1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Shanti Lal Vastavwat Vs. State of Rajasthan & Ors. D.B. CIVIL SPECIAL APPEAL (W) NO.1088/1997 against the judgment dated 29.8.1997 passed by learned Single Judge in S.B. Civil Writ Petition No.2454/1998. Date : 23.7.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE MANAK LALL MOHTA Mr. M. Mridul, Senior Advocate assisted by Mr. Ashok Choudhary for the appellant. Mr. L.R. Upadhyay, Dy. Government Advocate. ______ Heard learned counsel for the parties. This appeal is to challenge the termination order of the appellant vide order dated 4.6.1980 and by order dated 27.9.1980. The petitioner-appellant was an employee of the respondent No.2, Rajasthan Mahila Parishad at Udaipur stated to be a registered society receiving financial aid from the State. By order dated 4.6.1980, 2 the services of petitioner were brought to an end stating that since 1st March, 1980 he continuously remained absent notwithstanding the petitioner having been informed on 7.3.1980 that extension of his leave beyond 1st March, 1980 is not possible. Reference was also made to the fact that the Parishad has been apprised that the petitioner is engaged in his personal business and, therefore, he is in the habit of making frequent applications of taking leave and has not even complied with intimation dated 7.3.1980 in spirit. Due to his continued absence, it was stated that, the work of the Parishad is suffering and it affects smooth running of the office of the Secondary School run by the Parishad. With these grounds, the services were brought to an end. However, a notice was given to explain the reason for his continuous absence from 1st March to 1980 clarifying that if he is able to explain his absence properly, it may be considered as notice period before terminating the service else it shall be included as absence without leave because the same had not been sanctioned. 3 Apparently, it was for the purpose that if he is able to explain properly the reason for the absence, he might get the salary for the notice period but else due to his frequently remaining absent from duty, the work of the institution was suffering, his services were brought to an end w.e.f. 1.3.1980 on which date he was already absent. It was in response to the aforesaid, the petitioner replied vide his letter dated 4.6.1980 that after receipt of the letter dated 7.3.1980 he has joined the duties but due to illness of his mother, who was admitted in hospital, he again had to ask for leave on 7.4.1980 and thereafter his sister's marriage was fixed and also due to illness of his father he had to continuously remain absent. He stated that he was not informed about the refusal to sanctioning the leave. He denied remaining absent from duty without reasonable cause and has availed his earned leave. He pointed out that from March 1980, he has received full emoluments as proof of his assertion that he has not remained absent w.e.f. 1.3.1980 without authorized leave. He 4 also replied that since appointment has been made in library, he has no direct connection with the function of the office of the secondary school and that he has 10 years continuous service which cannot be terminated on 3 months notice. Considering the aforesaid reply, again order dated 30.6.1980 was made in which it was noticed that the petitioner admits himself to have received the notices dated 7.3.1980 but has remained absent upto 15.3.1980 thereafter he had joined on 17th March, 1980 and marked his attendance and he himself wrote in the register “upto 15.3.1980 on PL” when undisputably the said PL was not sanctioned and the rejection of the sanction was duly conveyed to him. This order also refers to his long absence during November 1972 to 25.1.1978 in past. Apart from the fact stated in the order we find from the record that the petitioner has been reappointed in 1978 as per the directions of the 5 Government. The letter also refers to objection of the petitioner about his having no connection with the school by pointing out that while he was asked to work in the school, he accepted the same without raising any objection. It was also pointed out that he has applied for leave from 25.3.1980 to 28.3.1980 and 1.4.1980 to 2.4.1980 on account of his own illness for which no certificate was produced. From 11.2.1980 to 20.2.1980 the telegram was received for extension of period. The telegram was given which was also because no intimation was given before he continued to remain absent after 10th Feb., 1980. With this background, the order dated 4th June, 1980 bringing an end of the service of the petitioner w.e.f. 1st June, 1980 was found in order not requiring any change. Against the order dated 4.6.1980 the appeal was rejected in which it was observed that in an institution which is running on grant in aid, there are scant sanctioned posts and if a person against the said 6 post is not regularly coming on duty it affects the functioning of the institution and the appeal was rejected. A notice was given to the petitioner on 18.8.1980 vide Annex.R/4 disclosing number of facts suggesting that the petitioner has virtually not functioning for institution for long period and for long duration. It referred to his appointment in the office of Secondary School w.e.f. 26.7.1978. He was earlier working as a Library Clerk at Mahila Parishad. It was noticed that since the date he was appointed in the school office, he started taking leave for one or other ground and remained absent frequently and for that reason his efficiency has been deteriorated. This notice reveals that until February 1980 he had remained on leave for 264 days and further from 1980 as we have noticed above, he has not joined his duties having been on sanctioned leave upto end of February and extension for leave from 1st March, 1980 having been rejected. Inference was drawn that when he does not want to work and want to take leave from the service of Mahila 7 Parishad but simultaneously he wants to take the advantage of earned leave, half paid leave, medical leave by continuing in service with the Parishad. It also referred to the fact that during this period his service cannot be considered to be satisfactory and notice was given that if anything is to be explained, the same may be filed else, the notice dated 4th June, 1960 shall be given the final shape. This notice was given by order of granting additional opportunity to explain his defence against proposed action. The notice dated 18.7.1980 was refused to be accepted by the petitioner. Thereafter by order dated 27.9.1980 the services were terminated. The notice dated 18.8.1980; the report about the refusal of the notice; and the order dated 27.9.1980 have been produced along with the return. While the petitioner has denied the receipt of the notice dated 18.8.1980 in the writ petition the petitioner has received the order dated 27.9.1980 and challenged it without producing the copy thereof. 8 Apparently, the petitioner was aware about the order and had not made effort to see what the order is and it also fortifies the respondent in their plea that notice dated 18.8.1980 was avoided by the petitioner for raising the issues about the lack of knowledge or opportunity of hearing after suffering the order. However, considering the entire material on record, the learned Single Judge without referring to the material aspect in detail, dismissed the writ petition on the ground of non-production of document. The institution being a private institution a registered society not falling within the definition of State therefore, not amenable to the writ jurisdiction, raising disputed questions of fact about the service of notice dt.18.8.1980 and other facts mentioned in the writ petition did not exercise extra-ordinary jurisdiction to interfere in the matter. Having perused the entire material on record to which we have adverted to above in substance there being no dispute to these long absence from duty 9 whether through sanctioned leave or unsanctioned leave during the short tenure from July 1978 until the date of termination of service, we are of the opinion that in exercise of extra-ordinary jurisdiction, it was not a fit case to grant relief by going into the details of technicalities of the procedures, particularly keeping in view that the respondent is a registered society of private individuals only and is only receiving grant in aid from the State Government. It was running a school and if only person against sanctioned post is not inclined to discharge his duties for almost whole of the year in the name of consuming the permissible leave forgetting that permissible leave is not a vested right and the circumstances as aforesaid the refusal of leave was wholly justified and the conduct of the petitioner and the manner in which he has to tried to thwart the functioning of the respondent and faced the result which has been brought about by the respondents. The exercise of discretion by the learned Single Judge in refraining to invoke extra-ordinary jurisdiction cannot be faulted with. 10 In these circumstances, the appeal fails and is hereby dismissed. No order as to costs. [MANAK LALL MOHTA], J. [RAJESH BALIA], J. babulal/