The need for conducting an inquiry and obtaining proof of misconduct before terminating an employee for alleged misconduct under an employment contract.

K.K. Trivedi, J.

1. The petitioner, an employee of the respondent Rajya Swasthya Samiti, is aggrieved by the order dated 23.11.2012, passed by the Chief Medical and Health Officer, Narsinghpur, dispensing with the services of the petitioner, on the allegation that he was unauthorisedly absent from duty. It is contended that the petitioner was selected for appointment on contract basis after holding a competitive examination by the Professional Examination Board, vide order dated 4.8.2009. An agreement was executed in between the petitioner and the respondent No. 2 and posting order was issued on 24.8.2009, posting the petitioner at Gotegaon, District Narsinghpur. In terms of agreement, the petitioner was entitled to certain leaves. There were conditions mentioned in the agreement that in case the employee remained undutiful towards the work assigned to him, he may be removed from the post by terminating the contract of appointment after giving him an opportunity of hearing. Other condition was that either party can terminate the contract after giving a month's notice or in lieu of notice a month's salary. Condition No. 9 of the said agreement was specifically prescribed that in case the employee remained absent for more than a month's period from his place of posting, then his services would be terminated automatically. Though it was specifically provided in the agreement that initial appointment was for a period of one year, but the said contract was continuing as it was extended on time and again.

2. It is the case of the petitioner that after joining the duty and continuance of service for a reasonable period of three years, since the petitioner has taken ill, he moved an application for grant of leave with effect from 18th September to 17th October, 2012. As the petitioner was advised continuous treatment, with the medical certificate, he applied for extension of leave on 18.10.2012. Looking to the persisting illness, the petitioner was further required to extend his leave and for the said purposes, he submitted the application supported with a medical certificate. After the prolong treatment, since the petitioner became it to join the duty, with a medical certificate of fitness, the petitioner gave his joining on 30.11.2012. Even after giving the joining, nothing was intimated to him, nor any order was communicated when he made a representation then only the impugned order was served on the petitioner and, therefore, assailing the said order, he was required to file the present writ petition.

3. It is the case of the petitioner that there was no application of Condition No. 9 of the agreement, inasmuch as the petitioner has given the applications for grant of leave and, therefore, unless those applications were rejected, decisions were communicated, it cannot be said that the petitioner was absent from duty without the sanction of the competent authority. Thus, it is contended that the action taken by the respondents for removal of the petitioner from service is bad in law.

4. Upon service of the notice of the writ petition, a return has been fled by the respondent No. 2, contending inter alia that since the petitioner was a contract appointee, in terms of the contract, he was required to continue on the post regularly, but since he has absented himself for a period more than a month from the place of working, it was deemed that the services of the petitioner have come to an end. In such circumstances, in absence of any order of sanctioning the leave, it was rightly held that the petitioner was treated as absent from duty. Thus, it is contended that the whole petition is misconceived and is liable to be dismissed. By fling a rejoinder, the petitioner has stated that it was not his fault if the applications submitted by the petitioner were not considered by the competent authority and no sanction of the leave was granted. It is contended that in fact there were reports against certain persons submitted by the Block M