Narain Das vs State Of Rajasthan And Ors

This petition was filed in the year 2004 claiming retiral benefits i.e. gratuity, pension, state insurance, commutation, Bonus etc. for reasons of purported voluntary retirement three month's following the petitioner's purported application dated 22.3.1994 under Rule 244 (1) of Rajasthan Service Rules, 1951 (hereafter 'Rules of 1951').

The petitioner was appointed as an Auxiliary Health Worker (AHW) in the Medical and Health Department, Government of Rajasthan vide order dated 21.6.1960 and joined on 24.6.1960 at the Primary Health Centre, Udaipurwati, District Jhunjhunu. He was confirmed w.e.f. 24.6.1960 on the said post vide order dated 19.8.1963. The petitioner was apparently promoted vide order dated 19.1.1976 on the post of Non Medical Supervisor and posted in the office of Dy. C.M.H.O. (Health), Nagaur. He then appears to have been transferred to Barmer vide order dated 15.2.1977.

The petitioner case is that at the relevant time as he was suffering from illness and not feeling well he could not join his duty at Barmer, and so informed the Dy. C.M.H.O., Nagaur, the Officer at the Barmer office, and the Director, Medical & Health Services, Jaipur in that regard. And after recovering from the alleged illness, the petitioner states to have gone to Barmer to join his duty as Non Medical Supervisor but that the Department did not allow him to join. It has been submitted that the petitioner thereafter again took ill consequent to which he submitted an application for voluntary retirement under Rule 244 (1) of the Rules of 1951 on 22.3.1994. It has been submitted that no response of denial of voluntary retirement to the said application was received within the statutory period of 90 days for reason of which the petitioner stood voluntarily retired and was entitled to all retiral benefits. The petitioner's case in the alternative is that even otherwise he, born on 15.10.1939, was entitled as per his age for retirement on 14.10.1997, following which retiral benefits should have been allowed to him. Yet such benefits due, one way or the other remain unpaid. Hence this petition.

Reply to the petition has been filed denying the case set up by the petitioner as regard his entitlement to retiral benefits. It has been submitted that initially the petitioner sought leave which was granted from 9.7.1976 to 14.7.1976. Subsequent to the leave period having expired, the petitioner did not rejoin his duties on the post of Non Medical Supervisor in the office of Deputy C.M.H.O., (Health) Nagaur. The petitioner was directed vide letter/ telegram nos.PH/Inst. 76/5 dated 23.7.1976, 145 dated 4.8.1976, 308 dated 26.8.1976, 516-17 dated 15.10.1976, 540-41 dated 16.10.1976, 608 dated 27.10.1976, 685-86 dated 2.11.1976, 874-77 dated 19.11.1976, 878-81 dated 22.11.1976, 1915-19 dated 24.11.1976 and 1507-11 dated 15.2.1977 to report to work in the office of Deputy CMHO Nagaur, but to no avail. The petitioner was thereupon transferred to Barmer and relieved from Nagaur by the Deputy CMHO on 15.2.1977. The petitioner however did not report at any point of time to his new place of posting at Barmer. No material with regard to the alleged illness which prevented the petitioner from complying with the order of transfer to Barmer was furnished. The petitioner continued to remain absent without authorized leave from 15.7.1976 to 5.11.1983-over a period of 7 years tantamounting to gross misconduct. The petitioner was informed of his misconduct for reason of his absence without authorized leave for over 7 years vide notice dated 2.11.1983 which was published in the vernacular newspaper Rashtradoot. He was required to report within one week failing which proceedings under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereafter 'Rules of 1958') were to be taken against him for misconduct flowing from seven years long unauthorized absence. It has been submitted that as the petitioner yet did not report for duty as required, proceedings for misconduct for reasons of unauthorized absence and insubordination were initiated against him under Rule 16 of the Rules of 1958. Despite notice, no appearance in the departmental enquiry was made. Ex-parte proceedings were initiated and on the material on record the petitioner was removed from service vide order dated 12.3.1990 passed by the Director, Medical and Health.

The respondent-Department submitted that in the circumstances, the petitioner's application for voluntary retirement filed on 22.3.1994 was of no legal effect as at the relevant time he was not in service, earlier having been removed after due process. And in this view of the matter the writ petition is completely misdirected, without legal foundation, baseless and liable to be dismissed.

Following the reply to the petition, an application for amendment of the writ petition seeking to challenge the order dated 12.3.1990 removing the petitioner from service. It has been submitted that the charge-sheet of the departmental enquiry initiated under Rule 16 of the Rules of 1958 and the removal order passed on 12.3.1990 was never served on the petitioner. The proceedings under Rule 16 of the Rules of 1958 and the order of removal were thus in contravention of the principles of natural justice and hence of no effect. It has been prayed that the application for amendment of the petition be allowed and the amended petition be then decided.

Heard. Considered.

Proceedings against the petitioner for unauthorized absence from duty for over seven years were initiated with the show cause notice published in newspapers for the inability despite all efforts to otherwise serve him. The petitioner yet not having participated in the departmental proceedings despite notice, proceedings therein was made ex-parte. The order of removal of the petitioner was thus passed after due process on 12.3.1990. The application for voluntary retirement filed by the petitioner on 22.3.1994 was thus of no relevance and avail.

Even otherwise the petitioner on his own say was to have superannuated on 14.10.1997 on reaching the age of retirement. Yet the petitioner for inexplicable reasons did not seek to ascertain as why he was not being paid his purportedly due retiral benefits. He ought to have so done if in fact he did not do it. The simulated innocence of the petitioner flies in the face of the legal presumption of facts which the Court thinks likely to have happened regard being had to the common course of human conduct.

I am of the considered view that in the facts of the case obtaining, there is a ring of falsehood in the petitioner's case that he was not aware of the order of his removal passed on 12.3.1990. In law, with notice of the departmental enquiry under Rule 16 of the Rules of 1958 having been published in the newspapers, the petitioner is deemed to have had knowledge of such proceedings. More so when no malafides have been alleged supported by material particulars. The petitioner admittedly absented himself from work/ duty without authorized leave since 15.7.1976 to 5.11.1983-and thereafter. That has not been denied. He never ever joined his duty. The petitioner cannot be allowed in the Court's extraordinary equitable discretionary jurisdiction now to a challenge the order of his removal dated 12.3.1990 on 28.1.2006, after a delay of 16 years when he moved the application for amendment. The court is not a forum where a mere bald denial of knowledge of an order flying in the face of the presumption under Section 114 of the Evidence Act can facilitate circumvention of the bar of laches in invoking this Court's jurisdiction under Article 226 of the Constitution of India. There is no justification in the facts of the case to allow the petitioner to amend the writ petition and challenge the order of removal dated 12.3.1990 after an inordinate delay of over 15 years. The application seeking amendment of writ petition is therefore dismissed.

Resulting from dismissal of the application for amendment of the writ petition, the main petition with the prayers for grant of retiral benefits to the petitioner following his purported voluntary retirement on his application moved on 22.3.1994- (subsequent to removal on 12.3.1990) under Rule 244(1) of the Rules of 1951 is of no consequence. The petitioner, having been already then removed from service, after a departmental enquiry, vide order dated 12.3.1990, cannot thereafter seek for whatever its worth, voluntary retirement and consequential retiral benefits.

The writ petition is obviously misdirected, wholly baseless and being devoid of merits is liable to be dismissed.

So dismissed.