WP(C) 7797/2005 BEFORE HON’BLE MR JUSTICE T VAIPHEI Both the writ petitions are interlinked, they are heard together today and are n ow being disposed by this common judgment. The fact of the cases, relevant for disposal of the two writ petitions, are that the petitioner was appointed on 10.12.1986 to the post of LDA in the Fi shery Department, Govt. of Assam and that in the year 2004, he was transferred t o the Fisheries, Marketing Office, Panbazar in his capacity as LDA. While servin g under the respondent authorities, he was found to be suffering from tuberculos is whereupon, the doctor of Lokapriya Gopinath Bordoloi TB Hospital advised him to take leave for 90 days i.e. from 12.05.2005 to 11.08.2005 for which a medical certificate was also issued on 25.05.2005. He then forwarded his application to the Marketing Officer, Fishery Department (respondent No.3) for grant of leave on medical ground in terms of medical certificate dated 25.05.2005. The responde nt No. 3 did not sanction the leave but referred him to the Medical Board consti tuted by the Office of Health Service and Addl.Director,l Health Services, Henga rabari, Guwahati, Assam for examination and investigation. On 17.06.2005, he rec eived a letter from the respondent No. 3 informing him that the respondent No. 3 was not in a position to grant medical leave and the same had to be forwarded t o the medical board and on receipt of the clearance from the Board, necessary a ction with respect to the leave and payment of salary would be taken into consid eration. It is also the case of the petitioner that on 15.06.2005, the Medical B oard issued the letter to him to appear before them on 04.07.2005 in the office of the Joint Director of Health Service, Mahendra Mohan Choudhury Hospital for t he medical examination. According to the petitioner, this letter was received by him belatedly. Though the medical board examined him, he was unable to produce the documents required by the Medical Board on that day. On 04.07.2005, he again appeared before the Bedical Board with all the documents which could be collect ed by him within such short notice. The Medical Board did not immediately comm unicate their decision which prompted him to make a representation to the Direct or of Fishery for release of his salary for the month of May and June, 2005. On 12.08.2005, he applied for extension of leave before the respondent No. 3 to fac ilitate his recovery from tuberculosis. To cut short the narration, respondent N o. 3 by his letter 03.10.2005 informing the petitioner that the Medical Board co uld not agree with the certificate issued by the Gauhati Medical College Hospita l and Lokapriya Gopinath Hospital in connection with the leave application for w ant of medical documents regarding investigation, diagnosis and treatment in sup port of the petitioner’s illness and requested him to furnish the aforesaid docu ments within 15.10.2005. The documents were accordingly furnished by the petitio ner on 15.10.2005 which are at Annexure-9. Apparently, this did not satisfy the respondent No. 3 who then by his letter dated 19.10.2005 asked him to submit th e original of the medical certificate positively on 24.10.2005 as otherwise his medical certificate would not be taken into consideration. The petitioner accord ingly furnished the original certificate by his letter dated 24.10.2005. All th ese documents were duly received by the respondents authority but the leave appl ied for was never granted. On 15.02.2006, the petitioner submitted his joining r eport but again from 01.03.2006, he absented from duty due to illness till 30.0 6.2009. After absenting himself from duties till 30.06.2009, he decided to join his duty again on 01.07.2009. However, no action was taken by the respondent No . 3 about his leave. He was not allowed to join his duty by the respondent No. 3 . However, the respondent No. 3 by his letter dated 21.11.2009 at Annexure-2, fo rwarded the joining report of the petitioner to the Director of Fishery, Assam and sought for instruction as to the course of action to be taken. The petitione r thereafter filed a fresh representation dated 03.02.2010 to the Director of Fi shery, Assam for early payment of his salary and at the same time, highlighted t he fact that by their inaction, his family member were being ill-treated. When n o action was taken, the petitioner could not join his service except for some pe riod: his unauthorised leave was neither regularised nor was disciplinary action taken again him in accordance with law. This is how the second writ petition, n amely, WP ( C) No. 2722 of 2010 came to be filed by him. The relief sought for in this writ petition are : (i) to regularise his joining of the post of LDA w. e.f. from 01.07.2009 (ii) to release his salary due from 01.07.2009 till date. The writ petition is resisted by the respondent authorities by filing their affi davit-in-opposition through respondent No. 3. The stand taken by the respondent authority is that the petitioner remained absent from duty unauthorisedly from 10.11.2005 to 14.02.2006 and again from 01.03.20006 to 30.06.2009 and submitted his joining report to the respondent No. 3 on 01.07.2009, which has not been acc epted by them and was forwarded to the respondent for his comment as to whether the joining report was to be accepted. According to the answering respondent, s everal correspondences were made to him during the time of his unauthorised abse nce but he never made any correspondences with his office and the matter was no t only reported to the respondent No.2 but even notices were also served by the respondent authorities upon the petitioner by publishing in newspaper Dainik Ag radoot dated 16.06.2006 and the Sentinal dated 16.06.2006. The main reason fo r not paying the salary to the petitioner, according to the answering respondent is the inaction on the part of the respondent authority in regularising his una uthorised leave. These are the sum and substance of the case of the respondent a uthority. Upon hearing the learned counsel for both the parties and after perusing the mat erials in record, it becomes clear that the petitioner was unauthorisedly absent from duty for more than 4(four) years and he was not allowed to resume his duti es, but neither his unauthorised absence were regularised/ condoned nor any depa rtmental enquiry is ever launched against him for his apparent mis-conduct. The question for determination is whether on the facts and in the circumstances of the two cases, the service of the petitioner can be said to have been terminated . It is not in dispute that he is a regularly appointed LDA against a sanctioned post. Under the circumstances, he is entitled to the protection under Article 3 11 of the Constitution of India. The Apex Court has an occasion to consider a c ase of this nature in the State of Punjab -Vs- Dr. PL Singla in 2008 (8) SCC 4 69. In that case, the writ petitioner was a doctor in the State of Punjab. On 01 .08.1991 he was transferred to Makandam and joined duty on 17.08.1991 but unauth orisedly absented himself from 01.06.1992. As he was nearly absent for five yea rs, the Health and Family Welfare Department issued a charge-sheet dated 28.05.1 997 to the respondent. The two charges were : (a) absenting from duty deliberate ly from 01.06.1992 and (b) disobeying the orders of official superior An enquiry was made into the said charges. The enquiry officer submitted his rep ort. In regard to the first charge, it was found that the petitioner had in fac t absented himself unauthorisedly from 01.06.1992 to 17.10.1997. But he accepted the two explanations given by the writ petitioner and concluded that the absenc e was under compelling circumstances. The first explanation was that those were days of terrorism in Punjab while the second explanation was that the writ peti tioner had sent by post an application seeking leave from 01.06.1992 to 30.12.19 92 and did not receive any refusal and therefore presumed that the leave has bee n granted and also the second charge was not proved. The disciplinary authority did not agree with the enquiry report for reasons recorded in a dissent note. Th e said note stated that unauthorised absence from 01.06.1992 to 17.10.1992 was c learly indiscipline: that only after the charge sheet was issued, the writ petit ioner had offered to join back duty ( and in fact joined duty only on 18.10.1997 ) not earlier. The dissent note therefore proposed to hold the writ petitioner guilty of the two charges. A show case notice dated 1.04.1999 was issued to the writ petitioner enclosing a copy of the enquiry report and the dissent note. The writ petitioner sent a reply dated 10.05.1999. The Governor of Punjab by order dated 16.09.1999 did not accept the findings in the enquiry report. For the rea sons stated in the dissent note, he held the writ petitioner guilty and imposed a punishment of withholding of five increments with cumulative effect. In the wr it petition, the High Court , which took the view that once the period of absen ce is regularised, the respondent mis-conduct stood condoned. The Supreme Court, however, while disagreeing with the line of reasoning of the High Court, nevert heless laid down the following proposition of law, which has a direct bearing on the facts of this case and is accordingly reproduced herein below: 11. Unauthorised absence (or overstaying leave), is an act of indiscipline. Whe never there is an unauthorised absence by an employee, two courses are open to t he employer. The first is to condone the unauthorised absence by accepting the e xplanation and sanctioning leave for the period of unauthorised absence in which event the mis-conduct stood condoned. The second is to treat the unauthorised a bsence as a misconduct, hold an enquiry and impose a punishment for the mis-cond uct. 12. An employee who remain unauthorisedly absent for some period (or who overst ays the period of leave), on reporting back to duty, may apply for condonation o f the absence by offering an explanation for such unauthorised absence and seek grant of leave for that period. If the employer is satisfied that there was suff icient cause or justification for the unauthorised absence ( or the overstay aft er expiry of leave), the employer may condone the act of indiscipline and sancti on leave post facto. If leave is so sanctioned and the unauthorised absence is c ondoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said mis-conduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of in discipline. 13. We may note here that a request for condoning the absence may be favourably considered where the unauthorised absence is of a few days or a few months and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorised absences are not usually condo ned. In fact in security services where discipline is of utmost importance, even a few days of overstay is viewed very seriously. Be that as it may. 14. Where the employee who is unauthorisedly absent does not report back to dut y and offer any satisfactory explanation, or where the explanation offered by th e employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without c umulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/ explanat ion for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of una uthorised absence (unless the rules require otherwise). Where the punishment awa rded for the unauthorised absence, does not result in severance of employment an d the employee continues in service, it will be necessary to pass some consequen tial order as to how the period of absence should be accounted for and dealt wit h in the service record. If the unauthorised absence remains unaccounted it will result in break in service, thereby affecting the seniority, pension, pay, etc. of the employee. Any consequential order directing how the period of absence sh ould be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment. From the para extracted above, it is made clear that the respondent authorities cannot leave the petitioner in the lurch. Due to their inaction, the petitione r is neither here nor there. He has neither been discharged from his post nor h e is allowed to discharge his duties. To compound the matter, he has been denied his salary for years and years altogether without taking any decision. In fac t, if the petitioner would have been discharged form his service, at least, he could have looked for employment otherwise. By the passage of time, he might h ave become average by now to seek fresh employment elsewhere. I am not concerned with the merit of the case or the truth of the allegations made by him in the w rit petition. But the respondent authorities are expected to take action in acco rdance with law expeditiously. Two courses of action are open to them (i) eith er to condone the unauthorised absence of the petitioner from duties and then to regularise his unauthorised absence in which case he will be entitled to paymen t of salaries or (ii) to initiate a departmental enquiry against him by placin g him under suspension if there is prima facie evidence of mis-conduct again sh im. From the proposition of the law laid down by the Apex Court in State of Punj ab - Vs- Dr. PL Singla( supra) no other option appears to be available to the respondent authorities. The third course of action taken by them as in the pres ent case is not contemplated by law. This certainly call for the interference of the Court at least in a limited way. The fact that the petitioner had remained in an unauthorised absence from duty for over 4 years cannot automatically auth orise the respondent authorities from treating him as discharged/dismissed/ remo ved from service as no long no formal order to that effect is passed in accordan ce with law. In a case of regular employees like the petitioner, there can be ne ither deemed termination of service nor due dismissal from service. I am fortif ied in my view by the decision of the Apex Court rendered in the case of Basi c Shiksha Parishad and another -Vs- Sugna Devi ( Smt) and others reported in 200 4 (9) SCC 68. Under the circumstance, I hold that the petitioner has been contin uing in service w.e.f. 12.05.2005 till date. For the reasons stated in the forgoing both the writ petitions are disposed of w ith the following direction: (1) It is hereby declared that the petitioner is till in the service of resp ondent authorities until and unless he is removed or dismissed or discharge fro m service after holding departmental enquiry. (2) The respondent authorities are at liberty to condone unauthoris ed absence from duty w.e.f from 12.05.2005 to 30.06.2009 and regularise his abse nce or to initiate a departmental enquiry against him for his alleged mis-condu ct. (3) The decision to condone the unauthorised absence of the petitio ner from duty or to initiate departmental enquiry against him for the alleged m is-conduct shall be taken by the respondent authority within a period of 45 ( f orty five) days from the date of receipt of this judgment. (4) It is also open to the respondent authority to place the peti tioner under suspension pending enquiry against him if they are so advised. (5) The respondent authority shall pass necessary order declaring that the petitioner resumed his duty w.e.f. 01.07.2009, but the question of pa yment of salaries is left for their decision in accordance with law. (6) The petitioner and the respondent authority are further dir ected to allow the petitioner to join his post till a decision is taken by them as indicated above.