Tej Prakash Sharma vs State Of Chhattisgarh

The instant petition has been preferred under Article 226/227 of the Constitution of India seeking following reliefs:

“10.1 It is, therefore, prayed that the Hon’ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner for kind perusal of this Hon’ble Court.

10.2 This Hon’ble Court may kindly be pleased to quash the order impugned dated 01/09/2008 and direct the respondents to allow the petitioner to join his services at the place of posting.

10.3 Any other order that may deem fit in the facts and circumstances of the case.”

According to the case of the Petitioner, he was appointed on the post of Assistant Surgeon in the year 2001 vide Annexure P2. Pursuant to the said appointment order, he joined at Primary Health Centre Ghotia, District Bastar. Thereafter, due to some unavoidable circumstances, he could not join duties during the probation period and remained absent there from 10.10.2001. The Chief Medical Officer issued him a letter Annexure P4 in which it is specifically mentioned that he is absent from duties from 10.10.2001 and he was directed to join duties immediately, failing which, disciplinary action shall be taken against him. Immediately after receipt of the letter, he sent an application to the Chief Medical Officer specifically stating therein that due to death of his father and his illness he could not attend the duties in time and, therefore, he requested that he was present on 1.7.2002 and sought permission vide Annexure P5 for his joining. The said application (Annexure P5) was forwarded by the Chief Medical Officer to the Director, Health Services vide Annexure P6 seeking instructions. On 5.5.2003, the Petitioner again wrote a letter (Annexure P7) to the Director, Health Services and requested for his posting as well as granting permission for joining. Respondent 1/Secretary wrote a letter to the Chief Medical Officer directing him to inquire into the matter and submit a report within 7 days. Again on 25.11.2006, the Deputy Director wrote a letter for seeking point-wise information from the Chief Medical Officer. On 13.7.2005, the Petitioner wrote a letter to the Director, wherein also he stated that due to some personal problem he could not join duties and he was continuously requesting the department for his joining, but, no action has been taken. Thereafter, suddenly, without any show cause notice or without affording any opportunity of hearing, services of the Petitioner have been terminated vide the impugned order dated 1.9.2008 (Annexure P1) on the ground that he is continuously absent from duties since 10.10.2001 without any permission from the competent authorities. Hence, this petition by the Petitioner.

In reply, it is pleaded by the Respondents/State that the Petitioner was appointed on probation for a period of two years. He remained unauthorisedly absent from duties since 10.10.2001 during the probation period and never reported to his duties thereafter. Since he was on probation period, he was not required to be issued any show cause notice or no departmental inquiry was needed to be conducted in the matter. It was further pleaded that the Petitioner was duly intimated vide letter dated 21.6.2002 (Annexure P4) about his unauthorised absence and was also directed to join his place of posting forthwith, failing which, disciplinary proceeding shall be drawn against him, but, the Petitioner did not join duties. Therefore, he has been terminated from services.

It was submitted by Learned Senior Advocate appearing for the Petitioner that immediately after receiving the letter dated 21.6.2002 (Annexure P4), on 1.7.2002 the Petitioner was present for joining his duties and sought permission for joining vide application (Annexure P5), but, he was not allowed. The said letter Annexure P5 was also forwarded by the Chief Medical Officer to the Director, Health Services vide Annexure P6 and again the Petitioner wrote a letter (Annexure P7) to the Director, Health Services for seeking direction for joining his duties, but, he was not answered and suddenly without giving any opportunity of hearing and without deciding his applications, his services have been terminated. The impugned order terminating the Petitioner is arbitrary, illegal and contrary to the law and without following the principles of natural justice. It was further submitted that in the similar circumstances, the Respondents/authorities allowed and granted permission for joining to one Smt. Meeta Dey for joining at the place of posting, but, the Petitioner has not been allowed in discriminatory manner.

Learned Panel Lawyer appearing for the Respondents/State submitted that as the Petitioner was on probation period and was absent from duties without seeking any permission from the competent authority, his services have been rightly terminated by the authority.

I have heard the arguments raised and perused the material available with due care.

Undisputedly, the Petitioner was appointed as an Assistant Surgeon on probation for a period of two years vide order dated 15.1.2001 (Annexure P2). Though the Petitioner has not pleaded nor has submitted any document to show that on which date he joined duties at his place of posting, i.e., at Ghotia, letter of the Chief Medical Officer dated 21.6.2002 (Annexure P4) shows that the Petitioner joined duties and was absent from there since 10.10.2001. Vide Annexure P4, the Petitioner was informed by the Chief Medical Officer that the Petitioner is unauthorisedly absent since 10.10.2001 and was directed to join his duties immediately. The said communication of the Chief Medical Officer was duly replied by the Petitioner vide Annexure P5 dated 1.7.2002, wherein it was informed by the Petitioner that due to death of his father and his illness he was not able to join his duties and it was informed by the Petitioner that he is ready to join his duties and for this purpose he is also present and vide Annexure P5 dated 1.7.2002 he is also seeking permission for joining his duties. Thus, it is clear that within ten days of the issuance of the letter dated 21.6.2002 (Annexure P4) the Petitioner appeared on his duties and submitted explanation for his absence from the duties and sought permission for joining his duties. The said letter of the Petitioner Annexure P5 was duly forwarded by the Chief Medical Officer to the Director, Health Services on 1.7.2002 itself vide Annexure P6. The Director, Health Services did not send any reply to the letter of the Chief Medical Officer. Annexure P7 dated 5.5.2003, which is a letter given by the Petitioner to the Director, Health Services, also shows that he again sought permission for joining his duties. But, again, no decision was taken by the Director. Vide Annexure P10, a letter dated 13.7.2005, the Petitioner again requested to the Director, Health Services for his new posting as well as for a direction to his joining as another Assistant Surgeon was appointed on contract basis in the place of posting of the Petitioner. But, no action was taken by the Director on the said letter which was sent by the Petitioner on 13.7.2005. Without deciding the matter of unauthorised absence or deciding the applications which were made by the Petitioner and duly forwarded by the Chief Medical Officer to the Director, Health Services, suddenly, after a lapse of six years, the services of the Petitioner have been terminated vide Annexure P1 on the basis of unauthorised absence, which appears to be arbitrary. Even the Petitioner has not been given any show cause notice nor has he been afforded any opportunity of hearing.

The impugned order (Annexure P1) also mentions that the Petitioner did not complete his probation period successfully. Therefore, on this ground also, services of the Petitioner have been terminated. The appointment order (Annexure P2) shows that as per Rule 19 of the Madhya Pradesh Public Health and Family Welfare (Gazetted) Service Recruitment Rules, 1988 (henceforth ‘the Rules of 1988’), appointment of the Petitioner would be on probation for a period of two years. On which date the Petitioner joined his duties has not been mentioned by the Petitioner nor by the Respondents in their reply. Therefore, it is difficult to say that on which date the probation period of the Petitioner would come to an end. Annexure P4, the letter dated 21.6.2002 of the Chief Medical Officer shows that the Petitioner was absent from his duties from 10.10.2001. Meaning thereby, the Petitioner certainly joined his duties before 10.10.2001. Even if the date of 10.10.2001 is considered to be as joining date of the Petitioner, his probation period would come to an end on 10.10.2003. As contained in sub-rule (2) of Rule 8 of the Madhya Pradesh Civil Services (General Conditions of Services) Rules, 1961 (henceforth ‘the Rules of 1961’), the appointing authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year. Meaning thereby, the total period of probation cannot be more than three years. As contained in sub-rule (4) of Rule 8 of the Rules of 1961, the services of a probationer may be terminated during the period of probation if in the opinion of the appointing authority he is not likely to shape into a suitable government servant. Sub-rule (7) of Rule 8 of the Rules of 1961 also says that a probationer, who has neither been confirmed nor a certificate issued in his favour under sub-rule (6), nor discharged from services under sub-rule (4), shall be deemed to have been appointed as a temporary government servant with effect from the date of expiry of probation and his conditions of service shall be governed by the Madhya Pradesh Government Servants (Temporary and Quasi-Permanent Service) Rules, 1960 (henceforth ‘the Rules of 1960’). Meaning thereby, the maximum period of probation is three years and within this period of three years if the services of the government servant are not confirmed or a relevant certificate is not issued in his favour then his services shall be deemed to have been confirmed. In the case in hand, on counting the period of probation of the Petitioner from 10.10.2001, the period of three years completes on 10.10.2004. Therefore, before 10.10.2004, the services of the Petitioner should have been confirmed or a relevant certificate should have been issued in his favour or his services should have been terminated. But, none of these three actions was taken and vide the impugned order dated 1.9.2008 (Annexure P1), i.e., after another about four years after 10.10.2004, termination of services of the Petitioner was done also on the ground that he did not complete his probation period successfully. Therefore, on this ground also, the impugned order is arbitrary and illegal.

For the foregoing reasons, I allow the instant writ petition and quash the impugned order dated 1.9.2008 (Annexure P1). The Respondents are directed to issue a fresh order of posting of the Petitioner as the old place of his posting has already been occupied by another Assistant Surgeon Smt. Meeta Dey on contract basis. It is also made clear that the Petitioner shall not be paid any remuneration for the period of his absence from duties on “no work, no pay” basis.