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Judgment
Sanjay K. Agrawal, J
This writ appeal is directed against the impugned judgment & order dated 16-11-2021 passed by the learned Single Judge in W.P.(S) No.4202/2007, by which the writ petition filed by the writ appellant herein / writ petitioner in the writ petition, questioning the order of termination dated 23-2-2007, has been dismissed by the learned Single Judge finding no merit.
It is the case of the writ petitioner, pleaded in the writ petition, that he being originally the employee of the Fisheries Department, was appointed as Assistant Grade-III on 14-1-1982 and he continued on that post. From 1-8-1993 to 14-4-1997, he remained absent for 3 years 8 months, and thereafter, again from 11-7-1997 to 10-9-1999, he again remained absent for 2 years 2 months. Finally, he remained absent from 1-2-2000 to 23-2-2007 for 7 years pursuant to which he was issued show cause notice dated 15-7-2005, why he should not be dismissed from service for remaining absent unauthorizedly for a period of 7 years to which the petitioner furnished explanation on 8-8-2005 for his unauthorized absence which was not accepted by the competent authority leading to dismissal from service by order dated 23-2-2007.
The said order was questioned in writ petition by the writ petitioner stating inter alia that the order has been passed in flagrant violation of the principles of natural justice and his explanation offered has not been considered effectively by the competent authority and since he was a regular Government servant, he could not have been dismissed from service without holding any departmental enquiry in accordance with law.
The learned Single Judge dismissed the writ petition holding that for remaining absent from 1-2-2000 to 23-2-2007, request for grant of leave has neither been prayed for nor any effort has been made by the petitioner to join the duties by which it can safely be concluded that the petitioner is habitual absentee and the medical certificate submitted by the petitioner is not genuine and for last 14 years i.e. from 1993 to 2007, he worked only for 7 months and as such, the writ petition holds no water and accordingly it was dismissed.
In writ appeal, reply has been filed as the writ petition was dismissed at motion hearing stage stating that Rule 17 of the Chhattisgarh Civil Services (Leave) Rules, 1977 (for short, ‘the Rules of 1977’) provides for submission of application for medical leave prior to the period for which leave is applied for and in exceptional circumstances, it may be submitted not later than 7 days from the date of commencement of the period of leave applied for. Rule 11 of the Rules of 1977 provides that leave cannot be granted for a continuous period exceeding five years. Since the petitioner remained absent continuously from 13-3-2000 to 22-7-2005 exceeding five years, in light of Rule 11 of the Rules of 1977, no leave can be granted to the petitioner as he has abandoned the services, therefore, the order of the competent authority dismissing the services of the petitioner has rightly been affirmed by the learned Single Judge which deserves to be reaffirmed by this Court in writ appeal.
Mr. Goutam Khetrapal, learned counsel appearing for the writ appellant herein / writ petitioner, would submit that since the petitioner was a regular Government servant, even though he remained continuously absent for a period of more than 5 years for which he has furnished explanation, yet, in view of the provisions contained under Article 311(2) of the Constitution of India read with Rule 18 of the Fundamental Rules and Rule 11 of the Rules of 1977, departmental enquiry was imperative before dismissing the petitioner from service which the learned Single Judge did not consider at all and as such, the impugned order deserves to be set aside in view of the decisions of the Supreme Court in the matters of The State of Assam and others v. Akshaya Kumar Deb (1975) 4 SCC 339, State of Punjab v. Dr. P.L. Singla (2008) 8 SCC 469, Jai Shanker v. State of Rajasthan AIR 1966 SC 492, V.C., Banaras Hindu University and others v. Shrikant (2006) 11 SCC 42 and that of this Court in the matter of Sunder Lal Kashyap v. State of Chhattisgarh and others 2020 SCC OnLine Chh 1365. As such, the writ appeal be allowed and the order of the competent authority as affirmed by the learned Single Judge be set aside.
Mr. H.S. Ahluwalia, learned State counsel, would submit that dismissal of the petitioner's services was for unauthorized absence for more than 7 years for which even as per Rules 11 & 17 of the Rules of 1977, leave was not grantable and therefore in light of Rule 18 of the Fundamental Rules, the petitioner's / writ appellant’s services have rightly been terminated as the petitioner has actually abandoned the post and as such, the writ appeal deserves to be dismissed in light of the decisions of the Supreme Court in the matters of Shahoodul Haque v. The Registrar, Co-operative Societies, Bihar and another (1975) 3 SCC 108 and Vijay S. Sathaye v. Indian Airlines Limited and others (2013) 10 SCC 253.
We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
The competent authority by order dated 23-2-2007 terminated the services of the petitioner for his unauthorized absence from 1-8-1993 to 14-4-1997 and thereafter, from 11-7-1997 to 10-9-1999 placing reliance on Rule 3(1)(ii) of the Chhattisgarh Civil Services (Conduct) Rules, 1965 (for short, ‘the Rules of 1965’) and Rule 11 of the Rules of 1977, as at that relevant time, the Chhattisgarh Civil Services (Leave) Rules, 1977, were in force. In order to appreciate the point in dispute, it would be appropriate to reproduce the order dated 23-2-2007 which states as under: -
The competent authority has terminated the services of the petitioner in accordance with Rule 3(1)(ii) of the Rules of 1965 which states as under: -
“3. General.-(1) Every Government servant shall at all times:-
(i) xxx xxx xxx
(ii) maintain devotion to duty; and
(iii) xxx xxx xxx”
Rule 11 of the Rules of 1977 provides for maximum amount of continuous leave, which states as under: -
“11. Maximum amount of continuous leave.-Unless the Governor, in view of the exceptional circumstances of the case otherwise determines, no Government servant shall be granted leave of any kind for a continuous period exceeding five years.”
At this stage, it would be appropriate to notice Rule 18 of the Fundamental Rules, which has been pressed into service by learned counsel for the respondents/State. F.R. 18 provides the effect of continuous absence from service which states as under: -
“F.R. 18. Effect of continuous absence- Unless the Governor in view of the exceptional circumstances of the case otherwise determine, no Government servant shall be granted leave of any kind for a continuous period exceeding five years.”
The combined effect of Rule 11 of the Rules of 1977 and F.R. 18 would be that except in exceptional circumstances, no Government servant shall be granted leave of any kind for a continuous period exceeding five years and as such, neither Rule 11 of Leave Rules of 1977 nor Rule 18 of Fundamental Rules expressly provide for abandonment of service on absence of continuous period exceeding five years.
At this stage, it would be appropriate to notice Rule 24 of the Rules of 1977 which states as under: -
“24. Absence after expiry of leave.-(1) Unless the authority competent to grant leave extends the leave, Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave to the extent such leave is due, the period in excess of such leave due being treated as extraordinary leave.
(2) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.”
It is clear from sub-rule (1) of Rule 24 of the Rules of 1977 that Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and it has further been provided that such period shall be debited against his leave account as though it were half pay leave to the extent such leave is due, and the period in excess of such leave due being treated as extraordinary leave. Sub-rule (2) of Rule 24 provides that willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.
The M.P. High Court in the matter of Ali Hussain (Dr.) v. State of M.P. 1984 JLJ 67, while considering Rule 24 of the Rules of 1977 held that absence after expiry of leave cannot be treated as a break in service, and observed as under: -
“It is clear that sub-rule (1) provides that when a Government servant remains absent after expiry of leave he is entitled to no leave salary but it has been further provided that such period shall be debited against his leave account as though it were half pay leave to the extent such leave is due and the period in excess of such leave due being treated as extra-ordinary leave. Sub-rule (2) further provides that wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. It is, therefore, clear that on the facts as they stand that the petitioner remained absent without the leave being sanctioned to him, and the only course open to the Government was either to act under sub-rule (1) or under sub-rule (2) of Rule 24. It could not be contended that the orders which were passed could be passed under sub-rule (1) and the learned Government Advocate could not refer to any rule which could justify an order as has been passed in this case, i.e. the order dated 21.7.1979. It is also not in dispute that if the State Government has chosen to act under sub-rule (2) of Rule 24 then it was necessary to follow the procedure of inquiry, which admittedly has not been done in this case, if it was chosen to act under sub-rule (2) then disciplinary action could only be taken after following the proper procedure. Admittedly, before passing of this order dated 21.7.1979 even a notice was not issued to the petitioner to pass such an order. It is, therefore, plain that this order which was passed by the State Government against the petitioner could not be justified under any of the rules framed under Article 309 of the Constitution of India.”
Thus, it is quite vivid that that there is no provision in the Leave Rules of 1977 as well as the Fundamental Rules for abandonment of service on absence from service for a continuous period exceeding five years. Sub-rule (2) of Rule 24 of the Rules of 1977 only provides that willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. The course open to the competent authority was to proceed against the concerned Government servant and to initiate disciplinary proceedings against him for unauthorized absence from service for a period of more than five years, but surprisingly, in the case at hand, the competent authority did not initiate any disciplinary action against the petitioner and by taking a somersault, the competent authority straightway terminated the services of the petitioner for his unauthorized absence vide impugned order dated 23-2-2007 relying upon Rule 3(1)(ii) of the Rules of 1965 read with Rule 11 of the Rules of 1977.
The effect of removal has been explained by the Supreme Court in the matter of Shyam Lal v. State of U.P. AIR 1954 SC 369 wherein it has been held by their Lordships that there can be no doubt that removal generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. It has further been held that dismissal or removal is a punishment and this is imposed on an officer as a penalty. It involves loss of benefit already earned.
At this stage, it would be appropriate to notice the safeguard and protection guaranteed to the Government servant under Article 311(2) of the Constitution of India, which provides as under:-
“311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State – (1) xxx xxx xxx
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed :
Provided further that this clause shall not apply -
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. ”
Article 311 basically aims at providing security of tenure to Government servants and guarantees constitutional protection to persons employed in civil capacities under Union and States against arbitrary dismissal, removal and reduction in rank. The protection is two fold -
(a) against removal or dismissal by an authority subordinate to that by which employee was appointed, and
(b) against dismissal, removal and reduction in rank without giving the employee a reasonable opportunity of being heard in an enquiry without complying with the principles of natural justice.
The enquiry contemplated by Article 311(2) of the Constitution of India is what is generally known as a departmental enquiry and the constitutional requirement for a proper enquiry within the meaning of Article 311(2) are basically two fold-
(i) The civil servant must be informed of the charges against him, and
(ii) He must be offered a reasonable opportunity of being heard in respect of those charges.
The scope of the words “dismissed” and “removed” employed under Article 311 of the Constitution of India came up for consideration before the Constitution Bench of the Supreme Court in the matter of Moti Ram Dheka v. General Manager, North Easter Frontier Railway AIR 1964 SC 600 in which Subba Rao, J., in his concurring yet separate opinion, has expressed that the said words mean nothing more or less than the termination of the services of a person's office. The effect of dismissal or removal of one from his office is to discharge him from that office i.e. to bring about cessation of service. Thus, the said words comprehend every termination of service of a Government servant. Article 311(2) in an effect therefore lays down that before the services of a Government servant are so terminated, he must be given a reasonable opportunity of showing cause against such a termination. Their Lordships further held that there is no decision for placing any limitation on the said expression. The attempt to imply the said limitation is neither warranted by the expressions used in the Article or by the reason given. If such limitations are imported, then it would lead to an extraordinary result that a Government servant, which has been guilty of misconduct would be entitled to a reasonable opportunity, whereas an honest Government servant could be dismissed without any such protection. A Government servant holding a substantive lien to a permanent post cannot be removed from the said post without affording a reasonable opportunity, as is contemplated under Article 311(2) of the Constitution of India. It is therefore evident that the right held by a Government employee to hold a post cannot be interfered lightly in case any such proceeding is required to be undertaken, necessary care and caution has to be ensured by the Government, which in order to safeguard the interest of a Government employee, as is contemplated under Article 311(2) of the Constitution of India. It has been observed as under in paragraphs 67 and 68 :-
“67. Therefore, whether the natural and dictionary meaning of the words “dismissal” and “removal” were adopted or the limited meanings given to those words by R. 49 were accepted, the result, so far as a permanent employee was concerned would be the same, namely, that in the case of termination of services of a Government servant outside the three categories mentioned in the explanation, it would be dismissal or removal within the meaning of Art. 311 of the Constitution with the difference that in the former the dismissed servant would not be disqualified from future employment and in the latter ordinarily he would be disqualified from such employment.
If so, it follows that if the services of a permanent servant, which fall outside the three categories mentioned in the explanation, were terminated, he would be entitled to protection under Art. 311 (2) of the Constitution.”
The petitioner was a permanent Government servant. He had a right to his substantive rank. The Supreme Court in the matter of Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36 has held that mere termination of service, without more, of such an employee, would constitute his 'removal' or 'dismissal' from service attracting Article 311(2) of the Constitution of India. As such, the constitutional protection and safeguard guaranteed under Article 311(2) cannot be taken away by a side wind without following the provisions contained under Article 311(2) of the Constitution of India.
In the matter of Jai Shanker v. State of Rajasthan AIR 1966 SC 492, the question that fell for consideration before the Constitution Bench of the Supreme Court was, whether the provisions contained under the Jodhpur Service Regulations was sufficient to enable the Government to remove a person from service without giving him an opportunity of showing cause against that punishment, if any, and it was answered in negative holding that the regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause and the Government cannot order a person to be discharged from service without at least telling him that they propose to remove him and and without giving him an opportunity of showing cause as to why he should not be removed. It has further been observed as under :-
“6. … A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here.
In our judgment, Jai Shankar was entitled to an opportunity to show cause against the proposed removal from service on his overstaying his leave and as no such opportunity was given to him, his removal from service was illegal. He is entitled to this declaration.”
Similarly, in the matter of Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330, another Constitution Bench of the Supreme Court has held that an order of termination of service passed under Rule 76 of the Bihar Service Code on account of the servant's continuous absence for five years without giving an opportunity to the servant under Article 311(2) of the Constitution of India would be invalid.
The aforesaid principles of law laid down in Jai Shanker (supra) and Deokinandan Prasad (supra) have been followed with approval by their Lordships of the Supreme Court in the matter of State of Assam v. Akshaya Kumar Deb (1975) 4 SCC 339 wherein the question that required consideration was as under :-
“7. The only question that falls for determination is whether the services of the respondent could be terminated under Rule 18 of the Assam Fundamental and Subsidiary Rules, without complying with the procedure prescribed in Article 311(2) of the Constitution of India ?”
Relying upon the decisions rendered in Jai Shanker (supra) and Deokinandan Prasad (supra), their Lordships answered the aforesaid question as under :-
“14. Now in the case in hand, the impugned order was made against the consent of the respondent who has throughout been willing to continue in service. His case is that after the expiry of his leave he reported for duty and produced a medical certificate of his fitness, but he was arbitrarily and maliciously not allowed to work after September 13, 1956. Indeed his contention is that in these circumstances, F.R. 18 would not be attracted. Apart from the constitutional requirement of Article 311(2) natural justice and fairplay required that he should have been given a chance to substantiate his contention. The fact remains that given an opportunity, he would have controverted seriously the circumstances of his absence from duty on the basis of which the impugned action has been taken.
Even if it is assumed that termination under F.R. 18 does not cause forfeiture of benefits already earned such as pension, etc., then also that will not, by itself, take it out of the category of 'removal' as envisaged by Article 311(2). The respondent was a permanent government servant. He had a right to his substantive rank. According to the test laid down by this Court in Parshotam Lal Dhingra's case, the mere termination of service, without more, of such an employee would constitute his 'removal' or 'dismissal' from service, attracting Article 311(2). From the constitutional standpoint, therefore, the impugned termination of service will not cease to be 'removal' from service merely because it is described or declared in the phraseology of F.R. 18 as a 'cessation' of service. The constitutional protection guaranteed by Article 311(2) cannot be taken away “in this manner by a side wind”.
The above enunciation applies to the facts of the present case. Excepting the length of the period of absence, the basic features of Regulation 13 in Jai Shanker's case (supra) were very similar to those of F.R. 18 now under consideration. The words “should be considered to have sacrificed his appointment” in Regulation 13, substantially correspond to the words “servant ceases to be in Government employ” in F.R. 18. Further the import and effect of the phrase “may only be reinstated with the sanction of the competent authority” in the regulation, is largely the same as that of the opening clause “unless the Provincial Government, in view of the special circumstances of the case shall otherwise determine” in F.R. 18. The difference between the regulation and F.R. 18 as to the length of absence from duty prescribed as a condition precedent for the attraction of the respective provision, is a distinction without a difference in principle. The consequence of absence, though for different periods, envisaged by both the provisions, is the same, viz., “sacrifice” or “cessation” of the absentee's service. The present case will thus be governed by the ratio of Jai Shanker's case.
In view of the above approach, it is not thought necessary to express any final opinion as to the constitutional validity of Rule 18 of Assam Fundamental and Subsidiary Rules. Although couched in ambiguous and unhappy language, the rule is capable of being interpreted and worked consistently with the requirement of Article 311(2) of the Constitution. This, however, should not lull the Government into a sense of complacency and belief that all is well with the rule. The sooner it is suitably amended, the better will it be in the interest of all concerned.”
Turning to the facts of the present case in light of the decisions rendered by the Supreme Court in Jai Shanker (supra), Deokinandan Prasad (supra) and Akshaya Kumar Deb (supra), it is quite vivid that neither in the Rules of 1977 nor in the applicable fundamental rules, there is any provision of abandonment of service for a continuous absence exceeding five years and even otherwise, petitioner is a permanent Government employee and he has constitutional safeguard and protection under Article 311(2) of the Constitution of India, as such, it was absolutely imperative on the part of the competent authority to give an opportunity of showing cause to the petitioner against his proposed termination from service particularly when the petitioner was insisting that he could not join duty on account of medical reasons and due to circumstances which were beyond his control.
Reverting finally to the facts of the present case in light of the aforesaid principle of law laid down by their Lordships of the Supreme Court in Moti Ram Dheka (supra), it is quite vivid that it is not in dispute that the appellant herein was a confirmed employee on the post of Assistant Grade-III and he has been dismissed from service on the ground that he remained absent for a period of more than five years, but no reasonable opportunity of hearing as contemplated under Article 311(2) of the Constitution of India has been provided to him even without serving show cause notice which is absolutely illegal and bad in law. Once the appellant has been appointed on substantive post and his services have been confirmed, even if he has conducted misconduct, the procedure envisaged under Article 311(2) of the Constitution of India was required to be followed and the appellant ought to have been given reasonable opportunity of being heard instead of simply terminating his services holding that his conduct is violative of Rule 3(1)(ii) of the Rules of 1965 and contrary to Rule 11 of the Rules of 1977. As such, even if no leave was grantable to the appellant after the period of five years by virtue of Rule 11 of the Rules of 1977 read with Rule 18 of the Fundamental Rules, yet, the appellant was required to be proceeded departmentally in view of the procedure contained in Rule 24(2) of the Rules of 1977 read with Article 311(2) of the Constitution of India which is the constitutional protection guaranteed to the appellant and in view of the principles of law laid down by their Lordships of the Supreme Court in the matters of Jai Shanker (supra), Deokinandan (supra) and Akshaya Kumar Deb (supra).
Therefore, we are of the considered opinion that the impugned order is liable to be set aside and it is hereby set aside. Since the appellant has already attained the age of superannuation, he would not be entitled for reinstatement, but he will be entitled for consequential benefits except back-wages in the facts and circumstances of the case. We deem it inexpedient to grant leave to the State to proceed afresh against the appellant in the facts and circumstances of the case including his superannuation in the meanwhile.
Accordingly, this writ appeal is allowed to the extent indicated herein-above leaving the parties to bear their own cost(s).