21 Sep 2020 2:16 PM GMT
" A medical officer who remains willfully absent from duty, is guilty of mis-conduct and punishment of dismissal from service cannot be said to be a harsh punishment", the Himachal Pradesh High Court ruled recently.Remarking that it was dealing with a Medical Officer and that "the Court places a Medical Officer akin to a soldier, who guards our Border", the Single Judge stated that a...
" A medical officer who remains willfully absent from duty, is guilty of mis-conduct and punishment of dismissal from service cannot be said to be a harsh punishment", the Himachal Pradesh High Court ruled recently.
Remarking that it was dealing with a Medical Officer and that "the Court places a Medical Officer akin to a soldier, who guards our Border", the Single Judge stated that a Medical Officer cannot be equated with any other employee and the issue of willful absence from service in the case of a Medical Officer has serious and different connotations as compared to any other employee.
The Petitioner before Justice Ajay Mohan Goel was serving as Medical Officer in MGMSC Khaneri, Rampur Bushahar. On 28.05.2005, he made a request to the competent authority to consider his case for grant of Extraordinary Leave for five years. This was followed by another communication dated 02.08.2005, in which, it was stated by the petitioner that as he could not continue to serve as a Government servant in the prevailing circumstances, he was proceeding on leave w.e.f. 02.08.2005 afternoon. It was further mentioned in this communication that he presumed that as leave was under consideration for sanction, his departure be deemed to be as proceeded on Extraordinary Leave w.e.f. 02.08.2005. It was also mentioned in this communication that in the alternative, he was requesting to allow him to proceed on premature retirement.
Vide Communication dated 5th August, 2005, Principal Secretary (Health), Government of Himachal Pradesh rejected the request of the petitioner for premature retirement, in view of the fact that neither Extraordinary Leave stood granted in favour of the petitioner nor his request for premature retirement stood accepted by the competent authority.
As the petitioner was willfully absenting himself from duty w.e.f. 2nd August, 2005, a Memorandum was issued to him on 7th April, 2006, vide which, he was called upon to submit his response within two days to the Article of Charges, which stood appended with this Memorandum, vide which, the petitioner was informed that an inquiry was proposed to be held against him under Rule 14 of the CCS (CCA) Rules, 1965. The Article of Charges framed against the petitioner were, inter alia, to the effect that while working as a Medical Officer in MGMSC Khaneri (Rampur), he willfully absented himself from duty w.e.f. 03.08.2005 without prior permission/sanction of competent authority, which amounted to unbecoming of a Government servant and was in violation of Rule 3 of the CCS (Conduct) Rules, 1964. It was further a charge against him that the petitioner while working as Medical Officer in MGMSC Khaneri (Rampur), was indulging in private practice at Rampur, which also amounted to unbecoming of a Government servant.
Post receipt of response to said Memorandum, as the Disciplinary Authority was not satisfied with the response of the petitioner, accordingly, an Inquiry Officer was appointed. Petitioner was given an opportunity to respond to the inquiry report. The Authority found that the charged officer himself admitted in the statement recorded during the course of inquiry that he is doing Private Practice at Rampur presuming that His E.O.L. request to the H.P. Government is under the Government consideration and it is certain to be sanctioned in his favour and in the meantime he has got every right to do Private Practice to earn his Livelihood. Being dissatisfied with the response so submitted by him, the Disciplinary Authority vide order dated 14th August, 2008, imposed the penalty of dismissal from service with immediate effect upon the petitioner. Feeling aggrieved, he filed an appeal, which was also dismissed by the Appellate Authority vide order order dated 27.11.2008. These orders stand assailed by the petitioner before the High Court.
OBSERVATIONS OF THE BENCH
At the outset, Justice Goel stressed the petitioner happened to be a Medical Officer. In his capacity as such, he was appointed in the rural area of the State of Himachal Pradesh. "It is not in dispute that there was an Office Memorandum issued by the Government of Himachal Pradesh, permitting employees of the Government of Himachal Pradesh to go on Extraordinary Leave, but an employee only had a right of being considered to be granted Extraordinary Leave in terms of Clause VII of the Memorandum", noted the bench.
The bench expressed the view that in this case, the petitioner, who happened to be a Class I Officer and not a novice, after applying for Extraordinary Leave, misconducted himself by proceeding on leave without the same being sanctioned in his favour. Not only this, when in his application, he made an alternative prayer of being retired prematurely, which was rejected by the authority concerned, a prudent person would have immediately rejoined his duties, which he did not do.
"This clearly proves the intent of the petitioner that he was no more interested in performing his duties as a Medical Officer. The reasons as to why he was no more interested to perform the duties of a Medical Officer, are clearly borne out from the record that he was indeed having his own private practice and, that too, when he happened to be a Government employee", observed the bench, stating that this kind of conduct from a Medical Officer is least expected.
The bench agreed that no doubt, the doctrine of proportionality has to be taken into consideration while imposing punishment upon an employee in case he is found guilty of misconduct. But it was the considered view of the Court that there cannot be any straitjacket formula in this regard and the proportionality will depend upon facts of each and every case.
"This Court is of the view that the punishment which has been imposed upon the petitioner by the Disciplinary Authority and which has been upheld by the Appellate Authority, by no stretch of imagination, can be said to be harsh or disproportionate to the misconduct of the petitioner", ruled the bench, dismissing the petition
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