Kamakshi Agarwal vs The State of Rajasthan and Others

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner Kamakshi Agarwal has approached this Court assailing the legality and validity of the order dated 21.03.2007 (Annexure-24), whereby the District Elementary Education Officer, Jaisalmer, acting on the recommendations of the Block Elementary Education Officer, Panchayat Samiti Sankada and while exercising powers under Rule 86(3) of the Rajasthan Service Rules directed removal of the petitioner from service on the ground of habitual willful unauthorised absence from duty.

Facts in brief are that the petitioner was appointed as a Teacher in the Elementary Education Department of Government of Rajasthan by order dated 04.11.1997. It is asserted in the writ petition that she was posted at the Government Upper Primary School, Dholia where one Shri Poonam Chand Bishnoi was posted as a Physical Instructor and was also officiating as the Headmaster. It is further alleged that Shri Poonam Chand Bishnoi was harassing the petitioner and was threatening her without any justification. The petitioner has tried to demonstrate and establish her aspersions against Shri Poonam Chand Bishnoi by placing certain documents on the record of the writ petition. While the tussle between the petitioner and Shri Poonam Chand Bishnoi was allegedly continuing, the petitioner submitted representations to the higher ups regarding the problems faced by her while being posted at village Dholia and also to take action against Shri Poonam Chand Bishnoi. She requested the District Education Officer, Jaisalmer to transfer her from Dholia to some other place and as a consequence, the petitioner was transferred for a short period of three months from Dholia to Kanod. Thereafter, a modification was directed in the petitioner''s place of posting and she was transferred to Govt. Upper Primary School, Jethwai on 25.09.2003. The petitioner was thereafter, again transferred from the school, Jethwai to Dholia. She reported for joining at the office of the Primary Education Officer, Panchayat Samiti Sankada on 31.05.2004. However, admittedly the petitioner did not turn up at the school under the pretext that summer vacations were being observed at the relevant point of time. She reported back to the Primary Education Officer, Sankada on 01.07.2004 and sought leave for a short period which was sanctioned. However, she did not report back on duty and remained unauthorisedly absent thereafter upon which, a show cause notice was served upon her to explain her unauthorised absence. The petitioner submitted an explanation regarding her absence beyond the leave period and finally, by an application/representation dated 12.07.2004, addressed to the Block Elementary Education Officer, Panchayat Samiti Sankada, expressed her inability to join duty at the Government School Dholia. Another representation was submitted by the petitioner on 26.11.2004 requesting the authorities to transfer her from Dholia to any other place. The petitioner allegedly kept on representing her case to the respondents by reiterating her prayer for transfer from Dholia.

Further case is set up in the writ petition that the petitioner is suffering from serious ailments. Certain medical slips/prescriptions have been filed alongwith the writ petition in order to substantiate the said claim. She also claims to have applied for medical leave. As per the petitioner, owing to her illness, she was unable to discharge duties as a Teacher at the Dholia School and thus, by an application (Annexure-21) dated 22.10.2004, addressed to various authorities, including the then Chief Minister of Rajasthan, she reiterated her prayer for transferring her from Dholia. It is further averred that the petitioner was shocked and surprised to come across a notice published in a local newspaper dated 18.06.2006 purporting to initiate proceedings against her under Rule 86(3) of the Rajasthan Civil Service Rules and calling upon her to submit a reply thereto. The petitioner immediately addressed a representation dated 23.06.2006 to the District Education Officer, Jaisalmer requesting him to drop the proceedings initiated against her. The petitioner however claims that to her utter surprise, even without considering her reply and representations, the Appointing Authority passed a grossly illegal order dated 21.03.2007 (Annexure-24) and removed her from service without taking recourse to the mandatory process of a regular inquiry as warranted under the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ''Rules of 1958''). It is asserted that before directing the petitioner''s removal from service, no endeavour was made even to initiate a departmental enquiry as per the mandate of law. Further case is set up that on coming to know of the order whereby she was removed from service, the petitioner went into depression. Adding to the petitioner''s woes, she was served a decree of divorce dated 20.09.2008, which sent the petitioner into a further state of agony. She underwent treatment for depression and ultimately, after having regained some confidence, the petitioner claims to have preferred the instant writ petition against her alleged illegal removal from service vide order dated 21.03.2007 (Annexure-24).

Shri Kuldeep Mathur, learned counsel for the petitioner vehemently contended that the impugned order dated 21.03.2007 (Annexure-24) directing removal of the petitioner from service without taking recourse to a regular departmental inquiry is per se illegal and contrary to the mandate of law as provided in the Rules of 1958. He submits that the petitioner had forwarded numerous applications to the authorities explaining her period of absence and the authorities were under an obligation to consider the petitioner''s representations before proceeding against her under Rule 86(3) of the Rajasthan Service Rules. As per him, even assuming that the petitioner remained willfully absent from duty for a prolonged period, it was incumbent upon the authorities to have resorted to a regular inquiry under the Rules of 1958 before she could be removed from service. In support of this argument, the learned counsel drew attention of this Court to Rule 86 of the RSR and contends that Rule 86(3), by resorting whereto, the order of removal was passed against the petitioner, itself provides that initiation of inquiry under the CCA Rules, 1958 is essential before a Government Servant, who willfully remains absent from duty, can be removed from service. He placed reliance upon the following judgments and urged that the writ petition deserves acceptance and the impugned order should be quashed.

"(i) Jai Shanker Vs. State of Rajasthan, ,

(ii) S.N. Mukherjee Vs. Union of India, ,

(iii)Kailash Chand Sethi v. State of Rajasthan & Ors., WLC 1993 (3) Raj.188 , and

(iv) Shiv Shanker Sharma Vs. Rajasthan Rajya Vidyut Prasaran Nigam Ltd.--> ."

Per contra, Smt. R.R. Kanwar, Government Counsel has vehemently opposed the submissions advanced by the learned counsel for the petitioner. She relied upon the following judgments in support of her arguments and urged that the writ petition deserves to be rejected.

"(i) Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu, ,

(ii) Farida Lukman Vs. State and Others, ,

(iii) Farida Khan v. State of Raj. & Ors., DB Civil Special Appeal No. 590/2010, decided on 07.01.2011,

(iv) Suleman Khan v. State of Rajasthan & Ors., , WLC 2008(2) Raj. 504 and

(v) Ahsan Ahmed v. State of Raj. & Ors., WLC 2008(6) Raj. 596."

Her first objection was that the impugned order was passed way back in the year 2007 whereas the petitioner preferred the instant writ petition after a gross unexplained delay of three years. As per her, the undue and unexplained delay of three years in challenging the order of termination is in itself, sufficient to throw out the writ petition on the ground of laches. She further contended that looking to the admitted facts as available on record, initiating and conducting regular departmental inquiry under the Rules of 1958 was not at all warranted before removing the petitioner from service. She urged that looking to the petitioner''s conduct i.e. her continuous and willful unauthorised absence from duty for a period of almost three years, the authorities were absolutely justified in taking recourse to Rule 86 (3) of the Rajasthan Service rules and removing her from service for abandonment of duty. She relied upon the judgment rendered in Farida Lukman''s case (supra) and asserted that in the said case also, the employee was removed from service on account of prolonged absence from duty and in this background, the Court held that the conduct of the employee disentitled her from putting forth the technical challenge of non-holding of inquiry. She submitted that the judgment in Farida Lukman''s case (supra) was affirmed by the Division Bench and the facts of the case at hand are squarely covered by the ratio of the said judgment. Relying on the judgment rendered by this Court in Suleman Khan''s case (supra), she contended that it was held that in a case involving abandonment of service where the employee voluntarily and unauthorisedly remains absent from duty for a long period, no prejudice is caused to the employee by non-holding of an inquiry. She thus, submits that the petitioner is not entitled to the relief claimed in the writ petition.

I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record.

The fact regarding the petitioner''s continuous willful unexplained and unauthorized absence from duty was not contested very seriously by the counsel for the petitioner. He, of course, relied upon certain applications forwarded by the petitioner to the Block Elementary Education Officer so as to put-forth an explanation for her prolonged absence but the reasons mentioned in the applications are far from convincing. All that is projected in the applications is that the petitioner was finding it difficult to work at Dholia. This by itself could not have been the reason for the petitioner to abandon duty. If at all, the petitioner was aggrieved of any harassment meted out to her by a particular teacher at Dholia then, she could have approached the competent Court or Tribunal ventilating her grievances. Be that as it may, the teacher Shri Poonam Chand Bishnoi, against whom aspersions are aimed by the petitioner, is not a party respondent in the instant writ petition and as such, this Court would be loathe to make any comments in this regard. If at all, the petitioner desired that the Court took cognizance of such allegations, then it was essential for her to implead the concerned person as a party respondent in the proceedings. Thus, the allegations levelled by the petitioner against Shri Poonam Chand Bishnoi so as to set up a defence for her willful absence are prima facie untenable. The petitioner has also set up a case that she was suffering from serious ailments. She has attributed her prolonged absence to the medical problems faced by her. The medical certificates, which have been placed on record, do not fortify the petitioner''s contentions. The first medical certificate, which is placed on record of the writ petition, is dated 20.07.2004 wherein, the medical officer concerned certified that the petitioner was suffering from abdominal pain and was advised rest for 18 days. Another certificate dated 20.07.2004 reflects that the petitioner was suffering from ovarian bleeding which is a normal gynecological phenomenon. Between July, 2004 to February, 2005, there is no medical certificate/prescription to establish the petitioner''s allegation that she was suffering from any ailment. The certificate (Annexure-18) dated 27.02.2005, which is next in the line of the documents, does not even reflect as to the nature of illness troubling the petitioner. The next certificate placed on record of the writ petition is Annexure-19 dated 06.02.2009 which relates to a period much after the petitioner''s removal from service and as such, is not at all relevant to the controversy at hand. Otherwise also, the said certificate cannot even be considered for accepting the petitioner''s defence that she was suffering from some psychological disorder. The certificate was not issued by a qualified medical officer but was issued by the Patanjali Yog Peeth, Haridwar. Thus, it is evident that the certificates, which have been placed on record of the writ petition as an endeavour to justify the petitioner''s prolonged absence from duty, are just make believes and appear to have been procured as an afterthought. In this background, this Court is of the firm opinion that the objection raised by the learned Government Counsel that undue and unexplained delay of nearly three years occasioned in filing the instant writ petition should be treated as fatal carries weight. Alongwith the reply of the State Government, numerous documents have been placed on record to show that whatever complaints were made by the petitioner, were duly responded to. The petitioner was also forwarded numerous notices for rejoining duties through ordinary as well as registered post. The notices were either refused or were returned back undelivered. A notice dated 14.05.2006 was also forwarded to the petitioner intimating her about the initiation of proceedings under Rule 86(3) of the Rajasthan Service Rules but the petitioner did not accept the same and therefore the same was pasted at her residence. The notice was also got published in the newspaper on that very same day. It is only thereafter that the authorities were constrained to initiate proceedings against the petitioner under Rule 86(3) of the Rajasthan service Rules. In the background of the facts narrated above, it is evident that even if any inquiry had been initiated against the petitioner under the Rules of 1958, it would have been nothing but an empty formality. The fact regarding the petitioner''s prolonged absence from duty, not being disputed, all that the department would have been called upon to prove in such an inquiry was to place on record the attendance registers of the school staff which are public documents admissible without any formal proof. Thus, relying upon the ratio of the judgments rendered by this Court in the cases of Farida Lukman and Suleman Khan (supra), this Court is of the firm opinion that the arguments advanced by the petitioner''s counsel are devoid of any merit, whatsoever. In the opinion of this Court, it was an absolutely justified decision of the disciplinary authority to exercise the powers under Rule 86(3) of the Rajasthan Service Rules for directing removal of the petitioner from service without holding any inquiry under the CCA Rules. The circumstances neither warranted nor required any such inquiry. The judgments cited by the petitioner''s counsel are totally distinguishable on facts and have no application to the case at hand. It is not a case where the Court feels persuaded to extend equitable relief to the petitioner in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution of India.

As a result of the above discussion, the writ petition has no merit whatsoever and the same is dismissed as such.

No order as to costs.