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Judgment
G.S. Singhvi, J.—This petition has been filed by the petitioner for issue of a mandamus to the respondents to allow him to join duty as Lecturer in the service of the D.A.V. College, Sector 10, Chandigarh, and to pay him arrears of salary together with interest at the rate of 24% per annum.
The petitioner joined service of the D.A.V. College, Sector 10, Chandigarh (respondent No. 1), on his appointment as Lecturer in Physics. His initial appointment was on ad hoc basis. Subsequently, he was given a regular appointment vide Annexure P.1 dated 29.7.1985 which contained a stipulation that he would remain on probation for a period of 12 months. There is no dispute between the parties that the period of probation of the petitioner was not extended. It is, therefore, reasonable to infer that after the completion of the period of probation the petitioner stood confirmed in the service of the College. In March, 1991 the petitioner suffered mental depression and at the same, time his father fell seriously ill. He, therefore, went to his home place (Delhi) and from there he wrote letter Annexure P.3 to the Principal of respondent No. 1 giving the reasons for his inability to attend the College from 22.8.1991. Therein the petitioner stated that he may be permitted to join duty in the next session. The petitioner continued to send medical certificates along with the applications for grant of leave. On 7.10.1992 the Principal of the College wrote to the petitioner that he was wilfully absenting from duty since 22.3.1991 and unless he joins duty on or before 1.11.1992 it would be presumed that he has resigned from service. The petitioner continued to send applications for grant of leave on medical grounds but the same were not entertained and on 2.11.1992 the Principal of the College wrote letter Annexure P.7 to the petitioner to appear before the Principal Medical Officer, Union Territory, Chandigarh, for his medical examination. To this the petitioner responded by writing letter Annexure P.8 dated 9.12.1992 in which he stated that he had tried to contact the Principal Medical Officer, U.T. Chandigarh, but no date has been given by the said officer for his medical examination. Later on, the Principal Medical Officer, U.T. Chandigarh, wrote to the Professor and Head of the Department of Psychiatric, Post Graduate Institute of Medical Education and Research, Chandigarh, that the petitioner may be examined at their end. Finally, the petitioner was examined at the P.G.I. on 22.12.1992. It appears from the record that thereafter the petitioner got the treatment from the All India Institute of Medical Sciences, New Delhi, and after having got a certificate of fitness from that Institute the petitioner submitted an application dated 20.8.1993 to the Principal of the College for being allowed to join duty. The petitioner did not receive any communication from respondent No. 1 and therefore he has sought a writ of mandamus for being allowed to join duty. The petitioner''s case is that by not allowing him to join duty respondent No. 1 has indirectly terminated his service and this action is clearly contrary to the Constitution as well as the principles of natural justice.
The case set up by the respondents is that the petitioner had wilfully absented from duty and did not comply with the various directions given by the College for medical examination which by itself is sufficient to draw an inference that the petitioner was feigning ailment to avoid joining duty. Respondent No. 1 has also objected to the maintainability of the writ petition without the impleadment of the D.A.V. College Management Committee through its Secretary. Another objection raised by respondent No. 1 is that without the impleadment of the Director of Public Instruction (Colleges), the petitioner cannot get effective relief, yet another objection raised by respondent No. 1 is that in view of the availability of the alternative remedy of representation before the D.P.I. (Colleges), Chandigarh, the petitioner should not be given relief under Article 226 of the Constitution.
In his replication, the petitioner has stated that respondent No. 1 is receiving 95% grant-in-aid and, therefore, it is amenable to writ jurisdiction under Article 226 of the Constitution. On the issue of alternative remedy, the petitioner has pleaded that he did not have any other remedy except to approach the Court by way of writ petition.
Before coming to the merits of the case, I deem it proper to dispose of the preliminary objections raised by Shri Jain.
On the necessary parties it is sufficient to observe that the petitioner has impleaded the D.A.V. College, Chandigarh, as well as the D.A.V. College Managing Committee as parties to the writ petition. There is no dispute between the parties that the petitioner was appointed in the service of the D.A.V. College, Chandigarh, which is being managed by respondent No. 2. If a writ of mandamus is issued by the Court in favour of the petitioner. It will be the duty of the respondent to comply with the same and take the petitioner in service. It is, thus, clear that effective relief can be given to the petitioner against the respondents. The only difficulty would be regarding the payment of arrears of salary. As will be shown hereinafter the petitioner, who has remained out of job for a considerable long period and has not discharged his duties, is, in my opinion, not entitled to arrears of salary and, therefore, there will be no difficulty in giving appropriate relief to the petitioner even in the absence of the impleadment of the D.P.I. (Colleges). Therefore, the petitioner cannot be non-suited on the around of non-impleadment of necessary parties.
The second preliminary objection of Shri Jain relates to the availability of the alternative remedy. Shri Jain argued that the remedy of representation available to the petitioner is an effective alternative remedy and, therefore, this Court must not exercise its extraordinary jurisdiction in his favour particularly when disputed questions of fact are required to be determined. Here it is necessary to mention that before admitting the writ petition a show-cause notice was issued by the Court. Respondent No. 1 filed its reply on 11.1.1994 to which the petitioner filed a replication on 8.4.1994. Therefore the Court heard the arguments and ordered the admission of the writ petition on 25.4.1994. It is, therefore, reasonable to presume that the Division Bench which heard the case on 25.4.1994 did not feel persuaded to non-suit the petitioner on the ground of availability of alternative remedy. In addition to this, I find that the case was heard on merits as early as on 25.4.1994 and thereafter it remained pending for the last about six months. The admission of the writ petition after consideration of the objections regarding the availability of alternative remedy and its hearing on merits are important factors which, in my opinion, are sufficient to negative the plea of Shri Jain that the petitioner should be non-suited on the question of availability of alternative remedy. Moreover, the relief sought by the petitioner is in the form of a mandamus and after the petition has remained pending for a period of almost two years there is no justification to direct the petitioner to make a representation to the D.P.I. (Colleges), Chandigarh. The rule that the Court will not exercise its extraordinary jurisdiction under Article 226 in cases where an alternative remedy is available to the aggrieved party is not a rule of law but a rule of self-imposed restraint and in a case like the present one wherein the question of livelihood of the petitioner is involved, I do not consider it just and proper to dismiss the petition on the ground of the failure of the petitioner to avail the remedy of representation.
On the merits of the case, Shri Jain argued that even though the petitioner was a substantive employee of the College, he would be deemed to have abandoned his job due to his failure to join duty in spite of a chain of communications sent to him by the Principal of the College. Shri Jain submitted that the petitioner had deliberately ignored the instructions given to him to join duty and the College could not have afforded to keep the post vacant for an indefinite period. However, Shri Jain could not draw my attention to any document to show that any enquiry was held by the respondents in accordance with the principles of natural justice or the provisions contained in the Punjab Affiliated College (Security of Service of Teachers) Act, 1974 and the Rules framed thereunder. The resignation is a conscious act of an employee to sever the relationship of master and servant voluntarily and, therefore, the mere failure of the petitioner to join duty in spite of the communication Annexure P.5 could not lead to an inference that the petitioner had resigned from service. The theory of voluntary abandonment of duty is also unacceptable in view of the fact that the petitioner was constantly sending applications of various Doctors including the Doctors of the All India Institute of Medical Sciences, New Delhi. This by itself is sufficient to reject the theory of voluntary abandonment of duty.
By not allowing the petitioner to join duty, respondent No. 1 has indirectly terminated the service of the petitioner and this could not have been done by respondent No. 1 except by holding an enquiry consistent with the principles of natural justice and as the same has not been done the petitioner is entitled to a writ of mandamus for being allowed to join duty.
On the issue of back wages, I find considerable force in the submission of Mr. Jain that the petitioner should not be given the benefit of arrears of salary. The petitioner, as per his own showing, has not been on duty since, 22.3.1991. It is therefore, an appropriate case in which the principle of "no work no pay" deserves to be applied. That apart, it would be wholly unreasonable to burden the respondents with the liability of arrears of salary because the respondent-College is an aided institution any direction to the Government to pay grant-in-aid to respondent No. 1 towards the post held by the petitioner will also be unjustified because there is no fault of the Government in not allowing the petitioner to join duty.
In the result, the writ petition is partly allowed. The respondents are directed to immediately allow the petitioner to job his duty as Lecturer in physics. He shall, however, be not entitled to the payment of arrears of salary etc. for the period between 22.3.1991 and the date of his now joining the duty.