IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 5833/2008 (OA 1579/99) Date of Decision : May 12, 2009 Sh. Amar Singh Petitioner Versus The State of Himachal Pradesh through the Commissioner-cum-Secretary (S.A.D.) to the Government of H.P. with headquarters at Shimla Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. R. T. Kaundal, Advocate vice Mr. A.K. Gupta, Advocate, for the petitioner. For the respondent : Mr. R. K. Sharma, Sr. Addl. Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General and Mr. R.P. Singh, Asstt. Advocate General for respondents. Sanjay Karol, J. (Oral) The petitioner who was initially appointed as Frash was promoted as Peon in 1981. According to him he fell ill in January 1985 and after recovering from his disease, in November 1998 he gave his joining report on 10.11.1998. Respondents refused to accept his joining report. Hence petitioner has prayed that he be reinstated in service with all incidental benefits. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 The respondents have opposed the petition on the ground that during the period of his probation of two years, petitioner abandoned the service w.e.f. 8.1.1985. Neither did the petitioner complete the period of probation nor did he inform about his whereabouts till 10.11.1998, when after a period of 13 years 10 months and 3 days, he gave his joining report by placing his medical certificate issued by a private practitioner with regard to his illness. The petitioner voluntarily abandoned the job hence he is not entitled for reinstatement. It is admitted case that for over a period of 13 years petitioner did not inform the respondents, either orally or in writing about his illness. He also did not seek leave as per his entitlement. He simply vanished leaving the respondents clueless of his whereabouts. The petitioner voluntarily and without any justifiable reason absented and abandoned the job, hence petitioner cannot wake up after a period of over 13 years to seek re-appointment. The Apex Court in Jaipur Development Authority versus Ramsahai and another, (2006) 11 SCC 684 while dealing with the case of a daily wager who used to habitually absent from duty held that it was not necessary to initiate departmental proceedings against him for his absence from duty. Further the Apex Court in Rajasthan State Road Transport Corpn. and others versus Zakir Hussain, (2005) 7 SCC 447 while dealing with the case of a employee of Road Transport Corporation 3 who during the period of probation had conducted himself in an undesirable manner was terminated by an order of termination simplicitor, held that the order was innocuous and without any stigma or civil consequences and hence there was no requirement under the law to hold any inquiry before terminating his services. In State of Punjab and others versus Sukhwinder Singh, (2005) 5 SCC 569 while dealing with a case of a probationer constable who absented without any justifiable reason or leave, the Apex Court upheld the action of the Department of Police, State of Punjab of simple discharge without holding any formal departmental inquiry. The Court also held as under: “ In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The respondent was on probation having been appointed about eight months back. The period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature…” 4 In Indian Railway Construction Co. Ltd. versus Ajay Kumar, (2003) 4 SCC 579 the Apex Court has held as under: “20. In other words, to characterize a decision of the administrator as “irrational” the court has to hold, on material, that it is a decision “so outrageous” as to be in total defiance of logic or moral standards. Adoption of “proportionality” into administrative law was left for the future. 21. These principles have been noted in the aforesaid terms in Union of India v. G. Ganayutham [(1997) 7 SCC 463]. In essence, the test is to see whether there is any infirmity in the decision-making process and not in the decision itself.” Rule 11 and Rule 14 of the CCS (CC&A) Rules, 1965 is inapplicable in such circumstances. Hence the petition being without any merit is dismissed. (Sanjay Karol), Judge. May 12, 2009 (PK)