Ashok Kumar Awasthi vs State of U.P.& Ors.

D. K. Seth, J.—The petitioner alleges that he was on medical leave since 3rd October, 1983 and had been applying for extension of such medical leave from time to time. Only when the petitioner sought to resume his duties after having become fit sometimes in 1992, he was informed that the petitioner''s service was terminated by an order dated 12th April, 1985. Then he made successive representations which were rejected on 8th February, 1992 and 24th April, 1992. Thereupon, he had preferred an appeal before the Divisional Forest Officer, Varanasi who had rejected the same on 25th October, 1996. These orders are Annexures 34, 35, 37 and 52 respectively. These orders have since been challenged in this writ petition with a prayer that the petitioner should be reinstated from 3rd October, 1983.

Mr. C.B. Yadava, learned Counsel for the petitioner contends that the petitioner''s service has been sought to be terminated under the U.P Temporary Government Service (Termination of Service) Rules, 1975. Since according to him, the petitioner having completed the probation period, he shall be deemed to have been confirmed and, therefore, the 1975 Rules could not be applied in his case. Alternatively, he contended that even if the said Rules could be applied in the absence of one month notice pay in lieu of notice, the order of termination on 1975 Rules is violative of the proviso of Subrule 3 of the said Rules and such cannot be sustained. He then contends that the petitioner had been making successive applications for extension of the medical leave which had never been replied to by the respondents necessarily implying that these applications were accepted and the medical leave was being extended. Therefore, there could not be any occassion to terminate his service. He next contends that the alleged notice purported to have been served on the petitioner by the respondents before passing the order dated 12th April, 1985 had never been received by the petitioner. The alleged notice which was published in newspaper ''Aaj'', a newspaper published from Varanasi. According to him, the newspaper Aaj'' had no circulation in Allahabad in 1985. Therefore, the alleged publication cannot suffice the purpose of notice. He further contends that there was no delay or laches on the part of the petitioner since he had been applying for extension of leave till 1992 ; until he was informed that his service was terminated and then pursuing the remedy by way of approaching the respondents through representations which were turned down one after the other and against which he appealed to the Divisional Forest Officer which was dismissed only in 1994. Therefore, there was no delay on his part to approach this Court in 1996.

The learned Standing Counsel on the other hand contends that none of the alleged applications for extension of medical leave was ever received in the department. It appears from those applications which are annexures in the writ petition that those were purported to have been sent Under Certificate of Posting. He points out from each of those annexures that those were noted to have been sent Under Certificate of Posting. He also points out from the medical certificates annexed with the writ petition that those were granted by private practitioner except Annexure 31. Annexure 31 is for a period in 1991 which had nothing to do with the earlier periods. He further points out that the illness referred to in those medical certificates differs from one certificate to the other. It is not a continuous one illness from which the petitioner alleged to have been suffering. On this basis, he submits that there are scope of doubt in the genuineness of the illness of the petitioner. Be that as it may, in view of absence, the petitioner was given notice at the address given in the service record through registered post and then it was published in Aaj'' which is widely circulated in Varanasi and Allahabad and that an edition used to be published from Allahabad. Relying on Annexures 3 and 4, he points out that the notices were given to the Editor of Aaj'' for publishing both in the Varanasi and Allahabad edition. According to him, there is no infirmity in the order of termination of service since it was done after giving adequate notice to the petitioner. He further contends that there was no order of confirmation of the petitioner. Expiry of the probationary period and continuation thereafter, does not automatically imply that the petitioner was confirmed in the service. Therefore, according to him, there is no infirmity in the orders impugned in this writ petition.

I have heard both the Counsel at length.

The petitioner was appointed on temporary basis and was under probation for some period. The Lower Subordinate Forest Service Rules, 1980 in Rule 19 prescribes the period of probation and in Rule 20 prescribes the manner of confirmation. Rule 19 prescribes that a person employed against a substantive vacancy shall be placed on probation for a period of two years which may be extended maximum to a further period of two years. It provides that in case, he is unable to utilise the period of probation properly in that event, his service may be dispensed with. Admittedly, in that present case, the petitioner''s service has not been dispensed with under subrule (3) of Rule 19.

Rule 20 prescribes that a probationer would be confirmed at the end of probation period or after expiry to the extended period if (a) his work and conduct are reported to be satisfactory ; (b) his integrity is certified ; (c) he has successfully undergone the prescribed training, if any ; and (d) the appointing authority is satisfied that he is otherwise fit for confirmation. This provision clearly indicates that all these Clauses (a), (b), (c) and (d) of Rule 20 are to be satisfied in order to confirm a person. The existence of these clauses preclude the resumption that a person is confirmed automatically immediately, after the probation period is over. Even if the subrule (3) of Rule 19 does not say that after completion of probation period, the service must be dispensed with if he fails to utilise the period satisfactorily. On the other hand, it is provided that his service may be dispensed with. The use of the expression ''may'' implies discretion and not mandate. Thus, the continuation after the expiry of two years or four years as the case may be does not imply that the person would become confirmed unless his service is dispensed with. On the other hand, if Rules 19 and 20 are reconciled together in that event, it implies that a person can be confirmed after the probation period only if he satisfies the conditions contained in Clauses (a), (b), (c) and (d) respectively. The very existence of Clause (d) implies that the confirmation would be a positive action and not a passive one. In as much as the confirmation is due only when the appointing authority is satisfied that he is otherwise fit for confirmation even though his work and conduct are reported to be satisfactory ; his integrity is certified ; he has undergone the prescribed training if any; and he has successfully completed the probation period. Rule 20 conceived of a situation for nonconfirmation even after satisfying Clauses (a), (b) and (c). After completion of probation, unless the Appointing Authority is satisfied that he is otherwise fit for confirmation. Thus, unless there is specific order of confirmation, it cannot be said that the petitioner is deemed to be confirmed on the expiry of the period of probation.

Therefore, it cannot be said that 1975 Rules cannot be attracted in the case of the petitioner. Then again, in the present case the petitioner had been absenting himself continuously since 1983 and there is nothing to show that he had really applied for extension of the medical leave or that medical leave had ever been extended and allowed. Mere sending of application for medical leave does not ipso facto imply that the medical leave is to be deemed to have been sanctioned. Sanctioning of medical leave is a positive action. Unless there is a specific order sanctioning the medical leave, it cannot be said that the medical leave was sanctioned to the petitioner. There cannot be any sanction of medical leave by implication. Though the petitioner had been sending the application for medical leave Under Certificate of Posting but he had never attempted to find out as to whether the medical leave was being sanctioned to him even through his relative or friends. He kept quiet for this long period till 1992.

The petitioner had himself give the address in his service book and that was the last known address available in the records of the respondents. In Annexure l, the petitioner has annexed a letter dated 3rd October, 1983 which was sent Under Certificate of Posting. In the letter, the petitioner has mentioned that his address has been changed as 64, Basti, Daraganj, Allahabad but the said letter appears to have been sent on 3rd October, 1983 Under Certificate of Posting. A letter sent Under Certificate of Posting cannot be treated to have been definitely served on the respondents. The petitioner had also never attempted to ascertain as to whether the change of address has been carried out in the records of the respondents particularly, in his service records. Therefore, no capital could be made out of Annexure 1 since the respondents had contended on oath in the affidavit that none of these letters had been received by the department. Then again, it appears that the notices were published in the newspaper Aaj'' which is Annexure CA2 to the counteraffidavit. It was published on 5th February, 1985. From Annexure CA3, it appears that this notice was sent to the District Information Officer requesting for publication of the notice both in Varanasi and Allahabad edition of Aaj''. It also appears from Annexure CA4 that it was also sought to be published in both the edition of Aaj'' both, Varanasi and Allahabad.

Therefore, this publication of the notice in the newspaper and sending of the notice under registered post appears to be sufficient communication to the petitioner purported to be sent to his last known address. Though Mr. Yadav had contended that the notice sent under Registered Post was never received by the petitioner and that the petitioner had already changed his address. But unless it is shown to disapprove that the official action has not been properly done or is wrongly done, such contention cannot be accepted. A notice which was sent under Registered Post, if not returned, it would be presumed that it has been duly served. Then again, there was a newspaper publication in addition to such notice which suffice the purpose of giving notice.

In the notice as published in the newspaper, it is apparent that the petitioner was given 15 days time to report for duty otherwise, steps should be taken for terminating his service and the said notice was the last notice. The notice was published on 18th February, 1985 in Aaj''. The order of termination was passed on 12th April, 1985. Between 18th February, 1985 and 12th April, 1985, there is more than one month''s time. Therefore, if service is terminated one month after the publication of the notice or one month after the expiry of 15 days from the publication of the notice, then it can be presumed that there was a notice of one month as contemplated in Rule 3. In as much as 15 days from the date 18th February, 1985 expires on 5th March, 1985 and one month from 5th March, 1985 expires on 5th April, 1985. Whereas his service was terminated on 12th''April, 1985. Thus there was one month''s notice as contemplated in Rule 3. Thus, it cannot be said that there was infraction of Rule 3 of 1975 Rules.

Then again, in the present case, the petitioner was absenting himself from his duty since 1983 for a long time without any intimation and there has been nothing on record to show that the medical leave was sanctioned. It would not be necessary to pay anything in lieu of notice since unauthorised absentee does not imply that the petitioner would be entitled to any pay for the period. If the petitioner was in unauthorised absentee, he would not be entitled to any pay and for such period and in such event, the termination of service on account of such absence would not required the payment of notice pay in lieu of notice. The petitioner having not replied to the notice and having not reported to duty, it was open to the respondents to dispense with his service on account of abandonment of service by giving notice to him. In this case, the notice had been given.

After the order of termination was passed in 1985, the petitioner did not turn up till 1992. He had relied on various medical certificates. A perusal of those medical certificates shows particularly, Annexure 17 that it was issued by private practitioner and his disease mentioned as Kocks Abdomen and that was for a period from 7th February, 1984 to 2nd January, 1986. The said certificate was issued on 2nd January, 1986. The next certificate is in Annexure 24 which was issued on 31st December, 1988 again by a different Doctor who is also a private physician and this time the certificate was from 3rd January, 1986 till 31st December, 1988 and here the treatment was in Cb Chimosiv @ Liver. The other certificate relied upon by the petitioner is Annexure 30 which was for the period 1st January, 1989 till 10th November, 1991 and was granted by the Medical Officer Incharge, Sardar Patel Infectious Diseases Hospital and the disease was mentioned as Tubercular Lymphademits & Abdominal Colion and the other certificate is Annexure 31 granted h" Dr. S.P. Mishra, Gastro Lecturer, Moti Lal Nehru Medical College, Allahabad certifying that he was suffering from acute Viral Hepatitis between 11th November, 1991 to 20th January, 1992. These certificates show that the petitioner was suffering from different diseases which he acquired immediately after recovery from the earlier disease. He becomes fit on 2nd January, 1986 from one disease and again acquires another disease on 3rd January, 1986 and again he was fit on 31st December, 1988 and become ill of another disease from 1st January, 1989 and after recovering there from on 10th November, 1991, he again attracts a different illness from 11th November, 1991. Such a story is a little difficult to swallow. Be that as it may, apart from two certificates, the others were granted by the private physicians. Then again, though the certificates were alleged to have been forwarded to the department but those were not mentioned in his application. None of the applications mentions that the medical certificate is being forwarded alongwith such application. Therefore, it is very difficult to rely on those applications for medical leave as well as on those certificates.

Be that as it may, since the petitioner had been absenting himself for an indefinitely long period and the petitioner had delayed almost nine years, there is no infirmity in refusing the representation made by the petitioner in the facts and circumstances of the case. Therefore, on facts it is not the case which calls for interference by this Court.

The decision in the case of Sri Ganganagar Urban Cooperative Bank Ltd. v. Prescribed Authority and others, JT 1997 (5) SC 595, relating to notice or notice pay in lieu of notice does not help Mr. Yadav in view of the facts and circumstances of the present case as discussed hereinbefore.

The decision in the case of Rajendra Bahadur Srivastava v. State of U.P. and others, (1993) 3 UPLBEC 1927, relating to the question of dismissal of the writ petition on account of delay also does not help Mr. Yadav since this writ petition is not being dismissed on the ground of delay.

The decision in the case of State of Uttar Pradesh and another v. Kaushal Kishore Shukla, (1991) 1 SCC 691, also does not help because of the peculiar facts and circumstances of the case as discussed above. Similarly, the decision in the case of Om Prakash Gael v. Himachal Pradesh Tourism Development Corporation Ltd., Shimla and another, (1991) 2 UPLBEC 967, does not help in the facts and circumstances of the case. Inasmuch as, in the said case the petitioner''s service was terminated on the ground that he was a temporary employee during the period of continuation of enquiry against him. These facts clearly distinguishing the present case for which the ratio decided therein cannot be attracted.

For all these reasons, the writ petition fails and is, accordingly, dismissed. However, there will be no order as to costs.