Usha Bisht vs Union Of India & Ors.
2009 Latest Caselaw 2686 Del

*            HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 10114/2009

                     Judgment reserved on: July 15, 2009
%                    Judgment delivered on: July 17, 2009

      Usha Bisht                                 ..... Petitioner

                     Through: Mr. Puneet Agarwal, Adv.

                 Versus

      Union of India & Ors.                   ..... Respondents

                     Through: Dr. Puran Chand, Adv. for
                              Mr.S.Rajappa, Adv.
      Coram:

      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?                       Yes

      2. To be referred to Reporter or not?                    Yes

      3. Whether the judgment should be reported               Yes
         in the Digest?



A.K. PATHAK, J.

1. Petitioner joined Respondent No. 2 (Kendriya Vidyalaya

Sangathan) on 14th February, 1989 as TGT (Sanskrit). Initially

she was posted at Kendriya Vidyalaya, New Tehri, Garhwal.

Subsequently, she was transferred to Kendriya Vidyalaya,

Raiwala, Dehradun on 14th September, 1995. She was again

transferred to Kendriya Vidyalaya No. 1, Amritsar on her request

where she joined on 6th August, 1997.

2. While working at Amritsar Petitioner remained on leave for

207 days i.e. from 3rd July, 1998 to 31st August, 1998, 28th June,

1999 to 18th July, 1999, 2nd January, 2000 to 16th January,

2000, 2nd July, 2000 to 29th September, 2000 and 1st November,

2000 to 21st December, 2000. On the last working day before the

commencement of winter break she joined her duties on 22nd

December, 2000 but again proceeded on leave w.e.f. 6th January,

2001to 3rd April, 2001 i.e. for 88 days, on the ground of illness.

About one month before the summer vacation she again joined

her duties on 4th April, 2001. Subsequently, she remained absent

w.e.f. 25th June, 2001. Vide application dated 27th July, 2001 she

requested for grant of extraordinary leave for a period of one year

on the ground of ill health and family problems.

3. Assistant Commissioner (Jammu) informed the Petitioner

that her leave was not sanctioned and directed her to report for

duty at Amritsar and in case of illness she shall report for

medical examination to the Regional Medical Board at Jammu on

17th August, 2001. Petitioner neither reported for duty at

Amritsar nor she presented herself for medical examination.

Consequently, show cause notice under Article 81(d) of the

Education Code (for short hereinafter referred to as "Code") for

Kendriya Vidyalaya was issued to her by the Assistant

Commissioner (Jammu Region) on 23rd August, 2001. She did

not respond to this notice. Vide order dated 14th September 2001

Assistant Commissioner (Jammu Region) passed an order for

removal of Petitioner from services of the Respondent No. 2,

under Article 81(d) of the Code.

4. Petitioner preferred statutory appeal before the Appellate

Authority against the order of her removal. Vide order dated 8th

May, 2003 Appellate Authority dismissed her appeal.

5. Aggrieved by the aforesaid orders Petitioner preferred

Original Application bearing OA No. 2864/2004 before the

Central Administrative Tribunal, Principal Bench, New Delhi (for

short hereinafter referred to as "the Tribunal") inter alia on the

ground that Article 81(d) of the Code was unjust, unfair and

illegal; Service of the Petitioner, who was a permanent employee,

could not have been terminated by adopting the summary

procedure which was against the principles of natural justice;

impugned order shows complete non-application of mind as the

evidence furnished by the Petitioner justifying her absence, was

totally ignored. Vide impugned order dated 12 th April, 2006 the

Tribunal has dismissed the original application of the Petitioner.

5. Tribunal has held that validity of Article 81(d) of the Code

was upheld by the Chandigarh Bench of the Tribunal as also by

the Delhi High Court in Prem Juneja's case and this question

was not open to challenge. Petitioner was not at all interested in

joining the school or pursuing the studies of the students or to

look after the interest of the Institution as she was more keen on

taking leave on one pretext or the other without even bothering to

comply with the directions given to her from time to time to join

her duties. She even did not appear for her medical examination

before the Regional Medical Board at Jammu. After her request

for grant of leave was declined she had made a request for

transfer and had even visited Delhi on 23rd July, 2001 to meet

Dy. Commissioner which shows that she was not sick. Petitioner

could have appeared before the Regional Medical Board at

Jammu. Full opportunity was given to the Petitioner at every

stage. Though, there was delay of one and a half years in filing

the appeal even then same was considered on merits and the

Petitioner was only granted personal hearing by the Appellate

Authority. Circular dated 24th January, 2002 relied upon by the

Petitioner contend that Medical Board should have been ordered

at the nearest place where Petitioner had fallen sick, was of no

help to her as she was removed from service much prior to the

issuance of this circular.

6. In factual matrix of this case, we are not inclined to interfere

with the order passed by the Tribunal. It is apparent that

Petitioner was not interested in the welfare of the students. She

was more interested in taking leave on one or the other pretext.

Between July 1998 to April 2001 she remained on leave for about

295 days. She again absented herself with effect from 25 th June,

2001 till she was removed from service vide order dated 14 th

September, 2001. We are of the view that Tribunal rightly

observed that the Petitioner was not at all interested in pursuing

her duties as Teacher as she remained absent from the job most

of the time and this action was against the interest of Respondent

No. 2. Petitioner did not join her duties at Amritsar nor appeared

herself before the Regional Medical Board at Jammu as directed.

From the order of the Tribunal it appears that she had visited

Delhi in order to meet the Dy. Commissioner. If that is so, she

could have very well visited Jammu to appear before Medical

Board. We are also of the view that Tribunal rightly observed that

the circular dated 24th January, 2002 was of no help to the

Petitioner as the service of the Petitioner had been terminated

much prior to issuance of this circular.

7. In Prem Juneja vs. Union of India reported in 2003 I AD

(Delhi) 57, this Court has held that Article 81(d) of the Code is

not violative of Articles 14 & 16 of Constitution. It has further

been held that Article 311 of the Constitution was not applicable

to employees of KVS.

8. In the light of above discussions, we do not find any merit in

this writ petition and the same is dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 17, 2009 rb