Ghulam Fatima vs State Of J&K & Others

Tashi Rabstan, J

Through the medium of this petition, the petitioner is seeking to quash Order No.141 of 2008 dated 03.01.2008 issued by the Principal, Government Medical College, Srinagar, Respondent No.2 herein, by virtue of which the petitioner came to be terminated from service with effect from 19.05.1983 for remaining unauthorized absence from duty. The petitioner is also seeking a direction to the respondents either to treat her to be in service or pay post retiral benefits.

It is averred in the writ petition that the petitioner held the post of Nursing Supervisor at S.M.H.S. Hospital, Srinagar on substantive basis. On 18.02.1983 she applied for 30 days leave. Thereafter, the leave was extended by the petitioner for a period of 60 days from 18.03.1983 to 18.05.1983, which was also sanctioned. It is averred thereafter too she sought further extension of her leave from time to time, but at no stage the respondents responded to the leave applications and the petitioner bonafidely believed that her leave applications have been sanctioned. Thereafter, in the year 1995 she sought voluntary retirement from service with effect from the month of June, 1995 on completion of 20 years of qualifying service. However, instead of acceding to the request of petitioner, respondent No.2 issued notice to the petitioner on 08.05.1999 asking her why her services be not terminated on account of unauthorized absence. It is averred that the petitioner replied to the said notice on 16.08.1999 and also filed SWP No.697/2002 in the High Court. It is further averred that vide order dated 19.05.2004 the High Court directed the respondents to take a final decision to the show cause notice dated 05.08.1999 within a period of six months. However, respondent No.2 vide Order No.141 of 2008 dated 03.01.2008 terminated the services of petitioner with effect from 19.05.1983 for remaining unauthorized absent from duty. Hence, the present writ petition.

Learned counsel appearing for petitioner argued that the order-under-challenge is bad in law as the services of petitioner came to be terminated without conducting any inquiry nor the petitioner was ever afforded an opportunity of hearing. He further argued that respondent No.2 was not the competent authority to pass the order impugned. Learned counsel also argued that absence without leave or after the end of the leave does not involve loss of appointment if the post of alleged absentee is substantively filled.

Objections have been filed on behalf of respondent No.3 averring therein that the controversy is between the petitioner as well as respondents 1 & 2, as such, the matter can be replied only by respondents 1 & 2. However, respondents 1 & 2 failed to file objections/counter affidavit despite granting of number of opportunities. Even respondent No.2 has failed to produce the record.

On 24th February, 2022 when the matter was listed for hearing, learned AAG appearing for respondents 1 & 2 submitted that the matter may be finally heard. Accordingly, the learned counsel appearing for the parties submitted their arguments and the matter was kept reserved. After the matter came to be reserved for pronouncement of judgment, learned AAG appearing for respondents 1 & 2 filed the written submissions averring therein that respondent No.2 published the notice of unauthorized absence in newspaper dated 18.05.1999 asking the petitioner to show cause as to why her services be not terminated and was also asked to join her duties within three days. However, she got the notice replied through her counsel Mr. Altaf Haqani as reportedly the petitioner had taken a foreign assignment. It is further averred that in pursuance of order of this Court dated 19.05.2004, a notice was also issued to the petitioner through media on 22.12.2008 asking her to appear in person before the Principal GMC by 29.12.2008 in order to give her opportunity of being heard, however, she failed to appear. Further, it is averred that notices were issued to the petitioner from time to time which she failed to comply with thereby making herself liable to be terminated from services through her conduct.

Learned senior counsel appearing for respondents 1 & 2 argued that since the petitioner was absent from duty for more than five years, as such in terms of Article 113 of J&K CSR the petitioner was treated to be out of State service. Now she has no right to plead that she may be accorded pensionary benefits.

I have perused the file and also considered the rival contentions of learned counsel appearing for the parties.

Although through the medium of instant writ petition the petitioner is claiming for pensionary benefits on completion of 20 years of qualifying service, yet a perusal of the file reveals that the petitioner has very cleverly nowhere mentioned in the whole petition as to when she came to be appointed as a Nursing Supervisor on substantive basis at S.M.H.S. Hospital, Srinagar, in absence of which how could one believe the veracity of such a claim. However, in paragraph-2 of the petition, the petitioner herself claims that she applied for voluntary retirement with effect from the month of June, 1995 on completion of twenty years of ‘qualifying service’. If this version of petitioner is believed to be true, then the petitioner must have been appointed in July, 1975. A perusal of the order impugned dated 03.01.2008 reveals that the petitioner proceeded on 30 days earned leave with effect from 18.02.1983. On completion of said leave period she again applied for extension of 60 days earned leave with effect from 18.03.1983 to 18.05.1983, which too was sanctioned. After the expiry of said leave period she again applied for extension of leave, however, the same was not sanctioned and she was asked to join her duties. However, instead of joining her duties she remained on unauthorized absent for a huge period of twelve years till 25.02.1995 when she applied for voluntary retirement from the month of June, 1995 without explaining any reason as to why she was on unauthorized absence for such a long period of twelve years; meaning thereby the petitioner had only about seven and a half years of regular service at her credit from July 1975 to February 1983, then how could she claim that she had a twenty years of qualifying service. Qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under relevant rules. Once out of twenty years the petitioner on her own had remained on unauthorized absence for more than twelve years, then how could she claim to have completed 20 years of qualifying service.

Further, in paragraph-(c) of the petition the petitioner has herself admitted that respondent No.2 got the notice dated 08.05.1999 published in local newspaper in which she was asked to show cause as to why her services be not terminated on the grounds of unauthorized absence. The petitioner also claims to have replied the said notice. A perusal of said notice reveals that 60 days earned leave with effect from 18.03.1983 to 18.05.1983 was extended in favour of petitioner only after taking an undertaking from the petitioner that she would not extend her leave again. However, despite giving an undertaking, the petitioner again applied for extension of leave for one month which came to be rejected. Again she applied for extension of 120 days leave with effect from 08.09.1983 on the ground of ill health. Thereafter, the petitioner again applied for extension of leave with effect from 08.01.1984, however, a registered AD letter was served at the home address of petitioner directing her to attend her duties within three days, failing which action would be taken against her. The petitioner neither joined her duties nor replied to the said registered letter nor she applied for any kind of leave beyond 08.01.1984 or produced any medical papers explaining reasons for extension of leave. Then after a lapse of about 12 years, i.e., in the year 1995 she applied for voluntary retirement; meaning thereby the petitioner remained on unauthorized absence for such a long period of 12 years despite giving an undertaking in March 1983. In the petition the petitioner has not given any sort of reason why she remained on unauthorized absence for 12 years nor she produced any type of medical record. The petitioner has failed to explain her conduct, and also unauthorized absence of more than 12 years remained unexplained, thus the petitioner is debarred from taking any type of plea.

Further, the petitioner was posted at S.M.H.S. Hospital, Srinagar and, as per instant petition, her residential address is Shah Mohalla, Nawab Bazar, Srinagar; meaning thereby the petitioner was residing at Srinagar and her posting too was at Srinagar but despite that she never attended her office for more than 12 years nor she ever bothered to visit the office to explain her unauthorized absence. During the period of her unauthorized absence of more than 12 years, whether the petitioner was actually residing at Srinagar or somewhere else in abroad doing some other job, is also a question to be gone through. Learned counsel for respondent No.2 has also averred that petitioner had been doing some foreign assignment, and if the State Government really intends, it can be easily verified by going through the passport of petitioner. If the petitioner was so genuine and residing at Srinagar, then why she did not approach respondent No.2 during these 12 years for release of her salary by giving explanation and submitting any medical papers in support of his illness. Otherwise too, the petitioner herself was a Nursing Supervisor posted at S.M.H.S. Hospital, Srinagar.

In Delhi Transport Corporation, (2004) 7 SCC 574, unauthorised absence from duty of conductors in the Delhi Transport Corporation, for periods ranging from 45 days to 294 days, was in issue. The entire period of absence was without sanction of leave and while this fact was not in dispute, it was contended on behalf of the conductors that they had applied for leave. It is in such circumstances that the Supreme Court, while holding that mere making of an application after or even before absence from work did not in any way assist the employee concerned, held that when an employee absents from duty without sanctioned leave for a long period it prima facie showed lack of interest in work.

The Apex Court in State of Odisha v. Ganesh Chandra Sahoo, Civil Appeal No.9514 of 2019 (arising out of SLP(C) No.1731 of 2019), decided on 10.01.2020, has held that in the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunal’s rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondent.

The judgment cited by the learned counsel for petitioner in Iftikhar Ahmad Kakroo vs State of J&K, SWP No.1882/2012 decided on 19.08.2017, in no way applies to the facts of present case.

Therefore, in view of what has been discussed above, I do not find any merit in the writ petition and the same is, accordingly, dismissed along with connected IA(s), if any.