MOHD ASLAM Vs. DISTRICT MAGISTRATE MAU

JUDGEMENT

(1.) This writ petition has been filed for issuing a writ of certiorari quashing the order dated 31.10.1994 passed by the opposite party No. 1 dismissing the services of the petitioner contained in Annexure 8 to the writ petition and for issuing a writ of mandamus directing the respondents not to implement the order dated 31.10.1994.

(2.) The facts stated in the writ petition are that the petitioner was appointed as Driver in Collectrate by the order of the District Magistrate Allahabad in the year 1980 and the petitioner was confirmed on the said post. The petitioner and three others were attached with the Head Quarter at Lucknow and the petitioner worked as Driver at Lucknow but on 1.12.1992 the petitioner was transferred to District Mau. The petitioner was relieved on 20th Sept., 1993 by the Assistant Director Information Allahabad. A copy of the same has been filed as Annexure No. 1 to the writ petition. The petitioner in pursuance of the relieving order dated 20th Sept., 1993 joined the post at District Mau on 23rd Sept., 1993 and performed his duties till 15.10.1993 at District Mau. After joining at Mau, the petitioner fell seriously ill and after taking leave came to Allahabad on 16.10.1993 but the petitioner was not recovered. The petitioner extended leave time to time and sent the applications the opposite Party No. 2. It has also been alleged that petitioner sent medical certificates issued on 31.12.1993 by Dr. Om Prakash Senior Superintendent Surgeon, who advised the petitioner to take rest from 25.11.1993 to 30.12.1993. Petitioner was not able to join his duties at Mau as such he extended leave till 10.7.1994 and the petitioner was under the treatment of one Dr. S.C. Sinha Medical Surgeon, who advised the petitioner to take bed rest from 3.5.1994 to 10.7.1994. The further allegation in the writ petition is that in spite of the aforesaid fact, the petitioner did not recover and started the treatment of one Dr. S.L. Dewan, Senior Surgeon, Motilal Nehru Hospital, Allahabad who also advised the petitioner to take rest for a period of six weeks from 5.10.1994. The petitioner sent leave application and also submitted a medical certificate for leave till 20.11.1994. The wife of the petitioner was working as staff nurse in Motilal Nehru Hospital, Allahabad and when the petitioner was not recovered the petitioner moved an application on 20.5.1994 to the Director of Information U.P. Lucknow with the request to transfer the petitioner at Allahabad. No orders were passed by the Director then the petitioner sent an application to the Chief Minister. It has been submitted that when the petitioner persuaded his case for transfer, the opposite party became annoyed and passed an order of dismissal from service on 31st Oct., 1994. It has been stated that the order of dismissal from service has not been received by the petitioner and after recovery from illness when the petitioner went to join at Mau then the petitioner was informed that his services have already been dismissed. An order of dismissal has already been sent at the old address of the petitioner. Petitioner submits that the petitioner was on medical leave and from time to time the petitioner was sending application and the medical certificates. The opposite party has not issued any show cause notice to the petitioner before passing the order of termination/dismissal. No procedure has been followed. Petitioner being a conformed employee the service of the petitioner cannot be terminated. The opposite party No. 1 has dismissed the service of the petitioner simply on the ground that the petitioner was absent from duty.

(3.) Notices were issued and a detailed counter affidavit on behalf of the respondents have been filed stating therein that the petitioner had been absconding from duty without any leave with effect from 15. 10.1993. It is also incorrect to say that the petitioner has ever sent any application along with the medical certificate for leave. No such application or medical certificate is available in the office of the respondent. A specific averment has been made in Para 8 of the counter affidavit that the petitioner joined the office on 23.9.1993 and proceeded on casual leave from 2.10.1993 to 8.10.1993 and reported on duty on 11.10.1993. Thereafter the petitioner absconded from duty with effect from 15.10.1993. After waiting for considerable period, several registered letters were sent to the petitioner i.e. 8.2.1994, 12.4.1994 and 6. 6.1991. But when no reply was received from the petitioner till 19.8.1994, then a notice was published in the daily newspapers 'Aaj' and 'Purvanchal Sandesh' dated 20.8.1994 by giving the petitioner last chance for his joining duty. Even then the petitioner did not turn up and then the matter was placed before the District Magistrate, Mau, who going through all the full facts have passed an order terminating the services of the petitioner from 31.10.1994. It has been stated by the respondents that the registered letters sent on the dates mentioned above were not returned back, therefore, according to the provisions of the Code of Civil Procedure, it will be presumed that the letters have been received to the petitioner.