Case: Gurjeewan Garewal Vs. Sumitra Dash

expiry of granted leave period.18. This Court dealt with similar situations in Aligarh Muslim University vs. Mansoor Ali Khan (2000) 7 SCC 529. In this case an employee of Aligarh Muslim University obtained ex-India leave for two years. Then he applied for an extension of leave for another three years. But University granted an extension of leave for only one year and clearly conveyed to him that no further extension will be allowed. Later he applied for another extension. Rejecting his request the University informed him that in case of overstay he would be deemed to have vacated his post and cease to be in University service. However University extended the joining time. Yet he failed to join. Consequently the University deemed him to have vacated the office. His writ before Single Bench was dismissed but Division Bench allowed the same mainly on the ground of non-compliance of natural justice. University preferred an appeal before this Court. Allowing the Appeal, this Court, following S.L. Kapoor (1980) 4 SCC 379 holds that based on admitted and indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued." 19. Elaborating this aspect it was observed that: "We may state that the University has not acted unreasonably in informing him in advance - while granting one year extension, in addition to the initial absence of 2 years - that no further extension will be given. We have noticed that when the extension is sought for three years, the Department has given extension only for one year as he had already availed 2 years extraordinary leave by that time. It has to be noticed that when employees go on foreign assignments which are secured by them at their own instance, in case they do not come back within the original period stipulated or before the expiration of the extended period, the employer in the parent country would be put to serious inconvenience and will find it difficult to make temporary alternative appointments to fill up the post during the period of absence of those who have gone abroad. However, when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In this case, giving of further extension only for one year out of the further period of three years sought for is not reasonable. In such a situation, if the employee has entangled himself into further commitments abroad, he has to blame himself." 20. On the above facts, the absence of a notice to show cause does not make any difference for the employee has been told that if his further overstay is for continuing in the job in Libya, it is bound to be refused. (Emphasis supplied) 21. Recently in another case of a very similar nature Dr. Anil Bajaj vs. PGIMER JT 2002 (1) SC 245 this Court held: "A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if does not come back, his lien will automatically be regarded as being terminated, he cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted... but where the facts are not in dispute, the inquiry would be an empty formality. In any case principle of estoppel would clearly apply and the High Court was right in dismissing the writ petition filed by the appellant wherein he had challenged his termination." (Emphasis supplied) 22. Similarly, in the case in hand the 1st Respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or other.23. Crucial aspect to be noted in this case is that the Respondent No.1, on 6/9/1994 obtained a stay of disciplinary action against her vide an Application bearing No. 8535 of 1994 in CWP No. 16212 of 1992. In the face of law, such a stay ought not to have been granted by the High Court since the prayer in that CWP cannot have any bearing upon the Ex-India leave obtained by R-1 or on its subsequent extensions or on the out come of disciplinary action. The disciplinary proceedings against her and the case filed by her are separate actions. It could proceed separately. Thus that stay is liable to be vacated. But the judgment impugned in this case arises from CWP No. 8504 of 2000 wherein R-1 essentially challenges her rejection of her Application to join duty under Rule 36 of the PGIMER Rules on the ground of violation of the principles of Natural Justice. In the facts of this case that issue will not arise if the original disciplinary proceedings are completed. Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorized absence from duty. Since R-1 is allowed to rejoin her duty under the Orders of High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. PGIMER may complete the enquiry as expeditiously as possible. If necessary the PGIMER is at liberty to consider whether her continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. At the outset it is to be mentioned that Article 311 cannot be automatically invoked in all the instances where a person is not given an opportunity of hearing. Article 311 confers certain safeguards upon persons employed in civil capacities under the Union of India or a State. Only persons who are holding civil posts can claim the protection provided under Article 311. The 1st Respondent could claim the protection of Article 311 only if she holds a civil post.Reverting back to the case in hand, Section 4 of The Post Graduate Institute of Medical Education & Research, Chandigarh Act, 1966 (PGIMER Act) says that PGIMER is a body corporate which is having a perpetual succession and a common seal with power. This clearly provides that PGIMER is a separate entity in itself. Admittedly the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be said to have a status of holding a civil post under State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesnt mean that the same is a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of All India Service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a State for the purpose of Article 311 and the employees therein are not holding any civil post. In result, the 1st Respondent is not holding a civil post and she cannot claim the guard of Article 311.Similarly, in the case in hand the 1st Respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or other.23. Crucial aspect to be noted in this case is that the Respondent No.1, on 6/9/1994 obtained a stay of disciplinary action against her vide an Application bearing No. 8535 of 1994 in CWP No. 16212 of 1992. In the face of law, such a stay ought not to have been granted by the High Court since the prayer in that CWP cannot have any bearing upon the Ex-India leave obtained by R-1 or on its subsequent extensions or on the out come of disciplinary action. The disciplinary proceedings against her and the case filed by her are separate actions. It could proceed separately. Thus that stay is liable to be vacated. But the judgment impugned in this case arises from CWP No. 8504 of 2000 wherein R-1 essentially challenges her rejection of her Application to join duty under Rule 36 of the PGIMER Rules on the ground of violation of the principles of Natural Justice. In the facts of this case that issue will not arise if the original disciplinary proceedings are completed. Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorized absence from duty. Since R-1 is allowed to rejoin her duty under the Orders of High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. PGIMER may complete the enquiry as expeditiously as possible. If necessary the PGIMER is at liberty to consider whether her continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary.