IMPORTANT POINT
Post Graduate Institute of Medical Education and Research, Chandigarh cannot be treated as a State for the purpose of Article 311 of the Constitution and the employees therein are not holding any civil post .

Headnote:(i) SERVICE LAW-Constitution of India - Article 311 - Civil Post - Removal from service-Article 311 cannot be invoked in all the instances where a person is not given an opportunity of hearing-Article 311 confers certain safeguards upon persons employed in civil capacities-Only persons who are holding civil posts can claim the protection provided under Article 311-Employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract protection of Article 311-Employees of Post Graduate Institute of Medical Education and Research, Chandigarh cannot claim protection of Article 311 of the Constitution-Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966.
       Held : PIGMER is a separate entity in itself. Admittedly the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be said to have a status of holding a civil post under State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesn t mean that the same is a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of All India Service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a State for the purpose of Article 311 and the employees therein are not holding any civil post . In result, the 1st Respondent is not holding a civil post and she cannot claim the guard of Article 311. (Para 14)
       (ii) SERVICE LAW-Post Graduate Institute of Medical Education and Research, Chandigarh Act, 1966-Section 4-PGIMER, Chandigarh Regulations-Regulations 35 and 36-Constitution of India-Article 311-Removal from service-Unauthorised absence from duty-1st respondent was originally granted an ex-India leave for two years-Leave sanctioned on express condition that she will neither resign/seek voluntary retirement while on leave nor will request for further extension of ex-India leave -However, 1st respondent requested PGIMER for an extension of her ex-India leave-Request rejected-She was asked to resume duty-She did not respond-1st respondent informed by PGIMER that she was deemed to have permanently left the Institute w.e.f. 1991-1st respondent requested PGIMER to allow her to join duty-Application filed before High Court seeking directions to PGIMER to permit her to rejoin her duty-Allegations of violation of principles of natural justice-High Court permitted 1st respondent to rejoin duty in PGIMER-Is the High Court correct in its approach-(No)-Whether respondent could claim protection of Article 311 of the Constitution-(No)-Stay granted by High Court vacated-PGIMER authorities directed to proceed with disciplinary proceedings against 1st respondent regarding her unauthorised absence from duty. (Paras 14 & 23)

JUDGMENT

Rajendra Babu, J.-Leave granted.

2. The 1st Respondent, Mrs. Sumitra Dash, was working with the 2nd Respondent - Post Graduate Institute of Medical Education and Research, Chandigarh (PGIMER). At her request, ex-India (extraordinary) leave was granted to her by PGIMER with effect from 16/12/1991 for a period of two years by the Order made on 6/4/1992. This leave was sanctioned, inter alia, on the express condition that - "she will neither resign / seek voluntary retirement while on leave nor will request for further extension of ex-India." By this time she had already started working as a consultant Haematologist at the Salmaniya Medical Center, Bahrain.

3. Sometime in 1992, the 1st Respondent filed a Writ Petition bearing No. CWP No. 16212 of 1992 before the Punjab & Haryana High Court challenging the selection and appointment of Petitioner herein as Professor of Haematology 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.

4. 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 that the Memorandum amounts to contempt of the Orders of the High Court dated 6/9/1994. Subsequently, PGIMER withdrew the charges against the 1st Respondent and tendered unqualified apology before the High Court.

5. Later, on 8/2/1999, an application CM No. 5813 of 1999 in CWP No. 16212 of 1992 was moved before the High Court to vacate the Stay Order dated 6/9/1994 so as to enable PGIMER to initiate appropriate disciplinary proceedings against 1st Respondent. It is submitted before us that this matter is also pending before the High Court. By the time, that on 27/12/1999 the 1st Respondent requested the PGIMER to allow her to join the duty by treating her extended ex-India leave as leave under exceptional circumstances in the light of regulations 35 and 36 of the PGIMER Regulations, 1967. Thereafter she is said to have forwarded a joining report. Vide Memo dated 10/1/2000 PGIMER rejected the said joining report. It is also clarified in the same Memo that the President rejected her application on the ground that no exceptional circumstances existed to prevent her from joining the duty. Subsequently the concerned authority ratified this decision of rejection.

6. On 11/5/2000 1st Respondent moved Application CM No. 4912 of 2000 in CWP No. 16212 of 1992 before the High Court seeking directions to PGIMER to permit her to rejoin her duty. This Application was rejected with liberty to her to move a separate petition to the same effect. On 11/7/2000 CWP No. 8504 of 2000 was filed by the 1st Respondent before the Punjab & Haryana High Court. It challenges the Orders passed by PGIMER on 10/1/2000 whereby the joining report was rejected. The main Prayer of the 1st Respondent before the High Court in CWP No. 8504 of 2000 is to issue a writ of mandamus "...directing the respondents to permit the petitioner to rejoin her duties immediately..". She contended in that petition that there c

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2004 Supreme(SC) 456

IMPORTANT POINTPost Graduate Institute of Medical Education and Research, Chandigarh cannot be treated as a State for the purpose of Article 311 of the Constitution and the employees therein are not holding any civil post .

Cases Referred (10)

IMPORTANT POINT
Post Graduate Institute of Medical Education and Research, Chandigarh cannot be treated as a State for the purpose of Article 311 of the Constitution and the employees therein are not holding any civil post .