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TMI Blog2004 (4) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. Here the order of termination was passed without hearing him. In this context, quashing the Order of discharge, this Court held that: "A 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 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: "the 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". 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 Up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext and settinga 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 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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: "This 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Dr. Anil Bajaj v. PGIMER JT 2002 (1) SC 245 this Court held: "A 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 but where the facts are not in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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