1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R (1) S.B.CIVIL WRIT PETITION NO.5845/2005 (Bhagwan Lal Vs. State of Raj. & Anr.) (2) S.B.CIVIL WRIT PETITION NO.5844/2005 (Abdul Hameed Vs. State of Raj. & Anr.) (3) S.B.CIVIL WRIT PETITION NO.5843/2005 (Mahesh Chandra Vs. State of Raj. & Anr.) Date of Order : : 12/11/2008 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.P.P.Choudhary, for the petitioners. Mr.B.L.Bhati, Addl.Govt.Counsel for the respondents. BY THE COURT: Reportable These three writ petitions involve common question of law and facts and therefore, with the consent of learned counsel for the parties, these writ petitions are heard and decided together by taking the facts of S.B.Civil Writ Petition No.5845/2005 as leading case. Briefly stated the facts to the extent they are relevant and necessary for the decision of these writ petitions 2 are that the petitioner was appointed temporarily on the post of Teacher Grade-III by order Annexure-P/1 dated 29th September, 1973. However, subsequently, the services of the petitioner came to be confirmed by order Annexure-P/2 dated 29th November, 1975 w.e.f. 1.11.1975. While in service, the petitioner for visiting abroad as a tourist and in order to meet his brother filed an application for such permission and also sought No Objection Certificate from the respondent Department. For grant of NOC to the petitioner, his application was forwarded vide communication dated 2nd July, 1982 Annexure-P/3 issued by the District Education Officer, Banswara addressed to Commissioner, Primary and Secondary Education Rajasthan, Bikaner. Thereafter, by communication dated 31st August, 1982 Annexure-P/4, the Commissioner, Primary and Secondary Education issued No Objection Certificate in favour of the petitioner for getting the passport prepared for visiting and meeting his brother at Saudi Arabia on certain conditions which are that (1) the petitioner would proceed abroad only after getting his leave sanctioned by the competent authority and shall not stay abroad beyond the period of leave sanctioned, (2) he will not acquire any education at abroad, (3) any resignation send by him from abroad shall not be acceptable, (4) he shall not accept any job or appointment at abroad and (5) no foreign 3 currency made available to him through State Agency. Despite the condition mentioned in Annexure-P/4, the petitioner went abroad without getting leave sanctioned from the respondent- employer and stayed at abroad i.e. Saudi Arabia for almost 3 years. The respondents issued notice to the petitioner dated 15th April, 1988 stating therein that the petitioner remained willfully absent from duty without sanction of leave and if he did not appear and furnish the satisfactory explanation of his absence within 15 days, he shall be deemed to have resigned from service. Thereafter, the services of the petitioner came to be terminated in exercise of power under Rule 23 of the Rajasthan Civil Services Rules, 1951 (for short "the RSR" hereinafter) by order dated 22nd July, 1989 with effect from the date of his absence i.e. w.e.f.19.7.1982. Hence, this writ petition. A reply to the writ petition has been filed by the respondent-State raising preliminary objections regarding maintainability/entertainability of the writ petition on the ground that the writ petition suffers from delay and latches. It has been submitted that the order terminating the services of the petitioner came to be passed in the year 1989 and the writ petition has been filed in the year 2005 almost after about 16 years and according to the respondent, inordinate delay of 16 4 years in filing the writ petition has not been properly explained. The respondents also raised preliminary objection regarding the availability of alternative statutory remedy. According to the respondents, the petitioner has filed the instant writ petition without exhausting the alternative statutory remedy of filing an appeal before the Rajasthan Civil Services Appellate Tribunal and therefore, it is not entertainable. On merit also, the facts stated by the petitioners have been controverted by the respondents in their reply stating therein that NOC was granted in favour of the petitioner for getting the passport prepared wherein it was specifically mentioned that the petitioner will not go abroad without sanction of leave whereas the petitioner without prior sanction of the leave went abroad i.e. Saudi Arabia and stayed there for a period of 3 years and thus, he willfully remained absent from the duty without sanction of leave. According to the respondents, the petitioner by his own conduct abandoned his service. Even otherwise, the respondents issued notice to the petitioner to show cause as to why his services may not be terminated under Rule 23 of the RSR for willfully remaining absent from the duty without sanction of leave. In the reply, it has also been submitted that the petitioner had accepted the job at abroad and remained absent willfully without leave from the duty and therefore, the respondents were justified in terminating 5 the services of the petitioner. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioners that the respondents did not hold any enquiry as contemplated under Rule 86(3) of the RSR. According to learned counsel for the petitioners, the termination of the services of the petitioners is a major penalty as envisaged under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short “the CCA Rules” hereinafter). The rules and procedure prescribed under Rule 14 of the CCA Rule has not been followed by the respondents. It is contended that Rule 16(1) of the CCA Rules provides that without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, no order imposing on a Government servant any of the penalties specified in clauses (iv) to (vii) of Rule 14 shall be passed except an inquiry held, as far as may be, in the manner hereinafter provided and so far as termination of the services of the petitioners are concerned, it has been specified in clause (vii) of the Rules of 14 and therefore, the enquiry contemplated under Rule 16 of the CCA Rules was a condition precedent for imposing the penalty of termination from service. Learned Additional Government Counsel appearing for the respondent-State contended that firstly, the instant writ 6 petitions suffer from inordinate delay of 16 years. The services of the petitioners came to be terminated in the year 1989 and the writ petitions have been filed in the year 2005 almost after 16 years without any explanation worth accepting and therefore, the writ petitions suffer from delay and latches. Learned Additional Government Counsel further contended that the petitioners have filed the instant writ petitions challenging the order of their termination and the order terminating the services of a Government servant is appealable before the Rajasthan Civil Services Appellate Tribunal and without exhausting alternative statutory remedy of filing an appeal, which is efficacious in nature, the instant writ petitions are not entertainable. Lastly, on merit, it is contended that the petitioner voluntarily abandoned the services by going abroad i.e. Saudi Arabia without prior sanction of leave. It is clear from the record that the petitioner willfully remained absent from duty for a period of 3 years, therefore, holding enquiry as contemplated under Rule 16 of CCA Rules would have been futile exercise. When by facts it has been established that the petitioner willfully remained absent without sanction of leave while going abroad, therefore, the Rule 19 of the CCA Rules empowers the respondent-State to terminate the services of the petitioners exercising the power notwithstanding anything contained in rules 16, 17 and 18 of the 7 CCA Rules. Learned counsel for the respondent has relied on a decision of Hon'ble Supreme Court in Y.P.Sarabhai Vs. Union Bank of India & Another, (2006) 5 SCC 377. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties. The material document on which the petitioner relies is Annexure-P/4 dated 31st August, 1982, the order issued by the Commissioner, Primary and Secondary Education Rajasthan, Bikaner, the caption of which is “No Objection Certificate” in respect of the petitioner stating therein that the petitioner has applied for going abroad i.e. Saudi Arabia for the purpose of visiting and in order to meet his brother and on his application, it was certified that for the purpose mentioned above, the respondent-Department has no objection for getting the passport prepared in respect of the petitioner. However, no objection for getting passport prepared was issued with certain conditions mentioned in Annexure-P/4 which reads as under:- "(1) the petitioner would proceed abroad only after getting his leave sanctioned by competent authority and shall not stay abroad beyond the period of leave sanctioned, (2) he will not acquire any education at abroad, (3) any resignation send by him from abroad shall not be acceptable, 8 (4) he shall not accepted any job or appointment at abroad and (5) no foreign currency made available to him through State Agency." The petitioner failed to place on record any such material establishing the fact that before going abroad i.e. Saudi Arabia, the respondents have sanctioned the leave to the petitioner and in view of the reply of the respondents that no leave was sanctioned to the petitioner prior to going abroad, the facts remains that the petitioner willfully remained absent from duty with effect from 19th July, 1982 till he came back from Saudi Arabia i.e. in the year 1985. From the material available on record, it has been established that the petitioner remained voluntarily absent without leave for a period of 3 years. The order Annexure-P/5 dated 1st May, 1985 makes clear that the petitioner without getting leave sanctioned while serving at Government Primary School Kandharwari, Banswara went to Saudi Arabia for visiting on 19th July, 1982 and came back on 22nd April, 1985 and therefore, the District Education Officer, Banswara sought instructions from the Director, Primary & Secondary Education, Bikaner as to whether the petitioner can be taken back in service or not. From the order Annexure-P/5, it is established that the petitioner willfully remained absent without leave from 19th July, 1982 till he came back from Saudi 9 Arabia on 22nd April, 1985. The order Annexure-P/6 also reveals the same facts to the extent that the petitioner went to abroad without prior sanction of leave and thereafter, remained absent willfully without getting the leave sanctioned in his favour for the period noticed above. Even from the Annexure-P/7 also, it is clear that no prior leave was sanctioned to the petitioner before he went to abroad and therefore, the petitioner sought post facto sanction of leave by Annexure-P/7 dated 16th May, 1985 after coming back from Saudi Arabia. From Annexure-P/8, it appears that three present petitioners and three others, who went abroad without prior sanction of leave willfully remained absent for long period mentioned therein. By Annexure-P/9, the petitioner has shown the cause of delay wherein he stated that since after coming back from abroad i.e. Saudi Arabia, he did not receive information as to whether his services have been terminated or he is in continuity of service and thereafter, on lossing mental balance, he went back to Kuwait and stayed there with his brother and came back to India in the year 1990. The application Annexure-P/9 dated 20th September, 1990 is indicative of the fact that the petitioner came back from Kuwait to India somewhere in the year 1990. The office order Annexure-P/10 dated 22nd July, 1989 issued by the District Education Officer (Boys Institutions), Banswara makes it clear that the petitioners 10 and three others, in all six government servants, who were employees in the respondent Department, went abroad from the date mentioned against their name and remained absent willfully without sanction of leave. A notice was published in the newspaper dated 18th May, 1988 i.e. Rajasthan Patrika, Udaipur edition that the government servants mentioned therein are absent without leave from the date mentioned against their names and they are required to submit satisfactory explanation of their absence failing which their services shall be terminated. It has also been mentioned that the notices have been sent to all the employees mentioned therein including the petitioners at the place of their residence with Registerd A.D. since none of them have given their present addresses and when the persons mentioned therein including the petitioners did not appear, it was held that they voluntarily and willfully remained absent without getting leave sanctioned from the service of the respondent-employer and therefore, their services have been terminated from the date they remained absent without sanction of leave. From the material placed on record more particularly discussed hereinabove, it is clear that the petitioner remained absent without leave for a long period and stayed at abroad for a number of years and possibility cannot be ruled out that they remained at abroad for a gainful employment. The petitioners 11 went without sanction of leave and stayed at Saudi Arabia and Kuwait from 1982 to 1990 and thus, voluntarily abandoned the services. Rule 19 of the CCA Rules deals with special procedure in certain cases which provides that notwithstanding anything contained in rules 16, 17 and 18 where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribe in the said rules, the Disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. The note below therein provides that if any question arises whether it is reasonably practicable to give any person an opportunity of showing cause under clause (2) of the Article 311 of the Constitution, the decision thereon of the authority empowered to dismiss, or remove such person or to reduce him in rank, as the case may be, shall be subject to only one appeal to the next higher authority. In Y.P.Sarabhai Vs. Union of India & Anr. (supra), the Hon'ble Supreme Court observed as under:- “We are of the opinion that the appellant is not entitled to any relief in these proceedings. The appellant remained absent from his duty for a very long time i.e. from 3-6-1997 to 23-11-1997 without any reasonable cause and justification in spite of the respondent's requests to join the duty and in spite of the respondent's granting him further time 12 to join the duty. The conduct of the appellant in remaining absent for such a long time shows that he was bent upon to evade the transfer order in any possible manner. The grounds of ailment were taken as a ruse to avoid transfer which is amply proved by the conduct of the appellant, when he had unauthorisedly remained absent on the ground that he was unable to attend the duty due to illness for such a long time but he was quite capable of attending the court proceedings on the various days and was also capable of coming to Delhi to file a petitioner before this Court.” On the aforesaid premises, the Hon'ble Supreme Court held that the order of dismissing the petitioner therein, from service was proper. It was further held that the person dismissed from the service is entitled to get only provident fund but no gratuity. Now coming to the question as to whether the order terminating the services of the petitioner is justified or in the facts and circumstances of the instant case as to whether there is any violation of principles of nature justice, I may refer few decisions of the Hon'ble Supreme Court by which such termination order has been held to be justified. In Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association & Anr., (2000) 5 SCC 65, the Hon'ble Supreme Court held that where a show cause notice is served 13 upon the delinquent employee and the employee chooses not to respond to the said notice even after expiry of the notice-period, the employer has a right to presume that the employee does not want to say anything and he is no more interested in the services of the employer. The Court observed as under:- “It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are: (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, e.g., a party must have due notice when the tribunal will proceed; the tribunal should not act on irrelevant evidence or shut out relevant evidence; if the tribunal consists of several members they all must sit together at all times; the tribunal should act independently and should not be biased against any party; its action should be based on good faith and order (sic) and should act in a just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above.” It has further been held that undue reliance on the 14 principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the Bank is concerned. The conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief the High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the award and the Hon'ble Supreme Court held that termination of service without holding any departmental enquiry is not violative of principles of natural justice. In Chairman, Board of Mining Examination & Chief Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965, the Hon'ble Supreme Court observed as under:- “Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative 15 realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt- that is the conscience of the matter.” This view was reiterated by the Hon'ble Supreme Court in Union of India Vs. P.K.Roy & Ors., AIR 1968 SC 850; Channa Basappa Happali Vs. State of Mysore, AIR 1972 SC 32 and Kumaon Madnal Vikas Nigam Ltd. Vs. Girja Shankar Pant & Ors. (2001) 1 SCC 182 wherein the Hon'ble Supreme Court held that doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application would depend upon the scheme and policy of the statute and relevant circumstances involved in a particular case. In Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution Vs. Educational Appellate Tribunal & Anr., (1999) 7 SCC 332, the Hon'ble Supreme Court observed as under:- “Giving an opportunity or an enquiry is a check and balanced concept that no one's right be taken away without giving him/her opportunity or when enquiry in a given case or where the statute requires. But this cannot be in a case where allegations and charges are admitted and no possible defence is placed before the Authority 16 concerned. What enquiry is to be made when one admits violations ....... In case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and inspite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order.” In K.L.Tripathi Vs. State Bank of India, AIR 1984 SC 273, Hon'ble Supreme Court held that it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with, and so on so forth. Similarly, in Aligarh Muslim University & Ors. Vs. Mansoor Ali Khan, (2000) 7 SCC 529, while considering the case of automatic termination of services under the relevant rules for unauthorized absent but without affording opportunity thereunder, the Hon'ble Supreme held that such termination did not violate principles of natural justice but not necessarily vitiated the termination order and in that case, the employee 17 obtained two years' extraordinary leave to join a job in a foreign country. He sought extension of leave by further two years but was granted extension for only one year with the warning that no further extension would be granted and that in case of overstaying, he would be deemed to have vacated the office. The employee, despite this warning, joined a fresh two year job in the foreign country and on account of of omission to join after the expiry of the third year of leave, the order deeming him to have vacated his office came to be passed. In those circumstances, the Hon'ble Supreme Court held that issuance of notice to him would not have made any difference and, on admitted facts, only one view was possible that absence of notice caused no prejudice to him and was, therefore, not vitiative of the termination order. It was further held that the conduct of the employee in ignoring the employer's warning disentitles him to relief under Article 226 of the Constitution. The Hon'ble Supreme Court while considering the Aligarh Muslim University Revised Leave Rules, 1969 more particularly Rule 5(8)(i) providing deemed vacation of the post under such rule, further held that the order passed without calling for explanation is not invalid, as such, an absence is an abandonment of the post. It was further held that the absence of notice when only one conclusion could be drawn not vitiates the action taken without notice. 18 In S.L.Kapoor Vs. Jagmohan & Ors., 1980(4) SCC 379, while considering the requirements of principles of natural justice, the Hon'ble Supreme Court held that the requirement of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. This does not suggest that the opportunity need be a “double opportunity” that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegation which might lead to a certain action being taken against him. If that is made known that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met. It was further held that the admitted or undisputed facts has been relied on the same conclusion. Whether principles of natural justice are observed or not is absolutely no ground for its exclusion. Thus, keeping in view the facts noticed above and