1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2524/2000 Ku. Manjulata Shukla vs. State & Ors. Date of order : 8/7/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashish Saksena for the petitioner. Shri Shiv Lal Meena, Dy. Govt. Counsel for the State. ****** REPORTABLE This writ petition seeks to challenge the order dated 30.12.99 whereby the services of the petitioner were terminated. The petitioner was appointment on the post of Teacher, Government Primary School, Village Unthra, Panchayat Samiti Srinagar, Distt. Ajmer on 29.3.1996. The petitioner joined his duties on 15.5.1996 and then proceeded for summer vacation from 16.5.1996 to 30.6.1996. She reported back on duty on 1.7.1996 and continued to work till 6.7.1996. According to the petitioner, she thereafter became ill and was under the treatment of doctors at Ajmer. Prescriptions of her treatment relating to the year 1996 and 1997 have been placed on record. The respondents issued a notice to 2 the petitioner on 24.8.1996 requiring her to attend the duty positively by 31.8.1996 or else her service would be terminated. The petitioner did not join and thereafter the respondents issued a notice in daily newspaper Dainak Navjyoti on 31.1.1999, giving her last chance to appear on duty within seven days, otherwise it would be presumed that she was not willing to serve and ex-parte proceedings would be initiated against her. Shri Ashish Saxena, learned counsel for the petitioner argued that the petitioner in response to the said notice sent an application to the respondent on 15.2.1999 stating therein that she was an unmarried lady and that she was not feeling well and so soon she gains health, she would report to duty. It was by this application that she requested that she should be granted leave for one more month. The respondents have illegally passed the order of her termination. Learned counsel argued that even if the service of the petitioner is terminated on the ground of her long 3 absence, that could not be done without holding a regular disciplinary enquiry. The order is therefore liable to be quashed and set aside. In support of his contentions, he relied on the judgement of coordinate bench of this Court in Dinesh Chandra Sharma vs. State of Raj. & Ors.-RLR 1990 (2) 714. Per contra, Shri Shiv Lal Meena, learned Deputy Government Counsel opposed the writ petition and submitted that ever since the petitioner stopped attending the duties from 7.7.1996, she never attended the duties. In spite of the fact that notice was served on her on 24.8.1996, the petitioner did not respond. Still thereafter the petitioner did not appear to report on duties for more than two years. In these circumstances, the respondents published a notice in the newspaper on 29.1.1999. It is only thereafter that petitioner submitted an application for grant of leave for one month. The respondents have proceeded against the petitioner under Rule 86 of the Rajasthan 4 Service Rules and also under Rule 16 of the Rajasthan Civil Services (CCA) Rules. This matter was argued before this Court on 10.4.2008. The respondents were directed to get the relevant record ready for the perusal of the Court so as to ascertain whether any disciplinary enquiry was actually held before the petitioner was removed. This direction was reiterated on 12.5.2008 and the matter was posted for hearing on 28.5.2008. On that date also, the record was not produced and the Court directed that necessary record be produced before the Court positively on the next date. Today when the case was taken up, the learned Deputy Government Counsel was again not in a position to produce the record. Facts of the case would show that the appointment that was given to the petitioner was substantive in nature and that she was removed from service on the ground of her prolonged absence. Facts also indicate that petitioner except producing the medical prescriptions of the relevant period has not been able to produce a 5 single application on record to show that she even once applied for grant of leave. It is only when the respondents issued notice on 29.1.1999 which was published in the newspaper that the petitioner sent an application on 15.2.1999 requesting for grant of leave and in that application too, she stated that she would attend her duties immediately after she gains her health. But at the same time, the respondents have not been able to show to the Court that any disciplinary enquiry as required by Rule 16 of the Rajasthan Civil Services (CCA) Rules, 1958 was conducted against the petitioner. Rule 86 of the Rajasthan Service Rules also does not postulate that services of an employee even when he is proceeded against on the ground of prolonged absence can be dispensed with without holding the disciplinary enquiry. In fact sub-rule (3) of Rule 86, which was added in the Rules vide notification of the Government dated 22.2.1979 inter alia provides that notwithstanding the provisions contained in sub-rules (1) and 6 (2) thereof the disciplinary authority may initiate departmental proceedings 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. It would thus be seen that this sub-rule has been given an overriding effect over the sub-rule (1) which provides that a Government servant who is absent from duty without leave shall be treated to have remained willfully absent from duty and such absence shall amount to interruption in service and also sub-rule (2) which provides that 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. It is therefore clear that notwithstanding absence of the petitioner, the respondents were required to proceed against her in 7 departmental proceedings under the Rajasthan Civil Services (CCA) Rules, 1958 if they wanted to remove her from service on the ground of willful absence from duty exceeding period of one month. In the present case, noting has been brought on record to show that the action of the respondents in terminating service of the petitioner was preceded by a regular departmental enquiry. Removal of the petitioner has to be therefore held illegal and arbitrary. At the same time, keeping in view the fact that petitioner has not worked for the intervening period and has not even been able to show that a single application by her to the respondents for grant of leave or otherwise justified her such a prolonged absence, such period of service though would be valid for all other purpose, but would not entitle her for grant of actual benefits. In the result, this writ petition is allowed. The order of termination / removal of the petitioner dated 30.12.1999 (Annexure-31) is quashed and set aside and 8 the petitioner is ordered to be treated continuous in service from the date of removal till reinstatement. She would however be entitled to only notional benefits for the intervening period. Compliance of the judgement be made within a period of three months from the date copy of the judgement is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/