S. Chandrashekhar, J. - (1.) AGGRIEVED by final order dated 16.08.2002 and the appellate order dated 24.03.2003, the petitioner has approached this Court. Various other prayers including a prayer for quashing paragraph No. 14 of the appointment letter dated 09.01.1996, have also been made in the writ petition. The brief facts of the case are that, the petitioner was appointed as an Assistant in the Life Insurance Corporation of India on 15.01.1996 and he was posted at the Daltonganj Branch of the Life Insurance Corporation of India. The petitioner was confirmed in service on 15.01.1997. He got himself enrolled with the Institute of Company Secretaries of India, New Delhi for the course of Company Secretaryship and intimated his employer, the L.I.C. of India through letter dated 16.02.1998. The said communication was not objected to by the L.I.C. of India. The petitioner submitted an application on 28.04.1998 seeking transfer to Ranchi for pursuing the course of Company Secretaryship however, no decision was taken by the respondent -authority and by letter dated 19.06.1998, the petitioner was communicated that a decision in this regard would be communicated to him in due course. On 24.11.1999, the petitioner submitted an application to the Chairman, L.I.C. of India, through proper channel, for study -leave. By communication dated 28.12.1999 the Manager (P & I.R.) informed the petitioner that since he had already availed leave more than due and he has already possessed required qualification for the post of Assistant, it was desirable that he should pursue Insurance Institute studies and appear for the examination where the date of examination attended are treated as special leave. It was further communicated to the petitioner that the provision of special leave for study in case of the petitioner is not provided in the Corporation's Rule however, the petitioner may pursue study under intimation to the office of the Manger (P & I.R.). The petitioner sent a reminder on 06.01.2000 to the Manager (P & I.R.) L.I.C. of India stating that since his application dated 24.11.1999 was addressed to the Chairman, L.I.C. and therefore, it should be forwarded to the Chairman and no decision can be taken on his application dated 24.11.1999, by any other officer as the petitioner has sought permission as a citizen employee to permit him to achieve the constitutional and legal right of life and liberty given to a citizen of India. On 19.01.2000, the petitioner again wrote a letter to the Chairman, L.I.C. of India through proper channel, for considering his case at the earliest so that, he can achieve his aspirations to study the course of Company Secretaryship. The petitioner, thereafter, wrote several letters to the respondent -authority and the Chairman, seeking transfer to Ranchi as an alternative which would suffice to serve his purpose of pursuing the course of Company Secretaryship, which is a postal course. By letter dated 02.03.2000 the Senior Divisional Manager informed the petitioner that the Zonal Office of L.I.C. vide letter dated 23.02.2000 intimated that the Central Office examined the case of the petitioner however, it has been found not possible to accede to the request of the petitioner. By letter dated 24.03.2000 the petitioner requested the Senior Divisional Manager to furnish a copy of the letter of the Central Office whereby his request was declined. The petitioner wrote a letter on 11.04.2000 again to the Senior Divisional Manager requesting him to consider his conditional resignation for a limited period during the study and communicated his intention to proceed on leave from 15.05.2000. By letter dated 05.05.2000 the request for transfer to Ranchi was declined and the petitioner was informed that there is no provision for conditional resignation. The petitioner was also informed that if he proceeded on leave without proper sanction, the period of absence would be considered intentional unauthorised absence. By letter dated 13.05.2000 the petitioner sought one day's leave for leaving Headquarter which was duly sanctioned and as informed by the petitioner earlier the petitioner proceeded on leave for pursuing course of Company Secretaryship from 15.05.2000. In between and thereafter also, several communications took place between the petitioner and the department and finally a charge -sheet dated 05.01.2001 was served upon the petitioner for committing misconduct under Regulations 21, 24 and 39(1) of the L.I.C. Of India (Staff) Regulations, 1960. An enquiry report was submitted on 26.11.2001 and the petitioner was furnished a copy of the enquiry report by letter dated 07.02.2002 to which the petitioner submitted his representation on 07.07.2002. A second show -cause notice was issued on 27.06.2002 and after considering the reply of the petitioner the final order of removal from service was passed on 16.08.2002. The appeal preferred by the petitioner has been dismissed by order dated 24.03.2003.
(2.) A counter -affidavit has been filed controverting the allegations leveled by the petitioner. The relevant paragraphs are reproduced below: 5. That the answering respondents state that the points for consideration as framed under paragraph 2 of the writ petition are wholly misconceived, misleading and not in accordance with law. The petitioner was appointed on the post of Assistant in the service of the Corporation, vide letter of appointment as contained in Annexure -1. In paragraph 3 of the said letter of appointment it is specifically state that his appointment will be regulated in accordance with the provisions of the Rules framed by the Central Government u/s. 48 of the Life Insurance Corporation of India Act 1956 read with the provision of the Staff Regulation 1960. Further, in paragraph 14 of the said appointment letter it is specifically stated that for any part -time study course, he will not be permitted until such permission has been granted in writing by the competent authority. It has been made clear in paragraph 14 of the appointment letter that for the purpose of study no leave shall be granted and no claim for such leave will be entertained on any ground that such part time study was taken after assuming duty or had commenced prior to that or the same was permitted by the competent authority. The petitioner having accepted the terms and conditions of the letter of appointment dated 9.1.1996 joined the service of the Corporation but failed to abide by the terms contained therein and committed breach of the terms of the appointment. In spite of repeated call/information/advice given to the petitioner to join his duty on the post of assistant the petitioner kept to ignore the request/advice of the management of the corporation and showed a rigid and adamant approach towards his employer. The petitioner made himself liable for the initiation of the disciplinary proceeding and removal thereafter from the service of the Corporation. His appeal preferred before the appellate authority has also been rightly rejected in the facts and circumstances. 6. That the answering respondents state that petitioner had been absenting himself from his duty from very second day of his joining the duty at Daltonganj Branch on 19.1.1996. It will appear from letter written by the then Branch Manager of Daltonganj Branch to the petitioner on 5.10.1999 that the competent authority had sanctioned 521 days of extraordinary leave (leave without pay) and 23 days extraordinary leave to be granted to him as a very special case. The maximum extraordinary leave can be granted to any employee during his entire service period as only 365 days. The petitioner was also warned to be careful in this matter or face appropriate action under the Staff Regulation 1960. In spite of the benevolent attitude and the leniency shown to the petitioner on the part of the Corporation, he failed to report for duty and remained on unauthorized absence during the period 15.05.2000 to 15.08.2002. The petitioner was asked to resume his duty vide letter -dated 27.05.2000 (reference .. JDO/P & I.R.) vide letter dated 2.6.2000 (reference DBO/OM/Leave). One of the letters dated May 5th, 2000 has been enclosed as Annexure 5/1 to the writ application. From this letter it will appear that the then Senior Divisional Manager of the Jamshedpur Divisional Office reminded him that if he goes on leave without having leave credit and also without proper sanctioning for reason whatsoever the period of absence will be considered intentional unauthorized absence. Again vide letter annexure -6 dated 16.5.2000 and letter annexure 6/2 dated 27.5.2000 the petitioner was informed that his absence till 15.5.2000 is being treated as unauthorized and if he did not resume his duty within 3 days from the date of receipt of the letter necessary action as per Staff Regulation will be taken. Inspite of these requests and reminders when the petitioner failed to turn up and resume his duty once again the Manager (P & I.R.) wrote a letter dated 10.11.2000 to the petitioner in which he informed the petitioner that as a final advice he should resumed the duties positively within 7 days on receipt of the letter failing which it will be presumed that he has abandoned his post and accordingly the Corporation will proceed in the matter ex parte as per the relevant regulation of Life insurance Corporation of India (Staff) Regulation 1960. The letter dated 10.11.2000 was issued as a final communication before the management proceeds in the matter under Regulation 39(ii)(iii) of the Life Insurance Corporation of India (Staff) Regulation 1960. The petitioner has himself enclosed the photocopies of all those letters dated as annexure to the writ application. The letter dated 10.11.2000 as annexure -8 to the writ application and at the top of the same there is an endorsement 'received'. 13.11.2000. It goes to show that the petitioner received the said letter of 13.11.2000 but once again the petitioner failed to resume his duty and disobeyed the command of his employer. The whole approach of the petitioner were detrimental to the interest of the Corporation as such disobedience if allowed to prevail in the Management wrong signal is likely to be given to all the employees and the work of the Corporation are bound to suffer. It was under these circumstances the petitioner was served with a charge -sheet vide letter dated 6.1.2000 as contained in Annexure 10 to the writ application. 7. That the answering respondents state that in course of departmental proceedings, the petitioner was given full opportunity to defend himself. The enquiry was conducted by Sri S. Roy Choudhary who was posted as Manager (Legal & Housing Property Finance Department) a Class -I officer in the rank of Assistant Divisional Manager (ADM) in the service of the Corporation. In his enquiry report the Enquiry Officer has discussed the submissions of both the parties. In course of the proceeding, it is a matter of record that 17 exhibits were marked on behalf of the management whereas 25 exhibits were marked on behalf of the petitioner. Altogether 42 exhibits were marked. No witness were produced by other side. The petitioner did not appoint any defense counsel and himself represented his case. The petitioner also submitted his written statement. The petitioner also raised 28 points to be answered by the Presenting Officer on behalf the management. As regards first charge it was found that the management produced a letter dated 16.5.2000 written by the Branch Manager, Daltonganj to the petitioner whereby and whereunder the petitioner was asked to resume his duty immediately or absence from the office from 15.5.2000 will be treated unauthorized. The letter from Divisional Office dated 27.05.2000 was also produced before the Enquiry Officer. In reply to this the petitioner could only produce letter dated 24.11.1999 written to the Chairman by which he asked for study leave from 1.1.2000 for two years. The petitioner mentioned in the said letter that he was taking postal coaching and as such he requested vide his letter dated 31.1.2000 and letter dated 4.3.2000 to the Manager, P & I.R. and the Senior Divisional Manager, respectively to transfer him from Daltonganj to Ranchi. The petitioner produced another letter dated 15.5.2000 written to the Branch Manager, Daltonganj to transfer him from Daltonganj to Ranchi to facilitate his study. The petitioner produced a letter dated 25.5.2000 that his leave should not be treated as unauthorized leave till the Chairman of the Life Insurance Corporation of India replies his letter dated 24.11.2000. In reply to this submission of the petitioner the Presenting Officer appearing on behalf of the Management produced a letter dated 2.3.2000 written by the Senior Divisional Manager to the petitioner giving the decision from the Central Office. The competent authority has not accepted his request. Thus, it was found that in spite of the fact that the petitioner was duly communicated that his request has not been accepted by the competent authority and was asked again and again to join his duty he failed to join and as such he could not justify his continuance of absence from duty since 15.5.2000. Similarly, charge No. 2 was also found established. While dealing with this charge, it was found that the petitioner was on extraordinary leave from 31.7.1997 to 22.8.1997 and on 01.07.1998. It was established that the petitioner did not join the office inspite of receipt of the Divisional Office and Branch Office letter. The petitioner's reply not to join on the ground that he should be given study leave and his absence should be treated as leave till he gets the reply from the Chairman against the decision of the competent authority from Central Office be conveyed to him by the Divisional Office respond to merely a dilated tactics. Regarding his pay from 31.7.1997 to 22.8.1997 and on 1.7.1998 the Management's contention was that the petitioner was on extraordinary leave without pay from 31.7.1997 to 22.8.1997 and on 1.7.1998 so his appointment was untenable. As regards charge No. 3 the petitioner contended before the Enquiry Officer that he applied to the Chairman for study leave and he did not get any reply from Chairman directly so question of any action does not arise and accordingly the Life Insurance Corporation of India can not go for departmental enquiry. The Enquiry Officer found that the leave is not a matter of right from their transfer to a desired place is also not a matter of right. It is for the Life Insurance corporation of India to pass his employees according to needs and exigencies of office to any place. Thus, charge No. 3 was also established. Regarding charge No. 4 it was found that inspite of 569 days extraordinary leave with loss of pay granted to the petitioner the petitioner continuously and deliberately remained absence unauthorizedly from duty. The Presenting Officer submitted exhibit No. 10 which is a statement of extraordinary leave for 521 days without pay from 20.1.1996 to 19.9.1998. The petitioner also submitted exhibit No. 15 containing the same statement and failed to pay any objection to this. The petitioner only reiterated that Life Insurance Corporation of India should grant him study leave and transfer him to Ranchi. Under the circumstances, it was found that charge No. 4 was also established. The learned counsel appearing for the petitioner has submitted that since the petitioner proceeded on leave on 13.05.2000 which was duly sanctioned by the respondent -authority and therefore, the absence of the petitioner from duty since, 15.05.2000 cannot be said to be unauthorized and willful. The petitioner made alternate request for transferring him to Ranchi so that he can pursue course of Company Secretaryship however, the request of the petitioner was declined without any valid reason and the petitioner has been prevented from pursuing the course of Company Secretaryship in complete violation of the Constitutional mandate. Relying on various judgments of the Hon'ble Supreme court, the learned counsel appearing for the petitioner has submitted that, a government servant entering into a government service does not forgo his fundamental rights and Article 51A(j) enjoins upon every citizen of the country to strives towards excellence in all spheres so that the nation constantly rises to higher levels and therefore, denial of an opportunity to the petitioner to pursue course in Company Secretaryship was illegal.
(3.) REPLYING to the contention raised by the counsel for the petitioner, the learned counsel for the respondent -L.I.C. has submitted that, the petitioner remained absent from duty since, 15.05.2000 and he was informed by various letters that if he proceeded on leave without sanction by the competent authority it would be considered as intentional absence from duty and the consequences would follow. He has further submitted that, the request of the petitioner for study -leave was declined by the highest authority of the L.I.C. and duly communicated to the petitioner. He has further submitted that since the course which the petitioner desired to pursue was a postal course, there was no need for proceeding on leave and therefore, the petitioner committed misconduct for which a departmental proceeding was initiated against him, in which the charges framed against him have been found proved.;