[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::O R D E R: RANVEER SINGH VS. STATE OF RAJ. & ORS. S.B. Civil Writ Petition No.2539/2005 under Article 226 of the Constitution of India. DATE OF ORDER :: April 04, 2008 PRESENT HON'BLE MR.JUSTICE GOPAL KRISHAN VYAS Mr. M.A. Siddiqui for petitioner Mr. B.L. Tiwari, Addl. Govt. Counsel BY THE COURT : In this writ petition, petitioner prayed for direction to the respondents to allow him to join his duties and further that respondents may be directed to pay all consequential benefits including salary with 12% interest. According to the facts narrated by the petitioner in the writ petition, the petitioner was initially appointed on post of Teacher Gr.III after due selection at Panchayat Samiti, Baap in the year 1971. The said appointment was temporary in nature and after due selection petitioner was [2] given posting vide order dated 28th December 1971 at Government Primary School, Dholia, Panchayat Samiti Baap, District Jodhpur. During his tenure of service, the petitioner worked at various places and his term of appointment was extended from time to time. The petitioner discharged his duties with due satisfaction of the respondents and completed 25 years of service without any blame and there was no complaint with regard to his work. Due to mental disturbance of his wife, petitioner proceeded on leave and he remained on leave from 1995 to 1999. The petitioner filed an application for extension of leave from time to time till August 1999. Thereafter, on 7th September 1999, the Panchayat Samiti Shergarh, District Jodhpur issued a notice and said notice was publicized in the newspaper on 13th October 1999. The said notice is placed on record by the petitioner as Annex.8. Upon perusal of Annex.8, it is revealed that petitioner was directed to join his duties within 15 days, else it was mentioned in the notice that ex-parte action would be taken [3] against him. It is also submitted in the writ petition that not only the notice was publicized in the newspaper but said notice was sent to the petitioner personally and that too is placed on record as Annex.9. In pursuance of the said notice, petitioner filed an application for taking him on duty on 16th October 1999 but he was not taken on duty by the respondents. Petitioner filed his joining report also on 16th October 1999, which is placed on record as Annex.11. Thereafter, for taking him on duty petitioner made his all efforts but he was not taken on duty. At last registered notice was sent by the petitioner through his Advocate on 20th October 2003 but no reply whatsoever has been given to the petitioner by the respondents. When petitioner failed to get order of joining, then he preferred this writ petition before this Court in the month of April 2005. On 2nd of May 2005, after hearing counsel for petitioner, notices were issued to the respondents and in [4] pursuance of notices issued by this Court in this writ petition, a reply has been filed by the respondents. In the reply filed by the respondents, it is stated that petitioner is habitual of remaining absent from duties willfully and since 1st of November 1999 continuously remained absent without even filing application for leave, therefore, the conduct of the petitioner itself is sufficient for not allowing him to join the duties. In reply to Para 9 of the writ petition, it is replied by the respondents that despite notice referred by the petitioner, the petitioner did not attend the duties and he is still absent from duties. According to the respondents, there is no explanation with the petitioner for his willful absence from duty, therefore, it is a case of abandonment of the service. The respondents accepted that they received notice of demand of justice and petitioner was directed to attend the duties but he did not joint the duty, therefore, petitioner is not entitled to get any relief by this Court in this writ petition because he himself left the services on 1st of November 1995 and thereafter he did not turn up to join [5] duties inspite of a notice issued to him therefore, it is prayed by the respondents that the writ petition may be dismissed. After hearing both the parties and perusing entire record of the case, the facts which emerges are that petitioner was appointed in the year 1971 and till 01.11.1995 he has worked with the respondents though for some time he remained absent from duties but his services were not terminated by the respondents. According to reply, till today no action has been initiated against the petitioner for alleged misconduct of his willful absence from duty as required under Rule 86(3) of the RSR. It is also obvious from the facts and reply that respondents are only raising ground that petitioner remained absent from duty without any sanctioned leave but it is nowhere stated that why the petitioner’s representation and notice was not replied by the respondents and why respondents are sitting over the decision and not taking action against the petitioner for his alleged misconduct of remaining absent from duty. [6] Therefore, in this case, till today though in reply it is stated by the respondents that the petitioner was appointed in the year 1971 but he remained on absent w.e.f. 1st November 1995 and thereafter, in the year 1999 notice Annex.1 was publicized whereby he was directed to join his duties but according to the respondents he did not join the duties. If it is so, then why exparte disciplinary enquiry was not conducted against the petitioner and why they are sitting over the decision for the purpose of taking action against the petitioner for terminating his service. It is also clear from the record itself that this writ petition has been filed in the year 2005 and prior to filing of this writ petition in the year 2003, a notice for demand of justice was also sent to the respondents by the petitioner through his Advocate. The above facts are admitted by them but even after filing this writ petition, no order for taking petitioner on duty has been passed so also no action has been taken by the respondents till today. A similar controversy arose in case of Ashok Kriplani Vs. State of Rajasthan (1992 (1) WLR 272) in which [7] this Court has adjudicated a similar controversy and while allowing the said writ petition, it was ordered that the petitioner may be taken on duty and shall be given benefit of back wages from the date of filing of the writ petition because no order for terminating services of the employee was passed even after filing writ petition. Therefore, the facts of this case are also similar in nature because in this case admittedly petitioner was appointed as Teacher Gr.III in the year 1971 and he worked till 01.11.1995. Thereafter, he remained absent from duty and in the year 1999 a notice was published in the newspaper and in pursuance of that, as per petitioner, he filed an application for taking him on duty but he was not taken on duty. Thereafter, he made all his efforts to get joining but he was not taken on duty, therefore, a notice for demand of justice through Advocate was sent by him but that too was not taken care of by the respondents. Therefore, in this case, the action of respondents is in violation of principles of natural justice and they have thrown away an employee of the Government out of service without any disciplinary action who worked for near-about 25 years with them, without taking disciplinary action, which is totally contrary [8] to the Rules. In these circumstances, while following the decision of Ashok Kriplani’s case (supra), this writ petition deserves to be allowed and respondents are hereby directed to take petitioner on duty and treat him on duty from the date when he filed this writ petition, which is 29th of April 2005 and pay him all consequential benefits. However, respondents are free to take disciplinary action against the petitioner under the Rajasthan Civil Services (Control, Classification and Appeals) Rules for his alleged misconduct of willful absence from duty. The arrears of salary will be paid with effect from the date of filing of this writ petition till taking him on duty within a period of three months from today so also the respondents shall allow the petitioner to work as Teacher Gr. III, the post upon which he was appointed and further they are free to pass any order after taking disciplinary action against the petitioner for alleged misconduct. (GOPAL KRISHAN VYAS) J. jpa/