Karnataka High Court
The State Of Karnataka vs Dr Sayeed A S on 7 September, 2010
Bench: V.G.Sabhahit, K.Govindarajulu
1. THE STATE OF KAR..!\i'ATAKA
1
IN THE HIGH COURT OF KARNATAKA AT BANGAL._ORE
DATED THIS THE 7" DAY OF SEPTEMBER
PRESENT
THE HON'BLE MR.::USTIc_;E,,v,<3.SA'B'HAiHIT'-R E'
AND Q
THE HON'BLE MR.3uSTIc,E K.2GQ\:'I,NU)§TR~A3«U.LL'--';
WRIT PETITION NO.V_.2.:if1E,1c:I=_v20(.)'3~~IESVEKAT)
BETWEEN
BY ITS SEvCRE'_I"AR'¥_, ,
DEPART.M'-ENTf"0E_FHEALTH :3». 1;: A
FAMILY WELFARE .S'EF§VIC.E,5,
M.S. ~
BA'N'G"A'LO:RE --"5f560"GQ'1.
. THEE.,|5IRECTC)T§"OFv«ETE-AL.TH AND
FAMILY WELFARE' SERVICES,
ANANDA RAo_CIR--::LE',
_[§3AVN{3ALORE.__:f 560 009.
. TH TDISTRICT HEALTH
AN'D.,,EIAMI_LT, WELFARE OFFICER,
"-T'..R«AI'CFi~LJ_'R'{S84 101.
.. , __RAI'cHuR.
T "A..('B~r'SMT. SHEELA KRISHNA, AGA.,)
."THE.'CHI'EE SECRETARY,
ZILLA RARISHAD,
...PETITIONERS
Dr. SAYEED A.S.,
2
S/O AMEER AHMED SHARIFF,
AGED ABOUT 39 YEARS,
PHYSICIAN (GRADE-III)
GOVERNMENT UNANI DISPENSARY,
PHOOL SHAH IVIOHALL,
DISTRICT, KOLAR.
(RESPONDENT -- SERVED - absent)
THIS WP Is FILED UNDER-A'ARTICL.4ES_.;.22I£3_AND; 202':/5 or THE CONSTITUTION or IND-1AA'.-'.'PRAYIi'J.C€ THE ORDER DT. 29-5~2ooIsii§A~ssEo't IN 'A..i§Pvi,I'CA1"IOVij'\I No; 7405/1996 BY THE K.,--A..T., yIoe"gw"r-I.A. THIS WF?_ COMIAEXIGI FoR"I-vI5Ii§I.AI..'I' HEARING THIS DAY,:i:Vf5Ai3:~;A'FisI,T~s..1:I;IMAISEI THE FOLLOWING:~ 2 I. I r},*,f.gRDER "This W'ii~.t.V_VVF'etiti:c)n is fiied by the respondent ~ State 'be'irIg_V""aggIrieved by the order passed by the Karnataka ._AdIn%nist_r.a_ti'Ife""Tribunai (hereinafter caiied 'the KAT') at Ba"nga«Eo're,"""in Application No.740S/i996, being aggrieved Ib;y__4thVe"I.order dated 29.05.2001, wherein the application ""..Vfi'i'e'd by the respondent herein has been aliowed and the I " "order of the discipiinary authority (petitioner No.4 herein) 'V .
4 considered by the leave sanctioning authority and wherefore, his absence cannot be said to be un_atit'iip0r"-ized as the leave sanctioning authority has not decision on the application filed by him for"'gra:vnt'of_'leave"» for the above said period.
3. The application tnhegvgpetitioners herein contending applicant ._ respondent herein 12.04.1991 to 24.O4..1,99,1,99.*::_:on 25.12.1991 to leave and wherefore, his
-9 proved and appropriate i3unishn91en'thVas":be'en .:40"":*--"..he K.A.T., after considering the learned coiunlseiirroir parties, held that in respect of proof of cha*rge~s: .2*a'nd 3 pertaining to the unauthorized absence of
1. t.he4'apVp'|icant -- respondent herein from duty for the period 12.04.1991 to 24.04.1991, on 05.12.1991 and from '""25.12.1991 to 31.01.1992, since the application had been fiied for sanction of leave after returning to duty and the J) 5 same had not been considered by the ieave sanctioning authority, there was no cause of action for the respondents therein -- petitioners herein for framing charges for unauthorized absence against the a.p'pli_'ca'nt -- respondent herein. The absence of the ap_p::ica4nt«..."fo--r said period would become u_n.a.uthori_z"ed'"':ojVniy" 'h_is'* application for grant of leave is r'ejec..t_ed" by=h_old'ing tf_i'iat7no ground is made out for 's.ai'ii;ti0nA"-of leaivein the? absence of any such__order,Ay_the..absenc.e"of._the§ appiicant cannot be said to be .hv'e'idV by this Court in or. H. JAYAMMA ys. S3":FAiT.'§:(i1_"§.9fV3_V.' l~tSi;j"988). The K.A.T., further -of the disciplinary authority holding' that the_u"ngauthori.zed absence of the applicant -- reyspovndent has been proved is iilegal and without accordingly, aliowed the appiication and 1".s'e't__«1asi:'d_e.__ order of imposition of penaity dated O2';"12.v'--.3;992' (Annexure 'A7' to the application) and V. nAin..nexure 'A8', the letter dated 10.06.1994. Being
7.a'gg'rieved by the said order of the K.A.T, the respondents ' V' "before the K.A.T. have preferred this writ petition. 6 S. We have heard the learned Additional Government Advocate appearing for the petitioners. The respondent herein, though served with notice, not chosen to appear before this Court.
6. The learned Additionaltlw Go*.<e'rnn1e--nt'--;§dvo'cat'e appearing for the petitioners suvbrnltted that:'aclmV§tte'dlv;..L the respondent was absent dutyl'foV_r"'the from'
12.o4.1991 to 24.o%l;21'991;'it"o11li_9+5-12.1991 "and from 25.12.1991 to 31.01.1992 -lljntihouasejijlcteson of leave and wherefore, hivs'-absence was u'na'ut.iiori;fed and the order of the l;_.A.,T. the order of the disciplinary authority2i4_rnpVos'i*n_g" illegal and is passed without cog,n_§sidering the....app|ic.ation for grant of leave, is erroneous isV:'li1a_b--le"*to be set aside.
'"";We have given careful consideration to the "contentions of the learned Additional Government "Ulkdvocate appearing for the petitioners and scrutinized the it "material on record.
\V..".__ /59 7,3 7
8. It is clear on scrutiny of the material on record that it is no doubt true that charges 2 and 3 pertain to unauthorized absence of the applicant before the -- respondent herein for the period from 24.04.1991, on 05.12.1991 and from....i.AS:;t12:1--li:9.91l»'top7.,
31.o1.1992. However, the factIthat..4aAfji;e'i<_joini--ngthejdgty after the period of absenVc*e.,_an «Va.g_3_'p"licatioi~1"«l.zgrant leave was given along with th'e._xrneVdEcaI'-certificate and the Said aDD|iCati0FI has isvclearly proved by the respondent herein inttievvplpletVi~tl"oners have not produced hid'; his application for grant,_'of._ considered and rejected. This Court lb"y_oroei'- t3'e.t.eotf'o3.ilo2.2005 had also directed the le,a_5fn'ed. Governnwenit Advocate to produce the leave 1apipiiclatio-nit'along with the medical certificate and the said not been produced. In view of the above said f'a&c.ts,"'V'it cannot be disputed that the application for "sa.nction of leave for the period from 12.04.1991 to "'vi;2'4';o4.1991, on o5.12.1991 and from 25.12.1991 to "31.01.1992 was pending consideration before the leave sanctioning authority and unless the said application is 8 considered, no cause of action would arise for the petitioners to frame charge of unauthorized absence against the respondent herein. It is pertinent to note that there wouid be no cause of action for the petitiofnelri-spa to make the said accusation if the said app_|.ic'Vat'i:on[jot respondent herein for sanction of.,l.eave 'ac'ce';pte'd,'_b.y the" » _ authority concerned holding :"t.hat_'_"gienui_nergr:ou'in.d"'?tor absence is made out and only"-i.f the'applicatior*:jfo~r..grant oft' ieave is rejected by the Ieayveisanictioning..authiority, the absence of the respo"ridéent"~.1j¢§reid""iy:o.u'id_be unauthorized. Since no decision_ was"'take'n vonfthae "aD«i{.§'|'i'cation for sanction of leave--. for.Vthe-_.abov'e::'said -period of absence, in view of the decisiorii ofx'thi4SiV.'C'Qi'J"l§t in the case of Dr. H. iayamma' s Ca.$i:'e'V(S~!JpFa)V., - wherein on similar facts, this Court has held . that ivnithaa-bsence of any decision on the leave application i'o'r"_'the~i,pe"riod of absence, there is no question of any un"aut'horizfed absence and charge framed in that regard " wouldls be without any basis. Having regard to the above R-Zfacts, it is clear that the impugned order passed by the "lK.A.T., holding that the charge itseif could not have been framed for unauthorized absence of the respondent herein tags