SBCWP NO.3503/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.3503/1994. Dr.Suraj Mohan Lal Rai Vs. State of Rajasthan and others Date of order:- April 21, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mahendra Singh for the petitioner. Shri Zakir Hussain, Additional Government Counsel. **** Reportable BY THE COURT:- Under challenge in this writ petition is the order dated 31/5/1994 by which petitioner was awarded penalty of removal from service. Petitioner was holding the post of Associate Professor in Pathology, JLN Medical College Ajmer at the relevant time. He applied for registering his name in the panel of foreign assignment. Principal & Controller of Dr.Sampurnanand Medical College, Jodhpur SBCWP NO.3503/94. 2 forwarded his application with his letter dated 14/12/1987 recommending to Secretary to the Government, in its Department of Medical and Health. Deputy Secretary of the Government vide order dated 18/3/1988 conveyed sanction of the Governor for deputation of the petitioner to Saudi Arabia for two years. According to the petitioner, his contract of service with Al Elwani National Clinic at Riyadh was for two years and thereafter he requested them for relieving him. Neither he was relieved nor his dues were cleared. Therefore, he requested Secretary, Medical and Health Rajasthan for extension of his deputation upto 5/2/1992. Application was forwarded by the Indian Embassy at Riyadh with request that his period of absence from 15/1/1991 be regularized and he may be further granted deputation of one year. Principal and Controller Dr.Sampurnanand Medical College Jodhpur where petitioner was lastly posted, however sent letter dated 18/5/1991 informing the petitioner that departmental enquiry has been initiated against him. Deputy Secretary to the Government in its Department of Medical and Health Jaipur vide letter dated SBCWP NO.3503/94. 3 3/6/1991 also informed the petitioner that employment agreement with the private clinic cannot be permitted. Petitioner was specifically directed to join his duties within one month. Petitioner submitted reply to the government on 18/6/1991 followed by application dated 23/6/1991 which was sent through Indian Embassy at Riyadh for extension of deputation period and explaining the reasons why he could not join. According to the petitioner, his subsequent application dated 2/7/1991 was also forwarded by First Secretary (Economics and Commercial) Embassy of Riyadh vide letter dated 10/7/1991 on the premise that several other doctors are also on deputation in private clinics in Saudi Arabia. According to the petitioner, he informed the President of Green Crescent Health Service Riyadh vide his letter dated 25/11/1991 that his contract to serve with them will expire on 6/1/1992 and he may be relieved thereafter. It is further contended that President of the said Hospital informed the petitioner vide letter dated 25/11/1991 that they would like to request him to stay for another one year. Petitioner submitted a representation to the Secretary SBCWP NO.3503/94. 4 Medical and Health Department on 14/1/1992 for extension of deputation followed by another representation dated 8/2/1992. 2) According to the petitioner, he received a summon for appearing before the enquiry officer on 24/4/1992 only a week before the said date and therefore was not in a position to attend the departmental enquiry. It is contended that Deputy Secretary of the Government Medical and Health Department, Jaipur informed the petitioner vide letter dated 13/5/1992 that he may obtain NOC from Government of Saudi Arabia and send the same to the Government of Rajasthan. Similar letter was also sent by the Deputy Secretary to the Medical and Health (Gr.I) Department, Jaipur on 13/5/1992 itself to the First Secretary (Economics and Commercial) Embassy of Riyadh to issue NOC for appointment of the petitioner and send the same to the Government of Rajasthan so that deputation orders may be issued. The Counselor (Economics and Commercial) along with forwarding letter dated 23/8/1992, sent the NOC to the Deputy Secretary to the State of Rajasthan issued on 22/8/1992. Petitioner submitted representation SBCWP NO.3503/94. 5 to the Secretary Medical and Health Department on 20/8/1992 that the departmental enquiry against him was biased. Deputy Secretary to the Government, Department of Personnel vide his letter dated 7/9/1992 sent a copy of the enquiry report dated 25/6/1992 asking the petitioner to submit his representation if any. Deputy Secretary vide his letter dated 28/12/1992 addressed to the Counselor (Economics and Commercial) Embassy of India, Riyadh with copy to the petitioner requesting to inform the petitioner that he should get himself relieved and immediately join with the government as no extension could be allowed. It was thereafter that petitioner persuaded his employer at Riyadh and came to India to rejoin his duties as Associate Professor Department of Pathology JLN Ajmer. It was thereafter that petitioner submitted applications on 22/6/1993 and 30/6/1993 to the disciplinary authority for providing to him copies of the documents relied by department, copies of statements of departmental witnesses and copy of order-sheet of the enquiry proceeding by which it was decided to proceed against him ex-parte. SBCWP NO.3503/94. 6 Disciplinary Authority vide letter dated 16/7/1993 informed the petitioner that he may inspect the documents and submit his representation by 31/7/1993. Petitioner submitted representation on 3/8/1993 along with reply to the statement of allegations along with supporting documents. Petitioner vide letter dated 8/6/1994 requested the disciplinary authority for granting him personal hearing. Deputy Secretary to the Government, Department of Personnel vide order dated 31/5/1994 however removed the petitioner from service indicating that R.P.S.C. has been consulted and that representation of the petitioner was not found satisfactory and looking to the seriousness of the charges against him, it has been decided to remove him from service. 3) I have heard Shri Mahendra Singh, learned counsel for the petitioner, Shri Zakir Hussain, learned Additional Government Counsel and perused the material available on record. 4) Shri Mahendra Singh, learned counsel for the petitioner has argued that petitioner was sent on deputation to the Saudi Arabia as per SBCWP NO.3503/94. 7 the treaty of mutual cooperation with the Governments of two countries and even for initial spell of two years, his deputation was with the private clinic at Riyadh in Saudi Arabia. Respondents were wholly unjustified in taking a stand at later stage that deputation with a private hospital was not permissible. Learned counsel argued that petitioner immediately after completion of two years of deputation, requested vide his letter dated 16/1/1991 to the hospital management at Riyadh to relieve him but neither the hospital management relieved him nor paid his dues. Petitioner again vide letter dated 27/3/1990 requested the Proprietor of the Hospital to clear his dues. Thereafter, again on 15/8/1990, petitioner requested the hospital authorities to pay his dues and provide travelling facilities for returning to India. Side by side, he submitted representation to the Secretary Medical and Health, Government of Rajasthan on 16/1/1991 requesting therein that his deputation may be extended upto 5/2/1992. Even the Indian Embassy in Riyadh also recommended regularization of his overstay at Riyadh and for SBCWP NO.3503/94. 8 granting further deputation, reference was made to letters dated 15/1/1991, 10/7/1991, 23/6/1991 and 23/8/1992. It was argued that absence of the petitioner with the respondents was not willful and in any case he was serving on deputation with the same foreign employer where his initial period of deputation was fully authorized by the respondents themselves. Learned counsel submitted that when petitioner received letter dated 3/6/1991 from the Deputy Secretary of the Government asking him to attend duties within one month, petitioner again by his letter dated 8/6/1991 requested for extension of the deputation period and this application was duly forwarded by the Embassy of India at Riyadh vide order dated 23/6/1991. 5) It was argued that in response to the representations made by the petitioner on number of times, he got some positive response from Deputy Secretary to the Government who vide letter dated 13/5/1992 required the petitioner to obtain NOC from the Government of Saudi Arabia and send it to them. Deputy Secretary also wrote a similar letter to the First Secretary (Economics and Commercial) Embassy of SBCWP NO.3503/94. 9 India, Riyadh to get an NOC issued to the petitioner from the Government of Saudi Arabia for his appointment with the private hospital. Indian Embassy vide their letter dated 23/8/1992 sent certificate issued by the Green Crescent Health Service Riyadh duly verifying working of the petitioner with them under practicing license and Ministry of Health, Government of Saudi Arabia allowed him to work as a Pathologist and that their hospital is recognized by the Ministry of Health vide Registration No.MF/122/3/4 dated 10/10/1409/H. Learned counsel submitted that once respondents after issuing charge-sheet acceded to the request of the petitioner and later on recommendations were sent by the Embassy and desired NOC was submitted, misconduct, if any, should be taken as condoned. In order to buttress this submission, learned counsel for the petitioner placed reliance on the judgment of Supreme Court in State of M.P. and others Vs. R.N. Mishra and another : JT 1997(8) SC 162. It was submitted that this aspect of the matter has been completely lost sight of by the disciplinary authority in the impugned order of SBCWP NO.3503/94. 10 removal. Learned counsel submitted that the initial period of deputation abroad was for five years as would be evident from the letter dated 9/3/1988 sent by the Planning (Manpower Department) Government of Rajasthan to Under- secretary to the Government of India, Ministry of Personnel, New Delhi. It cannot therefore be stated that petitioner had overstayed the permitted period as it was a normal practice in the case of deputation of medical practitioners to allow extension upto five years. 6) Learned counsel for the petitioner submitted that enquiry report was ex-parte one and whatever documents were available in the file of the petitioner, were submitted by the presenting officer but the relevant documents were completely omitted. Notice of short duration was issued to the petitioner and the enquiry was directed to be proceeded ex-parte against him. Petitioner did not have adequate time to respond to such notices. Despite the fact that petitioner had prayed that he may be granted personal hearing; he was not afforded personal hearing. Shri Mahendra Singh, learned counsel for the petitioner citing enquiry report SBCWP NO.3503/94. 11 of the enquiry officer submitted that the Directorate of Medical and Health vide letter dated 22/4/1992 represented to the Department of Personnel that the question with regard to extension of deputation of the petitioner was pending consideration with the government and on that basis, the enquiry proceedings against the petitioner were held in abeyance. But subsequently, such enquiry proceedings were illegally resumed. Learned counsel argued that petitioner in his representation dated 30/6/1993, which was submitted against the enquiry report, enumerated examples of number of Doctors who were allowed to work on deputation with the private hospitals and every one for term for five years. There was no reason therefore to accord a discriminatory treatment to the petitioner. Reference was made to the cases of Dr.R.S. Joshi, Dr.R.S. Modi, Dr.Harish Saxena and Dr.M.C. Vyas. Shri Mahendra Singh, learned counsel for the petitioner relied on judgment of Supreme Court in Sengara Singh and others Vs. State of Punjab and others : (1983) 4 SCC 225 and argued that Supreme Court in that case while considering action of the State of SBCWP NO.3503/94. 12 Punjab in reinstating large number of Constables and Head Constables withdrawing dismissal order and at the same time not reinstating the petitioner, who was similarly situated, held such action of the State of Punjab as violative of Article 14 of the Constitution of India. 7) Lastly, Shri Mahendra Singh, learned counsel for the petitioner has argued that punishment awarded to the petitioner is shockingly disproportionate to the gravity of the charge proved. It was a case of normal absence and it cannot at all be termed as willful absence because petitioner, who was sent on deputation initially for a period of two years, tried his level best to get relieved before completion of that period but was not releaved by his employer. His Passport was not returned to him and his dues were not cleared and when he was relieved by Al Elwani National Clinic on 5/11/1990, Gulf War broke up and he had to continue in the employment in order to sustain himself. All these facts may be taken as mitigating circumstances in so far as gravity of his guilt is concerned to determine the quantum of punishment. Harsh penalty of removal in the SBCWP NO.3503/94. 13 circumstances should therefore be quashed. 8) Shri Zakir Hussain, learned Additional Government Counsel submitted that letter dated 8.3.1988/19.3.1988 sent by the Rajasthan Planning (Manpower) Department, Government of Rajasthan, Jaipur to the Government of India is merely a forwarding letter regarding applications of five Doctors. Apart from petitioner, applications of four other Doctors namely; Dr.R.S. Joshi, Dr.R.S. Modi, Dr.Harish Saxena and Dr.M.C. Vyas were also forwarded and that simply mentioned for registration of their name in the panel of foreign assignment. Mere indication of term of five years for the purpose of registration does not mean that petitioner was relieved to proceed on deputation for a period of five years. Learned Additional Government Counsel submitted that though petitioner vide letter dated 16/1/1991 requested the Secretary Medical and Health Department for extension upto 5/2/1992 but the government specifically vide letter dated 3/6/1991 informed the petitioner that employment agreement in private clinics abroad cannot be permitted. With this objection, petitioner was required to join SBCWP NO.3503/94. 14 duty to the department within one month positively. Petitioner did not join duties. He thus, disobeyed the order. While on one hand petitioner in his application dated 16/1/1991 contended that he was not relieved by his employer till 5/11/1990 and due to that reason he could return to India. On the other hand, he prayed for extension of his deputation period upto 5/2/1992 after being relieved on 5/11/1990. It clearly indicated that petitioner was maintaining silence from 5/11/1990 to 16/1/1991 and keeping the Government of Rajasthan under dark. It clearly shows that he was interested in over staying abroad and was not willing to join his duties in India. Despite specific instructions issued by the government on 3/6/1991 to join within one month, petitioner avoided to do so on one or the other pretext. On the contrary, representations were submitted by the petitioner through Embassy requesting the government for extension of his deputation. This clearly reflects his willingness to continue in the private hospital at Riyadh. It was denied that First Secretary (Economics and Commercial) Embassy of India at Riyadh vide letter dated SBCWP NO.3503/94. 15 10/7/1991 recommended for extending deputation of the petitioner. It was simply a forwarding letter forwarding applications of certain doctors including that of the petitioner. 9) Learned Additional Government Counsel argued that petitioner never apprised the Government of Rajasthan of the terms and conditions of his contract of service which he entered with the Green Crescent Health Service Riyadh. The alleged correspondence between the petitioner and President of Green Crescent Health Service Riyadh was denied for want of knowledge. So far as the letter dated 13/5/1992 written by the Deputy Secretary asking the petitioner to obtain NOC from the Government of Saudi Arabia and sent copies thereof to the Government of Rajasthan through Embassy of India, is concerned, it was submitted that such NOC was never forwarded by the petitioner and on the contrary, he sent a letter citing that the private clinic in which he was working was recognized by the Government of Saudi Arabia. Petitioner never responded to the notice of enquiry nor at any point of time he ever showed his inability to appear before the enquiry SBCWP NO.3503/94. 16 officer. He did not ever ask for permission to appear at a later date. This clearly shows that he deliberately avoided to appear before the enquiry officer. It was submitted that submission of NOC from the Government of Saudi Arabia was a condition precedent for extending period of deputation and despite specific letter sent to the petitioner as well as to the First Secretary (Economics and Commercial) Embassy of Riyadh, NOC was not submitted by the petitioner nor sent by the Embassy of Riyadh to the Government of India. It cannot therefore be taken as a case of condonation of misconduct. It was also not a simple case of willful absence but also of indiscipline and insubordination to his principal employer. It was submitted that initial period of deputation of the petitioner was only for two years and Assistant Secretary of the Medical and Health Department (Group-I), Government of Rajasthan, Jaipur vide letter dated 1/8/1990 wrote to the petitioner to report back on duty within one week from the receipt of the said letter. Despite this, petitioner did not join his duties and rather started raising lame excuses one after another so as to overstay SBCWP NO.3503/94. 17 at Saudi Arabia. Extension of deputation is still a prerogative of the principal employer and cannot be claimed as a matter of right. On the question of quantum of penalty, learned Additional Government Counsel relied on the judgment of Apex Court in State of Rajasthan and others Vs. Sujata Malhotra : 2002 (2) LLJ 231 and argued that Supreme Court in that judgment reversed the judgment of Division Bench of this Court whereby in the similar and identical case, on absence of four years, order of removal passed by the disciplinary authority was set- aside by the High Court on the premise that it was grossly disproportionate to the delinquency in question and a direction was issued for reinstatement of the petitioner in that case with 50% back wages with further direction to treat the period of absence of the petitioner as extraordinary leave. Supreme Court held that interference in punishment by the High Court was not within its power. 10) I have given my anxious consideration to the rival submissions of the parties and perused the material on record. SBCWP NO.3503/94. 18 11) There are in this case two specific communications by which the government as principal employer of the petitioner, asked him to join his duties. First letter was written to the petitioner by the government on 1/8/1990 stating that period of deputation has expired on 19/3/1990 and that he has so far not joined. He was therefore directed to report on duty within one week from the date of receipt of such letter. In between, petitioner made all kinds of efforts to get his deputation extended. He directly represented to the government for extension of his deputation period and also got some such applications forwarded through the Embassy. In response to one such application, government specifically wrote back to the petitioner on 3/6/1991 that his employment agreement in private clinic abroad could not be permitted. He was therefore requested to join duties with the department within one month positively. Petitioner then vide his letter dated 8/6/1991 tried to justify his overstay by giving all kinds of excuses so much so he even cited reasons for his inability to move from SBCWP NO.3503/94. 19 Riyadh because his employer or that time was not relieving him and wanted him to continue and renew his contract but due to the fact that they could not reach the agreement on condition of such contract, he declined the offer. In that situation, his payments were withheld. He requested for his relieve on 24/3/1990 but he could be relieved only on 5/11/1990 when he could be replaced by another licensed practitioner. It is then written by the petitioner that he was offered the job of Chief Pathologist in another prestigious hospital at Riyadh and he could not resist the offer and then followed the Gulf War. For these reasons, he could not attend his duties in India. Petitioner has mentioned about number of letters written by him to the respondents directly and some through Embassy, which did not reach them. Raising all these pleas/excuses, petitioner asserted that he was originally relieved for serving abroad for five years and therefore continuation in Saudi Arabia could not be treated as willful absence from duty. Petitioner then got his application forwarded from the Embassy of Saudi Arabia on 10/7/1991 on the SBCWP NO.3503/94. 20 premise that several other doctors have been allowed to work on deputation with the private clinics in the Saudi Kingdom. Then, there are certain letters which the President of Green Crescent Health Service Riyadh wrote to him expressing his credibility and performance insisting to retain him in their employment and then petitioner has in his representation dated 20/8/1993 cited the examples of four doctors referred to above to justify his continuation in Saudi Arabia stating that even they were allowed to work with private hospitals and that too for more than two years then, why can he (petitioner) be provided such facility. These instances were given by the petitioner in his representation submitted in response to the enquiry report. 12) What is to be therefore examined as to whether the circumstances as enumerated above are such which do not make absence of the petitioner willful. In other words, whether the petitioner was justified in overstaying the initial period of two years. Despite specific and repeated instructions of the government, the petitioner did not join. In my considered view, SBCWP NO.3503/94. 21 even if empanelment of the petitioner with the Government of India for foreign assignment was made for five years, that would not have any effect of automatically extending the initial deputation period of two years allowed by the Government. When the government specifically asked the petitioner to obtain and submit the NOC from the Government of Saudi Arabia, mere certificate by the Hospital Management insisting that their hospital was recognized and petitioner was approved by the government as a Pathologist, could not be treated as NOC by the Saudi Arabia Government. Moreover, the facts clearly show that petitioner was seeking employment at Riyadh with one after another hospital and was not willing to refuse the new foreign assignment and at the same time not willing to join the duties with the parent country with the principal employer. He in his letter dated 8/6/1991 admits that “he was relieved by the first employer on 5/11/1990 but then he was offered the job of Chief Pathologist in the prestigious hospital in Riyadh and he could not resist the offer”. And then, he would cite reasons of gulf war and the disturbance SBCWP NO.3503/94. 22 which followed that as a reason for which he could not immediately come to join his duties. Some of the letters which he appears to have secured from the management of the subsequent employer are such which show as if he was indispensable to the health services to their country and therefore he could not be relieved. All these facts cumulatively hardly inspire any confidence that petitioner owing to so-called special circumstances could not report to duties with his parent department. On the contrary, he played dilatory tactics with the principal employer and kept insisting for extension of the period of his deputation. 13) It is trite law that deputation is a consensus concept where consent of three parties is a must. First is the principal employer, second is borrowing authority and third is employee himself. In case one of these is absent, such an assignment cannot be termed as deputation. In the present case, overstay of the petitioner beyond the period of two years was nothing but willful absence because despite having been specifically instructed and required by the authorities to join the duties, he did SBCWP NO.3503/94. 23 not do so. 14) Let me now examine to the argument of discrimination, because petitioner has given examples of aforesaid four doctors, who according to him, were allowed to work with the private hospitals for five years and were granted extension in deputation, it must be held that no specific particulars in their cases have been furnished by the petitioner and even if it is granted that some of such