Case: Bhagwan Lal Vs State of Rajasthan and Anr.. Rajasthan High Court
| Judges | H.R. Panwar, J. |
| Issue | Service Law |
| Citation | RLW 2009 (2) Raj 1564, 2009 (1) WLN 83 |
| Judgement Date | November 12, 2008 |
| Court | Rajasthan High Court |
Judgment:
H.R. Panwar, J.
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These three writ petitions involve common question of law and facts and therefore, with the consent of learned Counsel for the parties, these writ petitions are heard and decided together by taking the facts of S.B. Civil Writ Petition No. 5845/2005 as leading case.
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Briefly stated the facts to the extent they are relevant and necessary for the decision of these writ petitions are that the petitioner was appointed temporarily on the post of Teacher Grade-III by order Annexure-P/1 dated 29th September, 1973. However, subsequently, the services of the petitioner came to be confirmed by order Annexure-P/2 dated, 29th November, 1975 w.e.f. 1.11.1975. While in service, the petitioner for visiting abroad as a tourist and in order to meet his brother filed an application for such permission and also sought No Objection Certificate from the respondent Department. For grant of NOC to the petitioner, his application was forwarded vide communication dated 2nd July, 1982 Annexure-P/3 issued by the District Education Officer, Banswara addressed to Commissioner, Primary and Secondary Education Rajasthan, Blkaner. Thereafter, by communication dated 31st August, 1982 Annexure-P/4, the Commissioner, Primary and Secondary Education issued No Objection Certificate in favour of, the petitioner for getting the passport prepared for visiting and meeting his brother at Saudi Arabia on certain conditions which are that (1) the petitioner would proceed abroad only after getting his leave sanctioned by the competent authority and shall not stay abroad beyond the period of leave sanctioned, (2) he will not acquire any education at abroad, (3) any resignation sent by him from abroad shall not be acceptable, (4) he shall not accept any job or appointment at abroad and (5) no foreign currency made available to him through State Agency. Despite the condition mentioned in Annexure-P/4, the petitioner went abroad without getting leave sanctioned from the respondent-employer and stayed at abroad i.e. Saudi Arabia for almost 3 years. The respondents issued notice to the petitioner dated 15th April, 1988 stating therein that the petitioner remained willfully absent from duty without sanction of leave and if he did not appear and furnish the satisfactory explanation of his absence within 15 days, he shall be deemed to have resigned from service. Thereafter, the services of the petitioner came to be terminated in exercise of power, under Rule 23 of the Rajasthan Civil Services Rules, 1951 (for short "the RSR" hereinafter) by order dated 22nd July, 1989 with effect from the date of his absence i.e. w.e.f. 19.7.1982. Hence, this writ petition.
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A reply to the writ petition has been filed by the respondent-State raising preliminary objections regarding maintainability/entertainability of the writ petition on the ground that the writ petition suffers from delay and latches. It has been submitted that the order terminating the services of the petitioner came to be passed in the year 1989 almost after about 16 years and according to the respondent, inordinate delay of 16 years in filing the writ petition has not been properly explained. The respondents also raised preliminary objection regarding the availability of alternative statutory remedy. According to the respondents, the petitioner has filed the Instant writ petition without exhausting the alternative" statutory remedy of filing an appeal before the Rajasthan Civil Services Appellate Tribunal and therefore, it is not entertainable. On merit also, the facts stated by the petitioners have been controverted by the respondents in their reply stating therein that NOC was granted in favour of the petitioner for getting the passport prepared wherein it was specifically mentioned that the petitioner will not go abroad without sanction of leave whereas the petitioner without prior sanction of the leave went abroad i.e. Saudi Arabia and stayed there for a period of 3 years and thus, he willfully remained absent from the duty without sanction of leave. According to the respondents, the petitioner by his own conduct abandoned his service. Even otherwise, the respondents Issued notice to the petitioner to show cause as to why his services may not be terminated under Rule 23 of the RSR for fillfully remaining absent from the duty without sanction of leave. In the reply, it has also been submitted that the petitioner had accepted the job at abroad and remained absent willfully without leave from the duty and therefore, the respondents were justified in terminating the services of the petitioner.
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I have heard learned Counsel for the parties.
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It is contended by learned Counsel for the petitioners that the respondents did not hold any enquiry as contemplated under Rule 86(3) of the RSR. According to learned Counsel for the petitioners, the termination of the services of the petitioners is a major penalty as envisaged under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short "the CCA Rules" hereinafter). The Rules and procedure prescribed under Rule. 14 of the CCA Rule has not been followed by the respondents. It Is contended that Rule 16(1) of the CCA Rules provides that without prejudice to, the provisions of the Public Servants (inquiries) Act, 1850, no order imposing on a Government servant any of the penalties specified in Clauses (iv) to (vii) of Rule 14 shall be passed except an inquiry held, as far as may be, in the manner hereinafter provided and so far as termination of the services of the petitioners are concerned, it has been specified in Clause (vii) of the Rules of 14 and therefore, the enquiry contemplated under Rule 16 of the CCA Rules was a condition precedent for imposing the penalty of termination from service.
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Learned Additional Government Counsel appearing for the respondent-State contended that firstly, the instant writ petitions suffer from inordinate delay of 16 years. The services of the petitioners came to be terminated in the year 1989 and the writ petitions have been filed in the year 2005 almost after 16 years without any explanation worth accepting, and therefore, the writ petitions suffer from delay and latches. Learned Additional Government Counsel further contended that the petitioners have filed the instant writ petitions challenging the order of their termination and the order terminating the services of a Government servant is appealable before the Rajasthan Civil Services Appellate Tribunal and without exhausting alternative statutory remedy of filing an appeal, which is efficacious in nature, the instant writ petitions are not entertainable. Lastly, on merit, it is contended that the petitioner voluntarily abandoned the services by going abroad i.e. Saudi Arabia without prior sanction of leave. It is clear from the record that the petitioner willfully remained absent from duty for a period of-3 years, therefore, holding enquiry as contemplated under Rule 16 of CCA Rules would have been futile exercise. When by facts it has been established that the petitioner willfully remained absent without sanction of leave while going abroad, therefore, the Rule 19 of the CCA Rules empowers the respondent-State to terminate the services of the petitioners exercising the power notwithstanding anything contained in Rules 16, 17 and 18 of the CCA Rules.
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Learned Counsel for the respondent has...
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