- (1.) This writ petition has been filed by the petitioner Shiv Shankar Sharma challenging the order dated 15.7.1993, by which he was deemed to have abandoned the services of the respondent from the forenoon of 27.11.1990 and thus his services were terminated. The petitioner has also challenged the letters dated 9.7.1991 (Annexure-1) and 14.12.1992 (Annexure- 3).
(2.) The petitioner was appointed in the services of R.S.E.B. as Junior Engineer in the year 1972. The petitioner was on privilege leave with effect from 20.4.1988 to 31.5.1988. While on privilege leave, he fell sick and remained under medical treatment at Medical College Hospital, Bikaner and only on becoming fit that he was offered to join services at the new place of his posting at Gird Sub-Station Churu on 26.10.1988. According to the petitioner, he attended the duties at that time from 26.10.1988 to 26.11.1990 and on 27.1.1990, he applied for casual leave, which was duly sanctioned by the controlling authority. In the meantime, he again became ill and due to sudden illness, he could not join back his duties and applied for extension of leave, but the leave was not sanctioned to him. The respondents impressed upon the petitioner to resume the duties forthwith. Eventually, on 2.7.1991, the petitioner joined back his duties and attended his evening shift duty as per the duty chart on 3.7.1991. He submitted his joining report along with sickness-cum-fitness certificate issued by competent medical practitioner. Subsequently, on 9.7.1991, the Assistant Engineer, Gird Sub Station, Churu issued a letter whereby petitioner was refused to resume his duties in the absence of sickness/fitness certificate given by a Government Doctor. The Assistant Engineer did not allow the petitioner to discharge the duties from 9.7.1991 onwards. The petitioner submitted a representation to Chief Engineer on 13.7.1991 followed by other representations on 21.8.1991 and 5.9.1991. Eventually, on 14.12.1992, the Joint Secretary (General Administration), R.S.E.B. issued a notice to the petitioner stating therein that the petitioner was wilfully absent from duty from 27.11.1989 and asked him to show cause as to why his services may not be terminated. The petitioner submitted his reply on 18.12.1992, denying the charge that he was wilfully absent from his duties. Vide another letter dated 15.7.1993, the petitioner was informed that in terms of the provisions of Regulation 21 of R.S.E.B. E.S.R., 1964, the petitioner shall be deemed to have left the services without notice and, therefore, his services were terminated. Feeling aggrieved thereby, the petitioner has filed the present writ petition.
(3.) Shri H.O.P. Mathur, the learned counsel for the petitioner has argued that even as per letter dated 9.7.1991, it would be evident that petitioner had actually resumed the duties on 2.7.1991, it would be evident that petitioner had actually resumed the duties on 2.7.1991 and was not only allowed to discharge his duties, but also marked his attendance upto 7.7.91. It was thereafter that on 9.7.1991, he was asked not to come on duty on the plea that the fitness and sickness certificates were not issued by a Government Doctor. Learned counsel submitted that the willful absence of duty is one of the misconducts as enumerated in Regulation 21 of the Employees Service Regulations, 1964 (for short-the Regulations of 1964) and R.S.E.B. Employees (Classification, Control & Appeal), Regulations, 1962 (for short the Regulations of 1962) in its Regulation 28 and the services of the petitioner could not be dispensed with without a full fledged enquiry and without providing him an opportunity to defend himself. The learned counsel submitted that an employee possess the brought to livelihood and that the petitioner could not be deprived of his right to livelihood in such an arbitrary manner. The action of the respondent is violative of Articles 14, 16 and 21 of the Constitution of India. The learned counsel submitted that the fact that the petitioner applied for leave in the meantime would be substantiated from the letter dated 20.2.1991, which was addressed to him by the Assistant Engineer, who was his controlling authority, whereby the petitioner was required to send sickness certificate after receipt of the letter. Again thereafter on 10.4.1991, the Assistant Engineer wrote a letter to the petitioner to the same effect. He appeared to resume the duties and produced sickness as well as fitness certificate. It is argued that when the petitioner had requested the controlling authority to grant him leave, his case cannot be taken to be a case of willful absence and abandonment of service. Learned counsel submitted that Regulations 21 of the ESR Regulations of 1964 have been misconstrued and misapplied in the case of the petitioner. He relied on the judgment of Supreme Court in Jai Shanker v. State of Rajasthan, 1966 AIR(SC) 492, D.K. Yadav v. J.M.A. Industries Ltd., 1993 SCC(L&S) 723 and Uptron India Ltd. v. Shammi Bhan and Anr., 1998 2 SCT 169 and argued that the Supreme Court in these cases held that in spite of there being provision in certified standing orders for automatic termination on absence without or beyond the period of sanctioned leave for more than 8 days, principles of natural justice would still be applicable and duty to act in just, fair and reasonable manner must be read into the Standing Orders.;