(Mrs.) Gurjeewan Garewal Vs. Dr. (Mrs.) Sumitra Dash & Ors  Insc 254
(12 April 2004)
Babu & Ruma Pal.
out of S.L.P.(C) No.15995 of 2001) RAJENDRA BABU, J:
1st Respondent, Mrs. Sumitra Dash, was working with the 2nd Respondent Post
Graduate Institute of Medical Education and Research, Chandigarh (PGIMER). At
her request, ex-India (extraordinary) leave was granted to her by PGIMER with
effect from 16/12/1991 for a period of two years by the
Order made on 6/4/1992. This leave was sanctioned, inter alia,
on the express condition that "she will neither resign / seek voluntary
retirement while on leave nor will request for further extension of ex-India
leave." By this time she had already started working as a consultant Haematologist
at the Salmaniya Medical Center, Bahrain.
in 1992, the 1st Respondent filed a Writ Petition bearing No. CWP No. 16212 of
1992 before the Punjab & Haryana High Court challenging the selection and
appointment of Petitioner herein as Professor of Haematology in PIGMER. It is
submitted, before us that this matter is still pending before the High Court.
On 11/12/1993, 1st Respondent requested PGIMER
for an extension of her ex-India leave up to 15/12/1994. This request was rejected. PGIMER asked her to resume duty
by 14/2/1994. She did not respond to this
request. On 26/9/1994 1st Respondent was informed by the
PGIMER that she was deemed to have permanently left the Institute with effect
from 16/12/1991. That on 6/9/1994, an Application bearing No. 8535 of 1994 in CWP No.
16212 of 1992 was moved by the 1st Respondent before the High Court to stay the
initiation of disciplinary action against her for not joining duty on expiry of
the leave. The High Court granted an interim Stay on 6/9/1994, made the same absolute on 21.9.1994.
On 14/1/1995 PGIMER issued a Memorandum to the 1st Respondent.
The Memorandum proposed to hold an inquiry against 1st Respondent under Rule 14
of the Central Civil Services (Classification, Control and Appeal) Rules, 1965
concerning her misconduct.
same was also annexed with Articles of Charge, statement of imputations and the
relevant documents. 1st Respondent filed a Contempt Petition against PGIMER
alleging that the Memorandum amounts to contempt of the Orders of the High
Court dated 6/9/1994. Subsequently, PGIMER withdrew the
charges against the 1st Respondent and tendered unqualified apology before the
on 8/2/1999, an application CM No. 5813 of 1999
in CWP No. 16212 of 1992 was moved before the High Court to vacate the Stay
Order dated 6/9/1994 so as to enable PGIMER to initiate
appropriate disciplinary proceedings against 1st Respondent. It is submitted
before us that this matter is also pending before the High Court. By the time,
that on 27/12/1999 the 1st Respondent requested the
PGIMER to allow her to join the duty by treating her extended ex-India leave as
leave under exceptional circumstances in the light of regulations 35 and 36 of
the PGIMER Regulations, 1967. Thereafter she is said to have forwarded a
joining report. Vide Memo dated 10/1/2000 PGIMER rejected the said joining report. It is also clarified in the
same Memo that the President rejected her application on the ground that no
exceptional circumstances existed to prevent her from joining the duty.
Subsequently the concerned authority ratified this decision of rejection.
On 11/5/2000 1st Respondent moved Application CM No. 4912 of 2000
in CWP No. 16212 of 1992 before the High Court seeking directions to PGIMER to
permit her to rejoin her duty. This Application was rejected with liberty to
her to move a separate petition to the same effect. On 11/7/2000 CWP No. 8504 of 2000 was filed by the 1st Respondent
before the Punjab & Haryana High Court. It challenges the Orders passed by
PGIMER on 10/1/2000 whereby the joining report was
rejected. The main Prayer of the 1st Respondent before the High Court in CWP
No. 8504 of 2000 is to issue a writ of mandamus "directing the respondents
to permit the petitioner to rejoin her duties immediately". She contended
in that petition that there couldn't be an automatic termination of service
without any charge sheet, departmental proceedings or enquiry against her.
Therefore, she submitted that she was not given an opportunity to explain or
defend herself and consequently there is violation of the principles of natural
deciding the matter High Court has adverted to the decision in Jai Shanker v.
State of Rajasthan AIR 1966 SC 492, wherein a state
government employee was discharged from service due to his unauthorized leave.
Here the order of termination was passed without hearing him. In this context,
quashing the Order of discharge, this Court held that:
removal is removal and if it is punishment for overstaying one's leave an
opportunity must be given to the person against whom such an order is proposed,
no matter how the Regulation describes it.
give no opportunity is to go against Article 311." In State of Assam v. Akshaya
Kumar AIR 1976 SC 37 while upholding the High Court order of quashing the
unilateral removal of a Government Servant, this Court opined that:
impugned order dated February
13, 1963 was violative
of Article 311(2) of the Constitution and as such, illegal. It was imperatively
necessary to give the servant an opportunity to show cause against the proposed
Court then referred to another decision by a Constitution bench of this Court
in Deokinandan Prasad v. State of Bihar AIR 1971 SC 1409. This is a case in which a Civil servant was removed from
service and this Court ruled that since an opportunity of hearing was not given
before passing the Order, the same was held to be violative of Article 311.
Another case referred to by the High Court is Uptron India Ltd. v. Shammi Bhan
(1998) 6 SCC 538. Here also the issue was related to the violation of Article
on the ratio in the aforementioned decisions the High Court allowed the
Petition filed by the 1st Respondent herein by observing that the request of
the petitioner for joining duty ought not to have been declined without giving
her an opportunity of hearing to put forward her case and without an
opportunity to the petitioner for showing cause as to why the provisions of
Regulation 36 ought not to have been applied to her case. Therefore this writ
petition has to succeed.
the High Court permitted the 1st Respondent to rejoin the duty in PGIMER during
the pendency of the CWP No 16212 of 1992. This decision is impugned before us.
Pursuant to this decision, PGIMER permitted 1st Respondent to rejoin duty w.e.f
5/4/2001. The impugned decision and the
subsequent action of the PGIMER aggrieved the Petitioner. Hence this SLP.
first question for consideration is the correctness of the decision by High
Court. Relying upon the decisions of this Court in Jai Shanker, State of Assam
v. Akshaya Kumar, Deokinandan Prasad and Uptron India Ltd (all cited supra) the
High Court went on to find that Respondent No 1 was not given an opportunity of
hearing. Is the High Court correct in its approach? To judge this issue,
primarily, the general nature of cases upon which the High Court placed its
reliance need to be looked into. It is pertinent to note that all these cases
emanate due to the violation of Article 311 of the Constitution.
outset it is to be mentioned that Article 311 cannot be automatically invoked
in all the instances where a person is not given an opportunity of hearing.
Article 311 confers certain safeguards upon persons employed in civil
capacities under the Union of India or a State. Only persons who are holding
"civil posts" can claim the protection provided under Article 311.
The 1st Respondent could claim the protection of Article 311 only if she holds
a 'civil post'.
Constitution Bench of this Court in State of Assam v. Kanak Chandra AIR 1967 SC 884 has explained the meaning
of 'civil post'. Here it was held that:
is no formal definition of 'post' and 'civil post'. The sense in which they are
used in the Services Chapter of Part XIV of the Constitution is indicated by
their context and settinga civil post means a post not connected with defence
outside the regular services. A post is a service or employment. A person
holding a post under a State is a person serving or employed under the State
There is a relationship of master and servant between the State and a person
holding a post under it. The existence of this relationship is indicated by the
State's right to select and appoint the holder of the post, its right to
suspend and dismiss him, its right to control the manner and method of his
doing the work and the payment of his wages or remuneration. A relationship of
master and servant may be established by the presence of all or some of these
indicia, in conjunction with other circumstances and it is a question of fact
in each case whether there is a relation between the State and the alleged
holder of the post." [Para 9, AIR] In
State of Assam v. Kanak Chandra it was also held that "a post is an
employment but every employment is not a post." While dealing with the
termination of an employee, another Constitution Bench of this Court looked
into the applicability of Article 311 in S. L Agarwal v. General Manager,
Hindustan Steel Ltd. (1970) 1 SCC 177. Here this Court held that job in Hindustan
Steel is not a 'civil post' so as to claim the protection of Article 311.
issue noted by the Court in Hindustan Steel is nature of independent existence
of Hindustan Steel Company. Considering this and other aspects it is ruled that
Hindustan Steel Company is not a State of the purpose of Article 311.
back to the case in hand, Section 4 of The Post Graduate Institute of Medical
Education & Research, Chandigarh Act, 1966 [PGIMER Act] says that PGIMER is
a 'body corporate which is having a perpetual succession and a common seal with
power.' This clearly provides that PIGMER is a separate entity in itself.
Admittedly the employees of any authority which is a legal entity separate from
the State, cannot claim to be holders of civil posts under the State in order
to attract the protection of Article 311. There is also no master and servant
relationship between the State and an employee of PGIMER, which is a separate
legal entity in itself. It is a settled position that a person cannot be said
to have a status of holding a 'civil post' under State merely because his
salary is paid from the State fund or that the State exercises a certain amount
of control over the post.
PGIMER Act might have provided for some control over the institution but this
doesn't mean that the same is a State for the purpose of Article 311.
the employees of PGIMER cannot avail the protection of Article 311 since the
same can be claimed only by the members of a civil service of the Union or of All India Service or of a civil service of a
State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a 'State'
for the purpose of Article 311 and the employees therein are not holding any
'civil post'. In result, the 1st Respondent is not holding a 'civil post' and
she cannot claim the guard of Article 311.
this background the view subscribed by the High Court, that the 1st Respondent
was not given an opportunity of hearing and since her removal is bad under
Article 311, is not correct. The premise in which the High Court has proceeded
is faulty. High Court has not examined the applicability of Article 311 in the
present case. This results in its wrong conclusion.
the cases relied upon by the High Court - Jai Shanker, State of Assam v. Akshaya
Kumar, Deokinandan Prasad and Uptron India Ltd (all cited supra) are not
applicable in the present context. All of them are distinguishable.
last case relied upon by the High Court is Syndicate Bank v. Gen. Sec., Syndicate
Bank Staff Association (2000) 5 SCC 65. Here this Court allowing the appeal in
favor of the appellant bank and holds that:
undue reliance on the principles of natural justice by the Tribunal and even by
the High Court has certainly led to a miscarriage of justice as far as the bank
is concerned." Here the dismissal of an employee by the bank was upheld.
Hence it is not clear how High Court placed its reliance on this case to decide
the present issue in favor of the 1st Respondent. On the other hand, in our
view, the decision in the case of Syndicate Bank justifies the action taken by
the only question that remains for consideration is the correctness of PGIMER's
stand that the 1st Respondent 'deemed to have permanently left the institute
due to her non-joining after the expiry of granted leave period.' This Court
dealt with similar situations in Aligarh Muslim University v. Mansoor Ali Khan
(2000) 7 SCC 529. In this case an employee of Aligarh Muslim University
obtained ex-India leave for two years. Then he applied for an extension of
leave for another three years. But University granted an extension of leave for
only one year and clearly conveyed to him that no further extension will be
allowed. Later he applied for another extension. Rejecting his request the
University informed him that in case of overstay he would be deemed to have
'vacated' his post and cease to be in University service. However University
extended the joining time. Yet he failed to join.
the University deemed him to have vacated the office. His writ before Single
Bench was dismissed but Division Bench allowed the same mainly on the ground of
'non-compliance of natural justice'.
preferred an appeal before this Court.
the Appeal, this Court, following S L Kapoor (1980) 4 SCC 379 holds that
"based on admitted and indisputable facts, only one view is possible. In
that event no prejudice can be said to have been caused to Mr. Mansoor Ali Kahn
though notice has not been issued." Elaborating this aspect it was
may state that the University has not acted unreasonably in informing him in
advance while granting one year extension, in addition to the initial absence
of 2 years that no further extension will be given. We have noticed that when
the extension is sought for three years, the Department has given extension
only for one year as he had already availed 2 years extraordinary leave by that
time. It has to be noticed that when employees go on foreign assignments which
are secured by them at their own instance, in case they do not come back within
the original period stipulated or before the expiration of the extended period,
the employer in the parent country would be put to serious inconvenience and
will find it difficult to make temporary alternative appointments to fill up
the post during the period of absence of those who have gone abroad.
when rules permit and provide for an employee to go abroad discretion must be
exercised reasonably while refusing extension. In this case, giving of further
extension only for one year out of the further period of three years sought for
is not reasonable. In such a situation, if the employee has entangled himself
into further commitments abroad, he has to blame himself.
above facts, the absence of a notice to show cause does not make any difference
for the employee has been told that if his further overstay is for continuing
in the job in Libya, it is bound to be refused." (Emphasis supplied)
Recently in another case of a very similar nature Dr. Anil Bajaj v. PGIMER JT
2002 (1) SC 245 this Court held:
person who gets an advantage, namely, of a sanction to go abroad on service on
the condition that he will come back within two years and if does not come back,
his lien will automatically be regarded as being terminated, he cannot turn
around and challenge the said condition on the basis of which sanction to go
abroad was granted but where the facts are not in dispute, the inquiry would be
an empty formality. In any case principle of estoppel would clearly apply and
the High Court was right in dismissing the writ petition filed by the appellant
wherein he had challenged his termination. " (Emphasis supplied)
Similarly, in the case in hand the 1st Respondent was originally granted an
ex-India leave for two years on the express condition that she will be deemed
to have vacated the post if she opts not to join after the leave period. But
she preferred to remain in the greener pastures for a pretty long time in spite
of the repeated reminders from PGIMER. She employed the case before the High
Court as a dilatory tactic to continue with her foreign assignment and evaded
herself from joining under some pretext or other.
aspect to be noted in this case is that the Respondent No 1, on 6/9/1994
obtained a stay of disciplinary action against her vide an Application bearing
No. 8535 of 1994 in CWP No. 16212 of 1992.
face of law, such a stay ought not to have been granted by the High Court since
the prayer in that CWP cannot have any bearing upon the Ex-India leave obtained
by R-1 or on its subsequent extensions or on the out come of disciplinary
action. The disciplinary proceedings against her and the case filed by her are
separate actions. It could proceed separately. Thus that stay is liable to be
vacated. But the judgment impugned in this case arises from CWP No. 8504 of
2000 wherein R-1 essentially challenges her rejection of her Application to
join duty under Rule 36 of the PGIMER Rules on the ground of violation of the
principles of Natural Justice. In the facts of this case that issue will not
arise if the original disciplinary proceedings are completed. Therefore,
exercising our extraordinary powers, we vacate the stay granted by the High
Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed
with the disciplinary proceedings against R-1 regarding her unauthorized
absence from duty. Since R-1 is allowed to rejoin her duty under the Orders of
High Court, in the meanwhile she may continue in service subject to the outcome
of disciplinary enquiry. PIGMER may complete the enquiry as expeditiously as
possible. If necessary the PGIMER is at liberty to consider whether her
continuance in the service during pendency of the inquiry is appropriate or
not, and place her under suspension, if necessary, and in which event also
consider whether the appellant before us should be given appointment in her
place and pass appropriate orders, if necessary.
appeal is allowed accordingly.
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