IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 2793 of 2010 Date of Decision: 13th May, 2010 Dr. S.K.Jain Petitioner Versus State of H.P. and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the petitioner : Mr.Ashwani K. Gupta, Advocate. For the respondents: Mr.R.M.Bisht, Dy. Advocate General. Sanjay Karol, J. (Oral) 1. Mr. Ashwani Gupta, learned counsel appearing for the petitioner has assailed the order dated 9.11.1994 (Annexure A-6) on the ground that the same is contrary to the settled position of law. No inquiry was held before the petitioner was removed from service. The challenges is also on the ground that the order is self contradictory. 2. Petitioner was appointed and posted as Dental Surgeon, Civil Hospital, Sundernagar, District Mandi, H.P. He was transferred to the tribal area of the State which posting was not to his liking. Consequently, he filed OA No.1052 of 1995 before the Erstwhile H.P. Administrative Tribunal (for short, Tribunal) challenging the same. In terms of order 6.9.1990 the said petition was disposed of with the direction to the Government to treat it as a Whether the reporters of Local Papers are allowed to see the Judgment? 2 representation and decide it within a period of four weeks. Till then the order of transfer was not to be implemented. There is no dispute that the Government took a decision and vide order dated 5.12.1990 transferred the petitioner from Civil Hospital, Sundernagar to District Hospital, Keylong (another tribal area). Even this transfer was not to his liking. Hence he filed another OA No.84 of 1991 before the Tribunal, in which interim order were passed on 11.1.1991. The State contested the same and in terms of orders dated 27.7.1992, the said petition was permitted to be withdrawn and interim orders were vacated. The State was given liberty to post the petitioner to such other place as would be convenient in public interest. 3. It is not in dispute that after 27.7.1992, petitioner also did not join his place of posting. In fact he proceeded on casual leave w.e.f. 6.1.1992 upto 10.1.1992 and thereafter did not report for duty and willfully remained absent. 4. I have heard the learned counsel for the parties and also perused the record. 5. Petitioner was charge-sheeted and he chose not to file any reply. He also did not report to duty. His whereabouts were not known to the department. Undisputedly he was not ordinarily residing in the State of Himachal Pradesh. Consequently notice was published in the leading newspaper wherein he was directed to join his duties within 10 days from the date of publication of such notice. The said notice was published in the newspaper on 15.9.1992. In spite of the same, petitioner chose not to respond at all and remain absent. In this background, the State in exercise of its powers under Article 311 (2)(b) of the Constitution of India decided to dispense with the inquiry and taking disciplinary action against him. 3 6. The respondent-authorities passed order dated 9.11.1994, which reads as follows:- “Whereas Dr.S.K.Jain, Dental Surgeon, CHC Sundernagar, Distt. Mandi has been absenting wilfully from duty till today without getting the leave sanctioned from the competent authority. Whereas the proceeded on casual leave w.e.f. 6.1.92 to 10.1.92 but since then has not reported for duties so for nor has applied for leave etc. and is wilfully absenting himself from duty; Whereas he was directed by notice published in the leading news papers i.e. The Tribune, Chandigarh, Himachal Times Shakti Darshan dated 9.9.92, to join his duty or send reply within 15 days from the date of publication of notice, failing which action to remove him from services will be initiated; Whereas he neither resumed his duties nor any communication has been received from him in this regard, and whereas his whereabouts are not known to the Health & Family Welfare Deptt. And it is not reasonably practicable to hold regular Departmental enquiry against him; Now, therefore, in terms of proviso (b) to Article 311 (2) of the constitution of India, Dr.S.K.Jain, Dental Surgeon, is hereby removed from H.P. Government service with immediate effect. However, this removal from Government service will not disqualify him from future Government service. This removal from service is without prejudice to claims of the H.P. Government pending against him (including recovery of bond money if any) and claims which may come to the notice of the Government later on. The absence period Dr.S.K.Jain, Dental Surgeon will be treated as leave without pay and he shall not be paid any allowance for that period.” 4 7. It cannot be disputed that the petitioner did not have any prior sanctioned leave in his favour. He remained absent without any authority. 8. The relevant provisions for determining the controversy in issue read as under:- “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this case shall not apply – (a) … (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) ….. 3. If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereupon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” “19. Notwithstanding anything contained in Rule 14 to Rule 18- (i) ……. (ii) Where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or (iii) ….. the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit;” 5 9. A Division Bench of this Court in Dr. Rajiv Mahendra vs. State of H.P. and another, CWP No.470 of 2001, decided on 29.12.2008, while dealing with almost in similar circumstances and issues raised by the learned counsel for the petitioner has held as under:- “The main contention raised on behalf of the petitioner is that the respondents were aware of the address of the petitioner and had sent a communication to the wrong address and also that prior to 6.10.2000 the respondents were aware that the petitioner had submitted his application for rejoining and therefore, the order dispensing with the enquiry issued on 6.10.2000 was illegal and unconstitutional. At the outset, we may mention that there is no manner of doubt that the petitioner had proceeded on unauthorized leave. Mere sending of application for extension of leave does not give an employee right to be absent. Leave is a privilege which may be granted or refused by the employer. The employee has no right to remain on leave. Interestingly, neither in the so called applications for extension of leave nor before this Court the petitioner has given any reason for remaining on leave for more than four years. The only vague excuse given is that due to adverse family circumstances, he could not rejoin duties. What were these adverse family circumstances have not been spelt out. We also cannot lose sight of the fact that the order dated 6.10.2006 must have been passed on the basis of some noting and communication of earlier dates. The petitioner was granted leave from 2.4.1996 to 1.6.1996. This leave was extended upto 21.11.1996. He was expected to join duty on 22.11.1996. He did not do so and has only reported back on duty on 26.09.2000. The Director Health services sent a communication on 5th October to the F.C.-cum-Secretary (Health) seeking guidelines as to whether the petitioner should be permitted to resume duty or not. There is no proof as to 6 when this letter was received in the office of the F.C.-cum- Secretary (Health) to the Government of Himachal Pradesh. However, it can be reasonably presumed that this letter could not have been received prior to the issuance of the notification dated 6.10.2000. As on 6.10.2000, the F.C.-cum-Secretary (Health) had no intimation of the address or whereabouts of the petitioner. It is not disputed that communication was sent to the permanent address of the petitioner as recorded in his service book that he should rejoin his duties. According to the petitioner he was no longer living at his permanent address but was living at Panchkula and his employer, i.e. the Director Health Services was aware about this address. We are unable to accept this contention. It is true that the petitioner in some communications has shown his address as that of Panchkula but he never thought it fit to get his permanent address in the service record changed from Amritsar to Panchkula. The 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 enquiry was not feasible in this case. A large number of authorities have been cited by Shri Surinder Sharma, learned counsel for the petitioner. We may only refer to two of them i.e. Ex. Constable Chhote Lal vs. Union of India and others (2000) 10 SCC 196 and Tarsem Singh vs. State of Punjab and others, (2006) 13 SCC 581. The law is well settled that there must be justifiable reasons not to hold a departmental inquiry. In the present case, the reasons were that the whereabouts of the petitioner were not known. Just because he approached one of his superior office a few days before his termination will not mean that the decision not to hold the enquiry was improper, especially, 7 when this fact was not known to the authority who was passing such an order. Even if we were to hold that enquiry has wrongly been dispensed with, we are of the considered opinion that in the facts and circumstances of the case, the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Till date, the petitioner has not given any valid reason for his unauthorized absence. Here is a person who works on contract, takes advantage of his service to get admission in M.D. course as an “in service” candidate, fills a bond to serve the State for a period of five years and thereafter when he is posted to a tribal area to serve the people living in remote areas he does the vanishing act and remains absent for more than four years. We are of the opinion that he has failed to show that he had ever applied for extension of leave and that the letters purportedly sent for extension of time have been manufactured at a later stage. Even otherwise, what prevented the petitioner who was admittedly living in Panchkula, a bare three hour’s drive from Shimla, from coming to Shimla and personally handing over the letters and informing his employer about the reasons why he required leave.” 10. Now, even in the present case, whereabouts of the petitioner were not known. He has also not given any valid reason for his unauthorized absence. In fact he wanted his posting on a station of his choice. There was paucity of doctors in the State. There were many vacancies in various Hospitals of the State and more so in the tribal areas. The impugned order itself contained reasons for dispensing with the regular inquiry against the petitioner. There were sufficient reasons for the State to have arrived at such a conclusion. Reasons are on record. The impugned action cannot be said to be mala fide. The attending circumstances do not even remotely suggest that 8 the order has been passed with any ulterior motive of illegally dispensing with the petitioner’s service. The authority has come to the conclusion that it is not reasonably practicable to hold an inquiry. The State had the jurisdiction to exercise such power. 11. From the material on record and in the facts of the instant case, it cannot be contended that any legally enforceable right of the petitioner stands violated. The action of the State is totally in accordance with law. As such, the present petition, without any merit, is dismissed. 13th May, 2010 (Sanjay Karol) (C) Judge.