1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.1423/2006 (Mohammed Ashfaq Vs. State of Raj. & Ors.) Date of order : September 08th, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Nitin Trivedi, for the petitioner. Mrs. R.R. Kanwar, Dy. Govt. Counsel. By way of filing present writ petition, the petitioner has prayed for quashing of punishment order dated 26.6.2003 (Annexure-20), the order dated 30.6.2003 (Annexure-21) as well as the order dated 21.9.2005 (Annexure-24) passed by appellate authority and prayed for reinstatement in service along with back wages with all consequential benefits. The petitioner was initially appointed as Male Nurse Gr.II on 10.6.1977 after due process of law. After working for nine years as Male Nurse Gr.II in substantive capacity, he applied for foreign assignment in Kingdom of Saudi Arabia through proper channel. The application for the petitioner was forwarded by the State Government to the Central Government with No Objection Certificate was also 2 issued by the State Government on 2.7.1986. On the basis of No Objection Certificate issued by the State Government for assignment being taken by the petitioner in the Kingdom of Saudi Arabia for one year, the petitioner was relieved to join foreign assignment when he was working at Mahatama Gandhi Hospital, Jodhpur on the post of Male Nurse Gr.II on 14.7.1986. On completion of one year of contract, the Ministry of Health, Kingdom of Saudi Arabia, renewed his contract for further two years w.e.f. 16.7.1987 to 15.7.1989 subject to condition that the State of Rajasthan, Medical & Health Department would further sanction leave to the petitioner. After extension of contract, the petitioner sent a communication dated 29.6.1987 to the Secretary, Medical & Health (Group- III) Department, Government of Rajasthan, Jaipur within time but petitioner did not receive any communication for denial from the said authority with regard to extension of his leave, therefore, petitioner presumed that sanction has been granted to him for the period of renewed contract. Accordingly, the petitioner stayed for another two years as per the renewed contract. Before 15.7.1989 - extended contract period, the petitioner again submitted an application for extension of leave on the ground that Ministry of 3 Health, Kingdom of Saudi Arabia was not inclined to relieve the petitioner looking to his exemplary service, therefore, the contract was further renewed for further two years and in pursuance of the said extension of contract by the Ministry of Health, Kingdom of Saudi Arabia, again an application was made by the petitioner to the Secretary, Medical & Health (Ground-III) Department, Govt. of Rajasthan, Jaipur through registered post inter-alia stating therein that although no decision has been received on his last two applications, but in the given facts and circumstances of the case, it was again presumed by the petitioner that leave has been sanctioned. As per petitioner, it was presumed by him that some orders might have been passed by the Secretary, Medical & Health Department but no formal communication has been sent to him for the purpose of extension of leave, therefore, petitioner remained at Saudi Arabia on the basis of extension of contract. The case of the petitioner is that he was allowed to leave the country after sanction of leave by the competent authority for one year but his contract was extended from time to time, therefore, as and when extension of contract was made by the Kingdom of Saudi Arabia, he made an application for extension of leave but did not receive any response either from the Secretary or the Director of Medical Department. The petitioner has placed on record the copy of 4 renewal of contract. In the aforesaid circumstances, after one year of first contract, the contract was renewed from time to time till 30.5.1997, therefore, in the year 1997 petitioner came back and filed an application for joining the post upon which he was working prior to 14.7.1986. In response to the joining report filed by the petitioner, the respondent No.3 – Superintendent, Associated Group of Hospital, Mahatma Gandhi Hospital, Jodhpur informed the petitioner that his services have already been terminated vide order dated 6.10.1995 by the Director, Medical & Health Services, Rajasthan, Jaipur, therefore, there is no question of allowing him to join the duties. The petitioner was supplied photostat copy of the order against which the petitioner filed a representation before the respondent authorities and submitted that he was allowed foreign assignment at Kingdom of Saudi Arabia with prior permission and approval from the competent authority of the State Government, thereafter, on account of renewal of contract at Saudi Arabia although he has sent application for extension of period of leave from time to time but no communication in black and white was received by him, therefore, it was presumed by him that leave has been granted, therefore, his termination order, which has been 5 served upon him after filing joining report in the year 1997 is totally illegal because it has been passed without affording any opportunity of being heard, therefore, same may be quashed and set aside. The representation filed by the petitioner was rejected vide order dated 12.6.1998 (Annexure-12) but it is observed in the rejection order of the representation that an appeal can be filed according to the Rules. Therefore, after receiving communication dated 12.6.1998 from the Medical & Health Department, Jaipur, a review application under Section 34 of the CCA Rules was submitted before His Excellency the Governor of Rajasthan, Jaipur in which it was prayed by the petitioner that no charge-sheet has ever been served upon him nor any notice or information was given or published in the newspaper for taking disciplinary action against him so also upon applications for extension of leave, no decision was communicated to the petitioner. The review petition filed by the petitioner was accepted vide order dated 19.2.2000 by His Excellency the Governor of Rajasthan and the termination order was quashed and set aside and the matter was remitted for enquiry strictly in accordance with law as per the procedure as enumerated in the CCA rules and in pursuance of the said order, the petitioner was taken back in service. 6 After resuming duties in the office of respondent No.3, vide letter dated 17.4.2001, the respondent No.3 served original memorandum alongwith statement of allegation to the petitioner. In pursuance to the said charge-sheet, a detailed reply was filed by the petitioner and allegation levelled against him were refuted. Thereafter, Joint Director, Medical & Health Services, Jodhpur Zone, Jodhpur was appointed as enquiry officer but later on in place of Joint Director, Dy. Superintendent, TB Hospital, Jodhpur was appointed as inquiry officer vide letter dated 23.10.2002. After enquiry, the charges were held to be proved and the petitioner was served with show cause notice along with inquiry report dated 25.1.2003. Reply to the show cause notice was filed vide letter dated 21.2.2003 in which it was prayed that no misconduct has been committed by him upon the facts and circumstances of the case, therefore, he may be exonerated from the charges levelled against him. The petitioner was called for personal hearing also vide letter dated 16.4.2003 and at last vide punishment order dated 26.6.2003, the petitioner was removed from service on account of misconduct proved against him for remaining willful absent from duties w.e.f. 14.7.1987 to 1997 for about ten years. 7 Against the order of punishment dated 26.3.2003, an appeal was preferred before respondent No.1 in which all grounds were taken by the petitioner with regard to fact that his contract of service was extended from time to time and the applications for extension of leave were sent by him but no decision upon applications for leave was communicated by the State Government, therefore, no misconduct has been committed by the petitioner because the allegation of misconduct with regard to remaining willful absent from duties is not proved in the enquiry conducted against him by the Medical Department, so also, the enquiry has been conducted in flagrant violation of principles of natural justice. Although, petitioner was called for personal hearing by the appellate authority but after hearing finally the appeal was also rejected by the appellate authority vide order dated 21.9.2005 and upheld the order of penalty passed by the disciplinary authority. Learned counsel for the petitioner vehemently argued that the petitioner left the Country after taking leave and his application for the purpose of seeking foreign assignment outside the country filed through proper channel, therefore, while following the procedure laid down in the rules, he left the country for one year at first instance but later on his term of contract was extended from time to time by the Kingdom of Saudi Arabia and in the event of extension 8 of contract, application for extension of leave was sent by the petitioner from Saudi Arabia within time but no communication was received by him with regard to denial or acceptance of leave but all these facts were not considered properly by the disciplinary authority as well as by the appellate authority, therefore, enquiry conducted against the petitioner under Rule 16 of the CCA Rules is illegal and finding is not based on correct appreciation of facts. Learned counsel for the petitioner vehemently argued that enquiry officer gave good bye to the procedure laid down under the CCA Rules for conducting fair enquiry, therefore, major penalty inflicted against the petitioner with regard to removal of service is against the principles of natural justice. The charge which is said to be proved by the enquiry officer cannot be treated to be proved because as per explanation given by the petitioner before expiry of contract, applications for grant of leave were filed by the petitioner and it was informed to the Department that Kingdom of Saudi Arabia has granted renewal of contract but applications were not entertained and straight-away the petitioner has been held guilty to remain absent from duties. Learned counsel for the petitioner vehemently argued that action of the respondents is violative of Articles 14 and 21 of the Constitution of India, so also against the principles of natural justice, therefore, both the orders may be quashed. 9 Learned counsel for the petitioner submitted that the order of appellate authority is none speaking order and the grounds taken by the petitioner were not considered by the disciplinary authority as well as by the appellate authority though petitioner has explained his absence before the respondents, therefore, there is no question of saying that the petitioner has committed any misconduct for which such a harsh penalty is to be imposed. Learned counsel for the petitioner has invited my attention towards certain judgments, reported in 2006 (4) SCC 348 (A. Sudhakar Vs. Postmastyer General, Hyderabad & Anr.) and 2007 (3) RLW 1892 (Dharmendra Vs. Ganganagar Sugar Mills Ltd. & Ors.) and submitted that according to these judgments, it is clear that the departmental enquiry so conducted against the petitioner is violative of Article 14 of the Constitution of India. The Court is to see as to whether non observance of any of the procedural requirement is violative or not, if yes, then the Court has to set aside the order of penalty. It is further argued that High Court in exercise of power of judicial review can interfere in a disciplinary matter only when it finds that the findings recorded by the enquiry officer and/or disciplinary authority are based on no evidence and there are no material to support the conclusions so arrived at or if the 10 material on which such conclusion has been reached was such that no reasonable or prudent man on that basis could have arrived at such conclusion. In present case, obviously it is proved by the petitioner that no misconduct has been committed by him for which such harsh penalty of removal from service can be imposed, therefore, the order of penalty deserves to be set aside and the petitioner is entitled to be reinstated in service. Per contra, learned Dy. Govt. Counsel submitted that in this case admittedly, the petitioner left the Country after sanction of leave for one year in connection with so called foreign assignment at Kingdom of Saudi Arabia, therefore, he was to join after completion of one year of service but admittedly he did not turn up and remained there for about nine years without any sanction of leave by the State Government, therefore, this fact itself is sufficient to arrive at with the finding that the petitioner has committed a serious misconduct for which the penalty has rightly been inflicted against him. Learned Dy. Govt. Counsel submitted that there is no violation of principles of natural justice. The petitioner was charge-sheeted for remaining willful absent from duties for more then nine years. Admittedly, he was allowed to work at Saudi Arabia for one year but for extended period, he 11 was under obligation to get leave sanctioned from the competent authority within reasonable time but it has not been done by him. Now on the ground that applications have been filed by him within time and no communication was received with regard to denial or acceptance by the department, therefore, he presumed that leave has been sanctioned, such a plea cannot be accepted in casual manner. More so, the government servant is abide by the rules and regulation framed by the legislature with regard to his duties. When petitioner filed an application initially for sanction of one year leave then the same was considered in accordance with rules and his leave was sanctioned for one year but thereafter without any sanctioned leave he remained absent from duties and enjoyed benefit of service at Saudi Arabia while presuming that leave has been sanctioned which is totally unfounded ground for his exoneration in the departmental enquiry and petitioner who admittedly remained in Saudi Arabia without any sanctioned leave for near about eight years then now he cannot take any advantage by saying that applications were filed by him at the time of extension of contract by the Government of Saudi Arabia and after sending applications for leave when no communication was received from the department then it was presumed that leave has been sanctioned, therefore, the department has rightly issued charge- sheet to him and rightly inflicted the penalty of removal in which no interference is required. Learned 12 Dy. Govt. Counsel has invited my attention towards Rule 86 (3) of RSR in which it is specifically provided by the Legislature that if any government employee remained absent from duties without any sanction of leave beyond 30 days then his services can be dispensed with after taking disciplinary action in accordance with the CCA Rules. In this case, the petitioner left the country in the year 1986 for one year and further he did not join after completion of one year nor any leave was sanctioned in favour of the petitioner by the respondents, therefore, obviously explanation given by the petitioner is totally untenable that after filing application for extension of leave when no information was received from the Department then, he has presumed that leave has been sanctioned but such plea for explanation of absence from duties for eight years cannot be accepted in any manner, therefore, the disciplinary authority has rightly passed the order for removing the petitioner from service. In the pleadings, the petitioner himself is admitting that the petitioner was outside the country for near about nine years, out of which he was initially granted one year leave by the Department thereafter no formal order for granting leave was passed, therefore, he has committed serious misconduct for which the disciplinary action was taken and after providing full opportunity of hearing, he was removed from service. In this view of the matter, the impugned order is perfectly in consonance with the 13 provisions of law. Learned Dy. Govt. Counsel vehemently argued that such a person who left the country after taking one year leave and thereafter remained outside the country for more than nine years without any sanction of leave cannot say that he has not committed any misconduct. More so from the facts, it is revealed that he is admitting the fact that without any sanction of leave, he remained outside the country while assuming that after filing leave applications, leave has been sanctioned in his favour. Last, while inviting attention of this Court towards the judgment reported in 2008 (5) SCC 569 (Chairman & Managing Director, V.S.P. And Ors. Vs. Goparaju Sri Prabhakaran Haribabu submitted that the writ petition deserves to be dismissed. I have considered the rival submission made by both the parties and perused the entire pleadings of the case. First of all there is no dispute that the petitioner went on foreign assignment at Saudi Arabia for one year and leave was sanctioned in his favour for one year by the medical department. Secondly, it is not in dispute that no formal order for sanction of leave was passed after one year upon any of the applications filed by the petitioner for extension of leave. Meaning thereby, it was obligatory duty of the 14 petitioner, being government employee to join the duties after expiry of leave and if upon applications filed by him, no information was received by him then more responsibility goes upon the shoulders of government employee to first join the duties where he was substantively appointed. The Government employee cannot presume just after filing application that his contract has been extended, therefore, leave should be granted. Admittedly, for sanction of leave, specific order is required to be passed in accordance with R.S.R. but in this case, no formal order was passed by the respondents sanctioning leave beyond one year to work on foreign assignment. Therefore, in my opinion, the petitioner has rightly been penalized for serious misconduct committed by him to remain absent for more than eight years because he is employee of the State Government and being so he was to serve the country first, the ground of presuming sanction of leave in casual manner on the ground that he has filed an application for leave, therefore, competent authority should grant leave. In this view of the matter, the petitioner is not entitled to get any relief from this Court under Article 226 of the Constitution of India because the disciplinary authority as well as the appellate authority has passed an order upon admitted facts of the case that after one year petitioner remained willfully absent from duties for more then eight years 15 which is not permissible under R.S.R. The Hon'ble Supreme Court in recent judgment reported in 2008 (5) SCC 569 (Chairman Cum Managing Director Vs. Goparaju Sri Prabhakara Hari Babu) held that if a government servant is a repeated absentee and explanation is also not acceptable as per rules, therefore, for such serious misconduct does not entitle for any lenient view and such an employee cannot be allowed to say that in the departmental proceedings, principles of natural justice have not been followed. The employee is required to see his own conduct then to raise objections with regard to technicalities. The Hon'ble Supreme Court in the aforesaid judgment held that jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot be set aside a well-reasoned order only on sympathy or sentiments. The High Court in exercise of its jurisdiction under Article 226 also cannot, on the basis of sympathy or sentiment, overturn a legal order. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke doctrine of proportionality. If decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when mis conduct stands proved. 16 In my opinion in this case explanation of the petitioner is not acceptable for his nine years absence because he remained outside the country for near about nine year without sanctioned leave. Even if petitioner's contention is accepted that applications for extension of leave were filed, no leave can be granted to the government employee for such long period of nine years, therefore, there is no substance in the explanation of the petitioner that after filing applications, he presumed that leave has been sanctioned in his favour. In case of petitioner, provisions of R.S.R. is applicable, upon perusal of R.S.R., 1951, there is no such provisions in which, it is provided that as and when any employee files an application for leave it is mandatory for competent authority to grant leave as per prayer. Similarly, there is no provision to grant leave for years together to the employee. In this view of the matter, there is no force in this writ petition. Accordingly, the same is dismissed with no order as to cost. (GOPAL KRISHAN VYAS), J. arun