ORDER
D.V. Shylendra Kumar, J.
Page 2322
1. This writ petition is filed by a person who claims that he had been appointed as a ‘Second Division Assistant’ in the year 1978 on temporary Page 2323 basis to serve in the notified area, Gokak falls by the Deputy Commissioner of Belgaum District.
2. It appears the Deputy Commissioner terminated the services of the temporary employee in the year 1979 and that action though belatedly had been questioned by filing a writ petition in WP No. 7116 of 1983, in the interregnum, there appears to have been certain other developments wherein the Divisional Commissioner also appears to have issued some directions, but which had not been given effect to in one of the two manners suggested by the Divisional Commissioner and this Court in the light of the Deputy Commissioner not having fully obeyed with the directions issued by the Divisional Commissioner, ordered that the Deputy Commissioner should consider giving the posting to the petitioner in any other place if the local authority at Gokak Notified Area had decided to abolish the post and disposed of the writ petition by partly allowing the same in terms of the order dated 17.12.1991 [copy at Annexure-A].
3. It is thereafter that the Deputy Commissioner issued an order on 12.3.1992 [copy at Annexure-B] posting the petitioner to work as ‘Second Division Assistant – Grade II’ at the respondent No. 3 – Town Municipal Council, Saundatti, with effect from 1.4.1992 and in place of one Hampannavar who was due to retire from the post from 31.3.1992.
4. It is the version of the petitioner that the petitioner armed with such order reported to duty at the Town Municipal Council, Saundatti on 3.4.1992 and in fact worked there till 6.4.1992, but thereafter appears to have not worked; that he went on leave and later sought to support the absence by producing a medical certificate; that when the petitioner tried to rejoin the duty on 13.4.1992 he was not accepted for resuming duty and that the respondent No. 3 – Municipal Council insisted that the petitioner should produce the last paid certificate from his former employer – respondent No. 2 – Gokak Falls Notified Area and other service details.
5. It is the version of the petitioner that he had caused issued of a notice to the respondent No. 3 – Municipality indicating that such information/particulars can be obtained directly from the respondent No. 2; as the petitioner did not have any material etc.,; further case of the petitioner is that he was thereafter declined an opportunity to work in the office of the respondent No. 3 and therefore the petitioner had to take care of himself.
6. It appears disciplinary proceedings were initiated against the petitioner in the year 1992 by issue of a notice calling upon the petitioner to explain about his unauthorized absence etc.,.
7. Submission of Sri. Mensinkai, learned Counsel for the petitioner is that the petitioner had promptly replied to this notice and denied the allegation; that the petitioner was very much willing to work, but it is the Officers of the Town Municipal Council, particularly, Chief Executive Officer, Saundatti Page 2324 who prevented from resuming his work. The inquiry came to its conclusion in the year 1997 by passing of the impugned order dated 27.8.1907 [copy at Annexure-E] by the Director, Town Municipal Administration by imposing the punishment of removal from service and also treating the absence of the petitioner from the year 1992 till the passing of the order as leave without pay.
8. It is such order which is questioned by filing writ petition in the year 2004 on the premise that the inquiry is vitiated as the petitioner was not given a proper opportunity to defend himself; that the inquiry and findings are also not tenable for the reason that it is not based on proper material or evidence; that even when there was no evidence at all before the authorities that the petitioner was either practising as a lawyer in between and on the other hand had expressly issued a notice to the Bar Council even in the year 1992 requesting the Bar Council to suspend his sanad, services having been terminated on such irrelevant and non-existent material, order deserves to be quashed.
9. Submission of Sri. Mensinkai, learned Counsel for the petitioner is that the delay in preferring the writ petition is explained for the reason that the petitioner had never been provided with copy of the order; that the petitioner is left without any remedy to get over such order; that the order is not tenable in law and should be quashed; that the petitioner should be directed to be reinstated with consequential benefits etc.,.
10. Respondents, on issue of notice are represented by counsel. Respondents 1 and 4 are represented by Sri. S.Z.A. Khureshi, learned Additional Government Advocate, respondent No. 3 – Town Municipal Council is represented by Sri. Prashanth, learned Counsel.
11. While the statement of objections is filed on behalf of respondents 1 and 4 defending the action taken indicating, inter alia, that the material on record did reveal that the petitioner was not only practising as an Advocate but was an Editor of a newspaper ‘Giniram’ and the petitioner being a most unwilling person to work, the order should not be disturbed at the instance of the writ petitioner.
12. It is also urged that the petitioner was only a temporary employee and therefore if a person had not worked and remained absent on his own there is no choice on the part of the employer but to terminate his services.
13. Sri. Prashanth, learned Counsel for respondent No. 3 supports the order and submits that the petitioner even while reporting to duty at Town Municipal Council, Saundatti on 3.4.1992, hardly worked for a few days, but gave a letter to the inward clerk purporting to be a leave letter and went away and thereafter never returned; that he was never prevented from working there; that the petitioner’s wife had sent a telegram on 14.4.1992 seeking medical leave etc.,.
14. As noticed in the earlier part of this order, while I am not at all impressed with the writ petition having any merit, particularly for questioning the order of the year 1997 by filing a writ petition in the year 2004, even the Page 2325 petitioner does not dispute that he had become an Advocate in the year 1990 and was thereafter practising and certain material is now sought to be placed before the court by filing an application for receipt of additional documents, particularly in the form of Annexure-K which is a letter dated 6.4.1992 addressed to the Chairman, Bar Council requesting the Bar Council to suspend the sanad of the petitioner as he had now been appointed to work as a ‘Second Division Assistant – Grade II’ at Town Municipal Council, Saundatti in terms of the order at Annexure-B.
15. Petitioner had hardly worked that too on a temporary basis for a period of about one year as ‘Second Division Assistant’ in the services of the Notified Area, Gokak Falls. Thereafter, the petitioner is only in litigation and further work of the petitioner which is on record is only of three days duration at Town Municipal Council, Saundatti. Thereafter, the petitioner has never worked. On the other hand, if not during the inquiry and the material therein, atleast in view of the petitioner’s own letter at Annexure-H indicates that he had in the meanwhile qualified to be an Advocate and had enrolled as one and written a letter on 18.4.1992 [copy at Annexure-H] requesting the suspension of his sanad. It is not clear as to what happened thereafter. The finding of the inquiry is that the petitioner was not only practising as Advocate but was an Editor of a newsdaily. Petitioner had a right of appeal under the statutory provision, but has not availed of. Writ petition filed after seven years while is hit by delay and laches, it is not necessary for tills court to interfere in the year 2007 in respect of dismissal order passed in the year 1997 on the premise that the petitioner had not worked from the year 1992. An employee works in the office and in his post and not through litigation. If the initial appointment itself was temporary and it had been terminated, it was only by a stroke of good fortune that the petitioner was favoured with an order in the year 1991 and also got an appointment. But, the petitioner did not show his keenness to work in the post by going on leave himself and trying to justify his absence by saying that he went on leave for medical grounds and producing some medical certificate etc.,.
16. It is a travesty of service jurisprudence that the Government employees who remain absent from work are also required to be terminated from service by holding inquiries where such employees do not even participate. There is no necessity for holding an inquiry in respect of employees like the petitioner who remain absent indefinitely for long periods. Whether there is justification or not, the fact is that the person has remained absent from the year 1992 onwards which shows his unwillingness to work. There is no question of interfering in such cases either for the purpose of quashing the order or for directing reinstatement.
17. While the writ jurisdiction can be exercised in favour of persons who have been victimised, have bonafide reasons to put forth their grievance before the court in right earnest and diligence, interference in writ jurisdiction in favour of persons like the petitioner becomes more a misplaced exercise of discretion and jurisdiction in favour of persons who are not at all willing to work.
Page 2326
18. Petitioner having found alternative avenues in life may not be a person who is even ready to work. But, incentive of courts awarding back wages or even service laws providing for such back wages which in terms of service laws are not less than the subsistence allowance for the period is a sufficient incentive for unwilling employees also to fight a litigation and get a windfall at the end of the litigation.
19. Payment of back wages to a person who has not worked at the cost of public exchequer in a poor developing country like ours where large number of people go without food, clothing and shelter is a luxury which any administration should avoid and I am of the view that courts should not compound such inequities by awarding back wages etc.,.
20. I do not find that there is a cause for interference in writ jurisdiction. Writ petition is also hit by delay and laches.
21. Writ petition is dismissed.