Ashok Kumar Sharma vs State of Rajasthan and Others

Sandeep Mehta, J.

Heard learned counsel for the parties.

The petitioner, who was appointed as L.D.C. in the District Court, Balotra on compassionate basis in place of his father on 24.4.2003, has approached this Court by way of the instant writ petition assailing the legality and validity of the order dated 7.12.2004 (Annex.3), passed by the petitioner''s disciplinary authority - District and Sessions Judge, Bhilwara, terminating him from service on the ground of unauthorized absence from duty; the order dated 13.11.2006 (Annex.6) passed by the appellate authority - Hon''ble Mr. Justice Prakash Tatia, dismissing the petitioner''s appeal against the order dated 7.12.2004; and the order dated 26.4.2007 (Annex.7), whereby the review petition preferred by the petitioner was also dismissed.

Learned counsel for the petitioner vehemently contended that the impugned order, whereby the petitioner was removed from service on the ground of unauthorized absence from duty, is unjust, arbitrary and illegal and was passed in total violation of the principles of natural justice. She vehemently contended that the petitioner was not provided any appropriate authority of defending himself at all because the notices sent to the petitioner for resuming duty were never served on him. She contended that the petitioner was seriously ill and was not available at his residence and thus, he could not respond to the notices. She heavily relied upon some medical prescriptions in support of her contentions and urged that the impugned orders deserve to be quashed and set aside and the petitioner deserves to be provided an opportunity of defending himself so that he can prove that his absence from duty was bonafide, caused by a severe ailment and thus, he was prevented from attending duty for reasons beyond his control. She thus prayed that the writ petition deserved acceptance.

Per contra, learned counsel for the respondents vehemently opposed the submissions advanced by the petitioner''s counsel. He urged that the medical certificates on which the petitioner relies upon are of no avail whatsoever. The order Annex.3 dated 7.12.2004 was passed after giving numerous notices and opportunities to the petitioner but he deliberately failed to respond thereto, upon which the disciplinary authority was left with no option but to pass the order removing him from service on the ground of long and unauthorized absence from duty. He further contended that the appellate authority examined the entire record and adverted to the grounds raised by the petitioner in his appeal and thereafter, the order of removal from service was affirmed by a well reasoned detailed order. He further contended that the petitioner after a delay of 15 months, challenged the order Annex.3 dated 7.12.2004, whereby he was removed from service. The delay was totally unexplained. He further submitted that even after the dismissal of the petitioner''s appeal and review, the instant writ petition was preferred with a delay of more than 3 years and, therefore, it is evident that the petitioner was not at all interested in the job and the writ petition should be dismissed on the ground of delay and laches alone.

Heard and considered the arguments advanced at the bar and perused the material available on record.

The principle challenge laid by the petitioner''s counsel to the impugned orders is that the petitioner was seriously ill and thus, was not intimated of the notices given to him for resuming duty. It is relevant to submit that the order Annex.3 refers to the following facts:-

(i) The petitioner absented from duty from the Court of Judicial Magistrate, Jahajpur from 14.10.2003 onwards.

(ii) Notices were sent to the petitioner''s residential address from the Office of Judicial Magistrate, Jahajpur, where the petitioner was posted on 21.4.2004 and 24.5.2004. The petitioner failed to respond to these notices, upon which the employer was constrained to publish a notice in the local newspaper on 26.7.2004 but the petitioner did not respond even thereto.

The medical documents which the petitioner has filed with the writ petition are Prescription/O.P.D. slips. There is not a single document to show that the petitioner was ever hospitalized in relation to his so-called ailment. The prescription/O.P.D. slips are dated 5.7.2003, 8.9.2004, 6.10.2004 and 6.10.2009 respectively. Thereafter with his rejoinder, the petitioner has filed a few more sickness certificates certifying that he remained sick and was unfit to resume duty for certain periods of time. It is indeed a matter of utter surprise that when the petitioner could approach the medical officer for procuring the sickness certificate, then what prevented him from going to the office and applying for leave. Thus, the plea taken by the learned counsel for the petitioner that the petitioner was suffering from a serious ailment which prevented him from going on duty, is absolutely baseless. The argument that the petitioner did not receive the notices sent to him from the Court of Judicial Magistrate is also fallacious in as much as, the notices were sent at the petitioner''s residence on 21.4.2004, 24.5.2004 and 26.7.2004 respectively. There is no document available on record to show that the petitioner had even approached any doctor or was hospitalized on these dates in relation to his treatment. The counsel for the petitioner also failed to explain the delay of 15 months in filing the departmental appeal and unusual and unexplained delay of 31/2 years in filing the writ petition. The appellate authority while hearing the appeal, questioned the petitioner regarding the date on which he gained knowledge of the order of dismissal dated 7.12.2004. The petitioner admitted that he got information of dismissal order within 2-3 days of the said order. Thus, it is evident that the whole case as set up by the petitioner that he was not given any opportunity to defend himself before the order of removal was passed, is totally false, fictitious and concocted. The appellate authority assigned detailed reasons in its order reflecting that the petitioner had every opportunity to submit the leave application before the competent authority but he deliberately chose not to do so. The defence set up by the petitioner was held to be an afterthought. The orders under challenge are based on an absolute, just and proper appreciation of the material available on record. In view of the aforesaid discussion, this Court has no hesitation in holding that the impugned orders do not suffer from any illegality, irregularity or perversity so as to call for interference by this Court in the exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution of India.

Resultantly, the instant writ petition, being devoid of merits, is hereby dismissed.

No order as to costs.