1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
ORDER
Dr.Sayeed Mohammed Shakeel
Vs.
State of Rajasthan & Anr.
S.B.CIVIL WRIT PETITION NO.6301/2006
Date of Order :: 24/10/2008
PRESENT
HON'BLE MR. JUSTICE H.R. PANWAR
Mr.Sandeep Shah, for the petitioner.
Mrs.R.R.Kanwar, Addl.Govt.Counsel for the respondents.
BY THE COURT:
Reportable
By the instant writ petition under Article 226 of the
Constitution of India, the petitioner seeks quashing of the order
Annexure-8 dated 4th January, 2006 and also a direction to the
respondents to reinstate him in service with all consequential
benefits.
Briefly stated the facts to the extent they are
relevant and necessary for the decision of the writ petition are
that the petitioner was appointed by the Medical & Health
2
Department of State of Rajasthan on the post of Medical Officer
on ad hoc basis in the year 1988. The petitioner underwent the
process of selection through Rajasthan Public Service
Commission (for short “the RPSC” hereinafter) and was
subsequently, appointed on the post of a Medical Officer in the
year 1990. By order Annexure-1 dated 18th December, 1996, the
petitioner was sent on deputation to Saudi Arabia after the
sanction having been accorded for such deputation by his
Excellency the Governor of Rajasthan. In the order Annexure-1,
it has been made clear that the period of deputation is of one
year with effect from the date of his relieving. It has further
been made clear that in no case he or she will stay beyond the
period of deputation without prior permission of the Government
of India and the respondent-Department of Medical & Health
(FW). It has also been made clear that the resignation while
abroad will not be accepted in any circumstances. Apart from
these, other conditions were also mentioned therein regarding
Pay and Allowances, Lien, Medical Attendance, Leave, Joining
Time, Pay, Leave Salary, Pension Contribution etc. In pursuance
of the order Annexure-1, the petitioner came to be relieved by
order dated 25th May, 1997 passed by the Superintendent,
Maharana Bhupal Government Hospital, Udaipur vide Annexure-
2. The petitioner joined his services at King Fahad College
3
Riyadh, Kingdom of Saudi Arabia. Thereafter, the petitioner
requested for extension of his deputation period through the
competent Authority at the King Fahad College, Riyadh to the
Indian Embassy in Saudi Arabia and on such request having been
processed, the deputation period of the petitioner was extended
for a further period of one year by the respondent-Department
vide order Annexure-3 dated 30th June, 1998 on the same terms
and conditions as mentioned in the order Annexure-1. The
petitioner again requested for extension of his deputation period
through the same agency as in the case of Annexure-3 by his
letter dated 8th May, 1999. However, no further extension was
granted to the petitioner by the respondents and the request of
the petitioner was rejected by the State Government, which was
informed to the Indian Embassy vide communication dated 25th
June, 1999. The petitioner again made efforts for extension of
deputation period but he was again informed that the period of
deputation cannot be extended and he was required to join the
duty in the respondent Department vide communication dated
22nd October, 1999. Thereafter, the petitioner received
communication dated 25th July, 2001 issued by the respondent
Department communicating the petitioner that in spite of expiry
of the period of deputation on 30th May, 1999, he had not
reported back to service of State without getting his leave
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sanctioned and therefore, a show cause notice was issued to the
petitioner as to why disciplinary proceedings may not be initiated
against him vide Annexure-6 dated 25th July, 2001. The
petitioner said to have made an application to the Authorities at
King Fahad College, Riyadh to relieve him vide Annexure-7.
Thereafter, a notice was published in the newspaper by the
respondent-Department requiring the petitioner to show cause
as to why his services may not be terminated/treating him to
have resigned from the service with effect from the date he
remained absent i.e. 30th May, 1999. On the petitioner’s having
been failed to show cause, his services came to be terminated by
the respondent-Department vide order impugned Annexure-8
dated 4th January, 2006 in exercise of power under Sub-rule (4)
of Rule 86 of the Rajasthan Service Rules, 1951 (for short “the
RSR” hereinafter) holding him guilty of unauthorised absence i.e.
w.e.f. 30th May, 1999. Hence, this writ petition.
A reply to the writ petition has been filed by the
respondent-State and except the fact of petitioner having been
sent on the deputation to the King Fahad College Riyadh,
Kingdom of Saudi Arabia initially for a period of one year and
thereafter, it was further extended for one year, the rest of the
contentions raised by the petitioner have been denied. The
respondents came with a very specific case that in exercise of
5
power under Rule 86(4) of the RSR, the respondents are fully
justified in passing the order impugned Annexure-8.
I have heard learned counsel for the parties.
It is contended by learned counsel for the petitioner
that the petitioner was sent on deputation to Saudi Arabia by the
respondent for a period of one year, which was extended for one
year. In normal course, the period of deputation for Foreign
services is 5 years and the petitioner sought extension for a
period of one year which the respondents declined. Learned
counsel further contends that the petitioner had to deposit his
passport with the Authorities of Saudi Arabia which was not
made available to the petitioner and therefore, he could not
return India and resume his duty. It is further contended that
notice published in the newspaper in India cannot be said to be
an intimation to the petitioner since undisputedly the petitioner
was at Saudi Arabia and therefore, it was no notice. The order
impugned Annexure-8 came to be passed without affording an
opportunity of hearing to the petitioner and therefore, it violates
the principles of natural justice. Lastly, it was contended that the
petitioner was not staying at Saudi Arabia at his own but he
stayed there as Authorities of King Fahad College Riyadh was not
releasing his passport, which was in their possession, resulting
the petitioner having failed in returning the country and joining
6
the duties at respondent Department. Learned counsel for the
petitioner has relied on the decisions (i) Jai Shanker Vs. State of
Rajasthan, AIR 1966 SC 492, (ii) Kailash Chand Sethi Vs. State
of Rajasthan & Ors., (1993)3 WLC 188 (Raj.), (iii) Nena Ram Vs.
State of Rajasthan & Ors., 2003(4) RLW 2244, (iv) Dinesh
Chandra Sharma Vs. State of Rajasthan & Ors., 1990 RLR(II)
Rajasthan 714 and (v) Sujata Malhotra Vs. State of Rajasthan &
Ors. 2002(3) DNJ 1104 (Raj.).
Learned counsel appearing for the respondents
contended that so far as Annexure-7 is concerned, the
endorsement made in Annexure-7 in Arabi language do not
indicate that the passport has been detained by the authorities
of King Fahad College Riyadh. On the contrary, it was the
petitioner, who deposited the passport with the said Authority for
safety. It is further contended that the petitioner willfully stayed
at Saudi Arabia for his gainful employment and thus, abandoned
the service. According to learned Additional Government
Counsel, Sub-rule (4) of Rule 86 of RSR in clear term empowers
the respondent Authority to conclude that the petitioner has
resigned from the service on being absence for such a long
period. Even the genuineness of the application Annexure-7 and
endorsement thereon has been disputed and it was contended
that the passport of a person visiting to abroad any of the
7
country is always remain with him and there could be no such
procedure either in the country or the abroad for depositing a
passport with the Authorities of the country to which the person
visits or happened to be went on deputation and therefore, the
Annexure-7 is nothing but a made-up story by the petitioner.
Learned Additional Government Counsel has relied on a decision
of Hon’ble Supreme Court in (i) Aligarh Muslim University & Ors.
Vs. Mansoor Ali Khan, (2000) 7 SCC 529, (ii) Syndicate Bank
Vs. General Secretary, Syndicate Bank Staff Association & Anr.,
(2000) 5 SCC 65, (iii) State of Rajasthan & Anr. Vs. Mohd, Ayub
Naz, (2006) 1 SCC 589, (iv) S.L.Kapoor Vs. Jagmohan & Ors.,
1980(4) SCC 379 and a decision of this Court in Suleman Khan
Vs. State of Rajasthan & Ors, in S.B.Civil Writ Petition
No.6850/2005, decided on 4th December, 2007.
I have given by my thoughtful consideration to the
rival submissions made by learned counsel for the parties.
In Jai Shanker Vs. State of Rajasthan (supra), the
Hon’ble Supreme Court held that the removal of a Government
servant from service for overstaying his leave is illegal even
though it is provided by the service Regulation that any
individual, who absents himself without permission, after the end
of his leave would be considered to have sacrificed his
appointment and may be reinstated only with the sanction of the
8
competent authority.
In Dinesh Chandra Shamra Vs. State of Rajasthan &
Ors. (supra), this Court held that the termination of services on
the ground of absence from duty for more than one month
without holding the enquiry as contemplated under Rule 16 of
Rajasthan Civil Services (Classification, Control & Appeal) Rules,
1958 (for short “the CCA Rules” hereinafter) is illegal.
In Sujata Malhotra Vs. State of Rajasthan & Ors.
(supra) while considering the case of removal from service on
the ground of absence from duty after expiry of leave, the
Division Bench of this Court held that the Disciplinary Authority
failed to record good and sufficient reasons for passing the
impugned order imposing punishment of removal from service
against the petitioner therein. In that case, the petitioner therein
applied for extra-ordinary leave on ground of her sudden
sickness, sickness of her newly born daughter and accident of
her husband at Nigeria, the leave Sanctioning Authority had
failed to exercise its statutory duty as contemplated under Rule
86 of the RSR for grant or sanction of leave.
In Nena Ram Vs. State of Rajasthan & Ors (supra),
this Court held that the major penalty of removal from servcie
could not have been imposed without holding enquiry and
affording opportunity of hearing to the delinquent.
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In Kailash Chand Sethi Vs. State of Rajasthan & Ors.
(supra), this Court held that the forfeiture of 12 years past
service of the petitioner therein on the ground of wilful absence
from duty amounts to major penalty of removal from service as
envisaged under Rule 14 of the CCA Rules and such penalty is
not imposable without initaition of disciplinary action and without
charge of wilful absence from duty.
Per contra, the learned Additional Government
Counsel has relied on certain decisions of the Hon’ble Supreme
Court referred hereinabove.
In State of Rajasthan & Anr. Vs. Mohd.Ayub Naz
(supra), the Hon’ble Supreme Court while relying on a number of
its earlier decision in Om Kumar Vs. Union of India, (2001) 2
SCC 386, B.C.Chaturvedi Vs. Union of India, (1995) 6 SCC 749,
V.Ramana Vs. A.P.SRTC, (2005) 7 SCC 338, held as under:-
“We are of the opinion that a government servant
who has willfully been absent for a period of about
3 years and which fact is not disputed even by the
learned Single Judge of the High Court, has no
right to receive the monetary/retiral benefits
during the period in question. The High Court has
given all retiral benefits which shall mean that a
lump sum money of lakhs of rupees shall have to
be given to the respondent. In our opinion,
considering the totality of the circumstances, and
10the admission made by the respondent himself
that he was willfully absent for 3 years, the
punishment of removal imposed on him is
absolutely correct and not disproportionate as
alleged by the respondent.
In Syndicate Bank Vs. General Secretary, Syndicate
Bank Staff Association & Anr. (supra), the Hon’ble Supreme
Court dealt with a similar case and held that where a show cause
notice is served upon the delinquent employee and the employee
chooses not to respond to the said notice even after expiry of the
notice-period, the employer has a right to presume that the
employee does not want to say anything and he is no more
interested in the services of the employer. The Court observed
as under:-
“It is no point laying stress on the principles of
natural justice without understanding their scope or
real meaning. There are two essential elements of
natural justice which are: (a) no man shall be judge
in his own cause; and (b) no man shall be
condemned, either civilly or criminally, without
being afforded an opportunity of being heard in
answer to the charge made against him. In course
of time by various judicial pronouncements these
two principles of natural justice have been
expanded, e.g., a party must have due notice when
the tribunal will proceed; the tribunal should not act
11on irrelevant evidence or shut out relevant
evidence; if the tribunal consists of several
members they all must sit together at all times; the
tribunal should act independently and should not be
biased against any party; its action should be based
on good faith and order (sic) and should act in a
just, fair and reasonable manner. These in fact are
the extensions or refinements of the main principles
of natural justice stated above.”
It has further been held that undue reliance on the
principles of natural justice by the Tribunal and even by the High
Court has certainly led to a miscarriage of justice as far as the
Bank is concerned. The conduct of Dayananda as an employee of
the Bank has been astounding. It was not a case where the
Tribunal should have given any relief to Dayananda and yet the
Bank was directed to reinstate him with continuity of service and
mercifully the latter part of the relief the High Court struck down.
There was no occasion for the Tribunal to direct that Dayananda
be reinstated in service or for the High Court not to have
exercised its jurisdiction under Article 226 of the Constitution to
set aside the award and the Hon’ble Supreme Court held that
termination of service without holding any departmental enquiry
is not violative of principles of natural justice.
In Aligarh Muslim University Vs. Mansoor Ali Khan
(supra), while considering the case of automatic termination of
12
services under the relevant rules for unauthorized absent but
without affording opportunity thereunder, the Hon’ble Supreme
held that such termination did not violate principles of natural
justice but not necessarily vitiated the termination order and in
that case, the employee obtained two years’ extraordinary leave
to join a job in a foreign country. He sought extension of leave
by further two years but was granted extension for only one year
with the warning that no further extension would be granted and
that in case of overstaying, he would be deemed to have vacated
the office. The employee, despite this warning, joined a fresh two
year job in the foreign country and on account of of omission to
join after the expiry of the third year of leave, the order deeming
him to have vacated his office came to be passed. In those
circumstances, the Hon’ble Supreme Court held that issuance of
notice to him would not have made any difference and, on
admitted facts, only one view was possible that absence of notice
caused no prejudice to him and was, therefore, not vitiative of
the termination order. It was further held that the conduct of the
employee in ignoring the employer’s warning disentitles him to
relief under Article 226 of the Constitution. The Hon’ble Supreme
Court while considering the Aligarh Muslim University Revised
Leave Rules, 1969 more particularly Rule 5(8)(i) providing
deemed vacation of the post under such rule, further held that
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the order passed without calling for explanation is not invalid, as
such, an absence is an abandonment of the post. It was further
held that the absence of notice when only one conclusion could
be drawn not vitiates the action taken without notice.
In S.L.Kapoor Versus Jagmohan & Ors. (supra), while
considering the requirements of principles of natural justice, the
Hon’ble Supreme Court held that the requirement of natural
justice are met only if opportunity to represent is given in view of
proposed action. The demands of natural justice are not met
even if the very person proceeded against has furnished the
information on which the action is based, if it is furnished in a
casual way or for some other purpose. This does not suggest
that the opportunity need be a “double opportunity” that is, one
opportunity on the factual allegations and another on the
proposed penalty. Both may be rolled into one. But the person
proceeded against must know that he is being required to meet
the allegation which might lead to a certain action being taken
against him. If that is made known that he is being required to
meet the allegations which might lead to a certain action being
taken against him. If that is made known the requirements are
met. It was further held that the admitted or undisputed facts
has been relied on the same conclusion. Whether principles of
natural justice are observed or not is absolutely no ground for its
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exclusion.
In Suleman Khan Vs. State of Rajasthan & Ors.
(supra), this Court observed as under:-
“This Court has no hesitation in concluding that the
petitioner had voluntarily abandoned the job at his
sweet will and desire; and then, by way of this
petition, has only made an attempt to take a chance
to litigate against the Department concerned. The
present one being clearly a case of voluntary
relinquishment of the job, the petitioner is not
entitled for any relief in the extra-ordinary writ
jurisdiction.”
In the said judgment, this Court further observed as
under:-
“When the fact of abandonment of services as a
question of intention is to be determined in the light
of the surrounding circumstances as observed by
the Hon’ble Supreme Court in the case of G.T.Lad &
Ors. Vs. Chemical and Fibres of India Ltd., (1979)1
SCC 590, the surrounding circumstances of the
present case with the admitted fact situation show
nothing but a specific intention to abandon the
service. Admittedly, for good 14 years, the
petitioner choose not to attend on the duties and,
as noticed above, without any valid reason. The
reason as stated now in the year 2005 in this
petition, to somehow resurrect the concluded
matter, where the petitioner abandoned the job in
15the year 1991, and where the Department after
taking all care to serve him notices for joining and
to serve him charge-sheet, ultimately passed the
order of termination as late as on 22.05.2000, could
only be said to be an after-thought, rather an
eyewash and a futile attempt at abuse of the
process of law.”
In Dr.S.K.Agrawal Vs. J.N.V. University & Ors.,
S.B.Civil Writ Petition No.1468/1999, decided on February 15,
2001 considering the similar controversy wherein the petitioner
therein on his application was granted extraordinary leave only
for a period of one year to serve in abroad i.e. Kuwait and
thereafter, the petitioner therein applied for extension of leave
for another two years which was further extended by the
employer for a period of two years. The petitioner therein again
applied for extension of the leave which was declined by the
respondent University employer asking the petitioner to join the
duties immediately failing which he would be treated as willfully
absent from duty. Despite this warning, the petitioner therein
failed to return and join the duty with the employer. On the
contrary, he entered into further contract with the Kuwait
unilaterally without taking prior permission of the respondent-
University and without there being grant of leave. Ultimately,
the respondent-University terminated the services of the
16
petitioner therein on the ground that he abandoned the services.
That order came to be challenged before this Court. This Court
reached to the inescapable conclusion that the petitioner
remained willfully absent after taking the maximum permissible
Extraordinary Leave. He entered into contract with Kuwait
University without permission of the respondent University. He
had been informed that his application for extension of leave
stood rejected. He was given an opportunity to come back and
join. Petitioner did not avail it. He was served with a show cause
notice, to which he submitted his reply which was not found
satisfactory by the University. The facts still remains undisputed
and, thus, in the fact-situation, holding inquiry could have been a
mere useless formality. Nor petitioner could point out as to how
his cause has been prejudiced by not holding the full-fledged
inquiry.
In Chairman, Board of Mining Examination & Chief
Inspector of Mines & Anr. Vs. Ramjee, AIR 1977 SC 965, the
Hon’ble Supreme Court observed as under:-
“Natural justice is no unruly horse, no lurking land
mine, nor a judicial cure-all. If fairness is shown
by the decision-maker to the man proceeded
against, the form, features and fundamentals of
such essential processual propriety being
conditioned by the facts and circumstances of
17each situation, no breach of natural justice can be
complained of. Unnatural expansion of natural
justice, without reference to the administrative
realities and other factors of a given case, can be
exasperating. We can neither be finical nor
fanatical but should be flexible yet firm in this
jurisdiction. No man shall be hit below the belt-
that is the conscience of the matter.”
This view was reiterated by the Hon’ble Supreme
Court in Union of India Vs. P.K.Roy & Ors., AIR 1968 SC 850;
Channa Basappa Happali Vs. State of Mysore, AIR 1972 SC 32
and Kumaon Madnal Vikas Nigam Ltd. Vs. Girja Shankar Pant &
Ors. (2001) 1 SCC 182 wherein the Hon’ble Supreme Court held
that doctrine of natural justice cannot be imprisoned within the
strait-jacket of a rigid formula and its application would depend
upon the scheme and policy of the statute and relevant
circumstances involved in a particular case.
In Dharmarathmakara Raibahadur Arcot Ramaswamy
Mudaliar Educational Institution Vs. Educational Appellate
Tribunal & Anr., (1999) 7 SCC 332, the Hon’ble Supreme Court
observed as under:-
“Giving an opportunity or an enquiry is a check
and balanced concept that no one’s right be taken
away without giving him/her opportunity or when
18enquiry in a given case or where the statute
requires. But this cannot be in a case where
allegations and charges are admitted and no
possible defence is placed before the Authority
concerned. What enquiry is to be made when one
admits violations ……. In case where the facts are
almost admitted, the case reveals itself and is
apparent on the face of the record, and inspite of
opportunity no worthwhile explanation is
forthcoming as in the present case, it would not be
a fit case to interfere with the termination order.”
In K.L.Tripathi Vs. State Bank of India, AIR 1984 SC
273, Hon’ble Supreme Court held that it is not possible to lay
down rigid rules as to when the principles of natural justice are to
apply, nor as to their scope and extent. There must also have
been some real prejudice to the complainant; there is no such
thing as a merely technical infringement of natural justice. The
requirement of natural justice must depend on the facts and
circumstances of the case, the nature of the enquiry, the rules
under which the Tribunal is acting, the subject matter to be dealt
with, and so on so forth.
The decision of this Court in S.K.Agrawal Vs.
J.N.V.University (supra) dated 15th February, 2001 came to be
challenged before a Division Bench of this Court in D.B.Civil Writ
Petition No.444/2001, which came to be dismissed by order
19
dated 17th July, 2001. The Division Bench of this Court observed
as under:-
“In the totality of the facts and circumstances, we
are of the opinion that the conduct of the petitioner
in showing total lack of commitment to the
assignment with the parent university, and his
consistent desire to remain absent from teaching
job beyond the maximum period of five years
permissible under the leave rules has displayed
total lack of responsibility and commitment and
then seeking relief by keeping the material
documents back from the Court and not placing
correct facts about the extra ordinary leave availed
by him and only placing material for three years
availing extra ordinary leave and trying to make out
a ground that he could have still been permitted two
years extra ordinary leave about which otherwise
there is not a whisper in the pleading challenging
the correctness of the fact mentioned in Annexure-
10 that the petitioner has availed five years extra
ordinary leave and beyond which he is not entitled,
he cannot be allowed further leave. This goes to
show that the petitioner is keeping material facts
back from the Court and trying to seek remedy by
not disclosing fully and truly of all requisite facts
necessary for evaluating the contentions raised
before the Court.
In the instant case, undisputed fact emerging from
the pleadings of the parties and the record is that the petitioner
20
was initially sent on deputation for a period of one year to Saudi
Arabia. However, on the request of the petitioner, the period of
deputation was further extended by one year. While extending
period of deputation by one year, it was made clear to the
petitioner that there shall not be any further extension to the
deputation and on expiry of period of deputation, he was
required to report back and join the duty with the employer.
Thus, the period of his deputation was only two years; one year
the original granted and one by extension and thereafter, he was
to report back to the duty. The petitioner himself remained
stayed at Saudi Arabia beyond the period of deputation and
voluntarily absented from duty. It is not the case of the
petitioner that he remained jobless at Saudi Arabia. On the
contrary, the petitioner was under the gainful employment with
the King Fahad College Riyadh, Kingdom of Saudi Arabia and did
not return even after the passing of the order impugned. The
respondent-employer issued notice to the petitioner including
publishing the notice in the newspaper showing the intention of
the employer that if the petitioner failed to report back to the
duty and join the employer, his services will be treated as having
resigned from the service. Thus, despite all these, the petitioner
was bent upon not to resume the duty with the employer but
remained in gainful employment with the King Fahad College
21
Riyadh at Saudi Arabia, and therefore, the respondents were
justified in considering and deeming the petitioner having
resigned from the service which are from the date he voluntarily
remained absent without leave i.e. 30th May, 1999.
Sub-rule (4) to Rule 86 of RSR which came to be
inserted in the Rule 86 of the RSR w.e.f. 20th August, 2001 reads
as under:-
“86 (4) Unless the State Government in view of
the special circumstances of the case, determines
otherwise a State Government employee who
remains absent from duty for a continuous period
exceeding five years other than on foreign service,
whether with or without leave, shall be deemed to
have resigned from service.
Provided that a reasonable opportunity to
explain the reasons for such absence shall be
given to the employee before the provisions of this
sub-rule are invoked.”
Thus, sub-rule (4) of Rule 86 of RSR clearly provides
that if the government servant remaining absent without leave
for a continuous period exceeding five years shall be deemed to
have resigned from service and what more is required is that an
opportunity to explain the reason for such absence is to be given
to the government servant which in the instant case as emerging
from the record was given to the petitioner to explain the reason
22or rather he was warned by a communication that the period of
deputation shall not be extended beyond the period which it had
been extended and the petitioner was required to report back to
the duty. This fact was well within the knowledge of the
petitioner that not reporting duty on expiry of the period of
deputation would amount to voluntarily absent without leave.
and therefore, in my view, the respondents were justified in
passing the order impugned. The decisions relied on by learned
counsel for the petitioner turn on their own facts and are of no
help to the petitioner in view of the catena of decisions of
Hon’ble Supreme Court referred hereinabove.
For the reasons statedabove, I do not find any merit
in the writ petition. The writ petition is, therefore, dismissed.
However, in the facts and circumstances of the case, there shall
be no order as to costs. Stay petition also stands dismissed.
(H.R. PANWAR), J.
NK