Decided on March 11,2005

Prem Kumari Sahu Appellant
STATE OF C.G. Respondents


SUNIL KUMAR SINHA,J. - (1.) THE petitioner who was working as a trained Midwife in Government Ayurvedic Hospital dispensary at Bheji, Konta Tahsil and District Dantewara (C.G.). initially filed this petition challenging the order of termination dated 22-10-2003 (Annexure P-1) passed by respondent no. 4. Later on, by way of amendment dated 18-2-2005 she also challenged the validity of the order dated 03-01-2001 (Annexure P-4) by which the period from 07-1-1989 to 08-01-1990 has been declared as dies non by the respondents.
(2.) THE brief facts of the case are as follows - The matter starts with the filing of an original application before State administrative Tribunal, Jabalpur bearing O.A. No. 2420/90. This application was filed by the petitioner claiming payment of her salary from February 1989 to February 1990 (13 months). The State opposed this application and submitted before the Tribunal that the petitioner was not entitled to salary as she was absent from the duty during the relevant period. Since the petitioner had claimed in her petition and rejoinder that she was through out present on duly, ultimately, the learned tribunal passed the order dated 17-08-1999 (Annexure P-3) saying that it is not possible for the tribunal to decide the (actual dispute whether or not the petitioner was absent from duty during the relevant period. It was contended by the tribunal that the petitioner is not a daily wage worker and her salary cannot be withheld on a long term basis merely on the ground of the absence. It has been further contended that if an employee who is not on daily wages, is absent, then it has to be proved against him that he was absent, if the employee disputes the fact then an enquiry has to be conducted in accordance with Rules and if the absence is established then the employee has to be given an opportunity of applying for leave and if such application is filed, the same has to be decided in accordance with the M.P. Civil Services (Leave) Rules 1977. The tribunal further contended that it is to be kept in mind that according to Rule 6, leave is not a matter of right. The payment for the period of absence will depend upon the decision on the leave application, if any. In case the employee does not submit any leave application for the period of absence (which has been duly proved) then the consequence of break in service or dies non may ensue. Writing these principles, the tribunal further contended that the respondents could perhaps withhold the payment of salary while all these steps are being taken and a decision is taken quickly. They cannot do what they have done in this case just withholding the salary and then sitting back without doing anything further. The tribunal disposed of the case with the direction that the respondents shall take action as indicated above. The enquiry whether the petitioner was absent or not should be completed within 3 months of the receipt of the order by the respondents and if it is found that the petitioner was present for a part of the period, then the salary for that period should be paid immediately. If it is found that the petitioner was absent for the period or some part thereof, then the petitioner shall be given opportunity to submit a leave application within 15 days. If she does not submit any leave application then the respondent shall take a decision about the period of absence. If she submits leave application, decision should be taken on that within a month of submission of the leave application. If any salary becomes payable to the petitioner as a result of the decision on the leave application, that should be paid immediately. According to the petitioner, since the authorities did not comply with the order dated 17-08-1999 she filed a contempt petition vide M.A.No. 195 of 2000 before the tribunal. The respondents contended in contempt petition that they had tried to contact the petitioner but she was not available at the place of her posting namely Government Ayurvedic dispensary. Bheji Konta, Distt. Dantewada (C.G.) The letters were sent through Regd. Post by them and as the petitioner was not available at the place of her posting, a letter was affixed at the residence of the petitioner. They also submitted that despite all these actions when the petitioner did not turn up nor she submitted any leave application for the period of her absence, then an order dated 03 -1-2001 was passed treating the said period of absence as unauthorized and dies non. The aforesaid contempt petition was dismissed by the tribunal on 19-3-2001.
(3.) AGAINST the said order of tribunal, the petitioner preferred writ petition vide No. 662/2001 on the ground that she was not afforded proper opportunity to contest the said contempt petition. The said writ petition was disposed of by this Court vide order dated 06-9-2001 and it was directed that the petitioner may be allowed to submi counter affidavit/rejoinder and thereafter the matter will be decided within a reasonable time in accordance with law after hearing the parties. It is after all these, the impugned order of termination was passed on 22-10-2003.;

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