State of J&K vs Dr. Sakhi Willayat

N. Paul Vasanthakumar, C.J. - This appeal is filed by the State against order dated 19.08.2009 made in SWP no. 1441/2000 read with order dated 27.08.2009 passed in Review No. 21/2009.

Brief facts necessary for disposal of this appeal are that, the respondent was appointed as Assistant Surgeon in the J&K Health Services vide Government Order No. 857-HME of 1985 dated 16.12.1985. In the year 1993 respondent proceeded on leave due to heart ailment of his son.

He applied for leave from time to time, however, no order either sanctioning or rejecting the leave applied for was communicated to him. In the year 1995 he was served with a show cause notice for which he submitted his reply and prayed for permitting him to rejoin his duties. By order dated 10.01.1996 the respondent was permitted to join duty and his intervening period was treated as "dies non". However, the said order was not communicated to the respondent and only on 15.12.1997 the 1st appellant asked the 2nd appellant to allow the respondent to join his duties based on which order the respondent rejoined his duties immediately.

The respondent went on 40 days earned leave w.e.f. 20.03.1998 which was sanctioned. He applied for extension of leave from time to time due to illness of his son and ailment of his mother, who had a massive heart attack in July, 1999. She was hospitalized in SKIMS Soura and later had to be shifted to Delhi. The respondent was also having heart problem and is fitted with a pace-maker. Due to the said health problem he had to proceed on leave from time to time. In January 2000 the mother of the respondent was treated at Batra Hospital for Angioplasty and she was declared out of danger. His son also shows improvement after being treated at Delhi.

The appellant no.1 published a notice in the news paper on 27.03.2000 and asked the respondent to explain his position for his unauthorized absence. The respondent replied the notice with documentary proof in support for his not attending the duties. Respondent further received a notice from the 2nd appellant on 12.07.2000. The said notice was also replied by the respondent. Enquiry Officer was appointed who conducted the enquiry and submitted his report, holding that respondent's absence was not wilful. The 1st appellant accepted the enquiry report and allowed the respondent to join his duty by Government Order No. 622 of 2000 dated 21.09.2000, however, with a condition that he should be allowed to join as a fresh appointee.

Having aggrieved by the said part of the order i.e. "he should join as a fresh appointee" the respondent filed the writ petition which was allowed by the learned Single Judge, holding that absence of the respondent having been found genuine and once the appellants have decided to permit the respondent to re-join, the condition imposed to join as fresh appointee is not proper and therefore, the learned Single Judge quashed the said portion of the order and directed that the respondent be deemed to be in service after he was permitted to re-join the department and consequential benefits which he would be entitled to after rejoining shall be released in his favour within three months. Review petition was also filed by the appellants bearing Review No. 21/2009 which was also dismissed on 27.08.20 09.

The contention of the State in this appeal is that the respondent having-joined the service as a fresh appointee in terms of the order, he is not entitled to challenge the condition imposed and the absence of the respondent being for several months the order passed, treating him as a fresh appointee, is just and proper.

The learned counsel appearing for the respondent, on the other hand, submitted that enquiry officer having found the absence of the respondent as not wilful, the action of the appellants in permitting the respondent to join as a fresh entrant is illegal and no termination order having been passed the respondent is entitled to continue in service as if there is no break in service, and if the condition imposed is allowed to stand, the respondent will lose more than 7 years of his service and therefore, the learned Single Judge was right in allowing the writ petition.

We have considered the rival submissions and perused the entire record meticulously.

It is not in dispute that absence of the respondent was beyond his control and for bona fide reasons. The said finding was recorded by the Enquiry Officer appointed by the appellants, which is also not in dispute. An employee can be punished for his unauthorized absence only if absence is found as wilful in terms of the judgments of Hon'ble the Supreme Court reported in AIR 2015 SC 598 (Chhel Singh v. M.G.B. Gramin Bank Pali & Ors.) and (2014) 10 SCC 301 (Raghubir Singh v. General Manager Haryana Roadways, Hissar) and in various other decisions.

For appointing a Government servant afresh termination of the appointment is pre-requisite. Only after the services of the respondent are terminated, he could be appointed as a fresh entrant. In the present case the services of the respondent have not been terminated but he has been allowed to re-join his duties with a condition that he shall be treated as a fresh entrant, which condition cannot be sustained. The question of re-joining will arise only if the earlier appointment continues. Thus the order passed by the appellants dated 21.09.2000 is self contradictory in all respects. Therefore, the action of the appellants in permitting the respondent to re-join his duty as a fresh entrant is not justified as found by the learned Single Judge. In such circumstances we are not able to find any reason to interfere with the order o the learned Single Judge and the appeal filed by the State is dismissed.

The appellants are directed to implement the order of the learned Single Judge within a period of six weeks from the date of receipt of copy of this order. No costs.