KAMALA RAJEN Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) The petitioner was working as a Khalasi under the Executive Engineer, Design Division (Civil), Meghalaya State Electricity Board (for short "the MSEB"), Umiam. He applied for leave on medical ground. By order dated 16.9.1989 of the Chief Engineer (Civil), MSEB, Shillong, the petitioner was transferred and nested as a Khalasi under the Executive Engineer, Garo Hills (Civil) Division, Tura, with immediate effect. On 28.9.1989 Executive Engineer, Design Division (Civil), MSEB, Umiam, passed an order granting earned leave on medical ground for a period of 54 days with effect from 2.9.1989 to 25.10.1989 to the petitioner as admissible under Regulation 13(4)(e) of the Assam State Electricity Board Employees' Service Regulations, 1960, adopted by the Meghalaya State Electricity Board. In the said order dated 28.9.1989, the Executive Engineer further mentioned that in pursuance of the order dated 16.9.1989 of the Chief Engineer (Civil), the petitioner was released from Design Division (Civil) to enable him tojoin in his newplace of posting under the Executive Engineer, Garo Hills (Civil) Division, MSEB, Tura, after expiry of his leave. After expiry of his leave, the petitioner instead of joining under the Executive Engineer, Garo Hills (Civil) Division submitted a joining report dated 28.11.1989 before the Executive Engineer, Design Division (Civil) at Umiam, On 13.2.1990, the Executive Engineer (Civil), MSEB, Shillong, passed another order transferring the petitioner and posting him under the Executive Engineer, Garo Hills (Civil) Division, Tura, with Headquarters at Bajengdoba, West Garo Hills. Copy of the said order dated 13.2.1990 was marked to the Executive Engineer, Design Division (Civil), MSEB, Umiam, asking him to release the petitioner immediately so that he could be engaged in the work taken by the said Division in Bajengdoba. Copies of the said order were also marked to the Executive Engineer, Garo Hills (Civil) Division, MSEB, Tura, and to the petitioner. Pursuant to the said order dated 13.2.1990 of the Executive Engineer (Civil), MSEB, Shillong, the petitioner was again released by order dated 20.2.1990 from the Design Division (Civil), MSEB, Umiam, to enable him to join under the establishment of Executive Engineer, Garo Hills (Civil) Division, MSEB, with Headquarters at Bajengdoba, West Garo Hills, and the copy of the said order dated 20.2.1990 was marked to the petitioner. The petitioner again applied for leave for 54 days with effect from 22.2.1990 to 16.4.1990, and on 17.4.1990 submitted a joining report before the Executive Engineer, Designi Division (Civil), MSEB, Umiam and did not join under the Executive Engineer, Garo Hills (Civil) Division, MSEB, at Tura. On 31.5.1990, the Executive Engineer, Design Division (Civil), MSEB, Umiam, passed another order in modification of the earlier order dated 20.2.1990 releasing him on 31.5.1990 (afternoon) from his Division to enable him to join in his new posting under the establishment of Executive Engineer, Garo Hills (Civil) Division, MSEB with Headquarters at Bajengdoba, West Garo Hills. On 12.6.1990, the petitioner submitted another application for leave along with medical certificate on the ground that he was; suffering from Tuberculosis. The said leave application was sent by the Executive Engineer, Design Division (Civil), Umiam, to the Executive Engineer, Garo Hills (Civil) Division, Tura, where he had been transferred, but the said application and other papers were sent back by the Executive Engineer, Garo Hills (Civil) Division to the Executive Engineer, Design Division (Civil), Umiam as the petitioner had not joined in Garo Hills (Civil) Division. Subsequently it appears that the petitioner was granted leave on medical ground upto 25.1.1991 on the recommendation of the Medical & Health Officer, RP Chest Hospital, Shillong. After 25.1.1991, however, the petitioner did not report for duty under the Executive Engineer, Garo Hills (Civil) Division. The petitioner was then officially intimated by registered letter with A/D to join his duties within 30.11.1991 failing which his services would be terminated with effect from 25.1.1991. On 8.11.1991, the Executive Engineer, Garo Hills (Civil) Division, issued a notice to the petitioner through the newspapers 'Aphira' and 'Rupang' published from Shillong informing him to join in his establishment within 30.11.1991 without fail failing which his services would be terminated with effect from 25.1.1991. The said notice was actually published in the said two newspapers. Thereafter, by notice dated 2.12.1991 published in the newspaper 'Rupang', the petitioner was informed that since he failed to report for duty in the establishment of Executive Engineer, Garo Hill (Civil) Division, Tura, within 30.11.1991 his service stood terminated with effect from 25.1.1991. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution of India praying for quashing the aforesaid notice dated 2.12.1991 of the Executive Engineer, Garo Hills (Civil) Division, Tura, terminating his services.

(2.) At the hearing of the writ petition, Mr S. Sen, learned counsel for the petitioner, submitted that under the Rules of the MSEB, the petitioner was entitled to 18 months leave in instalments of 4 months as he was suffering from Tuberculosis and as a matter of fact the petitioner was granted leave upto 25.1.1991 on the basis of the recommendation of the Medical & Health Officer, RP Chest Hospital. Shillong. But even after 25.1.1991 the petitioner continued to suffer and he applied for leave for 120 days with effect from 25.1.1991 with medical certificate and again applied for leave for 120 days with effect from 1.6.1991 with a medical certificate. Thereafter, the petitioner submitted a leave application with medical certificate for another 60 days with effect from 27.1.1992. On the expiry of the said period of 60 days on 27.3.1992 when the petitioner went to his place of posting at Garo Hills he was informed that he had been terminated from service by the impugned notice dated 2.12.1991. Mr Sen submitted that the impugned notice was never served on the petitioner. He contended that regular employees of the MSEB can only he terminated pursuant to disciplinary action and for this contention relied on Regulation 9 of the Assam State Electricity Board Employees' Service Regulations, 1960, applicable to the MSEB. (for short "the Regulations, 1960"). He submitted that under Regulation 10 of the Regulations,1960, absence without leave or overstay of sanctioned leave without sufficient cause amounts to misconduct and since the petitioner was suffering from Tuberculosis even after 25.1.1991 he had sufficient cause for remaining absent. He contended that the said Regulation farther provides that no orders imposing a penalty shall be made unless the employee concerned is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. But no such opportunity was given to the petitioner before he was terminated from service. Mr Sen cited the decision of the Supreme Court in Mafatlal Barot-Vs-Divl Controller State Transport, Mehsana, AIR 1966 SC 1364, for the proposition that an employee is entitled to reasonable opportunity to show cause against the charge of absence without leave, According to Mr Sen, since no such opportunity has been given to the petitioner, the impugned notice of termination is liable to be quashed.

(3.) Ms. PDB Barua, learned Standing Counsel for the MSEB, on the other hand contended that The service of the petitioner has been terminated in accordance with Regulation 9 of the Regulations, 1960. She submitted that the petitioner was in the habit of remaining absent and that despite the order of transfer dated 16.9.1989 transferring the petitioner to Garo Hills (Civil) Division from the Design Division (Civil), Umian (Borapani), the petitioner did not join under the Executive Engineer, Garo Hills (Civil) Division. She submitted that still another transfer order was issued on 13.2.1990 and the petitioner was released on 20.2.1990, but pursuant to the said transfer and release orders he did not joint under the Executive Engineer, Garo Hills (Civil) Division. She stated that in the circumstances on 31,5.1990, the Executive Engineer, Design Division (Civil), Umiam (Barapani), again passed an order releasing the petitioner to enable him to join under the Executive Engineer, Garo Hills(Civil)Division, MSEB, Tura, but he did not join and instead continued to submit leave applications in the office of the Executive Engineer, Design Division (Civil), Umiam (Barapani), She argued that from the aforesaid conduct of the petitioner it would be clear that the petitioner continued to apply for leave only to avoid the transfer orders. She submitted that even notices were issued to the petitioner by registered post with AT) and thereafter through the newspapers on 8.11.1991 but the petitioner did not report for duty to the Executive Engineer, Garo Hills (Civil) Division, Tura. Ms. Barua explained that opportunity could be given to the petitioner if he was available, but since his whereabouts were not known for a long spell of time, it was not practically possible to give any other opportunity to the petitioner, and for this reason disciplinary action against the petitioner could not be initiated and his service was terminated by giving notice through the newspapers.