The absence without leave or after the end of leave involves loss of appointment as per Article 128 of CSR, and the competent authority must adhere to the principles of natural justice in disciplinary proceedings.

JUDGMENT :

SANJEEV KUMAR, J.

1. The petitioner is aggrieved of and has called in question an order dated 08.12.1993 passed by the Director, Sher-I-Kashmir Institute of Medical Sciences, Soura, Srinagar [“SKIMS”] whereby the petitioner has been removed as Professor Department of Cardiology from the services of the SKIMS for unauthorized willful absence from duty w.e.f. 19.05.1992. The petitioner also prays for a direction to the SKIMS to accept his request for voluntary retirement in terms of Article 230 of the Jammu & Kashmir Civil Service Regulations (“CSR” for short) and treat him as having voluntarily retired from service with all consequential postretirement benefits.

2. The petition filed by the petitioner and the reliefs prayed for by him have arisen in the background of following factual matrix:

Factual Matrix

3. The petitioner was initially appointed as Assistant Surgeon Grade-II in SMHS Hospital vide Government Order dated 22.07.1966. During the course of service as Assistant Surgeon Grade-II in the Medical Department of the then State, the petitioner was deputed to undergo DM Medicine (Cardiology) at PGI, Chandigarh. On completion of DM Cardiology, the petitioner was appointed as Assistant Professor in Government Medical College, Srinagar on 17.01.1981. His services were later on transferred and he was appointed as Senior Consultant (Associate Professor) in the department of Cardiology of SKIMS vide Government Order No. 245/MS of 1981 dated 24.12.1981. The petitioner rose to the position of Professor Cardiology in the year 1986 when he was so appointed by the Government vide order No. 108/MS of 1986 dated 11.11.1986. It is pertinent to notice that in the year 1985 also the petitioner was removed from services on account of willful and unauthorized absence from duties w.e.f. 01.06.1985 vide Government Order No. 130/MS of 1985 dated 19.10.1985. However, from the record it could not be ascertained as to under what orders he was taken back in service. It seems that after removal of the petitioner from service on account of willful unauthorized absence w.e.f. 01.06.1985, the petitioner was appointed afresh and this time as Professor vide Government Order dated 11.11.1986 (supra).

4. While the petitioner was serving as Professor, Department of Cardiology in SKIMS, on an application made by the petitioner, an earned leave for 80 days was sanctioned w.e.f. 29.02.1992 vide Order No. SIMS/286 of 1992 dated 17.03.1992 with the condition that no extension in the leave as sanctioned shall be granted. This was also so undertaken by the petitioner in writing. On expiry of the sanctioned earned leave, the petitioner did not report back for duties and requested for extension of leave on medical grounds. The request was acceded to by the SKIMS and vide Order No. SIMS/777 dated 11.11.1992, half pay leave of 100 days w.e.f. 19.05.1992 to 27.08.1992 and extra-ordinary leave without allowances of 126 days w.e.f. 28.08.1992 to 31.12.1992 was sanctioned. The grant of half pay leave/extra-ordinary leave was subject to the petitioner’s producing necessary medical certificate in support of his statement of illness. The petitioner failed to produce the medical certificate. He did not even report for duties even after 31.12.1992.

5. The petitioner was put on show cause notice by the SKIMS to explain as to why disciplinary action as warranted under rules be not initiated against him for unauthorized absence w.e.f. 19.05.1992. He was also given an opportunity to be heard in person before the disciplinary authority. The petitioner neither responded to the show cause notice nor did he express his desire to be heard in person. The petitioner instead of responding to the show cause notice or submitting medical certificate in support of his illness and explaining his unauthorized absence after 31.12.1992, submitted an application in the form of a representation for seeking voluntary retirement from service. This request of the petitioner was declined by the c