Urmil Gupta vs State of H.P. and Others

Surjit Singh, J.—Petitioner was employed as a Medical Officer with the State of Himachal Pradesh. She joined service in the year 1973. She remained absent from duty for 10 spells from 4.4.1996 to 22.10.1996. Total period of her absence works out to 3 months 22 days. On 10.3.1987, she was transferred from Community Health Centre, Arki to Primary Health Centre, Nankhri, but she did not join at her new place of posting. In fact, she had been absent from duty since 8.12.1986. Various letters were issued to her to join duty, but she kept on submitting applications for extension of leave on medical grounds. She was called upon to report to the Medical Board, but she did not present herself before that Board. Ultimately, a notice was got published in a news paper that in case she did not join her duty by the date specified in the notice, ex parte departmental action will be taken against her. Still she did not join her duty despite that. She was placed under suspension. She filed an Original Application before the erstwhile HP State Administrative Tribunal in the year 1988. That petition was disposed of with the following directions:

(i) The impugned order dated April 12, 1988 published in the Tribune on April 29, 1988, Annexure P-19, qua the applicant is quashed and set aside.

(ii) After reinstating the applicant the Respondents are free to take appropriate action against her for any misconduct on her part in accordance with law and in pursuant to the public notice dated March 12, 1988 published in the Tribune, Annexure P-17, if so advised.

(iii) In the facts and circumstances of the case the period of absence from April 29, 1988 till the date of her actual joining shall be treated as leave of the kind due; and

(iv) The Respondents are further directed to reinstate the applicant immediately.

Petitioner filed SLP, feeling aggrieved by direction No. 3 aforesaid. Hon''ble Supreme Court disposed of that SLP vide order dated 29.3.1996, in the following terms:

We see no ground to interfere. We are, however, of the view that so far as the direction in para 8(iii) of the impugned order is concerned, that needs modification. The appointing authority while passing the final order shall re-consider as to how the period indicated in para 8(iii) is to be treated.

Petitioner then resumed her duty on 4.10.1995. On 17.10.1995, she submitted an application for premature retirement, stating that her family circumstances did not allow her to continue to serve. On the same day, she left the job. She was intimated, vide communication dated 21.11.1995, that her request for premature retirement stood rejected, because of its being not in accordance with the rules and also because departmental action was contemplated against her, on account of her earlier absence from duty and some other serious allegations, including one pertaining to over drawal of a sum of Rs. 35000/- from her GPF. She was required to resume her duty immediately, but to no avail.

Department then drew up a charge sheet, copy Annexure A-1, in which besides the charge regarding unauthorized absence during 10 spells from 4.4.1986 to 22.10.19867, charges of her having not appeared before Medical Board, despite direction from her Appointing Authority and having also not resumed duty, despite publication of notice in a newspaper, were framed. Also, charges for over-drawal of a sum of Rs. 35,000/- from GPF, leaving the job on 17.10.1995, despite rejection of her request for premature retirement and also for not resuming the duty, despite her request for premature retirement having been rejected, were framed.

Inquiry was conducted. Inquiry Officer, vide report, Annexure A-1, held that the charge of absence from duty stood partly proved. He also gave the finding that the Petitioner did not appear before the Medical Board for her medical examination, despite a direction by her Appointing Authority and also did not join duty despite publication of notice in a newspaper. She was also held guilty of having remained absent from duty since 17.10.1995, despite her having been communicated the government''s decision, through letter dated 21.11.1995, that her request for premature retirement stood rejected.

Appointing Authority, i.e. Respondent No. 1, accepted the aforesaid report and passed the order of removal of Petitioner from service. Copy of the order is Annexure A-6. It is dated March, 2001.

Petitioner has challenged the order of her removal from service. She has also challenged the findings recorded by the Inquiry Officer, in his report Annexure A-1.

In reply, Respondents have stated that the Petitioner having remained absent, unauthorizedly, and then deserting her job in spite of her having been communicated the government decision that her request for premature retirement stood rejected, she has rightly been held guilty by the Inquiry Officer as also has rightly been punished by the Appointing Authority.

I have heard learned Counsel for the Petitioner and learned Assistant Advocate General, appearing for the Respondents.

Submission made on behalf of the Petitioner is that broken periods of alleged unauthorized leave upto 3.10.1995, for which she had been placed under suspension having been regularized by the Respondents, vide order dated 18.2.2000, Annexure P-3, and the charge of over drawal of a sum of Rs. 35,000/- having not been proved, as per inquiry report, which was accepted by the Appointing Authority, Petitioner''s request for premature retirement, as made on 4.10.1995 and supplemented vide letter dated 23.2.1996, was required to be reconsidered, before passing the impugned order of penalty of removal from service.

I do find some merit in the submission. Reasons are that request of the Petitioner for premature retirement had been rejected on the ground that departmental action was contemplated against her for her unauthorized absence from duty upto 3.10.1995 and also for alleged over drawal of money from General Provident Fund. Now, when the action had been commenced and report had also been received, Appointing Authority of the Petitioner, vide Annexure P-3 sanctioned leave of the kind due for the period of alleged unauthorized absence from duty, in respect of which Article-I of charge was framed. This Annexure P-3 was passed before the passing of the impugned order of penalty. When the period of absence, for which the Petitioner was charged, had been regularized and it was this period of alleged unauthorized absence for which action was contemplated, as communicated to the Petitioner, vide communication dated 21.11.1995, and because of which her request for premature retirement was not accepted, it was desirable that request of the Petitioner for premature retirement was considered, especially when the Petitioner after having been communicated the decision of rejection of her request, vide communication dated 21.11.1995, had made a back reference on 23.2.1996, pressing for her request for premature retirement for the reasons stated therein.

In view of the above stated position, writ petition is disposed of with a direction to the Respondents to reconsider the request of the Petitioner for premature requirement, made vide letter dated 4.10.1995 and reiterated vide letter dated 23.2.1996, within a period of four months. In case on reconsideration the Respondents decide to accede to the request of the Petitioner for premature retirement, the order of penalty, Annexure A-6, shall automatically cease to be inoperative. In case on reconsideration, Petitioner''s request is rejected, she shall be free to seek her legal remedy.

Petition stands disposed of.