Dalbir Singh vs State of Haryana

Rajiv Narain Raina, J.—The petitioner was a Dental Surgeon serving in the Health Department, Haryana. He applied for ex-India leave in 2006 with permission to travel to Canada. His request was accepted by permission order dated 29th May, 2006. The petitioner had earned leave to his credit and was permitted to draw from that to cover the period 12th June, 2006 to 08th December, 2006. The earned leave request was accepted by order dated 28th September, 2006. While in Canada, the petitioner applied for extension of leave to 25th January, 2007. He resumed duty on 24th January, 2007 in Haryana Armed Police Hospital, Madhuban, Karnal. The petitioner again filed a request through letter dated 19th February, 2007 addressed to the Commandant 4th Battalion, HAP Hospital, Madhuban giving out that his parents are living in Canada and since his mother is a patient of Diabetes and Cardiac dysfunction therefore he has to go to Canada to look after them. He accordingly requested the authorities that his leave from 19th March, 2007 to 14th July, 2007 be accepted. The petitioner proceeded to Canada to join his parents residing there. One day short of the last date of the expiry of the leave he made a request for extension of his leave till 10th January, 2008. The narration of facts pleaded in the petition stops at 10th January, 2008. The further narration of facts begins with a charge-sheet dated 14th July, 2010 issued to the petitioner under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987.

The charge against him was that he was staying abroad without permission from Government and, therefore, he had violated Rule 3.1(ii) and (iii) of the Government Employees (Conduct) Rules, 1966 which made him liable to strict disciplinary action. His reply was sought. The petitioner pleads in para. 6 of the writ petition that he did not receive a copy of the charge-sheet as a result of which he could not file reply. Be that as it may, an inquiry officer was appointed. The inquiry proceedings remained ex parte and were concluded on 20th October, 2011 by observing that it was not possible to conduct the inquiry since the petitioner was living in a foreign country. The inquiry officer recorded in his conclusion that the documents were clear enough and a fax message was sent by the Commandant 4th Battalion, HAP Hospital, Madhuban so in these circumstances, it was not possible to conduct the inquiry. The petitioner was issued a second show cause notice on 8th December, 2011 that charges levelled stood proven and the Government of Haryana acting through the disciplinary authority was provisionally of the opinion that a penalty of dismissal from service may be imposed on him. The respondents accordingly granted 15 days'' time to the petitioner to file representation against the show cause notice. This show cause notice was received by the petitioner. He replied that the so-called inquiry report cannot be sustained in the eyes of law. The inquiry officer has not held any charge to be proved against him nor had he mentioned at the end of the report that under what circumstances it was not possible to conduct and complete the inquiry. His explanation was shrouded by parental health problems which kept him back from joining his duties. He appears to have made stories of ''some social compulsion and passport constraints'' which kept him back. He promised that he would join his duties in August 2012. His reply is dated 11th May, 2012. On 6th May, 2013 the Government dismissed the petitioner from service.

Dissatisfied with the award of punishment of dismissal from service, the petitioner has approached this Court invoking its extraordinary writ jurisdiction under Article 226 of the Constitution of India praying that the impugned order of dismissal be quashed and he be reinstated to service.

I have heard Mr. Goel appearing for the petitioner and have perused the papers placed before me.

On hearing counsel and perusing the record and noticing the missing links of facts from his last letter dated 13th July, 2007 asking for extension in leave till 10th January, 2008 and the issuance of the chargesheet on 14th July, 2010 for major misconduct of absence without leave, I am convinced that after the period 13th July, 2007 the petitioner had no intention to return to his duties as a Dental Surgeon and his intention became manifest on 10th January, 2008 when he still made no effort or give valid explanation for the absence without permission.

In Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, and Aligarh Muslim University and Others Vs. Mansoor Ali Khan, the Supreme Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and should be taken as one who ceases to be in service. In such a case, there is no need to hold an inquiry or to give any notice as it would amount to useless formalities. This view was reiterated in V.C., Banaras Hindu University and Others Vs. Shrikant, , Chief Engineer (Construction) Vs. Keshava Rao (D) by LRs., & Regional Manager, Bank of Baroda Vs. Anita Nandrajog, . The law has again been restated recently in Vijay S. Sathaye Vs. Indian Airlines Ltd. and Others, . The Supreme Court here emphasized that an employee has a right to abandon service at any time voluntarily by submitting his resignation and alternatively by not joining or reporting for duty for a long period. Absence from duty in the beginning may be misconduct, but when such absence is for a long period, it may amount to voluntary abandonment of service resulting in termination of service automatically without necessitating any further order from the employer. Therefore, the inquiry held and the dismissal order passed are legal speaking merely otiose and surplusage.

In this view of the matter, it will of little help to the petitioner to take pot shots at the infirmities, if any, in the inquiry report and the acceptance of it leading to the order of dismissal. This is for the reason that a full-fledged ex parte inquiry could have been held but that process was not adopted for good or bad reason but at the same time I am not prepared to hold that the petitioner can have any advantage of mere technicalities of the law and for which reason to come to his rescue in exercise of equitable jurisdiction exercised by this Court under Article 226 of the Constitution. I would be loathe to interfere in this matter. Merely because the petitioner had been appointed as a Dental Surgeon in August 1992 and had put in about 14 years of prior service before proceeding on sanctioned leave and thereafter without permission of leave from the Government would not in the view of this Court be a mitigating circumstance to water down the dismissal order to return him to service by ordering reinstatement. If there was any void created in dental services to the public that was filled long ago. Those wounds inflicted on the employer by denial of duty to serve the ailing stand healed long ago and those wounds do not deserve to be re-opened. The petitioner not only breached the rules he served under but also the Hippocratic oath he took as a doctor to serve humanity, if he swore on it. I would therefore dismiss this petition in limini for the simple reason that between the period 10th January, 2008 to 14th July, 2010 and thereafter the petitioner remained willfully absent till after admitting receipt of the second show cause notice on 08th December, 2011. The petitioner would be taken in law and in fact as one who has abandoned his job on his own volition for a long period for the presumption to arise as explained in Vijay S. Sathaye. There was thus neither duty cast upon the disciplinary authority to hold a formal inquiry in such a case nor any legal necessity arose to dismiss the petitioner from service by an express order. The respondents at best acted ex abundanti cautela.

No merit.

Dismissed.