IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.4440/2008 Reserved on:30.6.2009 Decided on:16.7. 2009 Karam Jit Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Neel Kamal Sood, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. Advocate General Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Constable on 13.1.1982. He was confirmed on 1.10.1987. He absented from Police Station, Nalagarh with effect from 16.12.1989. The disciplinary proceedings were initiated against him and on the basis of the report of the Inquiry Officer dated 30.3.1992, respondent No.4 dismissed the petitioner from service on 29.8.1992. He preferred original application bearing OA No. 1030/1996. The same was 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 directed to be treated as a representation by respondent No.3. He dismissed the same on 26.3.1997. Mr. Neel Kamal Sood has strenuously argued that the imposition of the penalty of dismissal upon the petitioner is not in accordance with law. He then contended that there is violation of principles of natural justice while holding the disciplinary proceedings against the petitioner. His further contention is that the petitioner ought to have been associated with the disciplinary inquiry. He lastly contended that the order passed by respondent No.3 i.e. Annexure A-4 is not reasoned. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the dismissal order of the petitioner and has also supported the order passed by respodnent No.3 on 26.3.1997. He lastly contended that the petitioner has willfully absented from his duties with effect from 16.12.1989 and all the efforts made by the Department to trace out him were of no avail. I have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioner has absented from active duty while being posted at Police Station, Nalagarh with effect from 16.12.1989. The Department has made efforts to locate him. The Superintendent of Police, Ludhiana was requested on 30.12.1989 to trace out the petitioner and to supply his whereabouts. Thereafter summary of allegations was prepared on 24.11.1990. The copy of the same was sent to the petitioner by way of registered post. Thereafter exparte proceedings were initiated and the prosecution witnesses were examined by the Inquiry Officer. A notice was also got published in the Hindi Weekly Giri Raj dated 10.7.1991 informing the petitioner to résumé his duties otherwise departmental proceedings pending against him were to be conducted exparte. He did not comply 3 with the orders. Consequently, regular charge-sheet was prepared against the petitioner on 20.1.1992 for willful absence from duty and for furnishing false affidavit regarding his second marriage. The charge sheet was sent to the petitioner through registered post. The proceedings were conducted exparte. The findings were recorded on 30.3.1992. He was found guilty of charge of willful absence from duty without permission of the competent authority and for executing a false affidavit. The Superintendent of Police, Solan agreed with the report of the Inquiry Officer and a notice was got published in the Himalyan Dawn on 13.7.1992 and the Dainik Tribune and Indian Express on 15.7.1992. No reply was received from the petitioner. Thereafter respondent No.4 imposed the penalty of dismissal on the petitioner on 29.8.1992. He assailed this order before the learned Himachal Pradesh Administrative Tribunal. The learned Tribunal, as noticed above, directed respondent No.3 to decide the original application to be treated as representation. The same was rejected by respondent No.3 on 26.3.1997. It is a case of willful absence from active duty. The petitioner was serving in the Police Department. It is a disciplined force and the petitioner could not absent himself without any cogent and convincing reason. The Department has made earnest efforts for tracing him out. The Superintendent of Police, Ludhiana was involved to know the whereabouts of the petitioner. A notice was also published in the Hindi Weekly Giri Raj requesting the petitioner to resume his duties. In these circumstances, the summary of allegations was prepared and evidence were recorded. A charge sheet prepared on 20.1.1992 was also sent at his known address. The findings were recorded by the Inquiry Officer on 30.3.1992. He was called upon to show cause against the proposed penalty by way of publication in the daily Edition of Dainik Tribune and 4 Indian Express on 15.7.1992. In these circumstances, it cannot be held that the petitioner was not afforded reasonable opportunity of defending himself. The Department has tried its level best to serve the petitioner by sending a registered post letters, publication in the newspapers and also by contacting the Superintendent of Police, Ludhiana. Consequently, the submission made by Mr. Neel Kamal Sood that there is violation of principles of natural justice merits rejection. The medical certificate produced on record by the petitioner has rightly been discarded by the authorities. The certificate on the face of it seems to be procured one. The matter is required to be looked into from another angle. In case the petitioner was sick or ill, he ought to have applied for medical leave. There is no averment in the petition that the petitioner has ever applied for medical leave. The learned Tribunal had directed respondent No.3 to decide the original application by treating it as a representation. Respondent No.3 has passed a well reasoned and self-contained order while dismissing the representation on 26.3.1997. He has noted down all the contentions raised by the petitioner before him. He has come to a right conclusion that it was a case of willful absence and the petitioner had filed a false affidavit about his second marriage. The petitioner had contracted second marriage with Smt. Rupinder Kaur on 22.6.1980. The second marriage was solemnized by him subsequently. In the present case, the petitioner himself has not associated with the departmental proceedings. It cannot be presumed that he did not know about the proceedings pending against him. The action of the respondents to proceed against the petitioner exparte cannot be faulted in any manner. The petitioner has willfully absented and cannot be permitted 5 later on to submit that he was not associated with the inquiry. He was serving in a disciplined force and the punishment imposed upon him by respondent No.4 and upheld by respondent No.3 is in accordance with law. Their Lordships of the Hon’ble Supreme Court in Viveka Nand Sethi Versus Chairman, J&K Bank Ltd. And others (2005) 5 SCC 337 while dealing with the case of abandonment of service, have held that the principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. Their Lordships have further held that while imposing imposition of voluntary retirement on the basis of conduct amounting to abandonment of service, the principles of natural justice are required to be complied with, but the same would not mean that the full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do amounts to sufficient compliance with the requirements of the principles of natural justice. Their Lordships have held as under: “14. What fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record in so far as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause 2 of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee 6 concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June, 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1983. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates. 18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyer’s notice categorically stated that the workman had been carrying on some business elsewhere. 20. It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same would not mean that a full- fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered 7 view, amounts to sufficient compliance with the requirements of the principles of natural justice. 21. Clause 2 of the bipartite settlement raises a legal fiction, which is of wide import. Once the action on the part of the employer is found to be fair, the Court in view of such legal fiction would call upon the workman to prove the contra. It will bear repetition to State that the only defence which came to be raised by the workman was non-applicability of the bipartite settlement. The notice dated 31.12.1983 refers to the said settlement by necessary implication, as on the failure of the workman to resume his duties by 15.1.1984, it was stated that he would be deemed to have been discharged from the services of the Bank. Yet again in terms of the memorandum dated 20.2.1984, attention of the workman was drawn to the fact that his application for grant of leave was neither in the prescribed for nor any medical certificate was attached thereto. It was pointed out that the medical certificate shows that he was under the doctor’s treatment from 22.10.1983 to 22.1.1984 and as such he should have reported for duties on 23.1.1984 and as he failed to do so, it gave rise to an inference that he was not interested to continue in the Bank’s services. He did not submit any satisfactory explanation nor did he file any valid medical certificate. It was in that situation, the order dated 17.5.1984 was issued which again referred to the provisions contained in memorandum of settlement dated 8.9.1983. The workman ex facie appears to have accepted the said order as for a long period he maintained silence. Had he been interested in the Bank’s services, it was expected of him to resume his duties and/or file proper application for grant of medical leave with a valid medical certificate. 22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel 8 will apply.{See Gurjeewan Garewal (Dr.) V. Dr. Sumitra Dash.} The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab V. Jagir Singh and Karnatka SRTC Vs. S.G. Kottturappa.)” Their Lordships of the Hon’ble Supreme Court in C. Jacob B versus Director of Geology and Mining and another (2008) 10 SCC 115 while dealing with the case of abandonment of service have held that when a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of Voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Their Lordships further held that misplaced sympathy, encourages indiscipline, leads to unjust enrichment of employee and drain on public exchequer. Accordingly, in view of the observations made hereinabove and the law laid down by their Lordships of the Hon’ble Supreme Court, it is clear that the petitioner has absented himself willfully and the departmental proceedings initiated against him were in accordance with law. He has filed a false affidavit regarding his second marriage. Consequently, there is no merit in the petition and the same is dismissed. No costs. 16.7. 2009 (Rajiv Sharma ), J. *awasthi*