S.K. Takiar vs State of Himachal Pradesh

R.S. Pathak, C.J.—The Petitioner prays for relief under Article 226 of the Constitution against an order dated August 7, 1971 terminating his services.

On February 11, 1959 the Petitioner was appointed to the post of Agriculture Inspector in the office of the Director of Agriculture, Himachal Pradesh. On November 1, 1969, he applied for three months'' leave on the ground that his wife was not well. According to the Petitioner, he resumed duty on February 2, 1970, but as his wife continued in disposed he returned home to attend to her. He continued absent from service until July 9, 1971, on which date he resumed duty. On August 7, 1971, the Director of Horticulture wrote to the District Horticulture Officer that the Petitioner had remained absent from November 1, 1969 to July 9, 1971, and therefore by virtue of Revised Leave Rules, 1933, App. 14 (b) and (c), being a temporary Government employee who had remained on leave and absent for more than three months, he automatically ceased to be in Government service. A copy of the order was communicated to the Petitioner. On March 25, 1972. the Petitioner represented against the order to the Director of Horticulture and the representation was rejected. On August 18, 1972, he made a representation to the Agriculture Production Commissioner and that was rejected on October 9, 1972. The Petitioner then filed the present writ petition on March 5, 1973, on the re-opening of the Court after the long vacation.

A preliminary objection has been raised by the learned Advocate-General on behalf of the Respondent. He contends that the petition is barred by laches and the Petitioner should be denied relief on the ground of his gross delay in coming to this Court. It does appear that the Petitioner did not apply to this Court immediately after the impugned order was made. The impugned order was made on August 7, 1971, and he did not come to this Court before March 5, 1973. But during the period in between the Petitioner was engaged in representting against the order to the Departmental authorities and the last representation was disposed of on October 9, 1972. It is pointed out that the first representation itself was made some eight months after the passing of the impugned order. While that may be so, a decision on the question whether the petition should be rejected on the ground of laches will also depend on the nature of the right infringed. In the present case the contention of the Petitioner is that the opportunity guaranteed to him under Article 311(2) of the Constitution was not extended before the impugned order was made and therefore the impugned order is vitiated. Having regard to the circumstances of the case and the fact that the Petitioner complains of the infringement of his right under Article 311(2) of the Constitution, I am of opinion that on the totality of the circumstances the petition should not be rejected on the ground of laches.

The second preliminary objection of the learned Advocate-General is that the conduct of the Petitioner is being absent from duty over so long a period as one year and eight months does not entitled him to relief from this Court. This conduct of the Petitioner is the subject of proceedings which culminated in the impugned order and it is involved in the adjudication called for on the merits of this writ petition. It is not conduct which affects the maintainability in equity of the proceedings taken in this Court. Plainly, the circumstance on which the learned Advocate-General relies does not disentitle the Petitioner to relief on this petition.

As regards the question on its merits it is clear that the Petitioners is entitled to relief. There is no dispute that the Petitioner was not given an opportunity of being heard as required by Article 311(2) of the Constitution. The impugned order amounts to punishing the Petitioner for being absent without leave. Even a temporary Government servant is entitled to the protection of Article 311(2) of the Constitution before being punished. The Supreme Court has clearly laid down in Jai Shanker Vs. State of Rajasthan, that a Government servant is entitled to being heard in a case such as this.

Accordingly, the writ petition is allowed. The order dated August 7, 1971 is quashed. The Petitioner is entitled to his costs which I assess at Rs. 100.