No inquiry, no termination: CAT strikes down Govt’s dismissal of medico

Srinagar, Dec 22: The Central Administrative Tribunal (CAT) in Srinagar quashed the government’s order terminating services of a medico for “unauthorised absence from duty”, saying no inquiry had been conducted to ascertain whether the absence was “willful and deliberate or because of compelling reasons”.

“Although the impugned order reveals that the petitioner was given an opportunity to report back and was also issued show cause notice, the notice was not preceded by enquiry in a prescribed manner so that it could have been ascertained as to whether the absence was deliberate and willful and not due to compelling circumstances beyond the control of the petitioner,” a Division Bench of M S Latif, Member (J), and Prasant Kumar, Member (A), said.

The bench held this in response to a plea by a doctor, whose services were terminated by the government for “unauthorised” absence from duty at District Hospital, Uri, where he was posted on the basis of an order dated May 6, 2014.

To pursue further studies, he passed the NEET-SS 2020 and after counselling was allotted Global Hospital Hyderabad Telangana for undergoing DNBSS Surgical Gastroenterology with a condition to report to the allotted institute within the stipulated period, failing which, his allotted seat would be cancelled and the security deposit forfeited.

According to the aggrieved medico’s plea, once he received the allotment letter, he applied for a grant of three years of study leave.

He said that even after repeated requests, the respondents did not accord sanction to his study leave, leaving him with no alternative but to report to the allotted institute before December 31, 2020.

He submitted that on his return to Srinagar from Hyderabad on September 12, 2021, he was shocked to come across a notice dated May 17, 2021, issued by the Director, Health Services, Kashmir, directing him to report to his duties at Sub District Hospital, Sopore, within seven days.

According to his plea, the aggrieved doctor approached the respondents to allow him to resume duties but his “request was turned down”.

In response to his email, the medico said he was asked to be available at the Health and Medical Education (HME) Department at the civil secretariat in Srinagar on September 20, 2021.

He said that instead of hearing him and allowing him to resume his duties, he was handed over a copy of the dismissal order.

The medico petitioned the tribunal and the court disposed of his plea in terms of an order dated July 13, 2023, with the direction to the authorities to consider and dispose of the statutory appeal he would file before them and take a holistic view with respect to the resumption of his duties.

However, the authorities rejected the appeal by an order dated September 18, 2023.

The medico challenged the orders dated September 20, 2021, and September 18, 2023, among others on the grounds that the same was harsh in nature and was passed without application of mind, besides being in violation of Article 311 of the Constitution of India, which “envisages that no person, who is a member of a civil service of the union or an all-India service or a civil service of a state shall be dismissed or removed or reduced to rank without an inquiry.

His contention was that the respondents did not conduct any inquiry before reaching a conclusion of dismissing him from service.

After hearing the parties, the tribunal held that the impugned order nowhere depicted that any inquiry was initiated against the petitioner in consonance with the rules of natural justice or the procedure envisaged in law.

In support of its decision the tribunal relied on Supreme Court judgment wherein the apex court has held that “the question whether unauthorized absence from duty amounts to failure or deviation of duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether the absence is willful or because of compelling reasons.”

“There may be a different eventuality because of which an employee may remain absent from duty including the compelling circumstances which are beyond his control, like illness, accident, hospitalisation and in such cases an employee cannot be held guilty of deviation of duty or behaviour unbecoming of a government servant,” the tribunal said.

It observed that the principles of natural justice mandate action on the part of the competent authority against a delinquent employee only after providing him an opportunity to be heard.

Quashing the orders the petitioner had questioned – one terminating his service and the other rejecting his statutory appeal by the authorities, the tribunal said the orders were passed in haste and were bad in law.

The court however left it open for the competent authorities to hold an inquiry afresh in accordance with rules to hear the petitioner in support of his defence and then pass appropriate orders as would be permissible under law and in consonance with the rules of natural justice.

“Needful to be done as expeditiously as possible but not beyond the period of four months,” the tribunal said.

However, the court made it clear that in case respondents were not in a position to conclude the enquiry within the stipulated period, in such eventuality, they could approach it for seeking an extension of time by providing a cogent reason in their support.