Allowed

Smt Kavita Meghani v. State of Raj and Ors.

Rajasthan HC14 Sept 2015CW/11675/2010

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed a writ petition quashing an order terminating the petitioner's services under Rule 86 of the Rajasthan Service Rules. The court held the termination illegal as the absence failed the five-year continuous threshold and due process was not followed.

What did the court decide?

The impugned order dated 16/6/2009 is quashed and set aside; petitioner reinstated forthwith with consequential benefits on notional basis.

Smt Kavita Meghani Vs State of Raj and Ors. — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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S.B. Civil Writ Petition No.11675/2010

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Smt. Kavita Meghani vs. State of Raj. & Ors. Date of Order :: 14/09/2015

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HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

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Ms.Prakash Yadav with

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Mr.Akhil Simlote, for the petitioner/s. Mr.Sanjay Kumar Sharma, GC., for Staterespondents.

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The petitioner is aggrieved of the order dated 16^th June, 2009, terminating her services, invoking Rule 86 of Rajasthan Service Rules, 1951 (hereinafter referred to as 'Rules of 1951', for short), for her wilful absence, and therefore, has approached this Court praying for the following relief(s):-

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"i) Call for the entire record pertaining to the case and examine the same;

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ii) by an appropriate writ, order or direction in the nature thereof, thereby quash and set aside the impugned order dated 16/6/2009 (Ann.8)

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iii) Any other appropriate order or direction, which the Hon'ble Court deems fit and proper in the facts and circumstances of the case may kindly also be passed in favour of the petitioner.

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iv) Cost of the writ petition may kindly be awarded in favour of the petitioner."

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Briefly, the indispensable skeletal material facts necessary for appreciation of the controversy raised are that the petitioner successfully participated in the recruitment process for the post of Lecturer (Sociology). On

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being accorded appointment vide order dated 24^th September, 2003, she joined her service on 9^th October, 2003. It is pleaded case of the petitioner that on 17^th November, 2003, she got married with Shri Heera Bindrani, resident of Jaipur. On 2^nd January, 2007, she availed of Maternity Leave and on 7^th March, 2007, she reported for duty along with her medical certificate. Further, in response to communication dated 9^th July, 2007 and 13^th November, 2007, as well as notice published in the newspaper on 5^th March, 2008, she did report for duty on 23^rd December, 2008. However, vide impugned order dated 16^th June, 2009, her services have been terminated invoking Rule 86 of the Rules of 1951.

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Learned counsel for the petitioner Mr. Akhil Simlote, reiterating the pleaded facts and grounds of the writ application asserted that the petitioner did report for duty on 23^rd December, 2008, as would be evident from Annexure-7, which bears signature of the Principal, Government Girls Senior Secondary School, Talwandi, Kota. It is further contended that owing to her family problems, the petitioner also requested the school administration, for a symphathetic consideration, to shift her from Kota to Jaipur, but her request was not acceded to.

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The termination of services, has been assailed for violation of principles of natural

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justice as well as for that Rule 86 of the Rules of 1951, is not attracted to the facts of the case at hand.

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According to the counsel, the petitioner was on duty with effect from 9^th October, 2003 uptill 7^th March, 2007. Thus, with effect from 7^th March, 2007, even by the date 16^th June, 2009, she did not complete even two years of alleged absence from duty. Though from the materials available on record, it is evident that the petitioner did report for duty on 23^rd December, 2008, and the fact has not been denied in the counter affidavit, but for a statement that the petitioner left the school after submitting the letter Annexure-7, on 23^rd December, 2008.

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Learned counsel for the petitioner further urged that the notice which was allegedly published in the newspaper contemplated initiation of departmental proceedings in the event of failure of the petitioner to report for duty, and admittedly, no departmental proceeding was ever initiated.

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In response to the notice of the writ application, the State-respondents have filed their counter affidavit pleading that the employment of petitioner has been rightly put to an end, invoking Rule 86 of the Rules of 1951, for her wilful absence from duty.

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Learned counsel for the State-respondents reiterating the stand in the reply to the writ application while supporting the impugned order

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terminating the services of the petitioner also relied upon the opinion of the Hon'ble Supreme Court in the case of Syndicate Bank vs. Joint Secretary, Syndicate Bank Staff Association and another; 2000 (5) SCC 65.

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On being quaried by the Court, learned counsel for the State-respondents could not furnish any satisfactory answer as to how Rule 86 of the Rules of 1951, could have been invoked in the face of contemplation therein to the effect that the absence from duty as contemplated under Rule 86, must be for a continuous period exceeding five years. Moreover, even Rule 86 (4), the incumbent is entitled to a reasonable opportunity to explain the reasons for such absence, and such an opportunity shall be given to the employee before the provisions of Sub-rule 4 are invoked. 10. I have heard the learned counsel for the parties and perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 11. The fact that the petitioner was appointed to the post of Lecturer (Sociology) and was accorded posting at Government Girls Senior Secondary School, Talwandi, Kota, vide order dated 24^th September, 2003, and she joined on 9^th October, 2003, is not indispute.

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From the material available on record, it is evident that the petitioner regularly attended to her duties. Owing to her marriage

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with Shri Heera Bindrani, resident of Jaipur; the petitioner requested for her transfer from Kota to Jaipur City. From the material available on record, it is also evident that the petitioner found it difficulty to attend to her duties at Kota on account of her children of tender age, and therefore, requested for her transfer.

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The communication dated 23^rd December, 2008, further reflects the details of her absence, and the application was submitted by none else but the petitioner herself on 23^rd December, 2008. The State-respondents have invoked Rule 86, of the Rules of 1951, while terminating the services of the petitioner. At this juncture, it will be relevant to consider the text of the Rule 86, of the Rules of 1951, which reads thus:-

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"(1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained willfully absent from duty, and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularized by grant of leave due or is commuted into extraordinary leave by the authority competent to sanction leave.

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{a} A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted

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into extra-ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularized by grant of leave due by the authority to grant leave.

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{b} Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.

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Notwithstanding the provisions contained in subrules [1] and [2] above the disciplinary authority may initiate departmental proceeding under Rajasthan Civil Services [Classification, Control and Appeal Rules against Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service.

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Unless the State Government, in view of the special circumstances of the case, determines otherwise a State Government employee who remains absent from duty for a continuous period exceeding five years other than on foreign service, whether with or without leave, shall be deemed to have resigned from service.

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Provided that a reasonable opportunity to explain the reasons for such absence shall be given to the employee before the provisions of the sub-rule are invoked."

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A glance of Sub-rule 4 of Rule 86, would reveal that if a State Government employee, remains absent from duty for a continuous period exceeding five years other than on foreign service, whether with or without leave, shall be deemed to have resigned from service. The Rule further contemplates a provision to the effect that a reasonable opportunity, to explain the

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reasons for such absence, shall be accorded to the employee before the provisions of the special rule are invoked.

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From the admitted facts and materials available on record the petitioner did report for duty on 23^rd December, 2008, wherein she also admitting the fact of her absence on various dates as detailed out in the application (Annexure-7), since 2007 until her marriage in the year 2008.

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A glance of Rule 86 would reveal that the rule could not have been invoked treating the petitioner to have resigned from service unless a period of five years of continuous absence elapsed. It is also not disputed that no departmental proceedings were initiated against the petitioner for her absence from duty.

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In the instant case at hand, neither any formal departmental enquiry nor any preliminary fact finding enquiry has been conducted rather a simple order terminating the services of the petitioner, invoking Rule 86, has been passed. The petitioner was a regular employee and is entitled to protection of law and her services can neither be terminated in an arbitrary manner nor those services can be terminated in a punitive manner without complying with the principles of natural justice.

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Though the principle of natural justice is to be applied having regard to the facts and circumstances of the case keeping in mind, the

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relevant fact situation. But in the present case, as already mentioned above, the fact is that the petitioner submitted joining report in response to the notice of her absence from duty along with her medical certificate but the matter has not been considered at all whereas in the notice it was held out in unequivocal terms that in the event, the petitioner did not report for duty, she would be proceeded with departmental enquiry under the relevant rules. The decision of the State-respondents while terminating the services of the petitioner invoking Rule 86 of the Rules of 1951, is absolutely misconceived.

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In the face of the text of Rule 86(4), which contemplates a determination, unless the State Government in view of special circumstances of the case decides to the contrary that the government employee remained absent from duty for a continuous period exceeding five years subject to the exceptions detailed out therein; her service could not have been terminated invoking Rule 86 of the Rules of 1951. Further, Rule 86 (4) contemplates a reasonable opportunity to explain the reasons for such absence to the employee before the provisions of Sub-rule 4, are invoked.

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In view of singular facts and circumstances of the case, the impugned order dated 16^th June, 2009, cannot be sustained. 21. In the result, the writ petition succeed

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and is hereby allowed. The impugned order dated 16^th June, 2009, is hereby quashed and set aside. The respondents are directed to reinstate the petitioner forthwith. The petitioner shall be entitled to all consequential benefits on notional basis.

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It is made clear that the Staterespondents would be at liberty to initiate appropriate departmental proceedings for absence of the petitioner from duty, in accordance with the rules, without in any manner influenced by the observations made in this order.

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No costs.

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(VEERENDR SINGH SIRADHANA), J.

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A.Sharma/85

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All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed:

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(Anil Sharma)

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Jr.P.A.

Smt Kavita Meghani v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Smt Kavita Meghani v. State of Raj and Ors.

Case brief

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What did the court decide?

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