The Patna High Court dismissed a writ petition seeking to quash a premature termination order. The Court held that the petitioner's 14-year unauthorized absence constituted abandonment of service, making the show-cause requirement a futility.
Writ application dismissed; termination order affirmed; petitioner held to have abandoned service.
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0IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11062 of 2012
====================================================== 1. Dr. Pushpa Jha W/O Dr. Kanhaiyajee Jha Resident Of Mohalla Donar (Chandrasekhar Lane), P.O.- Dmc Campus, P.S. Laheria Sarai, District Darbhanga .... .... Petitioner/s Versus 1. The State Of Bihar, Through The Principal Secretary, Department Of Health And Medical Education, Govt. Of Bihar, Patna 2. The Principal Secretary Department Of Health And Medical Education, Govt. Of Bihar, Patna 3. The Director-In-Chief Health Services, Govt. Of Bihar, Patna 4. The Administrative Officer, Health Services, Govt. Of Bihar, Patna 5. The Principal, Darbhanga Medical College, Laheria Sarai, District Darbhanga 6. The Superintendent, Darbhanga Medical College, Laheria Sarai, District Darbhanga 7. Dr. Alka Mishra W/O Dr. Nirmal Chaudhary Resident Of Mohalla Balbhadrapur, P.O. Laheria Sarai, District Darbhanga .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Amarendra Narayan For the Respondent/s : Mr. Kumari Amrita Gp10 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER 2 04-07-2012 Heard learned Counsel for the petitioner and the State.
The petitioner is aggrieved by order dated 7.6.2012. It cancels her appointment on the post of Senior Resident (Tenure), Department of Obstetrics and Gynecology, Darbhanga Medical College and Hospital, Laheriasarai, District Darbhanga.
Learned Counsel for the petitioner submits, the fact that she may have been in the Bihar Health Service earlier was an irrelevant issue. The present was a fresh tenure appointment under the Senior Resident Tutor of Bihar Medical Education Service Cadre Recruitment (Appointment and Promotion) Rules, 2008. Rule 4 contemplates that it would be a separate cadre different from the Health Service Cadre. Satisfied that she
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fulfilled the conditions of eligibility as prescribed in the advertisement, she was selected by notification dated 10.5.2011 followed by joining. The tenure of the appointment was for four years. It has been prematurely terminated without any opportunity or notice to show cause. Whatever may be the reason, a tenure appointment sought to be terminated prematurely had to be preceded by an opportunity to show cause.
The petitioner did not conceal her earlier employment in the Bihar Health Service. It was considered an irrelevant issue by her. She quit service in 1996 by resigning and started private practice in absence of monthly salary. No notice was given to her and she was never served or made aware of any order for dismissal dated 31.5.2010. The latter order therefore suffers from the same vice as the impugned order.
It was lastly submitted that the impugned order had been issued with ulterior motives to accommodate one Dr. Alka Mishra (Respondent no. 7).
Counsel for the State opposing the application submitted that even if the petitioner submitted a letter of resignation in 1996 it is not her case that it was accepted. Resignation is a bilateral and not an unilateral act. The petitioner acknowledges having abandoned service in 1996 and had taken up private practice. The petitioner was duly communicated a copy of the order by Memo no. 597(a) dated 31.5.2010. If these facts are not in dispute the action of the respondents cannot be said to be arbitrary or devoid of reason warranting interference by the Writ Court.
Counsel for the petitioner has fairly placed a Xerox copy of the order dated 31.5.2010. It is directed to be kept on record. It displays communication of the order to her.
A person appointed in government service has the discretion to resign from service in accordance with Rules. Rule 3 of the guidelines for
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Allied Service Matters states that normally resignation from service has to be accepted straightaway barring the exceptions in Clause 3(i) and 3(ii).The Rules require the resignation to be effective not from the date it is accepted but from the date that the government servant is relieved. The Rule further clarifies that resignation should not be accepted unless departmental dues against the government servant are cleared or adjusted. Rule 4 provides for withdrawal of resignation before acceptance, after acceptance but before being relieved, and also after acceptance and after being relieved. Different procedures are provided for different situations. It is therefore manifest that resignation is not a unilateral act of the employee but a bilateral act. The submission of resignation does not tantamount to severance of masterservant relationship unless there is an acceptance. Acceptance connotes a positive act by issuance of a formal order under the Rules. The petitioner does not contend that she was communicated acceptance and was formally relieved from service. On her own showing, she submitted a resignation letter in 1996 for whatever be the reason, and set up her own private practice. If she was denied salary she had adequate recourse to the law which she does not appear to have availed. If she absented herself from 1996 till 31.5.2010 there can be no two opinions that it amounted to misconduct to stay away from duty unauthorisedly. The fact that any departmental proceedings for unauthorised absence may not have been held is not considered relevant today in the facts of the case. Her own conduct of absentation for long 14 years manifests that she was no more interested in continuing with the service and did not consider it necessary to comply with the law as a government servant. She thus abandoned service. What shall constitute abandonment shall depend on the facts and circumstances of each case as held in (1979) 1 SCC 590 (G.T. Lad v. Chemical and Fibres of India Ltd) at paragraphs 5a and 6 which reads as
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follows:-
“5a. Re Question 1: In the Act, we do not find any definition of the expression “abandonment of service”. In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary , the word “abandon” has been explained as meaning “to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something”. According to the Dictionary of English Law by Earl Jowitt (1959 Edn.) “abandonment” means “relinquishment of an interest or claim”. According to Black's Law Dictionary “abandonment” when used in relation to an office means “voluntary relinquishment”. It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an “abandonment of office”.
6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham & Carnatic Co. v. Venkatiah it was observed by this Court that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to a employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.”
If a government servant absented herself/himself from duty for 14 long years contrary to the law and did not question the order dated 31.5.2010 even thereafter, the Court finds no reason to grant indulgence to such person in the writ jurisdiction. Under Section 114(e) of the Indian Evidence Act there shall be a presumption that government actions have been performed in normal and due course. The presumption shall be that if a copy of the letter dated 31.5.2010 was marked to the petitioner it is
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presumed to have reached its destination. The presumption is of course rebuttable. Except for urging that it was not sent to her address as registered in her Service records no other evidence has been placed to rebutt the presumption.
Natural justice has been stated not to be an unruly horse which can run across any terrain. Applicability of the principle shall depend on the facts and circumstances of each individual case. What will amount to compliance with principles of natural justice, whether compliance was necessary, whether it would have been an empty formality when the outcome was a foregone conclusion are all aspects considered relevant. If the petitioner voluntarily absented from service from 1996 till 2010, despite communication of the order dated 31.5.2010 did not challenge it, the facts appear no more in dispute. There can be no two opinions that absentation from duty for such a long period by a government servant constitutes misconduct. If the respondents did not take any departmental action against her for long it cannot be treated as a waiver on their part to vitiate the orders dated 31.5.2010 or 7.6.2012. The absence of show cause notice before 31.5.2010 for the unauthorised absence for 14 years with no explanation in law being furnished in the writ application, the objection of natural justice is considered unsustainable.
Even if a show cause notice had been issued to her before the order dated 7.6.2012 was passed, the undisputed facts inevitably disclose that no other conclusion was possible. The futility of a show cause was noticed in (1980) 4 SCC 379 (S.L. Kapoor v. Jagmohan) observing as follows:-
“ 24. ……As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts
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do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.”
While examining an administrative order in judicial review if the Court finds that the order does contain reason to the satisfaction of the Administrator the Court cannot go into sufficiency of the reason. In the facts of the present case the opinion of the respondents that it was not prudent to keep a person in government service who had earlier been terminated or abandoned from service cannot be said to be arbitrary and devoid of reason. This opinion of the employer cannot casually be scrutinised in the garb of judicial review. Applying the standards of a common reasonable man, it cannot be said that the decision of the employer not to employ such a person is devoid of logic and unsustainable in law. The question of a show cause notice before issuance of the impugned order was therefore an empty formality.
Once the termination of the petitioner based on cogent and germane grounds is found to be valid it is difficult to hold that the termination of the petitioner was malafide to accommodate Respondent no. 7. Malafide is more easily alleged than proved. There is no pleading in the writ application in support of the allegation of the malafide how the petitioner is of the opinion that events were manipulated to favour another when the order states that Respondent no. 7 was being appointed in terms of the order in CWJC No. 14714 of 2011.
The present discussion has to be confined to the facts of the present case and the impugned order cannot prejudice the petitioner in any fresh consideration if she applies in accordance with law.
The writ application is dismissed.
(Navin Sinha, J)
Snkumar/-
3 issues framed by the court
Whether a tenure appointment can be terminated prematurely without an opportunity to show cause.
Whether long unauthorized absence of a government servant amounts to abandonment of service.
Whether the principles of natural justice require a show-cause notice when the facts admit only one conclusion.
Colour shows how this judgement treated each authority
G.T. Lad v. Chemical and Fibres of India LtdDistinguished¶19
G.T. Lad v. Chemical and Fibres of India Ltd, (1979) 1 SCC 590 · Who else cites this
Buckingham & Carnatic Co. v. VenkatiahDistinguished¶20
Buckingham & Carnatic Co. v. Venkatiah
S.L. Kapoor v. JagmohanDistinguished¶26
S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379 · Who else cites this
1 provisions across 1 enactments
Dr. Pushpa Jha
The State Of Bihar
Dr. Alka Mishra
Navin Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
