IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. (SS) 751 of 2009 Ram Aasray Yadav …Petitioner Versus State of Uttarakhand and others. ….Respondents Present : Mr. Alok Mehra, Advocate for the petitioner. Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. Alok Mehra, Advocate for the petitioner and Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand. The petitioner was an Assistant Teacher (L.T. Grade) in the Education Department in the State of Uttarakhand. While in service of the education authorities, he was transferred from Government Higher Secondary School Salpad, Almora to Government Intermediate College, Lalkuan, Nainital in the year 2004. While he was working at the said Intermediate College at Lalkuan, Nainital, the petitioner being a patient of diabetic had gangrene, which became critical and ultimately his left leg had to be amputated. All this happened in November, 2005. Initially only the left leg below the knee was amputated but consequently his condition deteriorated further as complications grew and as a result of which he had to undergo multiple surgeries and his leg was further amputated still even upto the hip. During all this period, 2 the petitioner was not able to join his duties which is understandable, under these circumstances. We have a letter dated 30.5.2007 on record which is written by the Principal of the College i.e. Principal, Government Intermediate College, Lalkuan, Nainital which was addressed to the Deputy Director Education (Madhyamik) Kumaon Division, Nainital. The letter was apparently written as there were some objections regarding the medical leave to be granted to the petitioner. The Principal of his school writes to the Education Authorities that between 15.11.2005 to 20.3.2006 the medical leave, which was sought by the petitioner has been rejected, although there were enough medical evidence to show that the petitioner was not at all well during this period! It further states that the said teacher (i.e. the petitioner) has lost his leg due to illness and therefore on 21.3.2006 he could not be present in the college. Later on 24.5.2006 he was present in the college only for a day. It further states that due to this long illness, the said teacher is also undergoing a grave financial crisis. It further states that the teacher (i.e. petitioner) should be granted leave for the said period and for the remaining period leave without pay should be sanctioned. Whatever be the merits of the said letter the fact of the matter is that the education authorities were well aware about the illness of the petitioner and the fact that he had lost his one leg due to this illness. The petitioner though states that he received a letter dated 31.5.2008 passed by Additional Director Education, Kumaon Division by which it was stated that the petitioner has been absent without leave for which he has not shown any cause. He must show cause within 20 days as to why his services be not terminated for remaining absent for such a long period. 3 According to the petitioner, he received this letter in the second week of June, 2008 and thereafter on 19.6.2008 he replied to the said authorities (which is annexed as annexure RA –1 to the rejoinder affidavit 1 to the writ petition) saying that a gangrene had developed in his leg and his leg had to be amputated three times. Consequently the petitioner was unable to even move and now he is making all efforts to have an optical leg fitted on him so that he can resume his duties. He further states that as soon as he gets the optical leg, he will join the duties. He adds that considering his conditions a sympathetic view may be adopted by the education authorities. The petitioner has also annexed a postal certificate of the department as Annexure -14 (the original of which was also shown before this Court) which is dated 19.6.2008 which appears to be a clear proof that the petitioner had sent such a letter to the authorities. The authorities though expressed the ignorance about receiving this letter and they ultimately passed an order on 4.12.2008 by which the services of the petitioner were terminated. The cause given was that inspite of repeated reminders to show cause, including the letter dated 31.5.2008, the petitioner has not given any reply and therefore his services were terminated. The petitioner after receiving the said termination order moved a representation dated 30.6.2009 narrating the state of affairs and the hardships he has undergone and requested that he may be taken back in service. Since it did not happen he has filed the present writ petition praying that the impugned order dated 4.12.2008 be set aside and respondents be directed to reinstate the petitioner in service. 4 Inspite of repeated requests of this Court, the learned Standing Counsel for the State Mr. N.P. Sah has not been able to show any provision of law by which in case an employee has remained absent without leave his services are liable to be terminated automatically or in other words, there would be a deemed termination in such a matter. Earlier there was a provision under Rule 18 of the U.P. Fundamental Rules, from the year 1989 the said rule was substituted as follows :- “18. Unless the Government, in view of the special circumstances of the case, otherwise determine, after five years’ continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, no Government servant shall be granted leave of any kind. Absence beyond five years will attract the provisions of Rules relating to disciplinary proceedings.” Even here, as we find the maximum period of absence is 5 years which has not been in the present case. Moreover, it is not a case where a person has remained absent without any just cause. There is nothing to show on record that prior to the unfortunate disease of the petitioner where he being a patient of diabetic he contacted gangrene and therefore his leg has to be amputated, the petitioner has ever remained absent or that he was a habitual absentee or had a nature of this kind. Here we have a person who had to lose his left leg and there is evidence to show that even after amputation his problem persisted. There are medical certificates to this effect on record which prove the bona fide of the petitioner in this regard. Therefore, although the response of the petitioner towards the authorities is neither prompt nor is there any diligent correspondence 5 of letters between the two to show that the petitioner was repeatedly informing the authorities about his state of affairs, yet this lapse on the part of the petitioner has to be overlooked considering his plight. As it has already been stated above, the petitioner had to get his leg amputated due to gangrene and due to further complications in this regard he had to continue medical treatment thereafter as well, and it is only later that he succeeded in getting the artificial leg. Therefore, under these circumstances there is also a special equity in favour of the petitioner whereby this Court is inclined to even overlook the lack of diligence and promptness on part of the petitioner while explaining his absence from duties. This Court also notes the fact that it is not a case where the petitioner has not informed the authorities. On record, there is a letter dated 30.5.2007 of the Principal, Government Intermediate College, Lalkuan, Nainital informing the authorities about the state of affairs of the petitioner. Consequently there are other letters as well which show that the petitioner corresponded with the authorities about his health and condition. Therefore under these circumstances, this Court holds that the order dated 4.12.2008 has not done justice to the case considering the plight of the petitioner. Even otherwise there cannot be any automatic termination of service. Nor is the conduct of the respondents such which reflects that they had done their part in serving notices to the petitioner. As such, order dated 4.12.2008 (Annexure No. 20 to the writ petition) is quashed. The respondents are hereby directed to reinstate the petitioner in service. Regarding the arrears of salary, ultimately there is a letter of the petitioner dated 30.6.2009 which shows that the petitioner had asked for joining. Before this there is nothing on record to show that the petitioner had asked 6 for joining in the college. As such, the petitioner shall be treated to be on leave without pay from 25.5.2006 to 30.6.2009. For the remaining period i.e. from 1.7.2009 onwards the petitioner shall be given the arrears of salary. The petitioner shall also be entitled for any reimbursement of medical expenses from the Government according to his medical entitlement, if he submits the relevant bills for the purposes. Writ petition is accordingly allowed. No order as to costs. (Sudhanshu Dhulia, J.) 19.08.2011 Avneet