The importance of providing an opportunity of hearing to the employee/petitioner before passing any adverse order, as mandated by the principles of natural justice.

JUDGMENT :

PARTH PRATEEM SAHU, J.

1. Petitioner aggrieved by the order dated 05.02.2009 whereby the period from 11.12.2002 to 13.02.2005 (794 days) has been declared to be dies-non on account of unauthorised absence from service has filed this writ petition with the following reliefs:

“10.1 That, the impugned order dated 05.02.2009 deserves to be set-aside and quash on the ground as narrated supra.

10.2 That the respondents may be directed to pay salary to the petitioner for 794 days alongwith other service benefits as per the petitioner entitlement.

10.3 That as the petitioner was treated diaznon for the period of 794 days, his seniority may be maintained and regularized. Other benefits in relating the seniority may be afforded to him.

10.4 That, the leave, which is left with the petitioner, details of which have been stated above may kindly be adjusted against the leave period of 794 days and accordingly the impugned order may be set-aside.

10.5 Any other relief, which this Hon'ble Court may deem fit and proper, may also be passed in favour of the petitioner together with cost of the petition.”

2. Learned counsel for petitioner submits that petitioner was appointed as Ayurvedic doctor on 01.07.1987, since then he was continuously working on the said post. He was transferred vide order dated 11.11.2002 from Ayurvedic Hospital, Lendhra, Raigarh to Ayurvedic Hospital, Balangi Surguja. He challenged the order of transfer wherein interim protection was granted to him of not relieving the petitioner if he has already been not relieved. Petitioner was relieved ex-parte but no notice was served upon him. On 25.04.2003, petitioner was served with the charge-sheet, enquiry was conducted and the enquiry officer submitted its report that all the three charges levelled against him were not found to be proved. The disciplinary authority considering the enquiry report has held that the charge No. 3 was found to be proved as he was absent unauthorizedly knowingly and has directed for recording “Service Warning” in his confidential report and the case was closed. Prior to it, the transfer order was modified, consequently writ petition filed by petitioner challenging the order of transfer was withdrawn on 25.09.2006 as having become infructuous. Petitioner thereafter submitted an application for payment of salary. Respondents-authorities surprisingly issued the order impugned declaring the period from 11.12.2002 to 13.02.2005 i.e. 794 days to be dies-non on account of his unauthorized absence from service during that period. Petitioner submitted representation with a prayer for cancellation of order which came to be dismissed on 17.03.2009. Petitioner thereafter again submitted representation on 05.05.2011 vide Annexure P-7 and representation dated 12.12.2011 vide Annexure P-8 for review of order/ decision taken for the period of his absence. The said representations were not decided. He contended that the Respondents- authorities have already passed an order of punishment of making entry of “Service Warning” in his confidential report, hence, further penalty/punishment of declaring the period of unauthorized absence as dies-non is illegal and arbitrary. He also contended that before issuance of order impugned declaring the period of 794 days as dies-non, no show-cause notice was issued to petitioner providing him an opportunity to make his submission/defence on the action proposed against him, hence, the order passed by the authority is in violation of principles of natural justice.

3. Ms. Richa Shukla, learned State counsel opposing the submission of counsel for petitioner would submit that the departmental enquiry as pointed out by petitioner was conducted for three charges of which the enquiry officer submitted its report mentioning that all the three charges were not found to be proved. The disciplinary authority accepted the enquiry report with respect to two charges and with regard to charge No. 3 held it to be proved as the petitioner remained