Ram Kishore Gupta vs The State of H.P. and Others

Chet Ram Thakur, J.—This is a writ petition for a direction or order to be issued to Respondents 1 to 3, i.e. the State of Himachal Pradesh, the Director of Health Services, and the Chief Medical Officer, Simla, respectively, to reinstate him in the post of Health Visitor with effect from 1-2-1969 and also declaring him entitled to all consequential benefits including a writ of mandamus calling upon the Respondents to make payment to the Petitioner of his salary and other dues till date.

The Petitioner was appointed on 16-11-1966 as Health Visitor in the Municipal T.B. Clinic, Simla, and he actually joined his duties on 10-12-1966. He was placed on probation for a period of one year. He successfully completed the probationery period on 10-12-1967 and became a permanent employee of the Municipal Committee, Simla, after the expiry of that period. In March/April, 1968, the erstwhile Government of Himachal Pradesh took over various institutions including the Municipal T.B. Clinic, Simla, which was then run by the Municipal Committee, Simla. The employees were also absorbed in the Government service with effect from 1-4-1968 and the Petitioner thereafter was absorbed in Government service in a permanent capacity on the same terms and conditions which were applicable to him while he was serving under the Municipal Committee, Simla.

On 10-1-1969 the Petitioner was granted 20 days'' earned leave by the Chief Medical Officer, Simla district, vide order, Annexure T'' to the petition. While he was on leave and was stationed at Ludhiana, his son was taken ill. Consequently, he could not rejoin duty on expiry of the leave sanctioned. On 7-2-1969 he sent a telegram seeking extension of leave on the ground of illness of his son. However, the Chief Medical Officer on 10-2-1969 sent a registered letter to the Petitioner in which the telegram sent by the Petitioner was acknowled ged and the Petitioner was required to produce the certificate of ailment of his son from the Chief Medical Officer, Ludhiana. Thereupon the Petitioner sent two certificates, Annexures J and K, dated 3-2-1969 and 11-2-1969 respectively. Thereafter the Petitioner did not receive any communication. In the meantime the Petitioner himself was taken ill. Soon after he applied for extension of leave and sent medical certificates, Annexures L.M. and N, dated 25-2-1969, 11-3-1969, and 14-4-1969 respectively in support of his illness. All these medical certificates along with leave applications were sent under the Certifica tes of posting copies of which are Annexures P.Q. and O. On 20-6-1969 the Petitioner obtained a certificate from the doctor that he was fit to resume his duties, and the copy of the same is Annexure R, to the petition. He reached Simla on 21-6-1969. 22nd June being holiday he reported himself for duty on 23rd, but his report was not accepted and he was verbally told that he was under orders of transfer. He asked for the orders of transfer so that he could comply with the same. However, till now no orders of transfer were served on him although verbally he was told that he has transferred to Rampur Bushahr. In the absence of any orders served upon him it was impossible for him to comply with the so called orders of transfer. Thereafter the Petitioner sent a letter on 23-7-1969 under registered acknowledg ment due cover stating the entire facts (Annexure S), but no reply was received. He again sent a letter to the Director and requested that the transfer orders should be communicated to him and further claimed that the salary due to him should be paid, vide Annexure T. Still nothing was communicated to him. He met the authorities concerned. Although he was assured that his case was looked into yet nothing came out. Then he made a representation on 20-1-1972 to the Director, copy of which is Annexure U. On 4-2-1972 he was informed that the representation has been forwarded to the Secretary (Medical), vide Annexure V. On 18-1-1972 he again sent a representation, copy of which is Annexure W. On 8-2-1972 he was informed that his representation was forwarded to the Secretary (Health). Thereafter on 21-3-1972 he again sent a representation to the Director, Annexure X. On 18-12-1972 the Chief Medical Officer, Simla, passed an order about the salary of the Petitioner upto 1-2-1969, but no order relating to payment of salary thereafter was passed. He again met the authorities concerned, who still gave him assurance that action will be taken to reinstate him in the service. He again represented his case vide Annexure Z-1. On 17-11-1973 he was asked by the Director of Health Services that he should send the original medical certificate in support of the illness of his son issued by the medical authorities of Christian Medical College and Brown Memorial Hospital, Ludhiana. He was further asked whether he received any orders of transfer from the Chief Medical Officer. He again sent a communication to the Director of Health Services giving all information, vide Annexure Z-2, yet no reply was given to him. The Petitioner had to his credit full pay leave, half pay leave and extraordinary leave and at no point of time he was ever informed that no leave was granted to him nor any orders about the rejection of his leave applications had been communicated to him. He has, therefore, challenged the action of the Respondents in not allowing him to join the duty.

The Respondents 1 to 3 took a preliminary objection that the Petitioner''s services came to an end in May, 1969 when he wilfully absented from his post and as such the petition was hit by laches and delay. The learned Advocate-General in his written note has relied on Amrit Lal Berry v. Collector of Central Excise, New Delhi and Ors. and K.N. Kapur and Ors. v. Collector of Central Excise Central Revenue and Ors. 1975 (1) S.L.R.153. This authority is not relevant for the present purposes, because in that case it was held that a number of promotions having taken place between 1959 and the filing of the petition in 1971, those who were so promoted and had been satisfactorily discharging for considerable periods before the filing of the petition their duties in a higher grade would acquire new claims and qualifications by lapse of time and due discharge of their new functions so that they could not, unless relief had been sought speedily against their allegedly illegal confirmation and promotion, be equitably equated with the Petitioner. The inequality in the equitable balance brought into being by a Petitioner''s own laches and acquiescence cannot be overlooked when considering a claim to enforce the fundamental right to equal treatment. In the instant case the Petitioner has not complained of violation of Article 16 of the Constitution on the ground that he was illegally discriminated against by the Respondents. Here what he says is that he had proceeded on leave, leave had been sanctioned upto 1-2-1969, thereafter his son fell ill and he had to apply for extension of leave, he was asked to send the medical certificates which he did send, thereafter he himself was taken ill and in support of his illness also he sent medical certificates, he returned for duty on 23-6-1969, but he was told that he was under orders of transfer and that he could not be permitted to join. Therefore, in these circumstances this authority has got no applicability because he does not complain of any discrimination. In so far as laches is concerned he has continuously been making representations and requesting for orders of transfer in writing so that he could go and join his new place of posting, but nothing was communicated to him. In November, 1973, he was asked to furnish certain information, which information he supplied on the same day. But despite that, no action had been taken and no final orders had been communicated to him. Therefore, the Petitioner cannot be held negligent in pursuing his claim ,and the petition in these circumstances does not suffer from any laches and delay.

The Petitioner''s submission in para 3 of the petition is that the management of Municipal T.B. Clinic, Simla had been taken over by the Government of Himachal Pradesh, and so far as the employees were concerned they were also absorbed in the Government service with effect from 1968. The reply of the Respondents is that although the T.B. Clinic, Ripon Hospital, Simla, was taken over by the Himachal Pradesh Government along with the staff, but it was wrong the the Petitioner was absorbed in Government service in a permanent capacity. From Annexure C, annexed to the petition, it is clear that the Petitioner was also taken over along with the institution in Government service from the forenoon of 1-4-1968. It is a different matter whether he was to be treated as temporary Government servant or permanent Government servant. But in so far as this order is concerned it is silent about his status. It only states that the "staff has also been taken over in the Clinic service on the Government strength" and the name of the Petitioner appears at No. 2 against Health Visitors in this letter. It is also admitted by the Respondents that the Petitioner proceeded on leave upto 1-2-1969 but the reply is that instead of joining duty he sent a telegram on 7-2-1969 stating, "SON SICK EXTEND LEAVE". The period of leave extension was also not mentioned. On 10-2-1969, the Chief Medical Officer, Simla, asked him to get his son examined from the Chief Medical Officer, Ludhiana, and indicate the extent of leave recommended by him. He was also required to produce medical certificate to this effect from the Chief Medical Officer, Ludhiana. The Petitioner did not respond to this letter. But this has been denied by the Petitioner in his rejoinder. On the contrary, he submitted that he had sent the medical certificate, as required, and this is supported by the medical certificate. Annexure J, dated 3-2-1969, and Annexure K, dated 11-2-1969. The Petitioner had also averred that he reported for duty on 23-6-1969 but he was not permitted to join on the ground that he was under orders of transfer and this fact is admitted by the Respondents. But the submission made by the Respondents is that due to his wilful absence from duty he had ceased to be in Government service under Rule 14 (c) of the Revised Leave Rules, 1933, and it is also admitted that the Petitioner submitted attested copies of the medical certificates in support of his son''s illness as well as his own illness on demand by the Director of Health Services in the month of November, 1973, and further that the transfer orders were issued vide Health Directorate Office Order No. 3-85/Med. I Vol. II, dated 16-5-1969, and these transfer orders were not served upon the Petitioner. The transfer orders were issued by the Health Directorate under mistake and in ignorance of the fact that the Petitioner had already ceased to be in service and there was no need of serving such orders on him. Therefore, from this it is abundantly clear that the averment made by the Petitioner is correct that when he reported for duty, he was orally told that he was under orders of transfer and that the orders in fact were not delivered ''to him so as to inform him as to which was the place where he was to report for duty if transfer orders were actually issued. This reply of the Respondents makes it all the more clear that the order was not delivered to him because, according to them, he had ceased to be in Government service because of his wilful absence from duty and that there was no need of serving such orders on him. The department may have issued the orders but the same were admittedly not served on him, Therefore, the Petitioner was right in making representations to let him know the place where he was to go and join duty. Rule 14(c) of the Revised Leave Rules, 1933, reads as under:

Unless the President in view of the exceptional circumstances of the case otherwise determines, no Government servant, who is not in permanent employ or quasi-permanent employ, shall be granted extraordinary leave in excess of the limits prescribed in Sub-rule (b)

It may be stated that this Clause (c) of Rule 14 was substituted vide G.I.M.F. Notification No. F. 16 (4)-E, IV (A)/71-I, dated 31-8-1971, Therefore, this rule has got no application in so far as the Petitioner is concerned. Assuming that it is applicable there can be no automatic removal or termination of service. The Government servant has got to be afforded an opportunity to show cause as to why his services should not be terminated for his wilful absence from duty especially when the employee says that he was prevented from joining his duty firstly, because of the illness of his son, and secondly, thereafter because of his own illness and that he has been sending applications for extension of leave as also medical certificates in support of his leave applications on medical grounds. The rule nowhere says that there would be an automatic removal or termination of service, whether the employee is permanent or temporary.

According to Jai Shanker Vs. State of Rajasthan, the removal of a Government servant from service for over-staying his leave is illegal even though it is provided by the service Regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority. A discharge from service of an incumbent by way of punishment amounts to removal from service, and the constitutional protection of Article 311 cannot be taken away from him by contending that under the Service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated. The learned Advocate-General has submitted that this authority is not attracted to the facts of the present case. But I am afraid if this submission is correct. From the observations, as mentioned above, it is quite clear that the removal of a Government servant from service for over-staying his leave is illegal even though it is provided by the Service Regulations and his discharge from service amounts to removal from service and the constitutional protection of Article 311 cannot be taken away from him by contending that under the Service Regulations the incumbent himself gives up the employment. In the instant case, there is no order passed whereby his services may have been terminated. The order, in fact, was not delivered to him, however he was not permitted to join and was orally told, and which fact has not been denied by the Respondents, that he was under orders of transfer. The Respondents say that it was not necessary to serve the order because he had ceased to be a Government employee because of his wilful absence from duty. Whatever may be the case, the Petitioner had been representing his case, and in November, 1973, he was again asked by the department to submit the medical certificate and along with the medical certificate the same day when he received the intimation from the department he submitted his reply giving detailed facts and, therefore, in these circumstances the Petitioner continued in service and that there was no termination nor any delay because he had all along been pursuing his proper remedy by making submissions to the department to let him know where he was to join and that he may be paid his salary, etc, In these circumstances I think the department could not contend that his services had automatically come to an end because of his over-stay from leave or wilful absence from duty, unless he had been afforded an opportunity to explain the circumstances under which he had over-stayed and, thereafter the department could pass any orders that it deemed necessary, but in the circumstances of the case, as set out above, the Respondents were not justified in keeping out the Petitioner from service. The Petitioner has got a legitimate grouse that he was wilfully kept out of service and this action on the part of the Respondents is wholly illegal and in violation of Article 311(2) of the Constitution and also the principles of natural justice. Therefore, on that ground, I accept this petition and order that the Petitioner shall be deemed to have continued in service and he shall be paid all his arrears.

No order as to costs.