IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.: 5 of 2010 Date of decision: 26.10.2010 Sheesh Ram … Petitioner. Versus H.R.T.C. and another …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. S.R.Sharma, Advocate. For the respondents: Mr. Adarsh Sharma, Advocate. Deepak Gupta, J. (Oral) 1. By means of this petition the petitioner has prayed that the order dated 19.4.1999 whereby his services have been terminated may be set-aside. 2. Briefly stated the facts of the case are that the petitioner after selection was appointed as Junior Technician in the HRTC and posted at Reckong-Peo under the Regional Manager, HRTC. He joined there on 1.1.1996. According to the petitioner he fell ill and therefore had to take medical leave w.e.f. 1.1.1996. He was shifted to Shimla for treatment. Annexures A-1 to A-9 collectively indicate that he remained under 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 treatment throughout this period. Some of the certificates have been issued by private doctors but some by the doctor from the IGMC, Shimla. The applicant applied for leave during this period and he was granted leave of the kind due throughout. He sent a number of telegrams alongwith the medical certificate to show that he was unwell and therefore, could not attend the duties. These applications and medical certificates were sent by registered post and the HRTC has not stated whether such documents were received or not. On 27th May, 1998 a letter was issued to the petitioner that he should submit his fitness certificate so that the department could take further action in the matter. In response thereto it appears that the petitioner did not submit such certificate and submitted another application for grant of extension of leave. Leave in fact appears to have been granted to him from 1st January, 1999 to 31st January, 1999 but on 20th January, 1999 an order was issued and the leave granted in favour of the petitioner was cancelled. 3 3. In fact, it appears that on 2nd January, 1999 a show cause notice was issued to the petitioner wherein it was alleged that the petitioner was not joining duty and was indulging in various acts of misconduct and indiscipline and was absenting from duty. It was further decided that it was not possible to hold a regular inquiry and therefore the Divisional Manager came to the conclusion that the respondent was not a fit person to retain in service. The petitioner filed reply to the show cause notice and stated that he had been suffering from digestive ailment which prevented him from performing field duties. He also stated that he had been availing leave after submitting leave applications. He prayed that he may be permitted to join duty and light work be given to him. Thereafter, impugned order dated 19.4.1994 was passed. 4. There can be no manner of doubt that the order dated 19.4.1999 is totally illegal. If the department was of the view that the petitioner was indulging in various acts of misconduct and indiscipline and was absenting himself from duty 4 without reasonable cause then an inquiry had to be initiated and the services of the petitioner could not be dispensed with without holding an inquiry. No plausible explanation has been given as to why enquiry could not held. The impugned order has to be set-aside. 5. Having set-aside the order, the question now arises as to what future course of action should be followed. Was the petitioner in fact unwell and unable to attend his duties or was it only a ruse to avoid duties at Kinnaur. These questions can only be decided in a proper departmental inquiry. So, the HRTC is given liberty to initiate departmental proceedings against the appellant. These departmental proceedings may be initiated and completed within a period of six months from today. The petitioner is directed to join the departmental proceedings and in case he delays the departmental proceedings he shall do so at its own risk. In case in departmental proceedings it is found that the petitioner was in fact actually indulging in act of misconduct then suitable action can be taken against him. In case, charges against him are not 5 proved then obviously all consequential relief will follow and he shall be entitled to full back wages alongwith interest @ 6% per annum from the date of alleged termination till payment of the entire amount and other consequential benefits. Obviously, the petitioner has to be deemed to be in service and he is held entitled to back wages of 50% only but in case he is exonerated he will be entitled to full back wages with interest as ordered here-in-above. The petition is disposed of in the aforesaid terms. No order as to costs. 26th October, 2010 ( Deepak Gupta ) ™ Judge.