Dr. Nemi Kochar vs State of M.P. and Others

A.K. Shrivastava, J.

This petition was originally filed before the Madhya Pradesh State Administrative Tribunal at Jabalpur on 10.6.1991 and was decided by the Tribunal on 20.4.2000 directing respondents to give posting order to the petitioner within a month from the date of the receipt of the order. However, for the period in between 6.9.1983 to 30.5.1990 it was directed to the respondents to decide the claim of the petitioner. The petitioner against that part of the order of the Tribunal approached this Court by filing a writ petition which was registered as W.P. No. 3953/2000 and the matter remanded back to the Tribunal to decide the claim for the said period. In this manner, the matter was sent back to the Tribunal, however, in between, on account of the abolition of the Tribunal, this petition has been received by this Court for its adjudication.

After the writ petition has been received by this Court. The petitioner has amended the prayer clause on account of subsequent events and has further prayed that the petitioner be given post retiral benefits including family pension after taking into consideration the period of service 31.5.1990 to 20.4.2000 and thereafter till the date of superannuation as the period spent on leave. It is no more in dispute as Shri Verma, learned Govt. Advocate did not dispute this proposition that petitioner attained the age of superannuation on 31.8.2000 and stood retired on this date from district hospital Mandla. The petitioner further prayed that the impugned order contained in Annexure P/25 which has been passed subsequently on 16.8.2004 be quashed and respondents be directed to make the payment of salary for the period from 1.6.1990 to 21.8.2000, with all consequential benefits including pension, gratuity and encashment of leave etc. within a reasonable time as may be specified by this Court.

The original relief which was prayed by the petitioner seeking direction against respondent No. 5 to relieve him immediately to join at Anuppur district Shahdol has already been allowed by the Tribunal by passing the order directing respondents to give posting order to the petitioner. The State Government did not challenge that order and that order of the Tribunal became final. The petitioner has challenged the order of the Tribunal for a limited purpose which I have already mentioned hereinabove and in that regard the order has already been passed by the Division Bench of this Court.

The question now remains for decision is that whether the amended prayer which the petitioner is seeking can be granted to him. For that purpose, it would be appropriate to discuss certain dates and the events which are as follows:

S. No. Date

18.12.1967 Petitioner was appointed Dental Surgeon vide Annexure P/1

26.12.1967 The petitioner resumed charge of the said post.

21.4.1975 Petitioner was selected by PSC and he was allowed to continue in Victoria Hospital, Jabalpur (Annexure P/2).

8.8.1980 Petitioner was transferred from Victoria Hospital, Jabalpur to Balaghat.

18.8.1980 Petitioner was relieved from Balaghat to join at Victoria hospital, Jabalpur

19.8.1980 Petitioner joined his services at Victoria Hospital, Jabalpur

15.6.1982 Petitioner was transferred to Anuppur (Annexure P/ 4)

26.6.1982 He was relieved for Anuppur

1.7.1982 Petitioner jointed at Anuppur

9.3.1983 Petitioner was attached to Medical College, Jabalpur though he was posted at Anuppur (Annexure P/7).

10.3.1983 Petitioner was relived from Anuppur to join at Medical College, Jabalpur (Annexure P/8)

11.3.1983 Petitioner joined his services at Medical College, Jabalpur (Annexure P/9).

It has been contended in the petition that Director, Medical Education recommended cancellation of attachment of petitioner from Medical College, Jabalpur

20.5.1986 Dean Medical College, Jabalpur requested respondents No. 2 and 3 i.e. Director of Medical Education, M.P., and Director of Health Services, M.P., Bhopal that his recommendation be not given effect to and the petitioner may be allowed to continue in College at Jabalpur.

Upto 8.5.1990 Petitioner was allowed to continue his services in Medical College, Jabalpur, according to Shri Agrawal, learned Senior Counsel. In the return para 3, this fact has been admitted by the respondents that the petitioner submitted his joining at Jabalpur vide Annexure P/9 dated 11/3/ 1983.

8.5.1990 Attachment of petitioner from Medical College, Jabalpur was cancelled (Annexure P/11).

31.5.1990 Petitioner wrote a letter to relive him so that he may join his services at Anuppur (Annexure P/12)

19.6.1990 Dean, Medical College, Jabalpur wrote a letter to respondent no. 2 Director, Medical Education to issue relieving order of petitioner (Annexure P/13). According to Shri Agrawal, learned senior counsel that despite of the said letter no order was issued to relieve the petitioner.

25.6.1990 Petitioner again wrote a letter to respondent No.2 Director, Medical Education to relieve him (Annexure P/14).

19 28.6.1990 Respondent No.2 i.e. Director, Medical Education wrote a letter to Director Medical Health Services to relieve the petitioner immediately (Annexure P/15). It has been proponed by Shri Agrawal, learned senior counsel that no relieving order was issued either by Dean Medical College, Jabalpur or Director Medical Education or Director Medical Health Services.

Since the petitioner was again and again knocking the doors of respondents to relieve him so that he may submit his joining at Anuppur and when he found that he was sailing his boat in the endless ocean, no option was left for him except to file the present petition before the Tribunal, which on account of the abolition of the Tribunal, has been received by this Court for adjudication.

The original prayer which the petitioner was seeking to give him posting order and to relieve him has already been allowed by the Tribunal vide its order dated 20.4.2000 and it was directed to the respondents to relieve the petitioner and to give posting to him.

It has been vehemently argued by learned senior counsel that despite there being an order to the Tribunal to relieve the petitioner and to give posting to the petitioner, since the attitude of the respondents was quite rigid, they did not issue any order in compliance to order of the Tribunal as a result of which another petition M.A. No. 310/2000 was filed by the petitioner and thereafter and in pursuance to the order dated 15.5.2000 of the Tribunal on 11.8.2000 vide Annexure P/17, Director Health Services issued posting order posting the petitioner at District Hospital, Mandla.

In pursuance to the order Annexure P/17, the petitioner joined his services at Mandla on 22.8.2000 (Annexure P/18). The CMO, Mandla accepted the joining of petitioner and gave acknowledgement in that regard which is Annexure P/19. Only after serving for 9 days, since the petitioner attained the age of superannuation he was retired from Mandla on 31.8.2000.

Shri Agrawal, learned senior counsel submits that petitioner is not challenging Annexure P/16 dated 6.9.1983, whereby the period 6.9.1983 to 30.5.1990 was treated as dies non. The only contention of his is that later on, during the pendency of this petition the impugned order Annexure P-25 dated 16.8.2004 has been issued by the Commissioner, Health Services and treated the period 1.6.1990 to 21.8.2000 as dies non. Though in the order it has been mentioned that despite a show cause notice was issued to the petitioner, he did not submit any reply and hence this order has been passed treating the period 1.6.1990 to 31.8.2000 as dies non. Shri Agrawal, learned senior counsel disputed this proposition that the petitioner did not submit any reply against the show cause notice. According to learned counsel the reply was sent and copy thereof has already been annexed. Be that as it may. The question which is to be decided is that whether a departmental enquiry was contemplated before passing a harsh order of dies non (Annexure P/25) dated 16.8.2004. Shri Verma, learned Government Advocate submits that since the petitioner did not reply to the show cause notice dated 13.3.2003, therefore, the said order of dies non was passed under FR 18 read with rule 24 of M.P. Civil Services (Leave) Rules, 1977. I am not impressed by the submission of learned Government Advocate. The order of dies non is stigmatic in nature because the entire service period of an employee would be counted as break in service and, therefore, a full-fledged departmental enquiry is contemplated. In this regard, I may place reliance on Ali Hussain Asgar Ali vs. State of M.P. 1983 MPLJ 775 wherein G.L. Oza, J (as his Lordship then was) while considering the scope of Rule 24 of M.P. Civil Services Leave Rules has categorically held that order of government treating the period of absence as break in service is not justified under Rule 24(1) which are framed under Article 309 of the Constitution of India. If it is chosen to act under sub-rule (2) of Rule 24 then disciplinary action can only be taken after following proper procedure.

There is nothing on record nor it has been submitted by learned Government Advocate that the charge sheet was issued to the petitioner mentioning the specific charge. Since this has not been done, I am of the view that the action of respondents is dehors to the provision of service jurisprudence. Such as harsh order which is based on alleged misconduct is stigmatic in nature, cannot be passed without holding a full fledged departmental enquiry. Since this has not been done, I am of the view that Annexure P/25 cannot be allowed to remain stand and the same is hereby quashed.

Apart from this, certain facts which are mentioned hereinabove and which are not disputed, cannot be marginalized and blinked away that the petitioner after his attachment in the Medical College, Jabalpur was cancelled, submitted an application to the Dean, Medical College to relieve him vide Annexure P/12 dated 31.5.1990. It is also not disputed that on 19.6.1990 Dean Medical College wrote a letter to respondent No.2 to issue relieving order. It is also not disputed that vide Annexure P/14 dated 25.6.1990, petitioner wrote a letter to respondent No.2, Director, Medical Education to relieve him and respondent No.2 wrote letter to Director, Medical Health Services vide Annexure P/5 to issue a letter relieving the petitioner. It is also not disputed that no relieving order was issued either by the Dean Medical College, Jabalpur or by Director Medical Education or even by Director Health Services. Indeed, this was the subject matter of this petition and the original relief of the petitioner was to relieve him and to give posting order which has already been allowed to the petitioner vide order dated 20.4.2000 by the Tribunal. Thus, the maxim Actus curiae nemine facit injuriam which is applicable for the Court can also be made applicable for the Government department because for no fault of the petitioner, he was made a pendulum. The petitioner was again and again knocking the doors of Dean, Medical College, Jabalpur, Director Medical Education and Director Health Services to relieve him from Jabalpur but his prayer was not accepted by any of the authority and ultimately he approached the Tribunal to pass an order in that regard. For these additional reasons also, the period between 1.6.1990 to 21.8.2000 cannot be treated as dies non.

Eventually, Annexure P/25 dated 16.8.2004 is hereby quashed. The respondents are hereby directed to make the payment of entire salary to the petitioner of the period 1.6.1990 to 21.8.2000 on or before 31.10.2006 failing which the petitioner shall be entitled for interest @ 6% per annum with effect from 1.11.2006. The petitioner would also get the post retiral benefits admissible under the law. Since the petitioner has already been retired on 31.8.2000, respondents are directed to settle the pension of the petitioner in accordance to law, on or before 31.10.2006. Respondents are further directed to pay all the retiral dues admissible to him on or before 31.10.2006 failing which he shall be entitled to the interest @ 6% per annum from 1st November, 2006.

Ex consequenti, this petition succeeds and is hereby allowed to the extent indicated hereinabove. The petitioner shall also be entitled to the cost. Counsel fee Rs. 3000/- if pre-certified.