well as Delhi High Court. In my view the ratio of the aforesaid decision is not attracted to the instant case since the question at issue before the apex court as well as the other High Courts in other matters was regarding removal of a government servant from service for overstaying leave period which was challenged as illegal by the concerned petitioners even though it was provided by the Service Regulations that any individual who absents himself without permission after the expiry of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction by the competent authority, since discharge from service of an incumbent by way of punishment, amounts to removal from service, it was held by the apex Court in the matter of [PRECEDENT] (supra) that the Constitutional protection of [SECTION] of the [ACT] cannot be taken away on the plea that under the service Regulations since the incumbent had himself given up the employment, he should not be allowed to be reinstated. The ratio of the aforesaid decision as referred to above, is not attracted to the instant case for the reason that no order of removal/termination was passed by the respondents nor the petitioner has anywhere pleaded or challenged in the writ petition the order of removal or termination from service. He has on the contrary sought a direction from this Court to treat the petitioner on deputation w.e.f. 04.12.1975 to 05.06.1993 i.e. 5 years when the minimum period of deputation as permissible under the Rules admittedly stood expired as on 3.12.1980 and thereafter as per his own contentions the petitioner had overstayed in [ENTITY] by serving as a private consultant physician upto 5.6.1993 which period was obviously without the express authority either of the State Government of Rajasthan or of the [ENTITY] Government and hence the said period cannot be treated as on duty or on deputation under [SECTION] of [ACT] as well as under [ACT]. Consequently the contention of the petitioner to treat him as on duty from the date of submission of his joining report dated 14.6.1993 or to pay him salary and allowances as per Rules with 18% thereon as prayed also becomes redundant being not permissible under the Rules. Likewise the prayer of the petitioner for grant of consequential benefits is also not permissible under the Rules.
10. I am fortified in my observations from the Division Bench judgment of the Bombay High Court in the matter of [ENTITY] and Sri [ENTITY] and Ors.: [CASE NUMBER] decided on 10.11.1987 reported in [CASE NUMBER] and the Division bench judgment of Calcutta High Court in the matter of Hindustan Fertilizer Corporation Ltd, and Ors. and [ENTITY]; [PRECEDENT] decided on 06.09.1991.
11. In the matter of [ENTITY] an employee of industrial establishment absented himself from duty continuously for a period of three years and as a result his name was removed from the rolls of industry and due intimation was given to him in this regard. The aggrieved employee initiated proceeding under [SECTION] of the [ACT] and sought reinstatement in service. It was held by the Labour Court that since the employee had voluntarily abandoned his service, the question of his reinstatement would not arise. The industrial court while confirming the findings of the Labour Court, directed reinstatement of the employee without back wages because of the failure of the employer to comply with the requirements of [SECTION] of the [ACT]. In writ petition filed by the employee before the High Court. It was held by the High Court that generally long and continuous absence for years together without any reason or justification of the staff as in the present case can give rise to an inference of abandonment of service and the provisions of [SECTION] of the [ACT] would not apply. In appeal under the letter's Patent to the High Court, the learned Division Bench of the High Court held that even though long absence in a given case may be found to be for good and justifiable reason, yet it is not possible to lay down a rigid proposition of universal application, yet continuous absence from service for years together would give rise to a presumption of abandonment of service on the part of the concerned employee.
12. Likewise in the matter of Hindustan Fertilizer Corporation Ltd. (supra) the employee of the corporation remained absent from duty without permission of the employer for about three and half years. It was held by the Calcutta High Court that the absence of the employee in such situation will amount to abandonment of service, since it amounted to violation of certified standing orders of the corporation. It was further held that since the respondent employee had never made any serious attempt to speak to the management, in the circumstances, the management was right in construing the absence of the said employee for a continuous spell of three and half years to be unauthorised absence from duty and it amounted to voluntary abandonment of employment and the name of the employee was accordingly struck off the Rules of the management without any notice to the employee. In my view the ratio of the aforesaid decisions of the Bombay and Calcutta High Courts are fully attracted to this case.
13. I am further of the view that the period from 4.12.1975 to 14.3.1993 amounts to unauthorised absence from duty on the part of the petitioner since he had remained at [ENTITY] beyond the period of his deputation and hence it amounts to willful abandonment of service on the part of the petitioner being contrary to the Rules, as referred to above and hence the respondents were not obliged to take the petitioner back to duty after the expiry of the deputation period of five years reckoned w.e.f. 4.12.1975 to 3.12.1980. Hence the respondents could not take cognizance of any such letters or communications which were sent to them by the petitioner after the expiry of deputation period.
14. I am of the considered opinion that voluntary abandonment of service which has been attributed by the respondents on the part of the petitioner in having not resumed his services in the State of Rajasthan consequence upon the expiry of his period of deputation in foreign assignment at Tripoli ([ENTITY]), cannot be construed as automatic termination of his services by the respondents in absence of any formal order having been passed in this regard which could only be possible after regular departmental enquiry was initiated Parent Department of the petitioner i.e. Rajasthan Medical & Health Services at Jaipur for violation of conduct Rules which envisages prior permission and approval of the competent authority for an employee who having overstayed the deputation period on foreign assignment, which admittedly had not been detained by the petitioner from his competent Authority and it is obviously for this reason that the petitioner has not placed any such document on the record. Hence I am of the view that the respondents are equally at fault in not having observed the procedural requirements of the conduct Rules in having construed the voluntary abandonment of service as automatic termination of services of the petitioner. As a matter of fact it was the mandatory duty of the respondents to have initiated a formal departmental enquiry as aforesaid followed by issuance of a Show Cause Notice and by serving of the charge-sheet and after giving the delinquent a fair opportunity of being heard in his defence, only thereafter to have passed a formal order terminating the services of the petitioner in accordance with law.
15. The respondents are consequently directed to initiate a regular departmental enquiry against the petitioner by appointing an enquiry officer within a period of six weeks from the date of receipt of certified copy of this order and after providing fair opportunity of hearing to the petitioner and pass the requisite order in accordance with law within a period of four weeks thereafter.
16. In the light of the above observations I find no merit in this writ petition and the same is dismissed with no order as to costs.