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CASE NO.: Appeal (civil)  2303 of 2004

PETITIONER: Dr. (Mrs.) Gurjeewan Garewal  

RESPONDENT: Dr. (Mrs.) Sumitra Dash & Ors.

DATE OF JUDGMENT: 12/04/2004

BENCH: S. RAJENDRA BABU & RUMA PAL.

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(C) No.15995 of 2001)

RAJENDRA BABU, J :

Leave granted.

The 1st Respondent, Mrs. Sumitra Dash, was  working with the 2nd Respondent \026 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 \026  "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.

Sometime 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.

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The 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 High Court.  

Later, 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 "\005directing the  respondents to permit the petitioner to rejoin her  duties immediately\005". 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 justice.  

While 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:

"\005A 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.  To give no opportunity is to go against

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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:

"\005the 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 action\005".

High 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 311.  

Relying 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.

Thus 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.

The 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.

At the 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

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under Article 311. The 1st Respondent could claim the  protection of Article 311 only if she holds a ’civil post’.  A 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:

"\005There 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 setting\005a 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\005 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.  Another 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.  

Reverting 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.  The PGIMER Act might have provided for some control

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over the institution but this doesn’t mean that the  same is a State for the purpose of Article 311.  Therefore 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.  

In 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.  Therefore, 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.   

The 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:

"\005This 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 PGIMER.   

Now 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.  Consequently the University deemed him to have

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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’.  University preferred an appeal before this Court.  Allowing 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 observed that:

"We may state that the University has not  acted unreasonably in informing him in  advance \026 while granting one year  extension, in addition to the initial absence  of 2 years \026 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.  However, 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.  

On the 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  \026 Dr. Anil Bajaj v. PGIMER JT 2002 (1) SC 245 this  Court held:

"\005A 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\005 but where the facts are not in

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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.   

Crucial 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.  In the 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.

This appeal is allowed accordingly.