@JUDGMENTTAG-ORDER
G.L. Oza, J.
This petition has been filed by the petitioner challenging the order passed on 21-7-1979 and a subsequent order passed OR 6-5-1980 by the
respondents.
According to the petitioner, the petitioner joined the services as an Assistant Surgeon on 15-10 1956 and later on he was promoted as Class I
officer and was appoited a Medical Specialist. It is alleged that in the year 1978 the petitioner was posted at the District Hospital, Durg as a
Medical Specialist, where he received a telegram from his home town Ujjain about the serious illness of his mother at Ujjain. It is alleged that he
applied for leave and submitted the leave application along with the telegram to the Civil Surgeon, District Hospital, Durg and with his verbal
permission he proceeded on leave to Ujjain. The leave application was forwarded to the Director of Health. It is further alleged that as the
condition of the petitioner''s mother was not satisfactory it became necessary for him to continue to stay at Ujjain and he, therefore, applied for
extension of leave for a period of 60 days from 25-8-1978 to 23-10-1978 and this continued and the petitioner applied for extension of leave
from 24-10-1978 to 7-12-1978 and from 8-12-1978 to 25-12-1978 and 26-12-1978 to 8-2-1979. It is alleged that all these leave applications
with necessary medical certificates were submitted by the petitioner through the Civil Surgeon to the competent authority.
It is alleged that till 31-1-1979 as the petitioner did not hear anything about the sanction of his leave and he, therefore, carried an impression that
the leave was sanctioned. But according to the petitioner on 31-1-1979 he received a confirmation copy of a telegram purported to have been
issued on 23-1-1979, whereby the petitioner was directed to resume duties within 7 days and it is alleged that in compliance with this the petitioner
joined his services at the District Hospital Durg, on 8-2-1979 and a joining report was submitted to the Civil Surgeon. It is further alleged that later
on his services were placed at the disposal of the Labour Department and the petitioner was posted in the Employees'' State Insurance Hospital at
Ujjain and later his services were re-transferred to the Health Department and ultimately on 26-9-1980 he was posted again as a Medical
Specialist in the District Hospital at Ujjain. According to the petitioner he received an order dated 21-7-1979, wherein it was stated that leave
from 9-8-1978 to 8-2-1979 has been treated as unauthorised absence and this period, therefore, has been treated as a break in service and on
receipt of this order a representation was made by the petitioner on 29-9-1979. Thereafter, a reminder was given by the petitioner and he was
informed by order dated 25-9-1980 that his representation has been rejected. It is these two orders, the order dated 21-7-1979 and the order
rejecting the representation are the orders which are challenged in this petition.
In the return filed by the State most of the facts are not disputed. The only question is about the leave during the period 9-8-1978 to 8-2-1979.
According to the return this leave was not sanctioned and, therefore, the Government chose to treat this period as break in service and, therefore,
the impugned order was issued.
5 It was contended on behalf of the petitioner that this order is not justified as under the leave rules, which are applicable to the petitioner. Rule 24
is the only Rule under which an appropriate action could have been taken and under Rule 24 the only action that could have been taken was to
treat this period of leave, whichever was available to the petitioner either half-pay or other leave and in case no other leave was available then it
could have been treated as extraordinary leave, in substance meaning leave without pay and it is contended that in that event it could not be treated
as break in service. According to the petitioner if the authorities wanted to take a penal action then the only course open was to proceed under the
rules provided for disciplinary action.
Learned Government Advocate, on the other hand contended that the petitioner was not expected to avail of the leave before it is sanctioned and
the Government was not bound to grant leave when an application for leave was submitted. In the return it has also been stated that medical
certificates in proper form were not furnished. But that controversy is not of much consequence as apparently the leave was not sanctioned and the
only question in the petition is as to whether the impugned order directing that this period of unauthorised absence be treated as break in service
could be justified under any of the rules. It was contended, therefore, that even under Rule 7 of the M. P. Civil Services (Conduct) Rules, 1965, a
Government servant if proceeded on leave before it is sanctioned the authority competent to sanction leave has to record in writing ipso facto
sanction for leave already availed of. But it is not in dispute that in this case no such orders were passed. Learned Government Advocate
attempted to refer to Fundamental Rule 18, but that rule is of no consequence as that rule only provides that no Government servant shall be
granted leave of any kind for a continuous period exceeding five years and it is not in dispute that in this case the leave which was sought only was
for six months, although prayer was made for its extension but still the total period is not more than six months. Rule 24 of the Madhya Pradesh
Leave Rules, 1977, which will apply to the case of the petitioner, reads:
Absence after expiry of leave-(1) Unless the authority competent to grant leave extends the leave, Government servant who remains absent after
the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it
were half pay leave to the extent such leave is due, the period in excess of such leave due being treated as extra-ordinary leave.
(2) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action."" It is clear that sub-rule (1)
provides that when a Government servant remains absent after expiry of leave he is entitled to no leave salary but it has been further provided that
such period shall be debited against his leave account as though it were half pay leave to the extent such leave is due and the'' period in excess of
such leave due being treated as extra-ordinary leave. Sub-rule (2) further provides that wilful absence from duty after the expiry of leave renders a
Government servant liable to disciplinary action. It is, therefore, clear that on the facts as they stand that the petitioner remained absent without the
leave being sanctioned to him, and the only course open to the Government was either to act under sub-rule (1) or under sub-rule (2) of Rule 24.
It could not be contended that the orders which were passed could be passed under sub-rule (1) and the learned Government Advocate could not
refer to any rule whic,h could justify an order as has been passed in this case, i. e. the order dated 21-7-1979. It is also not in dispute that if the
State Government has chosen to act under sub-rule (2) of Rule 24, then it was necessary to follow the procedure of inquiry, which admittedly has
not been done in this case. If it was chosen to act under sub-rule (2) then disciplinary action could only be taken after following the proper
procedure. Admittedly, before passing of this order dated 21-7-1979 even a notice was not issued to the petitioner to pass such an order. It is,
therefore, plain that this order which was passed by the State Government against the petitioner could not be justified under any of the rules framed
under Article 309 of the Constitution of India.
An attempt was also made by the learned counsel for the petitioner to contend that there was no reason for not granting the leave and it was also
comended on behalf of the State by the learned Government Advocate that the petitioner has been attempting to be in Ujjain. But, in my opinion,
these questions are not necessary in this Court to move in view of the limited question about the legality of the order, i. e. the order dated 21-7-
1979. Learned Government Advocate frankly conceded that no action has been taken as contemplated under sub-rule (2) of Rule 24 and as
discussed earlier this order could not be justified under sub-rule (1) of Rule 24. It is, therefore, clear that the order is not in accordance with law
and, therefore, cannot be maintained.
The petition is, therefore, allowed. The order passed by the respondents dated 21-7-1979 and the subsequent order rejecting the representation
dated 6-5-1980 are hereby quashed. In the circumstances of the case, parties are directed to bear their own costs. The outstanding amount of the
security deposit be refunded to the petitioner.