SHASHI KANT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner has challenged the order of termination dated 10.5.1991 alleging that he was a regularly selected employee against a clear vacancy and due process was followed for selection. The appointment was for indefinite period and therefore it should have been treated substantive. The alleged absence would fall within the misconduct for which the respondents were under obligation to make an enquiry and since the enquiry has not been made, the order of termination is illegal. It is also submitted that the petitioner was allowed leave for the period from 15.2.1991 to 9.8.91 and therefore the order of termination could not have been passed on 10..91

(2.) IN order to appreciate the above contention of the petitioner, the facts as submitted by the learned counsel for the petitioner are that the petitioner was appointed vide order dated 28.3.1987 on daily wage basis at the rate of Rs. 11/ - per day temporarily. In the order of appointment it is mentioned that two posts of daily wage employees are lying vacant and the petitioner having fallen ill on 14.2.1991 he submitted an application for grant of leave. In the meantime on 26.4.1991 he was transferred from Harmora to Government Upper Primary School Sapunda Arai, District Ajmer. It is stated that the petitioner remained ill till 9.8.91 and he submitted the medical fitness certificate of Government Digi City Dispensary Ajmer. The treatmeni was taken firstly from private medical officer and then at JLN Hospital Ajmer till 8.7.91. Applications for medical leave were sent by registered post. On 10.8.1991 when the petitioner alongwith the father reached at Sapunda Aral in the Government Upper Primary School and submitted his joining report to the Headmaster, he was not allowed to join. He moved the Distt. Education Officer Ajmer on 12.8.91 but nothing was done. This also submitted that 10 days time is given for joining and the order of transfer was served on 1.5.91. The order of termination could not have been bassed on 10.5.1991.

(3.) RELIANCE has been placed on the decision in the case of Kalu Ram v. State of Rajasthan and Ors. 1993 (1) WLC -447 wherein the termination of service on the ground of misconduct of voluntary absence from duty for 29 days without notice to the petitioner and without making any inquiry was considered violative of principles of natural justice. Even in the case of probationer, it is submitted that discharge from service without making any inquiry is not Justified as has been held by the Apex Court in the case of Anoop Jaiswal Government of India and Anr. 1984 (1) SLR 426. In the case of Ram Kishore v. Government of India 1982 (1) SLR 602, the Allahabad High Court held that termination of services of a temporary employee for over -staying the leave or that he was absent on leave beyond the period permissible under the service rules, is illegal. The decision in the case of Jalaluddin v. RSEB and Ors. WLR 1993 Raj. 319 has also been relied on the point that if the order does not contain any reason for retrenchment nor any alleged misconduct has been shown, then it cannot be said to be a case of termination simplicitor. The principles of natural justice have to be followed. Reliance has also been placed on the decision in the case of Sohanlal v. The State and Anr. WLR 1992 (S) Raj. 63 wherein the termination of service with retrospective effect was found unjustified.