Madhya Pradesh High Court
Bhimrao Ghatode vs The State Of Madhya Pradesh on 2 April, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 02nd OF APRIL, 2024
WRIT PETITION No.15429 of 2017
BETWEEN:-
BHIMRAO GHATODE, AGED ABOUT 54 YEARS, S/O SHRI
GANPATI GHATODE, OCCUPATION LAB ATTENDANT,
R/O SHIBAJI WARD, PANDHURNA, DISTRICT
CHHINDWARA, MP
....PETITIONER
(BY SHRI R.K. VERMA - SENIOR ADVOCATE WITH SHRI BHUVNESH
SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH THE
PRINCIPAL SECRETARY HIGHER EDUCATION
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. THE COMMISSIONER/DIRECTOR DIRECTORATE
OF HIGHER EDUCATION SATPURA BHAWAN,
BHOPAL (MADHYA PRADESH)
3. ADDITIONAL DIRECTOR, HIGHER EDUCATION
SCIENCE COLLEGE, CAMPUS, JABALPUR
(MADHYA PRADESH)
4. THE PRINCIPAL GOVERNMENT ENGINEERING
COLLEGE, DAMUA, DISTRICT CHHINDWARA
(MADHYA PRADESH)
....RESPONDENTS
(RESPONDENTS/STATE BY SHRI PUNIT SHROTI - GOVERNMENT ADVOCATE)
..................................................................................................................................................
This petition coming on for admission this day, the court passed the
following :
2
ORDER
By means of this petition filed under Article 226 of the Constitution of India, the petitioner is challenging the validity of order dated 08.03.2010 (Annexure-R/9) whereunder referring the provisions of Rules 3-II and 7 of the M.P. Civil Services Conduct Rules, 1965, his services have been terminated for the reason that he remained absent unauthorizedly from his duties for long.
2. The challenge is founded mainly on the ground that being a regular employee, the services of the petitioner cannot be terminated without conducting a regular departmental enquiry. The conduct of the respondents is being assailed on the ground that though it is claimed that since the petitioner remained absent from duties and was unavailable, therefore, ex parte enquiry was conducted against him, but according to the petitioner the procedure which had to be followed even in his absence, that had also not been done and as such, the impugned order is illegal and liable to be set aside.
3. In essence, the facts of the case are that the petitioner was appointed as a Lab Attendant (Science) in Government Science College, Pandhurna, District Chhindwara vide order dated 05.10.1987. According to the petitioner, vide order dated 12.10.1989, he was kept on probation for a period of one year which was successfully completed by him and as such, by Annexure-P/1, he was given permanency.
(3.1) Vide order dated 08.07.2005, the petitioner was transferred from Government College, Pandhurna to Government College Damua, District Chhindwara and pursuant thereto, vide order dated 28.07.2005, he was relieved from his duties and joined at the transferred place where according to him, he was allowed to work only for a week w.e.f.
321.12.2005 to 27.12.2005.
(3.2) Being aggrieved with the action of the authorities, the petitioner filed a petition before this Court i.e. Writ Petition No.17289 of 2006 which vide order dated 06.03.2007 got allowed directing the respondents to allow the petitioner to join his services at Government College Damua, but when the petitioner was not allowed to join, then for implementation of order dated 06.03.2007, he filed a contempt petition i.e. Cont. Petition No.152 of 2008, which vide order dated 15.12.2008 got disposed of giving liberty to the petitioner to institute fresh proceeding before the appropriate forum or Court in accordance to law.
(3.3) Thereafter, the petitioner approached the authorities asking them to allow him to join his duties, but nothing was done and ultimately, he was informed that since he remained absent unauthorizedly from his duties, therefore, his services were terminated. However, as per the petitioner, the copy of order terminating his services was never communicated to him and as such, he made a representation dated 21.03.2013 (Annexure-P/7) asking the authority to supply him the copy of order terminating his services.
(3.4) However, during pendency of petition, the petitioner came to know about the fact that vide order dated 03.07.2006, one S.R. Sharma was appointed as an Incharge Principal, who had issued the order dated 08.03.2010 (Annexure-R/9) terminating his services and, therefore, the challenge is also made on the ground that impugned order since passed by a person who was holding the charge of the post, therefore, his services could not be terminated especially under the circumstances when no departmental enquiry was initiated against him. However, the petitioner amending the petition that too in the years 2017 and 2023 has challenged 4 the order of his termination dated 08.03.2010 and also sought for quashing the charge-sheet dated 21.11.2009.
4. A return has been filed by the respondents taking stand therein that though the petitioner got relieved on 28.07.2005 from Government College, Pandhurna to join his services at Government College, Damua, but the attendance register reveals that the petitioner after attending his duties at Government College, Damua on 21.12.2005 had worked there only up to 27.12.2005 and thereafter remained absent from duties. It is also stated by the respondents that the petitioner on the basis of false and incorrect facts had filed the petition before this Court and thereafter in the contempt petition, it was found by the Court that since there were disputed facts with regard to joining of the petitioner, therefore, refused to implement the order passed by the writ Court giving liberty to the petitioner to raise his grievance afresh in an appropriate proceeding, but thereafter the petitioner neither filed any petition nor availed any remedy. As per the respondents, the petitioner remained absent unauthorizedly from his duties and, therefore, several notices were issued to him to report on duties, failing which, it would be considered that he has left the job and in that situation, disciplinary action will be taken against him. That apart, a letter had also been submitted by the Incharge Principal to the Regional Additional Director, Jabalpur Division, Jabalpur, informing him about the unauthorized absence of the petitioner. However, in the said letter, it was further informed that the petitioner had not participated in the enquiry and despite informing at his residence about his unauthorized absence, he did not submit any application for leave. The letter also contained that on 21.09.2006, the petitioner was present in the College, but still he did not participate in the enquiry. Charge-sheet although issued and thereafter 5 notice got published in the newspaper asking the petitioner to attend the duties, but he did not do so. Ultimately, it was opined by the Enquiry Committee that the petitioner has abandoned the services and his unauthorized absence left no other option with the authorities but to terminate his services and as such, the order of termination dated 08.03.2010 has been passed.
5. A rejoinder has been filed by the petitioner admitting therein that except document dated 06.03.2006, nothing was received by him. According to the petitioner, by the said letter, he was asked to submit his explanation and as such, he has taken a stand in rejoinder that he had no information about the enquiry, if any, conducted by the authorities and further, that cannot be considered to be a proper proceeding as the same was initiated behind his back. In the rejoinder, it is further stated that so far as publication of notice in the newspaper is concerned, since the said newspaper was not in circulation at Pandhurna where the petitioner resides, therefore, it cannot be said to be a notice issued to him.
6. Additional return has been filed taking stand therein that the petition is liable to be dismissed on the ground of delay and laches for the reason that though the order terminating the services of the petitioner was passed in the year 2010, but challenging the same, this petition has been filed in the year 2017 even without assigning any cogent reason for causing delay. It is stated in the additional return that the dispatch register (Annexure-R/10) very categorically provides that a copy of order terminating the services of the petitioner was dispatched to him on the address which was available in the office record. That apart, to rebut the stand taken by the petitioner in respect of competency of Incharge Principal, who had issued the order terminating the services of the 6 petitioner, the respondents have taken a stand that the State Government taking into account the seniority had not only appointed the senior most person as the Incharge Principal, but also assigned him all the powers of Principal and if any order terminating the services of an employee is passed by the Incharge Principal having all the powers as per the delegation given by the State Government, then it cannot be said to be an illegal action on the part of such authority.
7. Considering the existing facts and circumstances of the case, I am of the opinion that the pleadings made in the petition are not very clear for the reason that though, the petitioner in the petition has claimed that he was appointed as a Lab Attendant and his probation period which was of one year is completed, but there is no document which indicates that the petitioner has been given the status of confirmed employee. However, the certificate dated 07.02.1989 (Annexure-P/1) on which the petitioner is relying upon otherwise reveals that from the year 1987, the petitioner was working as an ad hoc employee and though in that certificate a recommendation was made in the petitioner's favour saying that he has completed his probation period successfully, but, later on, whether any order confirming the services of the petitioner is passed or not, it is not clear from the record. That apart, when the facts of the case were found misconceived and disputed by the High Court in the contempt petition filed by the petitioner, then the Court giving liberty to the petitioner to avail appropriate remedy had disposed of the petition, but from the record, it is also not clear as to why, the petitioner did not avail any such remedy. The observation made by this Court in the contempt petition i.e. Cont. No.152/2008 reads as under:-
'Having heard the learned counsel for parties and on consideration of facts, it is clear that there are serious disputes between the parties as to 7 whether the petitioner joined on 21.12.2005 and thereafter he was absconding and refusing to perform duties after 27.12.2005. The dispute between the parties has to be adjudicated in accordance with law before the appropriate forum and in the light of serious disputes that exists between the parties without adjudication of the rival contentions initiating action for contempt against the non-applicant is not appropriate. That being so, finding serious dispute existing between the parties with regard to joining of the petitioner and he is absconding from duties or otherwise, which dispute is yet to be adjudicated, the respondent is discharged from the proceedings and liberty is granted to the petitioner to institute fresh proceedings before the appropriate forum or court in accordance to law.' Although, at the time of arguments, learned Senior Advocate for the petitioner has submitted that the notice published in the newspaper and sent to the petitioner through UPC were not the proper procedure and as such, it can be easily gathered that no opportunity to submit his stand was granted to the petitioner and as such, under such circumstances, the enquiry initiated against him vitiates as the same was conducted in violation of principles of natural justice, but from the overall circumstances, I am of the opinion that though charge-sheet was issued to the petitioner asking him to appear in the enquiry for the reason that he remained absent unauthorizedly from his duties, but that enquiry was not culminated into the order of termination whereas the order of termination was passed as the petitioner had abandoned his services for long. Even otherwise, I am not convinced with the submission made by learned Senior Advocate that the newspaper in which notice was published at Chhindwara was not in circulation at Pandhurna where the petitioner resides. From the record, it is clear that several notices were issued to the petitioner on his residential address, but even then he did not turn up to submit his explanation or to participate in the enquiry. In the rejoinder, though the petitioner had admitted that a notice dated 06.03.2006 (Annexure-R/3) was received by him which contained a warning that if he failed to appear before the Principal within a period of 15 days then disciplinary action 8 shall be taken against him, but despite that he did not file any explanation. The notice dated 06.03.2006 (Annexure-R/3) reads as under:-
'dk;kZy; izkpk;Z] 'kkldh; egkfo?kky;] neqvk ¼fNaMokMk½ Øekad@936@ neqvk] fnukad 06-03-2006 izfr] Jh Hkhejko ?kkVksMs iz;ksx'kkyk ifjpkjd] f'kokth okMZ] ika<qjukA fo"k;% drZO; ij vuqifLFkr gksus rFkk fnukad 28-12-05 ls fujUrj vukf/kd`r vuqifLFkfr gsrq Li"Vhdj.k lUnHkZ% bl dk;kZ- dk i- Øekad@824@06] neqvk] fnukad 13-01-06 ,oa i= Øekad@896@2006 neqvk] fnukad 14-02-06A
---------
mijksDr fo"k;kUrxZr ys[k gS fd%& ¼1½ vki fnukad 28-12-05 ls vukf/kd`r :i ls fujUrj vuqifLFkr gSA ¼2½ bl dk;kZy; ds i= Øekad 824@06] neqvk fnukad 13-01-06 ,oa i= Øekad 896@06] neqvk] fnukad 14-02-06 ds ek/;e ls Li"Vhdj.k izLrqr djus ds fy;s dgk x;k Fkk] fdUrq Li"Vhdj.k vkt fnukad rd vizkIr gSA ¼3½ dk;kZ- vk;qDr] mPp f'k{kk] e-iz-'kklu] Hkksiky ds vkns'k Øa- @3092@1059@vkmf'k@'kk[kk&7@06] Hkksiky] fnukad 06-07-05 ds rgr iz'kkldh; vk/kkj ij rRdky izHkko ls vkidks 'kkldh; egkfo?kky; ika<qjuk ¼fNanokMk½ ls LFkkukarfjr fd;k x;kA vkidks dk;kZy; izkpk;Z] 'kkldh; foKku egkfo?kky; ika<qjuk ¼fNanokMk½ ds vkns'k Øa-1610@vjkt-@LFkk-@LFkk-@05 iak<qjuk fnukad 28-07-2005 ds }kjk iwokZUg esa dk;ZeqDr fd;k x;k rFkk funsZf'kr fd;k x;k fd vki rRdky dk;ZHkkj xzg.k djsaA blds mijkUr vkius bl egkfo?kky; es fnukad 21-12-05 dks iwokZUg esa dk;ZHkkj xzg.k fd;kA ftldh lwpuk bl dk;kZy; ds i= Ø-730@05 ,oa 731@05 neqvk] fnukad 21-12-05 ds }kjk lacaf/kr vf/kdkfj;ksa dks izsf"kr dh x;h vkius bl egkfo?kky; esa inHkkj xzg.k ds fnukad 21-12-05 ls 27-12-05 rd mifLFkfr iath esa gLrk{kj fd;k ,oa dk;kZy; esa mifLFkr jgs rRi'pkr~ vki fnukaad 28-12-05 ls vukf/kd`r :i ls egkfo?kky; esa vius drZO; ls vuqifLFkr gSA vr% vki viuk Li"Vhdj.k i= izkfIr ds 15 fnolksa ds Hkhjr vfuok;Z :i ls Lo;a mifLFkr gksdj izkpk;Z ds le{k izLrqr djsa vU;Fkk vkids fo:) vuq'kklukRed dk;Zokgh dh tkosxhA izkpk;Z 'kkl-egkfo?kky; neqvk 9 ftyk fNanokMk ¼e-iz-½ i`-Ø-@937@2006] neqvk fnukad 06-03-2006 izfrfyih%& ¼1½ MkW- jk/kk oYyHk 'kekZ] vfrfjDr lapky;] mPp f'k{kk] e/;izns'k 'kklu] HkksikyA ¼2½ vfrfjDr lapkyd] mPp f'k{kk] {ks=h; dk;kZy;] tcyiqjA ¼3½ izkpk;Z] 'kkldh; tqUukjnso egkfo?kky;] tqUukjnso dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf"krA izkpk;Z 'kkl-egkfo?kky; neqvk ftyk fNanokMk ¼e-iz-½' From the language used in the aforesaid notice, it is clear that other letters had already been sent to the petitioner on his address. However, when this notice has been received by the petitioner on the address which was available in the office record, then no question that other letters sent to him on the same address would not have been received by him, arises. Under the existing scenario, it is clear that the authority had no other option but to presume it that the petitioner had abandoned his services and, therefore, the order terminating his services was issued by the authority.
8. From the conduct of the petitioner, the authorities were of the opinion that the petitioner is not serious towards his duties and as such, the recommendation for initiation of disciplinary action against the petitioner was made. The dispatch register contained the details of sending termination order dated 08.03.2010 to the petitioner on the same address in which he had received the letter dated 06.03.2006 (Annexure-R/3) and, therefore, the plea taken by the petitioner that he was not aware about his termination cannot be accepted.
9. However, learned Senior Advocate has placed reliance upon the case of Supreme Court reported in AIR 1979 SC 1912 [Krishna Kumar Vs. Divisional Assistant Electrical Engineer and others] whereunder it has been observed by the Supreme Court that as to in what manner the notice 10 is to be served and proceeding of enquiry should be initiated. According to learned Senior Advocate, in the said case, the Supreme Court dealing with the delegation of powers has observed that mere delegation does not enhance or improve the hierarchical status of the delegatee and as such, relying upon the said analogy, he has submitted that since in the case at hand, the order terminating the services of the petitioner was passed by the Incharge Principal, therefore, the said order is illegal as passed by an incompetent authority.
10. According to learned Senior Advocate, dealing with the similar circumstances as involved in the present case wherein though the order was issued by the authority, but not communicated upon the employee, the Supreme Court in a case reported in (2010) 9 SCC 157 [Greater Mohali Area Development Authority and others Vs. Manju Jain and others], has observed as under:-
'22. The Constitution Benches of this Court in Bachhittar Singh v. State of Punjab [AIR 1963 SC 395] and State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313], have held that an order does not become effective unless it is published and communicated to the person concerned. Before the communication, the order cannot be regarded as anything more than provisional in character. A similar view has been reiterated in Union of India v. Dinanath Shantaram Karekar [(1998) 7 SCC 569 : 1998 SCC (L&S) 1837 : AIR 1998 SC 2722] and State of W.B. v. M.R. Mondal [(2001) 8 SCC 443].
23. In Laxminarayan R. Bhattad v. State of Maharashtra [(2003) 5 SCC 413] this Court held that the order of the authority must be communicated for conferring an enforceable right and in case the order has been passed and not communicated, it does not create any legal right in favour of the party.
24. Thus, in view of the above, it can be held that if an order is passed but not communicated to the party concerned, it does not create any legal right which can be enforced through the court of law, as it does not become effective till it is communicated.' However, I am of the opinion that the analogy and facts of the aforesaid case are not applicable in the case at hand for the reason that in the present 11 case proper communication was made to the petitioner although he is denying the facts regarding service of order terminating his services and also about the notice upon him, but under the facts as discussed in the preceding paragraphs, it cannot be said that the same were never served upon the petitioner.
11. Further reliance has been placed in the case of Supreme Court reported in (1998) 7 SCC 569 [Union of India and others Vs. Dinanath Shantaram Karekar and others] in which the Supreme Court has observed as under:-
'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 a 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.
* * *
9. Where the services are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated.
10. Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "communication"
cannot be invoked and "actual service" must be proved and established. It has already been found that neither the charge-sheet nor the show-cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated. However, I am of the opinion that the facts of the said case are not 12 applicable in the present case for the reason that in the said case though the order was issued but kept in the file and not communicated whereas in the present case, as is clear from the dispatch register (Annexure-R/10), the order terminating the services of the petitioner was issued and communicated to the petitioner on the address which was available in the office record. When the notice dated 06.03.2006 was received by the petitioner on the address on which the other documents were sent, then only denial that those documents were not received by the petitioner is not enough. It is the duty of the petitioner to prove that when one document is served upon him on the address which was available with the employer then as to why presumption cannot be drawn that other must have been served upon him.
12. The Supreme Court in a case reported in (2000) 5 SCC 65 [Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association and another] wherein the employee remained absent unauthorizedly from his duties has held that though the notice sent on correct address, received back with the endorsement 'refused', in such circumstances the employer rightly treated the employee to have voluntarily retired from service and in that case, termination of his service without holding any departmental enquiry was not violative of principles of natural justice. The observation made by the Supreme Court in the said case is as under:-
'17. It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are : (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded, e.g., a party must have due notice when the tribunal will proceed; the tribunal should not act on irrelevant evidence or shut out relevant evidence;13
if the tribunal consists of several members they all must sit together at all times; the tribunal should act independently and should not be biased against any party; its action should be based on good faith and order (sic) and should act in a just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above.
18. The Bank has followed the requirements of clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. Under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the Bank or contended that he did report for duty but was not allowed to join by the Bank. Nothing of the like has happened here. Assuming for a moment that inquiry was necessitated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in clause 16 of the Bipartite Settlement.
19. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the Bank is concerned. The conduct of Dayananda as an employee of the Bank has been astounding. It was not a case where the Tribunal should have given any relief to Dayananda and yet the Bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief the High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the award.'
13. Similarly, in the case reported in (2004) 8 SCC 129 [State of Punjab Vs. Jagir Singh], the Supreme Court has observed as under:-
'13. We may notice that in Uptron India Ltd. v. Shammi Bhan [(1998) 6 SCC 538 : 1998 SCC (L&S) 1601] the question as to whether a statute or a Standing Order having the force of law containing the provision of automatic termination on the ground of overstay of the leave for a certain number of days is ultra vires or not came up for consideration before this Court wherein it was held that when a discretion is conferred upon the employer to terminate or not to terminate the services of the employees concerned, principles of natural justice are ordinarily required to be complied with. However, as indicated hereinbefore, the conduct of the workman would play an important role as regards direction upon the employer to pay back wages. In this case, no leave was either sought for or granted. No material was brought on record except the oral statement of the workman that an application for leave had been filed. It is not in dispute that the State issued a registered letter directing the workman to join his duty. As 14 he did not do so, notice of his absence was published in the newspaper.
These facts would appear from the letter of termination itself which has been annexed with the special leave petition filed by the workman as also his counter-affidavit to the special leave petition filed by the State.
14. Mr Manoj Swarup, learned counsel appearing on behalf of the workman, placed strong reliance on Scooters India Ltd. v. M. Mohd. Yaqub [(2001) 1 SCC 61 : 2001 SCC (L&S) 148]. Therein, the question which arose for consideration was as to whether giving of such notices would amount to sufficient compliance with principles of natural justice or not having regard to the fact situation obtaining therein. In para 12 of the judgment it was categorically held that the records therein indicated that no opportunity had been granted to the workman to join his duty.
15. This Court in different decisions applied the principles of natural justice having regard to the fact situation obtaining therein.
16. Indisputably, the principles of natural justice may have to be complied with having regard to the conditions of service governed by the rules framed in terms of proviso appended to Article 309 of the Constitution of India. But the said principle cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant fact situation. [See Punjab and Sind Bank v. Sakattar Singh [(2001) 1 SCC 214 :
2001 SCC (L&S) 209] and Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash [(2004) 5 SCC 263 : 2004 SCC (L&S) 747] .]
17. In Dr. Gurjeewan Garewal [(2004) 5 SCC 263 : 2004 SCC (L&S) 747] this Court noticed: (SCC pp. 270-71, paras 20-21) "20. Recently in another case of a very similar nature Anil Bajaj (Dr.) v. Postgraduate Institute of Medical Education & Research [(2002) 2 SCC 240 : 2002 SCC (L&S) 289] this Court held:
(SCC p. 241, para 3) 'A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if he does not come back, his lien will automatically be regarded as being terminated, he then cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted. ... but where the facts are not in dispute the inquiry would be an empty formality. In any case the principle of estoppel would clearly apply and the High Court was right in dismissing the writ petition filed by the appellant wherein he had challenged his termination.'
21. Similarly, in the case in hand the 1st respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and 15 evaded herself from joining under some pretext or the other."
(emphasis in original)
18. On the aforesaid findings, this Court vacated the stay on holding the departmental proceeding as against Respondent 1 therein.
19. In this case, as despite several opportunities the workman did not join his duties at all, we are of the opinion that the Labour Court and the High Court committed a manifest error in granting back wages in his favour.
20. As noticed hereinbefore, the letter of termination issued to the workman itself suggests that such an opportunity had been granted. We are, therefore, of the opinion that even if it is assumed that in the facts and circumstances of this case, it was obligatory on the part of the State to comply with Rules 5 and 8 of the Punjab Civil Services (Punishment and Appeal) Rules, the workman having regard to the totality of the situation was not entitled to back wages.'
14. From the backdrop of aforesaid discussion, I am of the opinion that the petitioner was not serious towards his duties and left the same unattended. That apart, after making repeated attempts by the respondents, the petitioner did not bother to participate in the enquiry and as such, the charges levelled against him since found proved, therefore, order terminating his services was issued and got served upon the petitioner, who instead of filing the petition in time has filed the same after much delay in the year 2017 even without assigning proper explanation for causing delay and as such, I am of the considered opinion that this petition suffers from delay and laches.
15. Consequently, the petition filed by the petitioner stands dismissed on the ground of delay and laches.
(SANJAY DWIVEDI) JUDGE dm DEVAS HISH Digitally signed by DEVASHISH MISHRA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, 2.5.4.20=db02acf8752ec7d40d9c7b270699 8aa1774d10503fedd8b615ae6aa42b0742c1 MISHR , postalCode=482001, st=Madhya Pradesh, serialNumber=BEDBFB3F19D3D59DD8321 BCADFBB1022C2BA335355DDF542C665C4 209BF8F691, cn=DEVASHISH MISHRA Date: 2024.04.18 18:49:14 +05'30' A