Smt. C.R.D. Sarada v. Nizams Institute Of Medical Sciences,

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Writ Petition No.20701 of 2006 ORDER:

This Writ Petition, under Article 226 of the Constitution of India, by the petitioner against Nizam's Institute of Medical Sciences, Hyderabad, ('NIMS', for brevity) and its Director assailing the order, dated 30.06.2001, whereby her services were terminated with effect from 07.01.2000; and, the consequential order, dated 24.05.2006, of the appellate authority confirming the aforesaid orders of removal passed by the Executive Registrar as illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India and to set aside the said orders and declare that she is entitled to continue in service as usual, i.e., from the date of the termination with entitlement to all consequential benefits.

2.

I have heard the submissions of Sri G.V.Ramana Reddy, learned counsel appearing for the petitioner and of Sri G.Anandam, learned Standing Counsel appearing for the respondents.

3.

The case of the petitioner and the submissions made on her behalf, in brief, are as follows:

The petitioner was appointed in NIMS, on 22.08.1994, as Dialysis Technician Grade-III and was posted to Nephrology Department of NIMS, Hyderabad. Her services were regularized, on 23.12.1995. Her husband, S.M.Basha is also a Dialysis Technician in the same Department. They both were blessed with a son in the year 1996 and a daughter in the year 2003. Her father-in-law used to reside at Narasaraopet. He was about 70 years old and was suffering from serious psychic disorders since a long time. In the month of January, 2000, he suffered from several bouts of hysteria. In the circumstances, she and her husband were forced to travel to Narasaraopet to attend on him. On 05.01.2000, she has initially applied for Earned Leave for a

period of ten days to go to Narasaraopet for attending on her father-in-law. At that time, when she applied for leave, she was pregnant. As the health condition of her father-in-law started deteriorating, she was forced to extend her leave while staying at Narasaraopet. Further, she suffered abortion, on 25.02.2000, and she was advised by the doctors to take complete bed rest for a period of six weeks. Thereafter, NIMS issued telegrams on 11.02.2000, 15.02.2000 and 18.02.2000 calling upon her to attend to duty immediately. Even before the said telegrams, she sent a telegram on 07.02.2000, extending her leave by (15) days stating the aforesaid reasons. Instead of sanctioning leave, she was directed to immediately report to duty and avoid any disciplinary action for unauthorized absence from duty. On 15.02.

2000, she submitted leave application on the ground that she underwent an operation. On 28.02.2000, she submitted another application for grant of leave for a period of 20 days commencing from 26.4.2000. On the advice of the doctors to take rest, on 15.5.2000, she submitted another application for leave, on medical grounds, for a period of 60 days. On 22.4.2000, the authorities of NIMS issued a charge memo directing her to report to duty and calling for explanation for her unauthorized absence. On 15.09.2000, she submitted another application for leave for three months, on medical grounds. On 06.11.2000, she was called upon to appear, on 14.11.2000, before the Enquiry Officer. Accordingly, she attended before the enquiry officer; and, her statement was recorded by the Enquiry Officer. On 23.11.

2000, a show cause notice was issued to the petitioner asking her to report to duty and stating inter alia that her services will be terminated if she fails to do so. She was asked to appear before the Executive Registrar on 20.02.2001. She made a specific request for her transfer from Dialysis Department in view of the problems she faced in the Department. On 30.06.2001, orders were passed by the 1st respondent terminating her services from 07.01.2000 FN.

issue, she was informed that she cannot be reinstated into service. She filed an appeal on 01.03.2003 before the Minister for Health, who is the president of the NIMS Executive Board. The said appeal challenging the order of termination of service was not disposed of. Hence, she filed W.P.No.16892 of 2003. Since an appeal lies against the termination orders to the Board, this Court permitted her to file an appeal before the 2nd respondent herein within a period of two weeks from the date of receipt of a copy of the said order and the 2nd respondent was directed to consider the appeal without reference to the delay and pass appropriate orders in accordance with law expeditiously and preferably within two months from the date of filing of the appeal by the petitioner. Her appeal was rejected by order, dated 24.5.

2006, and the orders, dated 30.06.2001, passed by the Executive Registrar terminating her services, were confirmed. As per the NIMS Employees (Control & Appeal) Rules, which came into force with effect from 28.06.1986, there is a prescribed procedure for conducting enquiry and imposing penalties like removal or termination from service. As per the said procedure, definite charges have to be framed, list of documents have to be furnished to the charged officer, explanation for the charges must be sought for and, if only the explanation is unsatisfactory, contemplation of enquiry will arise by appointing an Enquiry Officer. The enquiry must be duly conducted.

Even before the enquiry was conducted for the alleged charge of unauthorized absence, the Disciplinary Authority came to a conclusion to impose punishment of termination from service and indicated that proposed punishment by stating that in case of failure to attend to duties and before the Enquiry Officer, her services will be terminated. The Control and Appeal Rules are thus violated. Except recording the statement of the petitioner, no enquiry was conducted, no material was produced and no witnesses were examined. The report, dated 17.11.2000, cannot be treated as a report of the Enquiry Officer. In the show-cause notice, dated 23.11.

that the services will be terminated and thus the proposed punishment was indicated even before her representation with objections is received by the Disciplinary Authority. The punishment was imposed with retrospective effect from 07.01.2000. None of her grounds and objections were considered by the appellate authority. The services were terminated on the alleged ground of unauthorized absence. A number of similarly situated persons were reinstated but the petitioner was not reinstated into service. No opportunity of personal hearing was given by the appellate authority. Hence, the writ petition is filed. 4.

The case of the respondents, as stated in the counter affidavit of the Executive Registrar of NIMS, is as follows:

The petitioner was appointed as Dialysis Technician Gr.III and was posted to the Department of Nephrology, on 22.08.1994. Her husband and colleague, S.M.Basha, was also a Dialysis Technician in the same department. The services of the petitioner were regularized. While in service, the petitioner applied for Earned Leave for ten days from 07.01.2000 to 16.01.2000 and later, sent a telegram, on 26.01.2000, seeking extension of Earned Leave for ten more days on account of her uncle's sickness. The post of Dialysis Technician is a key post and the said Technician has a key role in the treatment of Dialysis patients. In NIMS 50 to 60 number of dialysis will be performed every day round the clock. Therefore, the services of the petitioner are very much required in the NIMS.

The absence, particularly, the unauthorized absence of the petitioner, caused great hardship to the Faculty and their colleagues. The Professor and Head of the Department addressed letter, dated 22.01.2000, to the Director, NIMS, stating that the petitioner absented from duties and requesting to take necessary action. Therefore, the management of the NIMS issued a memo calling upon the petitioner to report to duty by 18.02.2000 inter alia stating that on her failure to attend to duty her absence would be declared as unauthorized and necessary disciplinary action will be initiated. Before issuing the said memo, two Telegrams, dated 14.02.2000 and 17.02.

issued calling upon her to report to duty. The petitioner submitted a letter, dated 15.02.2000, for extension of Earned Leave for further 30 days. NIMS had again sent a Telegram, dated 26.02.2000, directing the petitioner to report to duty by 22.03.2000 and that sanction of leave will be considered only on her reporting to duty. By telegram, dated 26.02.2000, she was asked to produce a Medical Certificate from a Government Hospital in proof of her abortion to consider her request for sanction of leave. The petitioner neither submitted a medical certificate from a Government Hospital in proof of her undergoing abortion nor reported to duty. Further, she sent a Telegram, dated 06.04.2000, and submitted a letter, dated 17.04.2000, for extension of medical leave. By letter, dated 22.04.

2000, the management of NIMS informed the petitioner to report to duty on expiry of miscarriage leave. Even after expiry of the requested leave, the petitioner did not report to duty. Therefore, NIMS issued to the petitioner, a memo, dated 05.05.2000, directing her to report to duty on or before 15.05.2000. In the said memo, it is stated that on her failure to report to duty, action will be taken as per the rules. The petitioner sent letters to NIMS for extension of 60 days leave up to 15.05.2000. Even after lapse of 60 days of leave, she did not turn up for duties. Therefore, NIMS had issued a charge memo to the petitioner, on 08.09.2000. The same was served on her, on 13.09.2000. Finally, NIMS had issued a Telegram directing her to report to duties immediately.

Even after receipt of the said Telegram, the petitioner did not turn up to attend to duties. The 1st respondent has appointed one Dr.K.T.Reddy, Assistant Professor and Assistant Medical Superintendent, NIMS, as an Enquiry Officer to enquire into the single charge of unauthorized absence of the petitioner. The Enquiry Officer informed the petitioner to attend the enquiry on 14.11.2000. On 14.11.2000, she attended before the Enquiry Officer.

granting leave and not recommending for promotion. She further stated that her father-in-law was sick and bed ridden and therefore, she could not attend to duty at NIMS and that she suffered with gynic problems and therefore, also she could not attend to her duties. She stated two conditions before the Enquiry Officer as a condition precedent for joining duties. She stated that she would join duty, but, from January, 2001, and if she is transferred and posted to any other Department other than Nephrology. After such enquiry, the Enquiry Officer submitted his report, on 17.11.2000. Therefore, a show cause notice was given to the petitioner providing an opportunity of personal hearing and submitting an explanation; and, she was asked to show cause why a penalty should not be imposed against her for the charges proved.

Along with the show cause notice, the copy of the enquiry report was also furnished to her. She having acknowledged the receipt of the report and the notice did not respond to the show cause notice. Therefore, orders terminating her services were passed, on 30.06.2001, by terminating her services with effect from 07.01.2000. She having received the termination orders gave a representation, dated 19.04.2002, with a request to appoint her as Computer Assistant in NIMS. Her request was examined and was rejected by orders, dated 23.10.2002. She filed W.P.No.16892 of 2003 questioning her termination. This Court directed by its order, dated 03.03.2006, to file an appeal. Accordingly, she filed an appeal on 03.04.2006. The Board rejected her appeal and she was accordingly informed, on 24.05.2006. The rejection order, dated 24.05.

2006, was passed narrating the circumstances leading to termination of services and reasons for rejection of the appeal filed by the petitioner. All the grounds urged in the writ petition are false. The procedure was duly followed while issuing the charge memo and conducting the domestic enquiry by appointing an Enquiry Officer and also in conducting the enquiry. Considering the key post held by the petitioner, she was given an option to report to duty and avoid termination of services. There is no irregularity as alleged in the writ petition.

super specialty hospital catering to the needs of the patients from the State and the neighbouring states. Every day about 2000 patients visit NIMS. If an employee like the petitioner abstains from attending to duty, it causes inconvenience and hardship to the co-employees. The patients who come for treatment to NIMS need high care from doctors and Dialysis Technicians. The absence of the petitioner caused inconvenience to the patients and colleagues of the petitioner. During the same period, the husband of the petitioner who is also a Dialysis Technician absented from duty. They both were requested to join duties. But, they did not turn up. Opportunities were given to join duty but she did not turn up. She imposed conditions to join duty. Hence, the writ petition is liable for dismissal.

5.

Learned counsel for both the sides advanced arguments in line with the pleadings of the parties, which are stated supra. I have noted the pleadings and the submissions. I have perused the material record. 6.

Learned counsel for the petitioner relied upon the decision in Raghubir Singh v. General Manager, Haryana1, wherein the proportionality of the punishment in service law has been adverted to. This decision was relied upon in support of the alternative contention that punishment of termination of service is disproportionate to the gravity of the charge proved. 7.

Before proceeding further, it is necessary to refer to infra the letter, dated 08.9.2000, which contains the charge and the grounds for the charge. Sub: N.I.M.S, HRD - Paramedical - Smt. CRD Sarada - Dialysis Tech - Unauthorised Absence - Charge memo - issued - Reg.

Ref: This office Memo Rc.No.4/ 57/ 89/ H2, Dt.05.05.2000.

******* Smt. CRD Sarada, Dialysis Technician is unauthorized absence from 7-1-2000 and continuously extending leave without any valid 1 SLP © No.22487 of 2012 decided on 03rd September 2014 (Supreme Court)

reasons. She was informed through reference cited that leave cannot be considered until her joining for duty. She was supposed to join for duty on 18-2-2000 but failed to report for duty from 18-2-2000 onwards in spite of issuing a memo. Due to her unauthorized absence from duty, the work in the department is disturbed. She has violated the NIzam's Institute of Medical Sciences, Conduct rules by keeping herself away from duties unauthorisedly which is causing lot of inconvenience to the routine functions of the dept. Her above action constitutes an act of 'MISCONDUCT'.

The following charge is framed Smt. CRD Sarada, Dialysis Tech. is unauthorized absent from duty and extending leave without any valid reasons. Whereabouts of her is not known and official communications have been returned undelivered by postal authorities, she has refused to receive an official communication addressed to her.

Grounds of charge Smt. CRD Sarada, Dialysis Tech. is unauthorized absence from 7-12000 and extending leaves without any valid reasons. She was informed through reference cited that leave can be considered only on her joining for duty. She was supposed to join for duty on 18-22000. Therefore, she is directed to report for duty immediately and she should submit her explanation in person within [7] days from the date of receipt of this charge memo. In case no explanation is received within the time limit, it will be construed that she has no explanation to offer and her services will be terminated as per rules. Sd/ - EXECUTIVE REGISTRAR"

7.1 To begin with, it is to be noted that even as per the version of the petitioner, she initially applied for Earned Leave on 05.01.2000 for a period of ten days to attend on her father-in-law at Narasaraopet, who was said to be suffering from serious psychic disorder and suffered several bouts of hysteria during that period. According to her further contention, she was also pregnant and suffered abortion, on 25.02.2000. Having originally applied for leave, on 05.01.2000, for a period of ten days, she kept quiet without reporting to duty either on the expiry of the said leave applied for or thereafter and further failed to seek extension of leave applied for by sending a Telegram or a leave letter by post in advance. NIMS issued three Telegrams, dated 11.02.2000, 15.02.2000, and 18.02.2000 asking her to report to duty immediately. However, she pleads that she issued a Telegram, on 07.02.2000, seeking

extension of leave for a period of 15 days. Be that as it may, the management of the NIMS directed her to report to duty immediately by virtue of the above stated telegrams. She again sent a Telegram, on 15.02.2000, seeking extension of leave for a period of six weeks commencing from 21.02.2000 inter alia stating that she underwent an operation. On 28.02.2000, she further submitted another application for leave for a period of 20 days commencing from 26.04.2000. On 15.05.2000, on medical grounds, she also submitted another application for leave for a period of 60 days stating that she was advised by doctors to take rest. In the circumstances aforestated, charge memo, dated 08.09.2000, was issued to her calling upon her to explain her unauthorized absence.

Without submitting any explanation, she submitted another leave application, dated 30.09.2000, seeking extension of leave by three months from 15.09.2000. It is pertinent to note that she stated in the said letter that due to frequent gynic problems, she is unable to attend to duty and she was advised by the doctors to take complete rest for three months and that therefore she apologizes for the inconvenience caused to the faculty and staff in the Department due to her absence. Thus, by letter, dated 30.09.2000, she sought leave for three months from 15.09.2000. Admittedly, she did not submit any medical certificate even along with this leave application. Since no explanation was given to the charge memo, an Enquiry Officer was appointed. The Enquiry Officer, by notice, dated 06.11.

2000, informed the petitioner that he was appointed as an enquiring authority to conduct enquiry and that the enquiry will be commenced on 14.11.2000 at 2 PM in his chambers in HRD Section, NIMS and that at that enquiry the petitioner will be given full opportunity to adduce evidence in support of her case and that she should appear personally before him. Accordingly, she appeared before the Enquiry Officer along with her husband who was also facing a similar enquiry on the similar ground of absenteeism during the relevant period.

an abortion and was suffering from repeated gynic problems. Without substantiating any of the said contentions by producing medical certificates regarding her ill-health and that of her father-in-law, she stated before the Enquiry Officer as follows: 'There was harassment from the senior doctors, namely, Dr. Sherke and Dr.Murthy of the Department of Nephrology. The said harassment is in the form of demanding work for more time, no appreciation for the work, not granting the leave, not recommending her case for promotion and other reasons, which cannot be mentioned by her. She further stated that she is willing to join duty in the month of January, 2001, that too, if she is posted to any other Department other than Nephrology.'

She inter alia submitted that her father-in-law is sick and bedridden with paralysis and she and her husband have to look after him at home and therefore, she is unable to attend duties and since both she and her husband are from medical background, they prefered to be at home for taking care of her father-in-law and that she was having gynic problem. Thus, she offered to join duties under two following conditions imposed by her: viz., (i) If she is transferred to any other Department from Nephrology and (ii) prepared to join duty from January 2001.

7.2 In a case of this nature, where the petitioner is absent from duties for a very long time without prior sanction of leave and went on extending leave ignoring the telegrams, letters and memos of the authorities to join duty and in the light of the statement imposing conditions made by her before the Enquiry Officer for rejoining duty, the Enquiry Officer was satisfied that the reasons for the absence are not convincing and that the petitioner and her husband mentioned more than one reason, which are not related to each other and that she and her husband are not showing any interest to join duty and they have no fear of losing job and that they imposed conditions for joining duty and therefore, they can be terminated from services, if they do not join duties. On 23.11.2000, a show cause notice was issued by the Executive

Registrar, NIMS, informing the petitioner that the Enquiry Officer submitted a report and that the entire period of absence from 7.1.2000 is treated as unauthorized absence and that disciplinary action may lead to termination of service on disciplinary grounds and that their requests before the Enquiry Officer for transfer to other Department are negatived and that they may report to duty within 20 days of the receipt of the show cause notice and otherwise, their services will be terminated and extension of leave will not be granted. To the said letter/ show cause notice, the report of the Enquiry Officer was enclosed. Again, the petitioner submitted a letter, dated 31.01.2001, seeking transfer to other Department other than Dialysis unit. Therefore, a letter, dated 20.02.

2001, was addressed to her and her husband requesting to meet the Executive Registrar. The petitioner did not give any reply to the show cause notice, which was sent along with a copy of the Enquiry Officer's report, and also did not report before the Executive Registrar, as requested in the letter, dated 20.02.2001. Further, on 06.06.2001, another show cause notice was issued to the petitioner by the Executive Registrar stating that it is proposed to award a major penalty under The Nizam's Institute of Medical Sciences Employees (Control & Appeal) Rules, which came into force with effect from 28.6.

1986 taking into consideration the gravity of misconduct; and, before taking a decision on the quantum of penalty, the petitioner was given an opportunity of personal hearing to explain the circumstances as to why penalty should not be imposed against her in pursuance of the said Rules. Thus, by this letter (show cause notice), an opportunity was once again given to make a representation on the penalty proposed to be imposed and to make a representation which the petitioner wishes to make in respect of the penalty that may be imposed. Even for such show cause notice, there was no reply. Therefore, order, dated 30.06.2001, was passed terminating her services with effect from 07.01.2000; and, thus, a major penalty was imposed.

she has kept quiet. Belatedly, she addressed letter, dated 21.02.

2002, stating that she has applied for Earned Leave and that since then onwards, she was on long leave and she was disturbed socially and that she has been very good at work and was time and again appreciated by her Heads of the Departments and that she married her senior colleague and that it was made into a joke and she was humiliated by the staff of the Department and such harassment reached unacceptable and un-tolerable levels and that her complaints to the Head of the Department and the Executive Registrar were of no avail and therefore, she tried to stay away from it and she opted to work in Computer Department as she is possessing PG Diploma in computer applications; but, her request was not considered and that she was not given any solace nor any help was extended, therefore, she seeks kindness and request for reappointing her on humanitarian grounds.

She gave other similar letters, dated 19.04.2002, 07.02.2002, 09.8.2002, 12.10.2002 and 19.10.2002. Finally, on 23.10.2002, she was informed by the NIMS that it is not possible to reinstate her into service. Having received the termination orders, dated 30.06.2001, she went on making representations to reinstate or reappoint her on the grounds of generosity and mercy and humanitarian grounds. But, she was informed that it is not possible to reinstate her. On 01.03.2003, she submitted an application to the Minister concerned who is also the President of the Executive Board of the NIMS to reconsider and revise the orders of termination without preferring an appeal to the appellate authority. Then, she filed W.P.No.16892 of 2003 before this Court. This Court, by its orders, dated 03.03.

2006, gave an opportunity to the petitioner to prefer an appeal and directed that the appeal may be considered without reference to the delay in filing the appeal. Later, on 03.04.2006, she filed an appeal, i.e., nearly five years after the termination orders. Her appeal was rejected by order, dated 24.05.2006. Thereafter, she filed the instant writ petition, on 24.09.2006.

letters and memo to report to duties, sent reply Telegrams and further telegrams and letters seeking extension of leaves and thus, went on seeking extension of leave unmindful of her responsibilities and duties and ignored the charge memo and took inconsistent stands from time to time and also imposed conditions for re-joining duty by stating that she may be posted in another Department and that she would join duty from January, 2001, and exhibited a recalcitrant and indifferent attitude by deliberate unauthorized absence without prior sanction of leave from 05.01.2000 onwards till the termination order, dated 30.06.2001. Even after the termination order was passed, she was adamant and was insisting upon for posting to another Department and ultimately, sought either re-instatement or reappointment on the grounds of mercy and generosity.

Further, after the belated appeal filed in April 2006 was rejected in May 2006, she filed the instant writ petition challenging that the enquiry was not conducted in accordance with the procedure and that no evidence was adduced before the Enquiry Officer. When it is a case of unauthorized absence from duty without either prior sanction of leave or for any valid reasons, the Department is not supposed to adduce any evidence and it is for the petitioner to adduce evidence in support of her absence and her entitlement for grant of leave. Except making inconsistent statements and imposing conditions for joining duty, she did not produce any medical record either of her own or of her father-in-law to substantiate that her absence is on reasonable grounds.

In that view of the matter, this Court finds that there is no irregularity or illegality in the conduct of the enquiry warranting interference and that in the facts and circumstances, the respondents are justified in terminating the services of the petitioner and in rejecting the appeal.

8.

In the decision in Chennai Metropolitan Water Supply and Sewerage Board v. T.T.Murali Babu2, the Supreme Court reiterated the legal position stated in State of Punjab v. P.L. Singla [(2008) 8 SCC 469], wherein it was held as follows:

'Where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to unauthorized absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/ explanation for the absence."

In Tushar D.Bhatt v. State of Gujarat [(2009) 11 SCC 678], the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant, the Court stated that he was not justified in remaining unauthorizedly absent from official duty for more than six months because in the interest of discipline of any institution or organization such an approach and attitude of the employee cannot be countenanced."

Referring to the two legal principles, the Supreme Court held in the cited decision as follows:

" Thus, the unauthorized absence by an employee, as a misconduct, cannot be put into a straightjacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in P.L. Singla (supra)."

The facts and the ratios in the cited decisions of the Supreme Court squarely apply to the facts of the case. In the case on hand, the petitioner was 2 (2014) 4 Supreme Court Cases 108

continuously absent from duty having applied for Earned Leave on 05.01.2000 and till the order, dated 30.06.2001, terminating her services and took indifferent stands without preferring an appeal till April 2006 and at one stage, sought reinstatement or reappointment; and, after all doors are closed, filed a writ petition and then an appeal and then eventually, the present writ petition. In fact, the petitioner's conduct in not attending to her duties without prior sanction of leave and not reporting to duty despite opportunities given by the authorities is sufficient to draw an inference that she abandoned her services. Her unauthorized and deliberate absence from duty for a period of about one and half years and her conduct in filing this writ petition belatedly in the year 2006 after rejection of her appeal, by order dated 24.05.2006, sufficiently justify the penalty of termination from service and in a case of this nature, there is no place for mercy or generosity.

9.

On the above analysis, this Court finds that the petitioner is not entitled to any relief in this writ petition and that this writ petition which is devoid of merit is liable for dismissal.

10.

Resultantly, the Writ Petition is dismissed.

No costs.

Pending miscellaneous petitions, if any, shall stand closed. _____________________ M. SEETHARAMA MURTI, J 20th March, 2017 RAR