Central Administrative Tribunal - Delhi
Dr. S.K. Chugh S/O Shri Dharamvir Chugh vs Union Of India (Uoi) Through The ... on 26 March, 2007
ORDER Shanker Raju, Member (J)
1. An order passed by the respondents on 20.6.2003, under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to as 'the Rules'), dismissing applicant from service as well as an order passed on 6.12.2005, in pursuance of the directions of the Tribunal dated 31.5.2005 in OA-1008/2004, whereby review petition against the penalty has been turned down, are the subject matter of challenge before the Tribunal.
2. A brief factual matrix requires mention. Applicant, who is well qualified in Cardiology, had joined as Assistant Divisional Medical Officer in Railways on 4.12.1986. In the year 1991 he was selected for doing Doctorate in Medicine in Cardiology from All India Institute of Medical Sciences. On sponsorship, a bond of Rs. 75,060/- to serve department for a period of five years had been executed. However, on completion of course, it was learnt that Cardiology department in Central Hospital, which has been proposed, in near future was not to be developed. As a result thereof, applicant was assigned general duties, for which exchange of letters took place, which are not relevant for our purpose. Applicant had sought permission of respondents to go to United Kingdom (UK) for advance training in Cardiology without any expenses to be borne by the Railways and accordingly sought for leave. The Common Wealth Association, Ministry of Human Resources, Government of India apprised the respondents about the training at St. George Health Care, Blackshaw Road, London. Applicant was allowed common fellowship for a period of one academic year and accordingly vide letter dated 4.8.1997 applicant was granted leave to UK from 14.8.97 to 30.9.98 with an appended sanction of extraordinary leave from 14.8.97 to 30.9.98. As the training was extended, it is not disputed that the permission with leave was further extended for a period of six months from 1.4.99 to 30.9.99. The Railway quarter occupied by the family of applicant was vacated in September 1998. The respondents sought for explanation of applicant on vacation of the quarter vide letter dated 11.1.99, which was sent by respondents to his Jaipur address, where his family was residing and was on the record of respondents. The aforesaid letter was replied by the father of applicant stating that applicant was on leave for training abroad. Applicant, from time to time, due to continued training sought permission to extend his stay for grant of leave, which was not responded to by respondents. However, the concerned Doctor, namely Dr. Charles Pumphery vide letter dated 13.5.2000 informed respondents as to the fact of applicant undergoing training in Interventional Cardiology and his plan to be with them till September 2000. On joining back on 19.8.2002 applicant has submitted his resignation, as Cardiology department was yet to be started in Central Hospital and applicant having achieved expertise, moved an application for resignation on his return from UK, but this has not been responded to and vide communication dated 26.5.2003 a conditional acceptance was ordered to the effect that on deposition of bond money of Rs. 75,060/- respondent would consider his request. When this has been appealed against, no decision was taken and ultimately on 3.8.2003 applicant's dismissal was pasted on the notice board of the Central Hospital. A review preferred when not responded to, led to filing of OA-1008/2004, where by an order dated 31.5.2005, following directions were issued:
Heard the learned Counsel.
2. Admittedly against the Presidential order of penalty, under Rule 25 of Railway Servants (Discipline & Appeal) Rules, 1968, a review lies, which has not been exhausted by the applicant. During the course of arguments, it is stated that certain documents on record show that timely information has not been given regarding extension of training and no communication what-so-ever regarding conduct of disciplinary proceedings has been sent to the applicant. As such, ex-parte proceedings are without jurisdiction and deprives the applicant a reasonable opportunity to defend.
3. It is trite law that a right of appeal when available cannot be curtailed and has to be exercised. Keeping in light the mitigating factors and documents on record, we accord liberty to the applicant to prefer a review before the President on merits and direct respondents to dispose it of on merits by passing a detailed and speaking order within four months from the date of receipt of a copy of this order. We further direct the respondents in the wake of principle of natural justice to provide the applicant all documents regarding disciplinary proceedings i.e. copy of the charge sheet and enquiry report, within four weeks from today.
4. In the event the applicant is still aggrieved, it shall be open to him to take appropriate proceedings, in accordance with law. No costs.
3. In compliance thereof, an order passed by respondents rejected the review, giving rise to the present OA.
4. Shri B.S. Mainee, learned Counsel appearing for applicant contended that applicant has never been served with the chargesheet or rejection of his request for extension of leave. In the above backdrop it is stated that the letters written from London were clear to the effect that the training was to be extended upto 30.9.2000, which has been further extended till applicant has reported back for duty, yet rejection of this request has not been conveyed to applicant. As such, absence of applicant from 1.4.1999 cannot be imputed.
5. Learned Counsel would contend that when the respondents in the matter of accommodation could serve communication to the address of applicant where his family was residing at Jaipur which was replied to by the father of applicant as to his son being in UK, nothing precluded respondents from effecting service of notice on the aforesaid address and moreover the only report which has come-forth is that applicant was not found, is not a valid and legal service in law. Accordingly, learned Counsel would contend that when the address of applicant by which he has been communicated with the respondents for extension of his leave and permission to remain abroad on continued training, no communication has been sent directly to him and rather through Embassy, as alleged, service effected in 2002, when the enquiry had already been initiated, is not a valid service in law.
6. Learned Counsel, to substantiate the plea, has relied upon the decision of the Apex Court in Union of India and Ors. v. Dinanath Shantaram Karekar and Ors. 1998 SCC (L&S) 1837, as well as the decision of the Calcutta Bench of the Tribunal in Mrs. Chandra Kala Pradhan v. Union of India and Ors. 2002 (1) ATJ 573, to contend that if the chargesheet or notice is returned undelivered, mere pasting of the same on the notice board is not sufficient to presume service.
7. Shri Mainee has also stated that the enquiry report does not show any discussion or finding recorded by the enquiry officer (EO) on each article of charge, which is not in consonance with Rule 9 (25) of the Rules ibid.
8. Shri Mainee further stated that in the orders passed by the respondents the justifiable request of applicant and acknowledgement from Dr. Charles Pumphery has not been taken into consideration, which would not have made the absence of applicant as unauthorized absence.
9. Shri Mainee has also referred to the order passed in review and contended that it is an admission that rejection of request of applicant for extension on the certificate issued for training and communication as to submission of proof as extension of leave has not been communicated to him. Accordingly, it is stated that applicant has been punished on no misconduct and mere on suspicion and surmises.
10. Learned Counsel would contend that even in an exparte enquiry due procedure of law has to be followed and lastly it is contended that the punishment imposed is not commensurate with the misconduct.
11. On the other hand, Ms. Sangeeta Tomar, learned Counsel appearing for respondents has vehemently opposed the contentions and it is stated that the certificate issued by Dr. Charles Pumphery is not a certificate and is only an intimation and as applicant was evading service through the High Commission of India at UK the service when effected applicant was not found to be residing at the given address. As such, on accord of sufficient opportunity enquiry has been proceeded exparte, which does not suffer from any infirmity.
12. Learned Counsel would also contend that prior to review applicant was provided with all documents and as such despite given sufficient opportunities the present proceedings are barred by res judicata.
13. Ms. Sangeeta Tomar contended that the address of Jaipur and its cognizance by DSE could not be taken notice of as during the stay of applicant with the respondents, cannot be treated as last known address of applicant, which was of Vikas Puri, New Delhi, where applicant was not found to be residing.
14. It is contended that remaining absent from duty as a Doctor for such a long time is a grave misconduct, for which proportionality of punishment has been gone into by the disciplinary authority and in the order passed in review the aforesaid has been taken into consideration thereof.
15. Lastly, it is contended by the learned Counsel that applicant's resignation could not be given effect to, as despite sponsorship to D.M. (Cardiology) applicant has not served respondents with five years, as such, he is liable to refund the entire bond money, which he has not done, the request for resignation was not acceded to.
16. We have carefully considered the rival contentions of the parties and perused the material on record.
17. It is trite that leave cannot be claimed as a matter of right and absenting from duty without any justification is an unauthorized absence, which is a serious misconduct. However, in dealing with a case of absenting from duty a straightjacket formula cannot be evolved, peculiar facts and circumstances are to be evaluated before any finding is to be recorded.
18. It is also trite that when in a disciplinary proceedings a Government servant is evading his presence or refusing to attend without any justified cause exparte proceedings can be adopted, but nothing absolves the disciplinary authority (DA) and the departmental authorities to observe the procedural rules before a finding is to be recorded. The service of a chargesheet or communication is legal when it is effected upon in accordance with rules. When a postal communication is sent to a Government servant and it is not delivered and remains undelivered, as the person is not found, it would neither be treated as a refusal nor a valid service in law. In Dinanath Shantaram Karekar's case (supra), the Apex Court ruled as under:
3. Respondent was an employee of the appellant. His personal file and the entire service record was available in which his home address also had been mentioned. The charge sheet which was sent to the respondent was returned with the postal andorsement "not found." This indicates that the charge sheet was not tendered to him even by the postal authorities. A document sent by registered post can be treated to have been served only when it is established that it was tendered to the addressee. Where the addressee was not available even to the postal authorities, and the registered cover was returned to the sender with the endorsement "not found," it cannot be legally treated to have been served. The appellant should have made further efforts to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be treated as sufficient. That being so, the very initiation of the departmental proceedings was bad. It was ex-parte even from the stage of charge sheet which, at no stage, was served upon the respondent.
4. So far as the service of show cause notice is concerned, it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show-cause notice either through the office peon or by registered post. There is nothing on record to indicate that the newspaper in which the show-cause notice was published was a popular newspaper which was expected to be read by the public in general or that it had wide circulation in the area or locality where the respondent lived. The show-cause notice cannot, therefore, in these circumstances, be held to have been served on the respondent. In any case, since the very initiation of the disciplinary proceedings was bad for the reason that the charge sheet was not served, all subsequent steps and stages, including the issuance of the show-cause notice would be bad.
5. Lastly, in order to save the lost battle, a novel argument was raised by the learned Counsel for the appellant. He contended that since the charge-sheet as also the show-cause notice, at different stages of the disciplinary proceedings, were despatched and had been sent out of the office so that no control to recall it was retained by the department, the same should be treated to have been served on the respondent. It is contended that it is the communication of the charge sheet and the show-cause notice which is material and not its actual service upon the delinquent. For this proposition, reliance had been placed on the decision of this Court in, State of Punjab v. Balbir Singh .
6. This decision has been misread, misunderstood and is now being misapplied by the counsel for the appellants in the instant case.
19. Likewise, the Apex Court in Dr. Ramesh Chandra Tyagi v. Union of India and Ors. 1994 SCC (L&S) 562, as regards service of the chargesheet, observed as under:
7. As regards the dismissal of the appellant it is unfortunate that he did not join. The service discipline does not permit such adamant attitude. We do not approve of the conduct of the appellant. At the same time the authorities too did not adopt any reasonable or rational attitude. They were out to squeeze the appellant and were not willing to budge and consider even when the Director of the Pune Institute requested them not to post him there as sending such a person was waste for a man of such high calibre. True, the terms and conditions of appointment provide that he could be transferred anywhere in the country. Yet the action must be fair and order legal. We have avoided entering into fairness but on legality there is no doubt. Such attitude of the administrative set-up is neither healthy nor conducive. In service culture devotion to work and duty is more important than clash of false ego. We are pained to observe that entire proceedings do not leave very happy and satisfactory impression. It was vehemently argued that there was no procedural irregularity. But that is writ large on the face of it. No charge-sheet was served on the appellant. The Enquiry Officer himself stated that the notices sent were returned with endorsement 'left without address' and on other occasion 'on repeated visits people in the house that he has gone out and they do not disclose where he has gone. Therefore, it is being returned.' May be that the appellant was avoiding it but avoidance does not mean that it gave a right to Enquiry Officer to proceed ex parte unless it was conclusively established that he deliberately and knowingly did not accept it. The endorsement on the envelope that it was refused, was not even proved by examining the postman or any other material to show that it was refusal by the appellant who denied on oath such a refusal. No effort was made to serve in any manner known in law. Under Postal Act and Rules the manner of service is provided. Even service rules take care of it. Not one was resorted to. And from the endorsement it is clear that the envelope containing charge-sheet was returned. In absence of any charge-sheet or any material supplied to the appellant it is difficult to agree that the inquiry did not suffer from any procedural infirmity. No further need be said as the appellant having been removed for not complying with the transfer order and it having been held that it was invalid and non est the order of dismissal falls automatically.
20. In Chandra Kala Pradhan (supra), the Calcutta Bench of the Tribunal recorded the following finding:
15. We are here concerned with the procedural fairness. Procedural propriety is also a part of the procedural justice. Its concern is to provide opportunity for the individual to participate in the decision making process that affect them. The other aspect is to advance the attributes, authenticity as well as the rationality of the process of decision making. Its aim is to provide the concerned individual a fair opportunity to influence the outcome of the decision. Participation is not to be averted as a barrier of effective administration. Fairness is to be shown to the individual and that is the essence of justice. In the instant case admittedly, the notices sent to the applicant came back to the authority un-served as not found. No materials were made available before us indicating that any further efforts or steps were taken to serve the notice on the applicant. The respondents thereafter pasted the notice on the office notice board, knowing it well that the applicant was not attending the office and as a matter of fact the charge was for its continued unauthorized absence. The respondents were more concerned as to the communication and not on actual service. On the facts and circumstances of the case we are of the opinion that the respondents faltered in providing a reasonable and fair opportunity to the applicant before passing the impugned order of dismissal. In this context we took the aid of the decision of the Supreme Court in Union of India and Ors. v. Dinanath Shantaram Karekar and Ors. .
21. A cumulative reading of the above clearly indicate that when a communication is sent and if it comes undelivered with the comments 'person is not found' would not amount to legal service.
22. Before a person is dismissed, Article 311 (2) of the Constitution of India mandates a reasonable opportunity to defend in accordance with law. Rule 9 of the Rules ibid empowers the DA to impose a major penalty but not before a reasonable opportunity is afforded and a reasonable notice of the proceedings is served upon the concerned. This is in consonance with the principles of audi alteram partem contained as a paramount ingredient of principles of natural justice.
23. It is also trite that even in an exparte enquiry due procedure has to be followed.
24. From the perusal of the chargesheet, what we find that the same has not been delivered to applicant and the only evidence which has come-forth is that the chargesheet along with the notice of enquiry was sent to applicant by respondents before 15.10.2001 but the High Commission at London intimated that applicant had left, which is not correct as applicant had been, from time to time, seeking extension of his stay abroad and extension of leave, which had been forwarded from the same address, we do not find any direct communication of the chargesheet etc. to applicant at his available address on which several communications have been received by respondents. The comments that 'applicant is not found' cannot be deemed as a valid service in law. Moreover, what we find is that allegations against applicant were of his unauthorized absence from 1.4.99 on the ground that whereas his request for extension and certificate issued by Dr. Charles Pumphery was turned down by respondents, yet in the order passed in review it is clearly mentioned that the proof of extension of leave, which was required to be submitted, as contended by the respondents, this communication has not been sent to applicant. Accordingly, for want of communication, the certificate issued by Dr. Charles Pumphery, which clearly indicates that applicant has been undergoing training and would do so till 31.3.2000 raises a valid presumption in law that his continuance was on account of training and despite his persistent requests to respondents to extend his leave, having not been rejected and this rejection not being communicated to applicant, he may be absent from duty but on a valid and justified ground of undergoing training abroad, which had continued till he joined.
25. Another infirmity, which has cropped up in the enquiry is that the EO has proceeded the enquiry exparte without any valid service, yet for the namesake of finding, the following conclusion has been drawn:
After going through all the documents stated above I conclude that Dr. S.K. Chugh, DMO/Central Hospital, New Delhi is found to be guilty as he has failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming as a Railway Servant thereby contravening Rule 3 (i), (ii) & (iii) of Railway Service Conduct Rules, 1966.
26. As per Rule 9 (25) of the Rules, it is incumbent upon the EO to record his finding on each article of charge with reasons. For want of reasons, the aforesaid finding is non est finding and we substantiate our conclusion by the decision of the Apex Court in Anil Kumar v. Presiding Officer 1985 SCC (L&S) 815.
27. We also find that despite the address of Jaipur was available with respondents, whether with the department of DSE or not, yet no notice of rejection of applicant's request for further extension has been communicated to him. We also find from the record that when such information as to the Railway accommodation was communicated at Jaipur, which was responded to by the father of applicant, where family of applicant was residing, non-service at the relevant place has jeopardized applicant in his right to effectively defend and rebut the charges.
28. As regards OA filed by applicant, the same was not disposed of on merit, dealing with the legality of the punishment, what has been directed is to provide all documents to facilitate an effective review. The objection as to res judicata is misconceived and is overruled.
29. The DA recorded the following findings:
3. As all the efforts to serve the charge sheet to Dr. S.K. Chugh failed, the case was remitted to inquiry. In his inquiry report, the I.O. namely Dr. R.K. Agrawal, Chief Chest Physician/Central Hospital/Northern Railway held the charge against Dr. Chugh is proved. To give opportunity of defence to the Doctor, all efforts were made to serve the charge sheet, appointment order and the inquiry notice for the inquiry fixed on 16.10.2001 through Railway Advisor, High Commission of India in London but Railway Advisor advised that Dr. Chugh had left. The Inquiry Officer, therefore, proceeded ex-parte and held the charge as proved on the basis of documentary evidence available.
4. A copy of IO's report was also pasted at the Notice Board of the Central Hospital/Northern Railway where the Doctor was last working as it was not possible to serve the letter inviting C.O.'s representation on the IO's report as no address ( of U.K. or local address) was available where it could be served. Further, the Doctor had vacated the Railway quarter allotted to him at Paharganj and as per the report submitted by A.P.O., Central Hospital deputed for serving the charge sheet on the C.O. at his Vikaspuri address the Doctor was not residing at the Vikaspuri address.
5. The General Manager, Northern Railway, after considering the case including the I.O's report forwarded the case to Board's office as the penalty intended to be imposed by him on Dr.Chugh was not within the competence.
6. The President, in consultation with Union Public Service Commission, has carefully considered the inquiry report, proceedings of inquiry and all other relevant records/aspect of the case and has come to the conclusion that the charge of unauthorized absence since 1.4.1999 is proved against Dr. S.K. Chugh, DMO/Central Hospital/Northern Railway for the reasons given in the U.P.S.C.'s advice. The President has observed that reasonable opportunity was afforded to Dr. S.K. Chugh, which he failed to avail. With these findings/observations, the President, accepting the U.P.S.C.'s advice, has decided to impose on Dr. S.K. Chugh, D.M.O./Central Hospital/Northern Railway the penalty of 'dismissal from service' for the charge held as proved against him which has been considered as a serious charge warranting the most extreme penalty of dismissal from service. According to the penalty of dismissal from service as decided by the President is hereby imposed on Dr. S.K. Chugh, D.M.O., Central Hospital, Northern Railway.
30. If one has regard to the above, the contention that no address of applicant was available on record, cannot be countenanced. The enquiry report, which was not reasoned, the DA perpetuated the illegality against the Railway Board's Circulars of 1978 and 1985, whereby while issuing an order of punishment, reasons are to be recorded, which has not been complied with in the present case.
31. The reviewing authority though considered some of the grounds of applicant but recorded the following observations:
5. In view of the above, while in so far as this disciplinary case is concerned, there does not appear to be any infirmity and Dr. Chugh was given all the reasonable opportunities as could be possible in the circumstances of the case though it is factually correct that no communication requiring him to submit proof of extension of leave could be made with the Doctor at his U.K. address. But then, leave cannot be presumed and is not a matter of right. The Doctor himself was at fault that he presumed grant of extension of leave. It is relevant to mention here that even as per Annexure-A 12 of the OA No. 1008/2004 filed by Dr. Chugh the period of training was only one year and the Ministry of Human Resources Development had clarified that Dr. Chugh should approach his employer for leave and other purposes. Thus the charge in any case is proved against the Doctor regarding his unauthorized absence from duty with effect from 01.04.1999 onwards.
32. Having regard to the above, the main allegation, which constitutes unauthorized absence of applicant, i.e., the communication by respondents to submit proof of extension of leave, discarding the certificate issued by Dr. Charles Pumphery having not been complied with, applicant in his legitimate expectation and bona fide belief construed tacit approval of his extension of grant of leave, which cannot be found fault with.
33. In an identical situation when a Doctor had gone on fellowship in UK, termination of service has been held to be illegal by the Apex Court in V.C. Banaras Hindu University v. Shrikant , with the following observations:
48. In K.I. Shephard and Ors. etc. etc. v. Union of India and Ors. , this Court held:
It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose. {See also Assam Sillimanite Ltd. v. Union of India and H.L.Trehan v. Union of India .}
49. We have noticed hereinbefore that the nature of leave, inter alia, was compensatory one. Although it cannot be claimed as a matter of right but an employee who had worked during summer vacation would have a legitimate expectation that he can avail the same. He was also entitled to be granted detention leave, unless there exists a just reason to refuse the same. We have noticed hereinbefore that the Head of the Department granted the leave and made recommendation for grant of permission. The Vice Chancellor even did not consider the same.
50. An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness. Such a test of reasonableness vis-a-vis the principle of natural justice may now be considered in the light of the decisions of this Court.
51. The question came up for consideration before a three-Judge Bench decision of this Court, in D.K. Yadav v. JMA Industries Ltd. , wherein emphasizing the requirements to comply with the principles of natural justice while terminating the services of the employees on the touchstone of Article 21 of the Constitution of India; it was held that not only the procedure prescribed for depriving a person of his livelihood must meet the challenge of Article 14 but also the law which will liable to be decided on the anvil thereof.
52. Here again, this Court opined that Article 14 requires that the procedure adopted must be just, fair and reasonable. It was furthermore held:
Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness.
53. This Court opined that right to life enshrined under Article 21 would include the right to livelihood and thus before any action putting an end to the tenure of an employee is taken, fair play requires that reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.
54. In Uptron India Ltd. v. Shammi Bhan and Anr. , this Court was considering the validity of the provisions of the Standing Orders of the company containing a clause that services of the workmen would be liable for automatic termination. This Court opined that if prior to resorting thereto an opportunity of hearing is not granted, such a provision would be bad in law.
55. The said legal position was reiterated in Scooters India Ltd. v. M. Mohammad Yaqub and Anr. (2001) 1 SCC 61, where again requirement to comply with the principles of natural justice was highlighted.
56. The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorized absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214.
57. In Lakshmi Precision Screws Ltd. v. Ram Bhagat , a Division Bench of this Court was considering clause 9(f)(ii) of the Standing Orders which reads as under:
9.(f) Any workman who,
(ii) absents himself for ten consecutive working days without leave shall be deemed to have left the firm's service without notice, thereby terminating his service.
58. The workman therein offered an explanation and having regard thereto, the Labour Court came to the conclusion that the action of the management in terminating the services of the workman therein was not justified. When the matter reached this Court, it was opined:
Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts.
59. Referring to the decisions noticed by us hereinbefore, it was held:
It is thus in this context one ought to read the doctrine of natural justice being an in built requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed.
60. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating:
Arbitrariness is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.
61. A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. and Ors. before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding:
A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.
62. Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan . In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term:
Rule 5(8)(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council.
63. It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.
64. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.
34. Having regard to the above, as there has been no communication as to refusal of extension of leave of applicant, no punishment can be maintained.
35. In review, under Rule 25-A of the Rules ibid, as a departmental authority it is incumbent upon the respondents to have recorded a finding on proportionality of punishment. From the perusal of the order passed in review we find that no such finding has been recorded as to the proportionality of punishment, which has vitiated the orders passed by the authorities.
36. Though it is trite that leave cannot be claimed as a matter of right but extenuating circumstances are to be examined and before a person can be dismissed a reasonable opportunity should be given. No doubt, a technical plea in the interpretation has been made, yet it is in consonance with the principles of natural justice and the decision of the Apex Court. In review applicant was given opportunity but that opportunity would have to be original in the disciplinary proceedings. Applicant is not only aggrieved by the order of the reviewing authority but also basically his abrupt dismissal without following due process of law. We also note that one has no right to remain for ever in abroad without seeking permission for extension, yet if such refusal of extension on calling for the certificate has not been communicated the same would still violate the effective right of the concerned of denial of reasonable opportunity.
37. In the result, for the foregoing reasons, OA is partly allowed. Impugned orders are set aside. Respondents are directed to forthwith reinstate applicant in service. However, if so advised, they are at liberty to proceed against applicant from the stage of disciplinary proceedings and in such an event applicant would be accorded reasonable opportunity to put up his defence and he shall cooperate in the enquiry. The intervening period has to be operated as per the Railway Rules. No costs.