IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 9016 of 2008 Judgment reserved on: 8.4.2011 Date of decision: 07 .05. 2011 Dr. Leela Aggarwal …Petitioner. Versus State of H.P. ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Lalit K. Sharma, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh, Judge The petitioner has prayed for quashing of Annexure PA office order dated 6.10.2000 terminating her services. She has also prayed direction to respondent to release the revised pay scale to the petitioner w.e.f. 1.1.1996 and pay arrears alongwith interest at the rate of 20% per annum. 2. The facts, in brief, are that after completion of her M.B.B.S. in the year 1974 petitioner joined regular service in Health Department of respondent in June, 1977. She improved her academic qualification by qualifying D.Ortho. in the year 1979 and M.S. Ortho in the year 1982. The petitioner was confirmed. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 3. The petitioner joined as Medical Officer at District Hospital, Kullu on 6.5.1999. She applied, through proper channel, one year leave vide her application dated 11.10.1999 Annexure PB on account of her domestic affairs and ear ailment. The Chief Medical Officer, Kullu recommended and forwarded the leave application to the respondent. On account of compelling reasons, the petitioner proceeded on leave without waiting for its sanction. It has been alleged that there were hundreds of days in the leave account of the petitioner. 4. The respondent did not pass any order on the leave application of the petitioner and unilaterally erroneously concluded that the petitioner had abandoned the job and passed the office order dated 6.10.2000 Annexure PA and terminated the services of the petitioner without following due process of law. The petitioner left her contact address with her immediate superior the Medical Officer namely the Chief Medical Officer, District Hospital, Kullu. 5. The petitioner served at District Hospital, Kullu for about six months, the respondent transferred the petitioner to Referral Hospital, Sarkaghat vide order dated 5.11.1999.The Medical Officer Incharge, District Hospital, Kullu relieved the petitioner in absentia vide office order dated 10.11.1999 which was sent to her on her address. 6. The respondent did not take steps to serve show cause notice on the petitioner nor the respondent provided an opportunity of being heard to the petitioner and passed the impugned office order Annexure PA dispensing with the services of the petitioner in an illegal, arbitrary and unconstitutional manner. The petitioner 3 represented vide representation dated 10.10.2000 to respondent against illegal order. The respondent did not pass any order on the representation of the petitioner. 7. The petitioner before her posting at District Hospital, Kullu served at ESI Hospital, Parwanoo. The pay scales of Government employees were revised on the basis of recommendation of 5th Pay Commission. The respondent accepted the recommendations and revised the pay scales of its employees w.e.f. 1.1.1996. However, the petitioner has not been given the benefit of revised pay scale w.e.f. 1.1.1996, despite Chief Medical Officer, Solan office order dated 6.10.1999 Annexure PF. The pay of the petitioner was not .revised. She continued to receive her salary at pre-revised scale till her illegal termination. 8. The respondent has contested the petition by filing reply. It has been submitted that it was found by the Department that certain doctors have become habitual for absconding from their duties without prior approval of the competent authority. This trend generated an atmosphere of general indiscipline and a cause towards a progressive decline in running the administration in the interest of public at large. This apart, the patients were suffering in absence of availability of doctors at the places of their postings for want of proper treatment. In order to tackle this menace, it was decided by the Department that each Chief Medical Officer of the respective District shall submit a report in regard to the absence of the doctors from the duties unauthorisedly. This was necessitated to put a check on the doctors not to leave the stations of their postings unnecessarily and without prior approval of the competent authority. 4 It is in this context that monthly reports used to be received from the Chief Medical Officers and it was found that a number of doctors were wilfully absenting from their duties without prior approval of the competent authority. The unjustifiable behaviour on the part of the doctors and wilfully absenting from duties constrained the respondent to dispense with the services of such doctors by issuing office order dated 6.10.2000 Annexure PA. 9. The petitioner has not been singled out. The decision of the respondent is quite rational which has ensured equality in the public employment. The track record of the petitioner is not upto the mark. The petitioner had been proceeding on leave frequently without permission of the competent authority. The petitioner never adhered to the provisions of the leave rules nor she bothered to get the leave sanctioned from the competent authority before proceeding on leave. 10. The petitioner remained wilfully absent from her duties without getting the leave sanctioned from competent authority from 26.10.1995 to 23.11.1996. She joined her duty for one day on 26.11.1996 and then remained willfully absent from 27.11.1996 onwards till she was relieved on 17.2.1997 of her duties from ESI Parwanoo on her transfer to District Hospital, Kullu. The petitioner did not join her duties immediately after her relieving from ESI Parwanoo, however, she joined her duties at District Hospital, Kullu on 6.5.1999. The petitioner again proceeded on unauthorized leave from 7.5.1999 till 7.9.1999. The petitioner again resumed her duties on 8.9.1999 and remained on duty upto 30.10.1999. The petitioner on her own volition again proceeded on leave without getting the 5 same sanctioned from the competent authority w.e.f. 1.11.1999 onwards. The petitioner thus remained willfully absent from duty from time to time for considerable period without well founded reasons. 11. The petitioner kept on sending applications/telegrams for extension of leave but did not give correspondence or permanent address where she could be contacted. The service book of the petitioner was with Chief Medical Officer, Solan. On receipt of service book from Chief Medical Officer, Solan, the Chief Medical Officer, Kullu wrote a letter to petitioner on her permanent address directing her to join duties at once failing which disciplinary action would be initiated against her, but the letter was returned by the postal authorities with the remarks that addressee was not residing on the address given. 12. It appears from the telegrams that the petitioner was extending her leave on medical grounds from village Gagal. The communications sent to petitioner by the Department on village Gagal address were not received by her deliberately. This indicates that the petitioner was available at her home address but she was evading the receipt of communications intentionally. It has been denied that the petitioner had performed her duties to the satisfaction of her superiors. The petitioner has not come forward with clean hands as to what were the compelling circumstances which led her to proceed on leave and further extending the same for unspecified period without prior approval of the competent authority. It has been denied that the petitioner was available on the 6 address C/o Sh. Lekh Ram Sharma, P.A. to Transport Minister, Kothi No. 9, Yatas Palace, Chhota Shimla. The telegrams of petitioner for extension of leave used to come from Gagal (Mandi). 13. The petitioner was rightly transferred from District Hospital, Kullu to Referral Hospital, Sarkaghat in public interest. The petitioner did not apply leave in accordance with prescribed procedure of leave rules. She proceeded on leave on her own volition without prior approval of the competent authority. It was not possible to contact the petitioner through normal channel of communication and as and when any communication issued by the Department on her permanent address, the same received back undelivered. The action of respondent in terminating the services of the petitioner is legal. 14. The petitioner could have become eligible for the grant of revised scale only if she fulfilled the conditions of guidelines issued by the Finance Department of the H.P.Government. The case of the petitioner was not covered by the guidelines issued by the Finance Department, therefore, the petitioner was not entitled for revised pay scale. The petitioner has filed rejoinder and has denied the cse put forward by the respondent, she reiterated her stand. 15. I have heard the learned counsel for the parties. It has been submitted on behalf of the petitioner that respondent has erred in dispensing with the services of the petitioner vide office order dated 6.10.2000 Annexure PA. According to learned counsel for the petitioner the foundation for dispensing with the services of the 7 petitioner as per office order dated 6.10.2000 is that it was not possible and reasonably practicable to contact the petitioner through normal channel of communication. This, according to petitioner is factually incorrect. The petitioner in the leave application had given her contact address C/o Sh. Lekh Ram Sharma, P.A. to Transport Minister, Kothi No. 9, Yatas Palace, Chhota Shimla. The respondent was aware of this address of the petitioner. The petitioner was directed to join new place of posting vide communication dated 10.11.1999 Annexure PD and Annexure PD was sent to petitioner on aforesaid address C/o Sh. Lekh Ram Sharma. 16. The respondents have wrongly, illegally and arbitrarily invoked Article 311 (2) of the Constitution of India to dispense with the services of the petitioner. There were allegations of misconduct against the petitioner of absenting without leave, therefore, the services of the petitioner could not be dispensed with without inquiry. The principle of natural justice has been violated by the respondent. It has been submitted that the respondents did not revise the pay scale of the petitioner w.e.f. 1.1.1996 and she continued to draw the salary in the pre-revised pay scale. The petitioner is entitled to revision of pay scale and fixation of her pay in the revised pay scale w.e.f. 1.1.1996. The petitioner has relied on Satwati Deswal vs. State of Haryana and others (2010) 1 SCC 126 and State of Uttar Pradesh and others vs. Saroj Kumar Sinha (2010) 2 SCC 772. 17. On behalf of the respondent, it has been submitted that the service record of the petitioner speaks volumes. She was in the 8 habit of not attending her duties without obtaining leave from the competent authority. The absence of the petitioner from 1.11.1999 was not an isolated act. Prior to 1.11.1999 the petitioner several times absented from duty without obtaining leave. She was not available on the address provided in her service book, the communications sent to her on her address available in service book were returned undelivered. It transpired that she had sent telegrams for extension of leave from Gagal (Mandi). This indicates that she was not available on the alleged address C/o Sh. Lekh Ram Sharma, P.A. to Transport Minister, Kothi No. 9, Yatas Palace, Chhota Shimla. 18. The petitioner had absconded from duty without sanction leave. The office order dated 6.10.2000 Annexure PA is legal. It has been passed in public interest. It was not possible to hold an inquiry in absence of the contact address of the petitioner. The office order dated 6.10.2000 with respect to one Dr. Rajiv Mahendru has been upheld by the Division Bench in judgment dated 29.12.2008 in CWP No. 470 of 2001 Dr. Rajiv Mahendru vs. State of H.P. It has been submitted that this Court in CWP(T) No. 2695 of 2008 Dr. R.K.Sood vs. State of H.P. and others decided on 17.12.2010 has upheld the termination of the petitioner in that case under Article 311(2) of the Constitution of India. The petitioner in that case did not join his duty at the new place of posting in pursuance of transfer. 19. It is the case of the petitioner that she applied for one year leave w.e.f. 1.11.1999 vide application dated 11.10.1999 9 Annexure PB. The application was addressed to Secretary (Health) to the Govt. of H.P. In the leave application, the petitioner had given her address for correspondence C/o Sh. Lekh Ram Sharma, P.A. to Transport Minister, Kothi No. 9, Yatas Palace, Chhota Shimla. It is also her case that on account of domestic problems and ear ailment, she proceeded on leave w.e.f. 1.11.1999 without waiting sanction of leave from the competent authority. Per contra, the stand of the respondent is that the petitioner did not submit leave application in accordance with Central Civil Services (Leave) Rules, 1972 (for short’ Rules’) nor the leave of petitioner was sanctioned. 20. The petitioner had no right to proceed on leave without sanctioning of the leave by the competent authority. In CWP No. 470 of 2001 dated 29.12.2008 Dr. Rajiv Mahendru (supra), it has been held that leave is a privilege which may be granted or refused by the employer. The employee has no right to remain on leave. Mere sending of application for extension of leave does not give an employee right to be absent. In that case also, the petitioner had projected the case of adverse family circumstances for not joining the duties. The petitioner along with the leave application dated 11.10.1999 had not annexed any medical certificate in terms of Rule 19. It is admitted case of the petitioner that leave applied by her was not sanctioned. In absence of sanction of leave in her favour, the petitioner had no right not to report for duty, her volition for not reporting for duty was at her risk. 21. The case of the petitioner is that at the time of applying leave on 11.10.1999 vide Annexure PB she had given her contact 10 address. The perusal of leave application dated 11.10.1999 indicates that petitioner had given her correspondence address C/o Sh. Lekh Ram Sharma, P.A. to Transport Minister, (HP), Kothi No. 9, Yatas Palace, Chotta Shimla. It has not been stated in the application that the petitioner will be available on the address mentioned in the application during leave. The form No.1 of the 2nd Schedule of the Rules provides the information to be given in the application for leave and in item No.11 of the form, the requirement is address during leave period. In application dated 11.10.1999 the petitioner has not given her address during leave period. The leave of the petitioner was not sanctioned and, therefore, no fault can be found with the respondent for not communicating the petitioner on the address mentioned by her in her leave application dated 11.10.1999. The petitioner cannot take benefit of communication dated 10.11.1999 addressed by Medical Officer Incharge, District Hospital, Kullu to the petitioner on the address C/o Sh. Lekh Ram Sharma. 22. The petitioner was aware that her leave applied on 11.10.1999 has not been sanctioned. In these circumstances, it appears the petitioner had been sending applications/telegrams for extension of leave. In such applications/telegrams the petitioner had not given her address for correspondence where she could be contacted. As per item No. 11 of aforesaid Form No.1 of 2nd Schedule of the Rules, the applicant was required to give leave address in application for extension of leave. On her transfer from Kullu, the Chief Medical Officer, Kullu directed her to join the duty, 11 failing which the departmental action would be initiated against her. This communication was sent by Chief Medical Officer, Kullu on her permanent address available in her service book. It emerges that the said communication was not received by the petitioner and was returned to Chief Medical Officer, Kullu. The petitioner had been sending telegrams for extension of leave on medical grounds from village Gagal (Mandi). The petitioner in the petition or rejoinder has not stated that the applications/telegrams for extension of leave were not sent by her or on her behalf by anybody from Gagal nor she has taken the stand that during the relevant period she was not available at village Gagal. In the petition she has not taken the stand that she was residing in Kothi No.9, Yatas Palace, Chhota Shimla during this period. Thus, it can be safely concluded that the petitioner was managing not to receive the communications sent by the respondent. It appears the petitioner was keeping the track, the impugned order was passed on 6.10.2000. She filed representation on 10.10.2000 against order dated 6.10.2000, how she has come to know the impugned order dated 6.10.2000 that has not been explained. The contention that in the past leave of the petitioner was sanctioned lateron retrospectively does not improve the case of the petitioner, rather it indicates that petitioner was in the habit of not reporting for duty without leave. The petitioner misused the leniency of the respondent to grant her leave in the past retrospectively. 23. In Satwati Deswal (supra) the petition was dismissed by the High Court on the ground that alternative remedy to file an appeal under the Rules before the appellate authority against order 12 of termination. The Supreme Court has held that the order of termination was passed without issuing any show cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. A writ petition can be held to be maintainable even if an alternative remedy is available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the Act were in question. 24. In Saroj Kumar Sinha (supra), it has been held that an Inquiry Officer acting in quasi-judicial authority, is in the position of an independent adjudicature, he is not supposed to be a representative of departmental/disciplinary authority/Government. His function is to examine evidence presented by Department, even in absence of delinquent official to see as to whether unrebutted evidence is sufficient to hold that charges are proved. The aforesaid procedure has not been observed. No oral evidence has been examined. The documents have not been proved, the same could not have been taken into consideration to conclude that the charges have been proved against the respondents in that case. It has also been held that apart from above, by virtue of Article 311 (2) of the Constitution of India, the departmental inquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in a punishment being imposed on the employee. 13 The law laid down in Satwati Deswal and Saroj Kumar Sinha (supra) is not applicable in the present case. The office order dated 6.10.2000 has been passed under Article 311 (2) (b) of the Constitution which is exception to general rule of holding enquiry before terminating service of an employee. 25. In office order dated 6.10.2000 it has been observed that the doctors mentioned in the office order have been willfully absenting themselves from their duties without prior approval of the competent authority from dates shown against each of them. The whereabouts of the doctors mentioned in the office order are not known to the Department. No response has been received from them in respect of correspondence made by the Department for want of further communication upon them. It was not possible and reasonably practicable to contact them through normal channel of communication. The conduct of such doctors regarding their wilfull absence and paying scant regard to their duties had been viewed seriously and the Government consider that the services of such doctors should be dispensed with from the date they have been absconding. Therefore, the services of all the doctors mentioned in the office order dated 6.10.2000 were dispensed with from the date of their absence and accordingly they were informed through notice dated 6.10.2000 that their services have been terminated in the public interest under Article 311 (2) of the Constitution of India as the other formalities are not warranted in their cases. 26. Article 311 (2) (b) of the Constitution of India provides that clause (2) shall not apply where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that 14 for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry. The petitioner has not projected the case that reasons were not recorded by competent authority before passing impugned order dated 6.10.2000. The order was challenged on the ground that it is against the principle of natural justice. The office order dated 6.10.2000 was considered in CWP No. 470 of 2008 decided on 29.12.2008 which was filed by Dr. Rajiv Mahendru whose name finds mention at serial No. 2 of the office order dated 6.10.2000. The Division Bench in the judgment has held that employer was only expected to send the communication to the permanent address available with it in the record. This communication was definitely sent to the permanent address available with the respondents and, therefore, there is no error in the finding of the employer that an inquiry was not feasible in the case. The facts in the present case are very close to the facts in Dr. Rajiv Mahendru (supra). In the case in hand, the communications were sent to the petitioner on her address at Gagal but she did not give any response and ultimately the respondent has passed the office order dated 6.10.2000. In CWP (T) NO. 2695 of 2008 this Court upheld the termination of petitioner under Article 311 (2) (b) when the petitioner in that case failed to join the place of posting after transfer as it was not possible to contact the petitioner of that case after transfer for further action. 27. In Union of India and another vs. Tulsi Ram Patel (1985) 3 SCC 398, the Supreme Court has held that a disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the 15 holding of an inquiry or because the Department’s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned. It has also been held that it is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a government servant. It has also been held that the second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reasons for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2). The recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reasons for dispensing with the inquiry need not, therefore, find a place in the final order. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. There is no obligation to communicate the reason to the government servant. 28. In view of above discussion and the fact that the office order dated 6.10.2000 has already been upheld in the case of Dr. Rajiv Mahendru by Division Bench in CWP No. 470 of 2008 dated 29.10.2008, no fault can be found with the termination of the services of the petitioner by respondent under Article 311 (2) (b) of the Constitution of India. 29. The second grievance of the petitioner is that the respondent