Dr. Vandana Tarneja vs University Of Delhi & Ors.
2017 Latest Caselaw 5799 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Decision: October 24, 2017

+                          W.P.(C) 7981/2014
      DR. VANDANA TARNEJA                       ..... Petitioner
                   Through: Mr. Apurb Lal, Ms. Meenu Pandey
                   and Ms. Sunita Kumari, Advocates

                    Versus

      UNIVERSITY OF DELHI & ORS.                 .....Respondents
                    Through: Mr. Mohinder J. S. Rupal, and Ms.
                    Prang Newmai, Advocates

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                           JUDGMENT

(ORAL)

Petitioner was a Lecturer in Psychology in Gargi College, affiliated to University of Delhi, whose services stood terminated vide impugned letter of 1st August, 2014 w.e.f. 17th January, 2006. It is not in dispute that petitioner had been on leave on and off from August, 2004 till 17th January, 2006 because of her medical illness. Prior to termination of petitioner's service, she had applied for voluntary retirement on medical grounds on 15th April, 2010 and had sought voluntary retirement from February, 2006 with a request that medical leave taken by her prior thereto be treated as qualifying service for pensionary benefits. In October, 2010, respondent-College had recommended that period of unauthorized absence from duty since January/February, 2006 be treated

as 'leave without pay' for medical reasons as this concession is extended in a very special case on humanitarian grounds and for sole purpose of enabling petitioner's retirement, so that she is able to get pensionary benefits. Her case for premature retirement w.e.f. 30th September, 2010 was also recommended to respondent-College. Intimation about it was given to petitioner on 7th October, 2010 (Annexure P-3). Since this petition has been filed by petitioner through her husband, therefore, petitioner's husband was informed by respondent-College vide letter of 6th June, 2014 (Annexure P-5) that the stand of respondent-University is that absence of petitioner from duty w.e.f. 17th January, 2006 till 30th September, 2010 cannot be counted as qualifying service.

It is matter of record that on direction of respondent-University, respondent-College had got petitioner examined from a medical board and as per medical board's opinion of 22nd December, 2008 (Annexure-29 to the counter of respondent-College) petitioner was found to be not having any abnormality on her medical and psychiatric examination. However, the medical board had refused to comment upon the past illness on basis of some documents produced by her.

In this petition, order of 1st August, 2014 vide which petitioner's service stood terminated is challenged on the ground that it is in utter violation of principles of natural justice as it was not preceded by any inquiry. In this petition, a direction is sought to respondent to consider petitioner's prayer for premature retirement on medical grounds or in the alternate, to grant invalid pension.

According to respondents, the memo of charge sought to be served upon petitioner was that she had failed to report for duty w.e.f. 17 th February, 2006. Vide Notice of 27th December, 2006, respondent-College had given an opportunity to petitioner to explain her unauthorized absence from duty while stating that several notices were sent to her on different dates, but she had failed to respond and even the registered letter sent to her had been received back undelivered. It was made clear in the said Notice that respondent-College is proceeding to terminate her service because of her not reporting on duty. This Notice of 27th December, 2006 was pasted at petitioner's residence in the presence of Notary. Since no response was received from petitioner, therefore, respondent-College had recommended to respondent University to terminate her service, but the respondent-University had called upon respondent-College to get petitioner medically examined from a medical board and accordingly, petitioner was examined by a medical board which found that petitioner was not having any medical or psychiatric abnormality. After the receipt of medical opinion from the medical board, respondent-College in consultation with respondent-University came to the conclusion that petitioner's absence from 17th January, 2006 till 30th September, 2010 cannot be counted as qualifying service to enable her to voluntary retire because of the medical opinion given by the medical board. Intimation regarding it was given to petitioner's husband on 6th June, 2014. Thereafter, petitioner had sought pension on medical grounds. Since it was not granted, therefore, respondent-College terminated petitioner's service on grounds of unauthorized absence.

The challenge to impugned order of termination of service, by petitioner's counsel is on the ground that despite the direction of respondent-University, no proper charge-sheet or inquiry was conducted and so, termination of petitioner's service is blatantly illegal and it deserves to be set aside. To submit so, reliance is placed upon Supreme Court's decision in Roop Singh Negi v. Punjab National Bank and Others, (2009) 2 SCC 570. To seek a direction to permit petitioner to voluntary retire, it is submitted on behalf of petitioner that on the basis of recommendation made by respondent-College way back in October, 2010 (Annexure P-3), petitioner ought to have been prematurely retired on medical grounds. It is submitted by petitioner's counsel that impugned termination order is not a speaking order and so, it deserves to be set aside and petitioner ought to be granted voluntary retirement or in the alternate, invalid pension.

On the contrary, it is submitted by learned counsel for respondents that all efforts were made to consider the case of petitioner sympathetically on medical grounds, but in the face of opinion of medical board, petitioner's case for voluntary retirement or invalid pension could not be considered as petitioner had 18 years of service to her credit whereas as per the applicable Rules, minimum 20 years of service is required to consider the case of an employee for voluntary retirement.

Upon hearing and on perusal of impugned termination order, the record of this case and the decision cited, I find that a proper inquiry in the instant case has not been conducted, which results in violation of principles of natural justice. No charge-sheet was sent to petitioner nor

any inquiry officer was appointed despite respondent-University making it clear to respondent-College that a proper inquiry needs to be conducted and thereafter only, service of petitioner be terminated. It is so evident from letter of 23rd January, 2008 (Annexure-23 to the counter filed by respondent-University) which was sent to respondent-College. It is a matter of record that respondent-College has not adhered to the directions issued by respondent-University. Otherwise also, petitioner suffers great prejudice as her services stand terminated without a proper inquiry. Merely because petitioner had not come forward to participate in the inquiry does not absolve respondent from holding a proper inquiry and to furnish ex parte inquiry report to petitioner. This Court is of the considered opinion that petitioner's service has been arbitrarily terminated. Hence, the termination order of 1st August, 2014 is hereby set aside.

So far as petitioner's prayer for grant of premature retirement or in the alternate, invalid pension is concerned, I find that since respondent- College has recommended petitioner's premature retirement, therefore, respondent-University is required to effectively deal with this aspect and to pass a reasoned order. In case respondent-University finds that petitioner does not qualify for grant of premature retirement, then petitioner's case for invalid pension ought to be considered after obtaining an opinion from a medical board afresh and opportunity be also granted to petitioner to place the medical documents before the authority concerned so that an effective decision on petitioner's prayer for voluntary retirement or in the alternate, invalid pension, can be taken.

Petitioner is granted four weeks' time to make an effective representation duly supported by medical record to seek voluntary retirement or in the alternate, invalid pension and respondent-University is directed to decide petitioner's representation within a period of eight weeks and after obtaining an opinion from medical board afresh and the fate of the representation be made known to petitioner within a week thereafter so that petitioner may avail of the remedies as available in law, if need be.

In the light of the above, while setting aside impugned termination, this petition is disposed of with directions as aforesaid.

(SUNIL GAUR) JUDGE OCTOBER 24, 2017 s