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Judgment
Muzaffar Jan,J.
Cross appeals have been submitted, one by Dr. Mohd Ashraf Mufti, under LPA No. 258 of 1998 titled Dr. Mohd Ashraf Mufli Vs. State and
another and other by the State under LPA No. 68 of 2000 titled Director and Exofficio Secretary to Govt. Vs. Dr. Mohd Ashraf Mufti and in both
the appeals the order of learned Single Judge dated: 24091998 passed in SWP No. 312 of 1989 has been challenged.
Since common questions of fact and law are involved in both the appeals, the appeals are decided by this common judgment.
Facts revealed from the record of LPA 313 of 1998 are that the appellant Dr. Mohd Ashraf Mufli was initially employed as a Lecturer in the
discipline of paediatrics in SherIKashmir Institute of Medical Sciences, Soura. and subsequently was promoted to the post of professor in the
Department of Paediatrics. The appellant, on 07021988 while availing the second half period of winter vacations, commencing from 04021988 to
03031988, applied for ten weeks earned leave, to take effect from 15031988, in order to proceed to Saudi Arabia for performing Umrah. The
appellant further submits that although, he left the leave application with the respondents, he was given to understand that the leave would be
sanctioned to enable him to perform Umrah, but when he returned from Saudi Arabia on 28021989, he was served with the order of termination
No:lMS/4/1989 dated: 16011989. The order of termination was challenged in SWP No: 312 of 1989. The appellant, while admitting that he
overstayed in Saudi Arabia, in order to meet his relations and friends, asserts that lie initially applied for extension of leave for six months, and the
again for six months telegraphically. The leave requested by the appellant was not rejected and no charge sheet, show cause notice, any decision of
punishment or order of termination was received or served on him at his home address. Enquiry conducted at his back, submits the appellant,
constituted violation of Article 311 of the Constitution of India corresponding to Section 126 of the Constitution of Jammu and Kashmir, and. as
such the order of termination dated: 16011989 was bad in law. The learned Single Judge, after considering the controversy on merits, disposed of
the writ petition (SWP) 312 of 1989 dated 24091989 with the following directions:
This petition is disposed of with the direction that the petitioner would stand reinstated in service. He would start gelling wages with effect from the
date he produces copy of the order passed by this Court before appointing authority, that authority would be at liberty to come to conclusion as to
whether further enquiry is required to be held in this case or not. If it comes to the conclusion that further enquiry is required to be held then charge
sheet would be served on the petitioner and enquiry officer would also be appointed. In case it is not proposed to proceed further in the matter
then petitioner be reinstated and given all benefits minus back wages.
Aggrieved of the directions of the learned Single Judge in refusing to direct payment of back wages, letters patent appeal No: 313/98 has been
filed by the appellant.
The pleas taken in the memo of appeal No: 313 of 1998 are that no enquiry was conducted by the respondents which fact has been observed
by the learned Single Bench, and once it is held that the order of termination is bad because of noncompliance with the mandatory requirements of
Article 311 of the Constitution of India corresponding to Section 126 of the Constitution of State, and the writ petition was allowed with direction
to reinstate, the appellant would be entitled to back wages and other consequential benefits. Further plea is that absence from duty has been held
to be a technical misconduct, but is obligator,' for respondents to conduct a regular enquiry before awarding punishment. Withholding of back
wages, on a clear finding that no valid enquiry, in accordance with law, has been conducted with directions to reinstate, would not, under law,
justify the order of withholding back wages urges the counsel for the appellant. The respondents were granted liberty to conduct fresh enquiry by
Writ Court but as no fresh enquiry has been conducted, therefore, the respondents are bound to pay back wages and the order of the Writ Court,
to the extent it denies the said relief to the appellant, is liable to be set aside, argues the counsel.
In the cross appeal (LPA No: 68/ 2000) while admitting that Dr. Mohd Ashraf Mufti, respondent in this appeal, was an employee of
Sher1Kashmir Institute of Medical Sciences, Soura, holding the status of professor in the department of paediatrics, the submission made is. that
he availed the winter vacations from 04021988 to 03031988 and then applied for extension of his leave on 07021988 during vacations to take
effect from 15031988 for performing Umrah. Without waiting for sanction of leave of ten weeks, Dr. Mohd Ashraf Mufti, left the country for
Saudi Arabia without any permission. It is maintained that he has telegraphically informed on 02041988 that the leave applied for by him. has been
rejected and he should report back and resume his duties after the expiry of vacations on 05031988. The respondent, Dr. Mohd Ashraf Mufti, did
not return to resume his duty on 05031988 and continued to remain absent and out of country unauthorisedly inspite of notice. He was.
accordingly, chargesheeted vide order No: SK1MS/PER/620/882411 dated: 27041988. He did not reply to the charge sheet. Subsequently,
show cause notice was published in leading daily newspaper ""Srinagar Times' on 25061988 and was also published in Government Gazette dated:
14071988 As no cause was shown by Dr. Mohd Ashraf Mufli for his unauthorised absence, his services were terminated vide order dated
13011989. The order of termination of the services of the respondent was passed after complying with requirements of law. The respondent. Dr.
Mohd Ashraf Mufti, having served in a foreign country, would not be entitled to any benefit of reinstatement or of back wages, and, as such the
order of the learned Single Bench dated 24091998 passed in SWP No: 312 of 1989, is prayed to be set aside.
The facts which are not denied in both the appeals but are admitted, are that the appellant Dr. Mohd Ashraf Mufti, was an employee of
SherIKashmir Institute of Mcdiail Sciences. Soura, and availed second hall period of winter vacations from 04021988 till 10303198S. It is also
admitted that during the winter vacation, application was submitted by him on 0702198S requesting for ten weeks earned leave with effect from
15031988. It is also admitted that he did not wait for the leave to be sanctioned but left not only the State but also the country on 06031988 for
Saudi Arabia for performing Umrah.
Rule 15. 17 and 27 of the Jammu and Kashmir Civil Services (Leave) Rules. 1979, govern the grant of sanction to earned leave. 'The said rules
arc reproduced as under:
Application for leaveAny application for leave or the extension of ' leave shall be made in Form I to the authority competent to grant leave.
Verification of title of leave: No leave shall be granted to a Government servant until a report regarding its admissibility I has been obtained
from the authority maintaining the leave account. 27. Earned leave for persons serving in vacation Departments: A Government I servant sewing in
a vacation Department shall not be entitled to any earned leave in respect of duly performed in any year in which he availed himself of the full
vacation.
It is evident that Rule 27 does not grant the benefit of 'earned leave' to employees who 1989. The order of termination of the services of the
respondent was passed after complying with requirements of law. The respondent. Dr. Mohd Ashraf Mufti, having served in a foreign country,
would not be entitled to any benefit of reinstatement or of back wages, and, as such the order of the learned Single Bench dated 24091998 passed
in SWP No: 312 of 1989, is prayed to be set aside.
Medical profession requires high degree of personal attention. No rule or precedent has been shown to suggest that it is not obligator},' for an
employee to wait for the sanction of the earned leave, or that after submitting the leave application in the office, there is a deemed provision, rule or
procedure which would make it mandatory for the competent authority to sanction the leave. Law, on the contrary, postulates that conduct of an
employee has to be in accordance with law. Rules provide that leave can be availed only after it is sanctioned. No other interpretation is
sustainable on a plain reading of rules. Rule 27, as reproduced above, does not entitle the employee, serving in vacation departments to 'earned
leave. How could the appellant assume that he was entitled to earned leave? The appellant is a Doctor holding the post of Professor. It is expected
of him to know that basic provisions governing the sanction of leave. It will be irrational to presume that the appellant was not aware of the
consequences of his overstay in a foreign country that too without permission.
The appellant was discharging his duties as professor in the Department of paediatrics. He being a doctor and professor, was required to train
the medical students. He being the Professor, he could not have left the Institute without previous permission. If a person, like the appellant leaves
the place without informing, it becomes very difficult for the Institute to lake services of other qualified person. In a regular college, if a regular
professor is not available, it affects adversely the education of the students. The Govt. on account of uncertainly, even cannot appoint a person in
his place. If permission is granted for a certain period, then by way of focum or temporary arrangement, person can be appointed in his place so as
to sec that the students may not suffer. Without permission if the person leaves, it becomes very difficult for the Institute to make arrangement. The
courts while considering the intentional absence has to take this aspect into consideration. To remain absent, in the facts and circumstances of the
present case, cannot be considered as technical misconduct, as submitted.
There is nothing on record to suggest or show that after performing Umrah. which normally does not take more than a month's lime or at the
most ten weeks, appellant after expiry of said period approached respondents (SKIMS) Soura, for resumption of his duties. In fact, there is no
material produced by the appellant, to show that he, at any lime, approached the respondents (SKIMS) Soura for the said purpose.
The submission of the learned counsel for the Appellant, is that there has been gross violation of mandatory requirements of Article 311 of the
Constitution of India corresponding to Section 126 of the Stale constitution, in as much as. no show cause notice, no charge sheet and intimation of
the proposed punishment has been communicated to the appellant. His further submission is that notices published in Local newspaper and
Government Gazette have not been received by the appellant, and, as such, the enquiry is vitiated for noncompliance with the procedure. The
submission, though attractive, is without any basis and has to be rejected for multiple reasons. it is the admitted case of the appellant that he left the
State and country on 06031988 during winter vacations for Saudi Arabia. It is also stated in para6 of the main petition (SWP No: 312/1989) that
he (appellant) overstayed in Saudi Arabia for more than ten weeks period for which the leave had been requested. In para 7 of the writ petition, it
is further admitted that after the period of six months, he (appellant) again applied for extension of leave. The relevant portion of the memo of
petition of SWP No: 312/89 is reproduced as under:
That on reaching Saudi Arabia on 0603 1988, the petitioner performed Umrah. Since there were other relatives and friends of the petitioner
working or staying in Saudi Arabia, therefore, he extended his stay in Saudi Arabia, beyond the prescribed period and submitted an application for
leave telegraphically to the respondents, asking them to grant leave in favour of the petitioner by a further period of six months to enable him to
meet his relatives and friends in Saudi Arabia. The leave applied for telegraphically was also not rejected by the respondents.
That after the expiry of the period of six months, the petitioner extended his leave and gave an intimation of the same to the respondents.
Even if the leave application submitted on 17101988 for ten weeks would have been sanctioned, the appellant was not justified to stay in
Saudi Arabia, for further extended period of six months without sanction of leave.
The appellant, in para 8 of his writ petition admits that he returned on 28021988 i.e. after a period of one year. This aspect, i.e. whether the
appellant by staying in Saudi Arabia for a period of one year, without giving the particulars of his whereabouts, would be justified in taking benefit
of his unauthorised absence and seek quashment of his termination order, is no longer resintegra. The Apex Court in Syndicate Bank Vs. General
Secretary, Syndicate Bank Staff Association and another 2000 (5) SCC, 6i considered somewhat similar issue and observed:
Notice though sent on correct address, received back with the endorsement ""refused"". In such circumstance the Bank held, rightly treated the
employee to have voluntarily retired from servicetermination of his service without holding any departmental enquiry. Held, was not violative of
principles of natural justice/'
15: In this view of the matter, we hold that when a delinquent employee, conceals his whereabouts or proceeds to a foreign country, without
providing his fresh address and the authority, which conducts enquiry, issues notice on the address available in the official record, then, in that
eventuality, the delinquent employee cannot legitimately claim invalidation of his termination order on the grounds that no notice was served on him,
before the order was passed.
Learned counsel for the appellant argued that publication of notice in official gazette and daily newspaper, are not sufficient compliance with the
procedure. This argument is simply to be stated to be rejected out rightly. It is not the case of the appellant that he was available and could be
reached on the address recorded in the official record during the months of March. April, May, June. July and August of 1988. On the contrary,
his case is that immediately after his departure to Saudi Arabia on 06031988. he continued to be out of country till 28021989. Therefore, the plea,
that the notices issued in the official gazette and daily newspaper were not sufficient notices to intimate him about the enquiry, is without any
substance.
Learned counsel for the appellant has further submitted that the enquiry has been conducted without any intimation to the appellant and at his
back, is in violation of principles of natural justice and. therefore, the order of termination contravenes Section 126 of the Constitution of the Slate.
This submission has no merit. Principles of natural justice cannot be examined in vacuum. Their application depends upon facts and circumstances
of each case.
In case, Shahoodul Haque Vs. Registrar, Cooperative Societies Bihar and another, AIR 1974 SC, 1896, where an employee applied on
15111963 for leave to proceed to Mecca to perform pilgrimage and actually left without grant of any leave, the employee applied on 27041964
for extension of leave from Mecca, which was never granted, and returned after a years time, communication was sent to the employee by
registered post, which was returned with the report that the employee could not be found. Thereafter, two more communications were addressed
asking the employee why he should not be removed from services, no reply was submitted, it was held by the Apex Court as under:
After having been taken through the assertions made by both the sides, we have no hesitation in coining to the conclusion that even if the appellant
was being punished, so that Article 311 could apply he had been, in the circumstances of the case, given sufficient opportunity to explain lu's
conduct. He had failed to avail of that opportunity. It could not, therefore, be said that the Article 311 of the Constitution had been contravened. In
any case, on the facts before us, we think that it will be useless to afford any further opportunity to the appellant to show cause why he should not
be removed from service.
It is undeniable fact that the appellant, after leaving for Saudi Arabia on 060,31988, did not disclose his fresh address nor communicated with
the respondents and deliberately concealed his whereabouts. In these circumstances appellant cannot be permitted to take advantage of his own
intentional omission and allowed to claim relief on the basis of violation of rule of natural justice. The notices, at various stages of enquiry, were sent
on the address available with the respondents. They were not bound, in law, to trace the appellant or defer disciplinary proceedings till his return.
We are satisfied, in the facets and circumstances of this case, that there has been no violation of principles of natural justice. Requisite notices were
properly sent on the known address, providing opportunity to participate in the enquiry. For his failure to respond to the notices, the appellant has
to blame himself and not the respondents.
There is another aspect which needs to be examined. Appellant, did not at any point of time, after filing writ petition No. 312 of 1989, pray for
any direction against the respondents to permit him to resume his duly immediately after his return from Saudi Arabia on 28021989. In CMP No.
775 of 1989 filed with SWP No. 312 of 1989, on 204)31989, only prayer made by the petitioner by way of interim direction was. to require the
respondents not to fill up the post of Professor of paediatrics (surgery) in SKIMS Soura. substantively. Para No. 5 of the CMP is reproduced as
under:
That the respondents by appointing Dr. Rekha Patnaik against the post ""of professor, Paediatrics (Surgery) in the Medical Institute, Soura, ort
substantive basis has violated the order of the Hon'ble Court dated: 20031989 which order provided that the post of Professor Paediatrics
(Surgery) should not be filled up on substantive basis.
This aspect coupled with the fact that when the order under appeal was passed by the learned Single Bench on 24091998 directing the
respondents to reinstate the petitioner/ appellant and lake him back in the service, no efforts were made by the appellant either to approach the
respondents to permit him to join his duly, in pursuance of the judgment of the learned Single Bench or to move for contempt on disobedience of
the direction. In the Letters Patent Appeal, the only prayer is for a direction to the respondents to release all the consequential benefits, including
back wages, in pursuance of the order of the learned Singh Bench dated. 24091998. It appears to us that the appellant was not interested to
resume his duty on his return on 28021989 or on 24091998, when the order of reinstatement was passed by the learned Single Bench. If that be
so, these glaring circumstances not only suggest, but establish that the appellant had deliberately overstayed at Saudi Arabia and despite of
knowledge of repercussions of unauthorised absence, the appellant did not associate with the enquiry. The settled position of law would be, that
circumstances constitute surrender of employment as held by Apex Court in AIR 1999, SC,3219.
Therefore, for the reasons given above, the order of the learned Single Bench dated: 244)91998, permitting reinstatement of the appellant is
not justified. The order is. accordingly, set aside. Letters Patent Appeal No. 313 of 1998 titled Dr. Mohd Ashraf Mufti Vs. State is accordingly
dismissed.
Considering the nature of controversy raised in LPA No. 313 of 1998. valuable time of the Court has been wasted tentamounts to abuse of
process of the Court. Letters Patent Appeal No. 313 of 1998 is not only dismissed but dismissed with costs quantified al Rs. 5000/ to be
deposited by the appellant in the Lawyers Welfare Fund within three months.
In view of the finding returned in above LPA No. 313/98, the Letters Patent Appeal No. 68/2000 titled State Vs. Dr. Mohd Ashraf Mufti is
allowed.