ASHUTOSH GUPTA Vs. STATE OF HARYANA & ORS

JUDGEMENT

(1.) The petitioner was appointed as Teacher (Lecturer) on 30/4/1990 in the Department of Psychiatry in Medical College, Rohtak, Pt.B.D.Sharma PGIMS, Rohtak. He was absent from duty without leave from 10/5/1994 onwards. He was dismissed from service on 28/7/2010 after charge-sheet and regular enquiry for remaining willfully absent from duty, and, besides, indulging in private practice which was against the ethical code and in violation of Clause 19(1) of the Haryana Medical Education Service Rules, 1988 which prohibits a member of service from engaging in private practice in any form. There is provision that every member of the service will get non-practicing allowance on such rates and terms and conditions as may be specified by the Government from time to time. Accordingly, the petitioner was charge-sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987. The Enquiry Officer in his report held the petitioner guilty of the charges levelled against him in the charge-sheet. The petitioner admitted in his statement before the Enquiry Officer that he was doing private practice during his absence without prior intimation and sanction of leave by the competent authority. The respondent-Pt.B.D.S.PGIMS, Rohtak was generous enough to offer him opportunity to resume duty vide letter dtd. 20/5/1994. He was advised personally by the Director to come back to work, but the advice went unheeded and the petitioner continued to remain absent from department and indulging all the time in private practice as a Psychiatrist. A further opportunity was given to him to resume duty vide letter dtd. 27/5/1996, but he did not take the cue. Accordingly, a second show-cause notice was served on the petitioner alongwith the enquiry report indicating that penalty of dismissal is proposed to be imposed on him. He did not submit reply to the show-cause notice nor did he return to work. It was in these circumstances that the competent authority awarded punishment of dismissal from service in July, 1997 after complying with all the codal formalities.

(2.) Feeling aggrieved by the dismissal order, the petitioner filed a suit for declaration before the Addl.Civil Judge (Sr.Divn.), Rohtak. The suit was dismissed by judgment and decree dtd. 23/7/2009. The petitioner challenged the judgment and decree dtd. 23/7/2009 before the District Judge, Rohtak. The first appellate court by his judgment dtd. 6/4/2010 set aside the order of dismissal recording that the order suffered from a jurisdictional error. Inasmuch as, the letter of appointment of the petitioner as Teacher (Lecturer) in the Department of Psychiatry, Medical College, Rohtak was issued by the Joint Secretary, Health for Commissioner and Secretary to Govt. Haryana, Health and Medical Education Department in the name of Governor of Haryana but the dismissal order was not in the name of the Governor. The first appellate court held that the Commissioner had no jurisdiction to pass the order of dismissal and on this technical plea, allowed the appeal and set aside the judgment and decree of the Civil Judge by making it clear that the Governor of Haryana may pass an appropriate order as he deems fit as if the order of dismissal by the Commissioner has not been passed. But in issuing this direction, the learned District Judge, Rohtak held that the proceedings conducted upto the date of dismissal are valid. A positive finding was returned by the District Judge that the order does not suffer from any illegality, except that it was passed by the Commissioner whereas it should have been the Governor passing the order. The PGIMS, Rohtak accepted the order and did not file any further appeal. However, against the order passed by the District Judge, Rohtak, the petitioner preferred RSA No.253 of 2011 which was dismissed by this Court on 11/5/2012 by passing the following order:-

(3.) The matter was reconsidered with reference to the dismissal orders dated 25/28/7/1997 and a fresh order was issued on 13/7/2010. The dismissal orders have been substituted as an order in the name of the Governor who was pleased to confirm the State Government orders dated 25/28/7/1997 regarding dismissal of the petitioner from service. The order has been issued by the Financial Commissioner and Principal Secretary to Govt. Haryana, Health and Medical Education Department by observing that generally all orders of the Government are issued in the name of Governor of Haryana. Further many a times in place of Governor of Haryana, the phrase "Government of Haryana" is used. At times even this phrase is not used while issuing various orders of the State Government. The Financial Commissioner observed in his order and rightly so that the important aspect to be seen in this regard is that the orders are legally valid and have been issued with the due approval of the competent authority. Whether after getting the approval of the competent authority in the the name of the Governor of Haryana/Government of Haryana or Secretary to the Government of Haryana is written, it makes no difference in the quality of the orders. In all situations, it remains an order of the Government. This order dated 25/28/7/97/13/7/10 (Annex. P-8) has been called in question by the petitioner in the present proceedings.