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DR. LAKHTE MUSTAFA KAZMI versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Dr. Lakhte Mustafa Kazmi v. State Of U.P. & Another - WRIT - A No. 15726 of 2003 [2003] RD-AH 91 (10 April 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO. 38

CIVIL MISC. WRIT PETITION NO 15726 Of 2003

Dr. Lakhte Mustafa Kazmi ----- Petitioner

Versus

State of U.P. & Anr. -----                        Respondents.

--------------

Hon'ble Dr.B.S.Chauhan,J.

Hon'ble Ghanshyam Dass, J.

(Delivered by Hon'ble Dr. B.S.Chauhan, J.)

This writ petition has been filed for quashing the order dated 2.1.2003 passed by the State Authorities by which the representation of the petitioner for continuous service and other benefits has been rejected.

Facts and circumstances giving rise to this case are that petitioner had been appointed on temporary basis as a Medical Officer in a Public Health Centre in Distt. Saharanpur on 16.10.1975. He joined the services on 24.11.1975. He applied for joining the Diploma Course and the respondent authority allowed him to join the same in 1978 on the condition that he would execute the bond to continue in service for a period of 5 years. After completion of the Diploma Course he joined the service. He was transferred vide order dated 15.2.1979 from the Health Centre in Distt. Saharanpur to Lucknow. Petitioner did not join the service at transferred place, as there had been some difficulty of not declaring his result of the Diploma Course. Petitioner filed some application on 23.4.1997 in view of certain news published in Daily Hindi ''Dainik Jagaran'.  Subsequently, petitioner filed a Writ Petition No. 24541 of 2000 which was disposed of by this Court vide order dated 25.5.2000 issuing a direction to the respondents to consider his representation. As his representation was not decided he filed contempt Petition No. 1316 of 2002 and the authorities concerned in compliance of the orders passed by this Court on 25.5.2000 decided the representation by impugned order dated 2.1.2003 declaring that the petitioner's services stood terminated in 1979 in accordance with the Rules as he did not join on the transferred place and being a temporary employee there was no requirement of giving him any notice etc. Hence this petition.

Learned counsel for the petitioner has submitted that petitioner's result in the Diploma Course had not been declared nor the certificate of Diploma was given to him by the respondents in spite of the fact that he had executed a bond, he was a regular employee of the respondents and his services could not be terminated in such a un-ceremonial manner. The order impugned is liable to be quashed.

Admittedly, petitioner did not join at the place of posting in pursuance of the transfer order dated 15.2.1979 and he has not stated anywhere in the petition that he had worked even for a single day at any place in the State service. From that date till 1997 when he made a representation on the basis of some newspaper cutting, for a period of 18 years he remained silent and petitioner did not disclose anything in this petition as where he had been for this long period of 18 years. Thus, the petition has not been filed furnishing full particulars of his service career and being filed in a clandestine manner to achieve an ulterior purpose.

It is settled proposition of law that a party has to plead the case and produce/ adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no  obligation  to  entertain the pleas. (Vide Bharat Singh Vs. State of Haryana, AIR 1988 SC  2181; M/s. Larsen &  Toubro  Ltd.  Vs.  State of Gujarat  & ors., AIR 1998 SC 1608; National  Building  Construction  Corporation Vs. S.  Raghunathan  &  ors., AIR  1998  SC 2779; Ram Narain  Arora  Vs. Asha Rani  &  ors., (1999) 1 SCC 141; Chitra  Kumari Vs. Union  of India & ors., AIR 2001  SC 1237;  and  State  of U.P.  & ors.  Vs. Chandra  Prakash Pandey, AIR 2001 SC 1298).                

In   Atul   Castings   Ltd.   Vs. Bawa  Gurvachan  Singh,  AIR 2001 SC 1684, the  Hon'ble  Apex Court observed as under:-    

"The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law."                        

Similar view has   been reiterated in Vithal N. Shetti  &  Anr.  Vs.   Prakash   N. Rudrakar & ors., (2003) 1 SCC 18.                

In view of the above, as petitioner has not disclosed as where he had been for such a long period, i.e., 18 years, the issue does not require to be considered for want of proper pleadings. The respondents while deciding the representation have made reference to certain statutory provisions regarding termination of services of the temporary employees. Petitioner has claimed to be a regular employee without showing any order of confirmation of his service.

In State of U.P. & ors. Vs. Kaushal Kishore Shukla, 1991(1) SCC 691, the Apex  Court has categorically held as under:-

"Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service."                                

In a case like the instant the Court has to be satisfied as what is the legally justiciable right of the petitioner which has been infringed and for which the petitioner can resort to the discretionary relief under Article 226 of the Constitution of India. The Supreme Court in Purshotam Lal Dingra Vs.  Union of India, AIR 1958 SC 36, has  held  that " A person can be  said  to acquire a  lien  on a post only when he  has  been confirmed  and made permanent on that post and not earlier"  and  further  held that "  a  Government servant holding  a post temporarily does not  have any right  to  hold the said post." In R.K  Mishra Vs.  U.P.  State Handloom Corporation, AIR 1987 SC 2408, the Apex Court has taken the same view.

A temporary employee has no right to hold the post and his services are  liable  to  be terminated  without  assigning any  reason  either under the terms of the contract providing for such termination  or under the relevant statutory rules regulating the terms and conditions of  temporary servants. Similarly, in Triveni Shanker Saxena Vs. State of U.P. & ors., AIR 1992 SC 496; Commissioner  of  Food  and  Supply  Vs. Prakash Chandra Saxena, 1994(5)  SCC 177; Ram  Chandra Tripathi  Vs.   U.P.  Public Service Tribunal  and others, 1994(2) JT 84;  Madhya Pradesh Hasth Shilp Vikas Nigam Ltd.  Vs.  Devendra Kumar Jain & Anr., 1995(1) SCC  638;   and   Kaushal  Kishore  Shukla (supra),  the  Apex Court has  categorically  held that incumbent  to  a  post  who  has  been  given appointment on temporary basis, terminable without notice, has  no  right to hold the post and he  is not entitled for any opportunity of hearing before his services are dispensed with as his termination does not amount to forfeiture of any legal right.

In  Ravi S.  Naik Vs.  Union of India, AIR 1994 SC 1558,  the  Hon'ble Apex Court has  placed reliance  on the observations made in Malloch  Vs. Aberdden  Corporation,  1971 (2) All  E.R.   1278, wherein it has been observed as under:-    

"A breach of procedure, whether called a failure of natural justice or an essential administrative fault cannot give him a remedy  in  the courts, unless  behind  it there  is something of substance which has been  lost by the failure.  The Court does not act in vain."  

In Life Insurance Corporation of India Vs. Raguuvendra  Sheshgiri Rao Kulkarni, (1997) 8  SCC 460, the  Apex Court explained the difference of a permanent  employee  and an employee  holding  the post on probation  and held that the services of a probationer  cannot  be  equated with  that  of  a permanent  employee who, on account of his status, is entitled  to  be  retained in service  and  his services cannot be terminated abruptly without any notice or  plausible cause.  "This is based on the principle  that  a  substantive appointment  to  a permanent   post  in  a  public  service   confers substantive  right  to  the post  and  the  person appointed  on that post becomes entitled to hold a lien on that   post." However, interpreting/enforcing the terms of appointment, which provided for discharge of the said probationer from service at any time  during  the  period of  probation  or extended  period of probation, without any  notice or without  assigning  any cause, the  Court  held that as his termination was in consonance with the terms and conditions of his appointment letter, he cannot be heard raising grievance.

In State of Punjab & ors. Vs. Surindra Kumar & ors.. AIR 1992 SC 1593, the Apex Court has held that the court must seek the adherence to the terms  and  conditions of the appointment  and there is  no  reason why terms and  conditions  of appointments  cannot be enforced in a contract  of service.

In Hindustan Education Society & Anr.  Vs. K.P.  Kalim  S.K.   Gulam Nabi, 1997 (5) SCC  152, the Apex  Court  has  held that  where  the  rules specifically  provide for permanent appointment on probation for a specific period and an employee is appointed without stipulating any condition regarding  probation, the inference is to be drawn that he was not appointed in substantive capacity. In Avinash  Nagra Vs.  Sarvodaya Vidhyalaya Samiti & ors., 1997  (2) SCC 534, the Apex Court has held that a society can terminate the services not only of a temporary  employee  but also of a  permanent employee by giving him one month's notice or three months' pay  and allowances in lieu thereof if the terms of  appointment and rules so permit and such termination  may be valid in a given cases even if the principles  of  natural justice have not  been complied with.

In Chandradeo Gautam Vs.  State of U.P.  & ors., JT  2000  (10) SC 199, the  Hon'ble  Supreme Court held  that  the termination of  services  of temporary employee does not require interference on being removed  on  any ground as it does not  cast any stigma  or aspersion on him.  In Nazira  Begum Laskar &  ors.   Vs.  State of Assam, AIR 2001 SC 102, the  Apex  Court held that where  appointment neither confers any right nor any equity in favour of the employee,  as  the appointment  was  purely temporary  and could be terminated without notice, no grievance  can be entertained by such employee. More so, he cannot claim any equitable relief from any Court.

Similar view has been reiterated in Union of India Vs. A.P.Bajpai, JT (2003) 1 SC 454; and Dhananjay Vs. Chief Executive Officer Zila Parishad, 2003 AIR SCW 731. It has further been held in these cases that termination of the services of the temporary employees under the relevant Rules does not cast any stigma and it remains termination simplicitor.

Learned counsel for the petitioner could not satisfy the Court as to why the service of the petitioner could not be terminated by the respondents in view of the statutory provisions referred to by the respondents in the impugned order. Facts of the case do not create special features warranting judicial review of the order by this Court.

There is another aspect of the matter. Even as per the own version of the petitioner he did not join at transferred place in pursuance of the transfer order dated 15.2.1979. The services in such eventuality came to an end automatically by virtue of the statutory provisions referred to by the respondents in the impugned order. Even otherwise, the respondents could have initiated the disciplinary proceeding against him as observed by the Hon'ble Apex Court in Gujrat Electricity Board & Anr. Vs. Atma Ram Sungomal Poshani, AIR 1989 SC 1433 that if an employee does not join at transferred place and transfer order is not kept in abeyance by the competent authority or its operation is not stayed by a competent Court, the employee exposes himself to the risk of facing the disciplinary proceeding.

Be that as it may, as petitioner remained absent from duty and did not make any representation or approached any Court for any relief whatsoever for a continuous period of 18 years, the question does arise as to whether it could amount to abandonment of service voluntarily by the petitioner himself.

It is settled law that as a  Government servant cannot be termed as a slave,  he  has a right to abandon the  service any time voluntarily   by  submitting his resignation  and  alternatively, not joining  the duty and remaining absent for long.  Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.

In M/s.  Jeewan Lal (1929) Ltd., Calcutta Vs.  Its  Workmen,  AIR  1961 SC 1567,  the  Apex Court held as under:-

".......if an  employee continues to  be absent  from duty without obtaining leave and  in an unauthorised manner for such a long period of time that an inference may reasonably  be  drawn from  such  absence that  by  his  absence he  has  abandoned service,  then  such   long  unauthorised absence  may legitimately be held to cast a break in continuity of service.....  We would  like  to make it clear  that...... there  would be the class of cases  where long  unauthorised absence may reasonably give  rise  to  an  inference  that  such service  is  intended to be abandoned  by the employee."

Similarly, in  Shahoodul Haque Vs. the Registrar, Co-operative Societies, Bihar & Anr., AIR 1974  SC  1896,  the Apex Court  observed  as under:-

"The undenied and undeniable fact that the appellant had actually abandoned his post  or  duty  for an  exceedingly  long period, without sufficient ground for his absence,  is  so glaring that giving  him further  opportunity to dis-prove what he practically admits, could serve no useful purpose.   It  could not benefit  him  or make  any  difference to the order  which could be and has been passed against him. It would prolong his agony.  On the view we have adopted on the facts of this case, it is not necessary to consider the further question whether any notice for termination of service was necessary or duly given on the assumption that he was not punished.  We do not think that there is any question involved in this case which could justify an interference by us......"

For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral  action  of  the   employee  and   the employer has no role in it.

In the State of Haryana Vs.  Om Prakash & Anr., (1998)  8  SCC 733, the Hon'ble Apex  Court explained  the distinction between 'retrenchment'  and 'abandonment'  from  service,   observing  as under:-

"Retrenchment within the meaning of Section 2 (oo) means termination by the employer of the service of the workman for any reason whatsoever.  Therefore, it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression  'retrenchment'  in Section  2 (oo)  of  the Act.  There was nothing of the sort in the instant case.  It was the workman who ceased to report for duty........   therefore, this is a  case in  which  the employer has done  nothing whatsoever   to  put  an   end   to   his employment  and hence, the case does  not fall within the meaning of Section 2 (oo) of the Act.  Therefore, the case does not attract Section 2 (oo),  nor  does  it satisfy the requirement of Section 25-F."

In Buckingham and Carnatic Co. Ltd. Vs. Venkatiah & Anr., AIR 1964 SC 1272 while dealing with a similar case, the Hon'ble Apex Court observed as under:-

"It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."

Similar view has been reiterated in G.T.Lad & ors. Vs. Chemicals and Fibres India Ltd., AIR 1979 SC 582.

In Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association  &  Anr.,  AIR  2000  SC  2198; and Aligarh Muslim  University  & ors.  Vs.   Mansoor Ali Khan,  AIR 2000 SC 2783, the Hon'ble  Supreme Court ruled that if a person is absent beyond the prescribed  period  for which leave of any  kind can be granted,  he  should  be treated  to  have resigned  and ceased to be in service.  In such a case, there is no need to hold an enquiry or to give any notice  as it would amount  to  useless formalities.

Thus, in such an eventuality where the petitioner voluntarily remains absent for a period of 18 years and made representation for the first time in 1997 without disclosing as to what he had been doing for 18 years in the interregnum, it is a fit case to declare that the petitioner had abandoned the services voluntarily and there was no privity of contract creating master and servant relation between the parties as the said relation came to an end on the date petitioner had chosen not to join at transferred place in pursuance of the transfer order dated 15.2.1979.

The petitioner has not approached this Court with clean hands with clean mind for achieving any clean objective. It is settled legal proposition that when a person approaches a Court of equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; K.P.Srinivas Vs. R.M. Premchand & ors., (1994) 6 SCC 620; Krishna Gopal Chowla Vs. State of U.P., (2001) 9 SCC 694; and Roshan Deen Vs. Preeti Lal, (2002) 1 SCC 100). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem Cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.

It is settled law that writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the respondents. Therefore, there must be judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (State of Kerala Vs. K.G. Madhavan Pillai, AIR 1989 SC 49; State of Kerala Vs. Smt A. Lakshmikutty, AIR 1987 SC 331; Mani Subrat Jain & ors. Vs. State of Haryana, AIR 1977 SC 276; Calcutta Gas Company (Propriety Ltd.) Vs. State of West Bengal & ors., AIR 1962 SC 1044; Rajendra Singh Vs. State of M.P., AIR 1996 SC 2736; and Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor & ors., (1998) 7 SCC 469.

Learned counsel for the petitioner could not point out as what is the legal right of the petitioner to claim to be in service after remaining absent for 18 years continuously. Legal maxim Juri Ex Injuria Non Oritur" means that a right cannot arise out of wrong doing, and it becomes applicable in case like this.

In Nooruddin Vs. Dr. K.L.Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:

"--------------------- Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."

Similarly, in Ramuniklal N. Bhutta Vs. State of Maharashtra, AIR 1997 sc 1236, the Hon'ble Apex Court observed as under:-

"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point.----- the interest of justice and public interest coalesce. They are very often one and the same.------ The Courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Art. 226 ------ indeed any of their discretionary powers (emphasis added)"

Principle enshrined in Section 35-A of the Code of Civil Procedure should be applied in such a case as the said provisions provide for compensatory costs in respect of fake or vexatious claim or defence in addition to criminal liability in respect of such a false claim or defence. This principle can also be made applicable in case of suppression of facts. In S.P. Sharma Vs. State of Madhya Pradesh & ors., AIR 1977 SC 244 the Apex Court held that the Court should remind itself S. 35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexation motives. In such a case the lawyer also owns a duty not to present such a case observing as under:

"We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions.------------------- A judge who succumbs to exparte pressure in unmerited cases helps devalue the judicial process.-------"

Being remained absent for a period of 18 years without raising any grievance he approached the Court only to share the loot of public exchequer using the Court as a forum. It is strange that the petitioner does not disclose anything as to where he had been for a continuous period of 18 years and how he could make the representation even if by mistake his name had appeared in some newspaper. Learned counsel for the petitioner could not satisfy the Court as to how the petition has been filed in such a cavalier and casual manner without furnishing the material fact and explaining how the petition could be maintained on incomplete and inaccurate pleadings.

In Re: Sanjiv Datta (1995) 3 SCC 619, the Apex Court has also observed as under:-

"Some members of the profession have been adopting perceptibly casual approach to the practice of the profession as is evident from.....the filing of incomplete and  inaccurate  pleadings-------they do not realise the  seriousness of these acts and omissions.  They not only amount to the contempt of the Court but do positive dis-service to the litigants and create embarrassing situation with Court leading to avoidable, unpleasantness and delay in disposal of matters.  This augurs ill  for  the  health   of  our   judicial system." (Emphasis added).

In view of the aforesaid observations of the Hon'ble Supreme Court filing the writ petition not furnishing the complete informations, on inadequate pleadings, amounts to contempt of Court. Conduct of the petitioner cannot be appreciated by any manner and held to be reprehensible.

However, we are not inclined to proceed against him initiating the contempt proceeding.

Petition is dismissed accordingly with the costs of Rs.10,000/- (Rupees ten thousand only). The said amount shall be recovered by the learned Distt Collector, Muzaffar Nagar as arrears of land revenue, as a degree of this court and deposit the same to the U.P.State Legal Service Authority Lucknow. The Registry is directed to send the copy of this order along with full particulars of the petitioner, to the learned Distt Collector, Muzaffar Nagar for compliance under intimation to this Court.

10.4.2003

AKSI


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