IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 9212 of 2008 Judgment reserved on 22.2.2011 Date of decision: 23.2.2011 Mohan Lal ….. Petitioner Vs. State of H.P.& others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Dilip Sharma, Advocate with Mr. Umesh Kanwar, Advocate. For the Respondents : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh, J. The petitioner has prayed mainly the following reliefs:- (i) That impugned order of termination/removal from service, if any, passed by the respondent department against the applicant may kindly be quashed and set aside, with all consequential benefits. (ii) That respondent department may also be direct to release salary of the applicant with interest at market rate, as he has remained out of job due to non issuance of an order regarding the posting/non acceptance of the joining of the applicant. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… (iii) That the respondent department may be directed to allow the applicant to join service as Ward Attendant near the home of applicant, being a Class-IV employee. 2. The brief facts of the case are that petitioner, a Scheduled Caste, was appointed as Ward Attendant ( Class-IV) in Health Department vide order dated 17.7.1984 and joined as such on 23.7.1984. He was confirmed as Ward Attendant (Class-IV) w.e.f. 1.4.1988. 3. In the year 1987 the petitioner was transferred to District Hospital Keylong. In 1990 he was posted in District Hospital, Kullu but after about 7 months he was again transferred to District Hospital Keylong. He was not transferred to a place near his home despite his repeated representations. 4. On 25.4.1992, the petitioner submitted an application for 15 days earned leave and proceeded to his home to attend his old and ailing mother. Due to adverse family circumstances he could not join back on duty at Keylong after expiry of 15 days period. On 11.10.1994, the petitioner was served with a charge sheet for his alleged absence from duty. The petitioner submitted his reply dated 7.11.1994 to the memo of charge sheet. Thereafter the petitioner did not receive any information with regard to inquiry. 5. In the year 1995, the petitioner went to Keylong for joining duty but he was not allowed to join nor he was issued any order or direction regarding joining at Keylong or any other place. Later on petitioner made several attempts to join duty but to no avail. On 12.8.2002, the petitioner submitted representation giving therein the facts …3… in detail and made a request that he may be allowed to join duty and he may be posted nearby his native place. The petitioner did not receive any reply to his representation. 6. It has been alleged that petitioner is a confirmed Class-IV employee of respondent department. In the tentative seniority list of Class-IV employees in Health Department circulated vide memo dated 21.11.2000 the petitioner has been shown at serial No.1222. In the seniority list the date of employment of the petitioner has been shown 23.7.1984 and confirmation 1.4.1988. 7. The petitioner is confirmed employee of the respondent department but he has not been allowed to join duty either at Keylong or any other place. He has not been given anything in writing regarding his posting. The petitioner is a low paid employee and should be posted near his home and therefore, the respondent department is liable to be directed to post the petitioner against the vacant post of Ward Attendant at TB Sanitarium Dharmpur. 8. The petitioner has also pleaded that in case the respondent department comes with a plea that service of the petitioner has been terminated, such termination is liable to be quashed and set aside as a permanent confirmed employee cannot be terminated from service without following the mandatory requirement of Article 311 of the Constitution of India and the provisions of CCS/CCA Rules. In the alternative, it has also been pleaded that in case the respondent department comes with a plea that the petitioner has been proceeded exparte, such exparte inquiry is liable to be quashed and set aside as despite the address of petitioner available with the respondent …4… department, no attempt appears to have been made to serve the petitioner and to inform him regarding the inquiry. 9. The petition has been contested by respondents No.1 to 3 by filing reply. It has been pleaded that the petitioner was posted as Class- IV employee in District Hospital, Keylong. He proceeded on 15 days earned leave w.e.f. 25.4.1992 on the ground of marriage of his younger sister, without getting the leave sanctioned from the competent authority. A telegram dated 18.8.1992 was issued to him at his home address with specific directions that petitioner is being treated as willful absent and he should join duty at once, otherwise he would face suspension and disciplinary proceedings. The petitioner was charge sheeted vide memo dated 21.12.1992. 10. The petitioner did not resume his duty at District Hospital, Keylong on 25.4.1992 and thereafter. The petitioner remained absent from duty and therefore he was again charge sheeted vide memo dated 11.10.1994. He filed reply dated 7.11.1994 to the charge sheet dated 11.10.1994. The petitioner did not join his duty even after second charge sheet dated 11.10.1994. In these circumstances, the respondent department had no option but to terminate the service of the petitioner on 14.9.1995 w.e.f. 25.4.1992 after completing all codal formalities required under the provisions of the relevant Rules governing the service of a temporary government employees. The filing of the representation at a belated stage by the petitioner does not save the claim of the petitioner from being barred by limitation. After termination of the services of the petitioner it was not possible to allow him to join at Keylong. In the year 1992 the petitioner was not confirmed as Class-IV employee. The …5… confirmation of the petitioner, however, took place in the subsequent years with retrospective effect. The respondents have prayed for dismissal of the petition. 11. I have heard learned counsel for the parties. The learned counsel for the petitioner has submitted that petitioner was confirmed employee; his services could not be terminated by invoking Temporary Services Rules, more particularly, when department proceedings were initiated against the petitioner for alleged absence from duty. On behalf of the respondents, it has been submitted that the petitioner remained absent from duty even after second charge sheet dated 11.10.1994. The reply dated 7.11.1994 filed by the petitioner to the second charge sheet is of no help to the petitioner in as much as his absence from duty continued. In the year 1992 the petitioner was not confirmed Class-IV employee. The confirmation of the petitioner took place subsequently with retrospective effect. The services of the petitioner were terminated on 14.9.1995 vide Annexure R-2/III, according to petitioner he submitted the representation dated 12.8.2002 for allowing him to join his duty. The petition is highly belated with no explanation. 12. In view of respective stand of either side, the case can be divided in two parts (i) termination of the service of the petitioner and (ii) relief. In so far first part of the case is concerned the point involved is very short. The respondents in their reply have not denied that on the date of termination of the services of the petitioner he was confirmed Class-IV employee. The petitioner has asserted that as per tentative seniority list he was confirmed w.e.f. 1.4.1988, there is no denial to this effect in the reply of respondents No.1 to 3. The only stand of the …6… respondents is that in the year 1992, the petitioner was not confirmed employee but he was confirmed later on retrospectively. This means at the time of termination of the services of the petitioner he was confirmed Class-IV employee. This being the position the services of the petitioner could not be terminated under Temporarily Services Rules. More particularly when the department at one stage had initiated disciplinary proceedings against the petitioner for absence from duty. In these circumstances, it cannot be said that respondent No.3 has followed proper procedure while terminating the service of petitioner vide office order dated 14.9.1995. 13. The matter does no end here. The copy of office order dated 14.9.1995 was sent to petitioner under registered cover for information. There is no specific averment in the petition that copy of office order dated 14.9.1995 was not delivered to the petitioner or the petitioner was not aware of the office order dated 14.9.1995. In the petition it has been pleaded that in the year 1995 the petitioner went to Keylong for joining duty but he was not allowed to join. He subsequently made many attempts to join duty but to no avail. It is not possible that if the petitioner had gone to join duty at Keylong in the year 1995 or thereafter he was not told that his services stand terminated vide office order dated 14.9.1995. Therefore, there is no question to allow him to join at Kaylong or else where. The petitioner has maintained a complete silence in the petition what he has done against office order dated 14.9.1995 from the year 1995 till 12.8.2002 when he submitted a representation. In the representation dated 12.8.2002 the petitioner has requested for allowing him to join duty. He has not raised any grievance …7… against termination of his services vide office order dated 14.9.1995. This means the petitioner has accepted the office order dated 14.9.1995 vide which his services were terminated. He simply made a request to join duty vide representation dated 12.8.2002. The petitioner has not filed any rejoinder. The cumulative effect of the material which has come on record is that the petitioner was aware of the office order dated 14.9.1995 right from the very beginning, he accepted the office order dated 14.9.1995 and simply made a request vide representation dated 12.8.2002 to join his duty. 14. The petition was filed in the erstwhile Tribunal which was established under the Administrative Tribunal Act, 1985. The Section 21 of the Act provides limitation of one year for challenging the order. The petitioner either in the petition or by way of separate application has not made out any case for condonation of delay under sub section 3 of Section 21 of the Administrative Tribunal Act, 1985. The petition is barred by delay and laches. 15. In view of discussion, the petition fails and is accordingly dismissed. February 23, 2011 (Kuldip Singh), (sks) Judge.