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Judgment
1 Petitioner, Professor of Pharmacology in Governemtn Medical College, Srinagar proceeded on one year's leave without allowance which was
sanctioned in his favour vide Government order No. 625HME of 1985 dated 2081985. He availed of this leave from 991985 but failed to report
on duty on the expiry of leave on 991986 and over stayed for two more years in Libya where he had taken up a foreign assignment. He
subsequently returned and joined at Srinagar on 2271988. He was allowed to do so by the Principal Government Medical College, Srinagar by an
order dated 1 91988 read with Government order No. 972HME of 1988 dated 15111988. At this stage, he again applied for special leave
without allowances upto 30th July, 1989 and without waiting for its sanction proceeded to Libya. While he as there State respondent put hm on
show cause notice 1551989 charging him with failure to resume duties and for staying away unauthorisedly. He was asked to reply within twenty
one days and was informed that.his service will be terminated otherwise. He asserts that he replied to this notice and explained the circumstances in
which he has sought extension of his special leave. According to him he was asked by the Principal to work under his junior one Dr. Vimla Dhar
which had embrassed him and turned him to Libya again. He also claims that he had informed the Competent Authority that he was willing to
resume his duties if he was granted reasonable time to pack up at Libya. But while all this was on, State respondent passed order No. 666HME of
1989 dated 2281989 terminating his services for unauthorised absence.
2 Petitioner has filed this petition to assail the action primarily on the ground that he was removed from service in disregard of the safeguard and
guarantees provided under Section 126 of the State Consitution read with 33 of the J&K Civil Services (Classification, Control and Appeal) Rules
of 1956. In this regard, it is submitted that he was neither served any charge sheet not given any statement of allegations, not to speak of holding
any enquiry against him or affording him a reasonable opportunity of being heard. It is also contended by him that since his request for extension in
his special leave upto 3071989 was all through under the consideration of the Government, he bonafide believed that his leave was sanctioned. As
the respondents had failed to communicate the outcome of his leave request and had not rejected it by any formal order, he was made to believe
that all was well and that is why he failed to resume the duty, petitioner supports all this by drawing anology from identical cases where Doctors
who had taken foreign assignments were allowed to rejoin. He also places reliance o a number of judgements of this court including 1992 SLJ 143
wherein the orders of termination of writ petitioners were quashed in similar circumstances.
Petitioner has filed this petition somewhere in 1989 where respondents were put on notice around same time. At one stage, Mr. Mansotra
Government Advocate represented them but later they seem to have gone unrepresented. They have not filed any reply to resist the petition. No
one appeared for them today also. The averments made by the writ petitioner resultantly go unrebutted and would have to be accepted on their
face value.
It all comes to whether or not petitioner was removed from service by satisfying the constitutional guarantees contained in Section 126(2) of the
State Constitution and the statutory requirements of Rule 33 of the Classification, Control and Appeal Rules, 1956.
It is elementary that a member of the State Service or a person holding the post under the State was removable from service only on being
informed of the charge against him and after an enquiry for which was provided in Rule 33, in tuNe with the Principles of natural justice. If he is
removed in disregard of this, the action would straightway be violative of the Constitutional mandate and the Rules.
It is nobody's case that any charge was served on the petitioner for his alleged unauthorised absence in the present case. He was admittedly put
on notice to which he replied. But that is all about it and there is nothing to show that any further action was taken by them to serve upon him any
statement of allegations or to convey him some definite charge for being unauthorisedly absent, not to speak of any enquiry into such charge. It all
seems to have been done on paper without confront ing him with the charge and proceedings against him in accordance with the procedure
established by law.
7 It is true that unauthorised absence of an employee could result in loss of his employment under Article 128 of the Civil Service Regulations, but
that would not be a justification for giving goby to the Constitutional guarantees and the procedure established by law. After all an employee
acquires and possesses certain rights visavis the post held by him and he could be deprived of these only in accorDance with the procedure
established by law If he is removed otherwise, the action becomes arbitRary and would violate guarantees contained in Article 14 and 16 of the
Constitution.
Applying all this to the present case, it comes out that the State respondent had only put petitioner on notice asking him to resume his duty.
Petitioner replied to this notice and allegedly explained his position. It also emerges that his request for extension in leave was under consideration
of the competent Authority. That being so, he could be well justified in believing that the Authority had impliedly consented to his overstay. Or else
his application should have been rejected alonwith the explanation tendered by him. But that was not to be and it becomes difficult to sustain the
action.
9 Viewed thus and taking in regard that State Respondent had failed to reply the writ petition and to resist the petitioner's case, I am left with no
option but to hold that the Government order No. 666HME of 1989 dated 2281989 terminating the service of petitioner was passed arbitrarily in
disregard of the procedure establihsed by law and principles of natural justice The order is accordingly quashed.