Termination Without Due Process: Rajasthan High Court Directs Post-Retiral Benefits For Teacher Who Went On Unauthorised Leave Between 1995-1999

The Jodhpur bench of the Rajasthan High Court granted relief to a government teacher (“petitioner”) who went on unauthorized leave between 1995-1999, by directing that her termination due to willful absence, which was without due process of law, be treated as resignation and she be given post-retiral benefits for rendering 11 years of unblemished service.

The bench of Justice Farjand Ali was hearing a petition under Article 226 wherein it was alleged by the petitioner that she had applied for a leave of 7 days in 1995. However, she could not resume her duty until 1999 owing to various personal issues including death of her in-laws, her difficult pregnancy restricting her to complete bed rest, and her elder son's untimely death.

During this period between 1995-1999, she sent several applications to the authorities seeking an extension of her leave period. In 1999, when she went to resume her duty, she was not allowed to do so, and her services were terminated in 2000. Subsequently, she was also denied post-retiral benefits which led her to file this petition.

It was argued by the counsel for the respondents that petitioner's services were terminated under Rule 86 of the Rajasthan Services Rules, 1951 (“Rules”) on grounds of willful absence/ abandonment of services, after the petitioner failed to resume her duties after being absent for more than 5 years.

On the contrary, the counsel for the petitioner submitted that the termination order was illegally passed without adhering to the due process of law because Rule 86 did not provide for termination of services on account of absence. The counsel prayed for either reinstatement of the petitioner or treating her in service till the time of passing of her termination order and consequent release of her post-retiral benefits.

The Court perused Rule 86 and aligned with the argument presented by the counsel for the petitioner. It observed that looking at the provisions of Rule 86, it was apparent that pursuant to the willful absence of the petitioner, the authorities had the power to interrupt the services including forfeiture of services; withheld pay and allowances for the period of willful absence; and/or initiate disciplinary action. However, it did not have the power to terminate the services of the petitioner.

The Court further held that as per Rule 86(3), if the disciplinary proceedings initiated against the petitioner resulted in a proven charge of willful absence, she could have been removed from service. However, this could be availed by the authorities only after affording reasonable opportunity to explain the reasons for willful absence to the employee which was not followed by the authorities.

In this background, the Court held that the action of the authorities in terminating the services of the petitioner without holding an inquiry was per-se illegal, arbitrary and not sustainable in the eyes of law.

“This Court holds that an order under Rule 86(1) of RSR regarding removal from services can only be passed after giving opportunity of hearing to the employee and conducting a departmental inquiry as envisaged under Sub-rule (3) of Rule 86 of the RSR. Any order of removal from services without holding departmental proceeding is against the mandate of law… therefore, this Court declares the said order of removal from services a patently illegal order and, thus, the same cannot be approved; rather, deserves to be quashed.”

It was further highlighted that Rule 86(4) provided that the petitioner should have been deemed to have resigned from services after remaining absent for continuous period exceeding five years without sanctioned leave, however, the authorities instead of considering this as resignation, terminated the services of the petitioner.

In this light, the Court held that the case did not fall within the purview of forfeiture or termination of services, rather it pertained to resignation of services and the authorities did not adhere to the procedure established by law.

Further, the Court stated that there was no justification in not paying the post-retiral/ resignation benefit to the petitioner since she had rendered more than 11 years of services with utmost zeal and dedication. The Court also observed that the fact of disturbance of petitioner's mental equilibrium due to sudden demise of her elder son in a very young age, and in-laws, could not be ignored.

Accordingly, the Court allowed the petition and directed the services of petitioner to be treated as resigned instead of being terminated, and also directed granting post-retiral/ resignation benefits to the petitioner.

Title: Smt. Suman Lata Kapur v the State of Rajasthan & Ors.

Citation: 2024 LiveLaw (Raj) 330

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