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1975 DIGILAW 219 (KER)

Senior Superintendent Of Post Offices Trivandrum v. Sreedharan Nair

1975-09-03

P.GOVINDAN NAIR, T.K.THOMMEN

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JUDGMENT P. Govindan Nair, C.J. 1. These appeals are from the judgments of Bhaskaran, J. (Writ Appeals Nos. 254 and 268 of 1975) and from the judgment of Chandrasekhara Menon, J. (Writ Appeal Nos. 159, 196, 197, 220, 255, 256,269,270,271, 272, 273, 274, 299 and 302 of 1975). The question that arises for consideration in these appeals is about the conse­quences of alleged unauthorised absence from service by the employees of the Posts and Telegraphs Department on certain dates. It has now been clarified by the Central Government Pleader and it was also so stated in the counter­-affidavit that the only consequences of the alleged unautho­rised absence from duty would be those flowing from rule 27 of the Central Civil Services (Pension) Rules, 1972 (Herein­after referred to as the Pension Rules) and the loss of ‘continuous service’ within the meaning of that expression occurring in rule 279/4 and in other rules and in the schedule to the rules printed in Volume IV of the Posts and Telegraphs Manual. It has been conceded that the alleged unauthorised absence from duty will not affect children’s education allowances and promotions. It has also been conceded that the past service would not be forfeited excep­ting for the purpose of pension as provided in rule 27 of the Pension Rules. The only point made by the department is that an unauthorised absence from duty would interrupt service and cause a break in service and thus continuity of service would be lost. It was therefore urged that whenever rules provided that there should be a certain period of continuous service, that period must have been completed before the unauthorised absence from duty or the continuous service must have been earned after that break of service. The circulars issued pointing out the consequences that would flow from unauthorised absence from duty have been produced along with the counter affidavit marked as Exts.R-1, R-2 and R-3. 2. The appeals before us can be classified under different heads. 3. Writ Appeal Nos. 159, 220, 254, 255, 256, 268 and 272 of 1975 are concerned with rule 279/4 already referred to. 4. Writ Appeal Nos. 196,197,270, 273 and 302 of 1975 deal with the right to be promoted. 5. Writ Appeal. No. 269 of 1975 deals with the children’s education allowances. 6. Writ Appeal Nos. 3. Writ Appeal Nos. 159, 220, 254, 255, 256, 268 and 272 of 1975 are concerned with rule 279/4 already referred to. 4. Writ Appeal Nos. 196,197,270, 273 and 302 of 1975 deal with the right to be promoted. 5. Writ Appeal. No. 269 of 1975 deals with the children’s education allowances. 6. Writ Appeal Nos. 271, 274 and 299 of 1975 arise because of the anxiety of the petitioners in the original petitions which gave rise to the judgment which has been appealed against in these appeals that the unauthorised absence from duty should not be vitiated with any evil consequences. 7. We shall deal with these groups of cases in the order in which they have been stated in paragraphs 3, 4, 5 and 6 above. So we shall take up first the cases where it has been contended by the department that by virtue of rule 279/4 the petitioners in the concerned original petitions had not the required period of continuous service mentioned in that rule. We may mention here that continuous service is required not only by rule 279/4 but by other rules as well and as an example we shall refer to the schedule contained in the Posts and Telegraphs Manual at page 409 dealing with Inspector of Post Offices and all posts sanctioned in that cadre. Column 7 of the schedule insists on not less than five years of continuous service. We make it clear that what we hold in this judgment in relation to “conti­nuous service� occurring in rule 279/4 and in column 7 of the Posts and Telegraph Manual to which we have adverted already will have application to the expression wherever it occurs in the relevant rules. We shall now extract only the relevant part of rule 279/4 for our consideration. “279/4. Wireless Licence Inspectors are attached to Head Post Offices. Appointments to the posts of Wireless Licence Inspectors in a division are made from amongst the clerks in that division except that in the cases of the cities of Bombay, Calcutta, Madras and Delhi where all the units in the city will be taken as one unit for purpose of appointment of Wireless Licence Inspectors. Appointments to the posts of Wireless Licence Inspectors in a division are made from amongst the clerks in that division except that in the cases of the cities of Bombay, Calcutta, Madras and Delhi where all the units in the city will be taken as one unit for purpose of appointment of Wireless Licence Inspectors. A clerk must fulfil the following conditions to be eligible for selection to the post of Wireless Licence Inspector: (i) he must have put in at least five years’ continuous service whether temporary or officiating, followed by confirmation on 1st July of the year in which the selection is made. Extraordinary leave shall not constitute a break but shall not reckon towards the limit of 5 years.� 8. We must also refer to the proviso to the Fundamen­tal Rules, rule 17 (1). “17 (1)………………………………… ……………………………………………. Provided that an officer who is absent from duty without, any authority shall not be entitled to any pay and allowances during the period of such absence.� 9. The question for our consideration is whether an unauthorised absence from duty will have the effect of interrupting the continuous services of an employee. In this connection we may also advert to rule 27 of the Pension Rules and we may extract rule 27 (1) (a) and (b). “27. Effect of interruption in service— (1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases:— (a) authorised leave of absence; (b) unauthorised absence in continuation of authorised leave of absence so long as the post of absentee is not filled substantively;� 10. Rule 27 of the Pension Rules talks of an interru­ption in service and indicates that an unauthorised absence in continuation of authorised leave of absence so long as the post of the absentee had not been filled up substantively will not amount to an interruption in the service. 11. The contention raised on behalf of the appellants in these appeals is that normally in all cases where there is a contract of employment, there is a duty implied by the very nature of the contract of employment that no employee should absent himself from duty unauthorisedly. 11. The contention raised on behalf of the appellants in these appeals is that normally in all cases where there is a contract of employment, there is a duty implied by the very nature of the contract of employment that no employee should absent himself from duty unauthorisedly. It was submitted that there is a corresponding duty on the part of the employer to continue to employ the person as long as the relationship of master and servant continued and the master could not deny employment on any particular day. As a necessary corollary it was submitted that when an employee absented himself unauthorisedly from duty, there was an interruption in service. This, in short, was the submission and we must confess that the matter is, by no means, free from difficulty. When statutes incorporated definitions of the term “continuous service� as the Industrial Disputes Act did for the period between 1953 and 1964 defining “continuous service� in section 2 (eee), the matter was easier to deal with. That section was in these terms:- “2. (eee) ‘continuous service’ means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;� 12. The explanation to section 498 of the Factories Act, 1934 stated thus: “Explanation—A worker shall be deemed to have completed a period of twelve months continuous service in a factory notwithstanding any interruption in service during those twelve months brought about by sickness, accident or authorised leave not exceeding ninety days in the aggregate for all three or by a lock out or by a strike which is not an illegal strike, or by intermittent periods of involuntary unemployment not exceeding thirty days………………..� 13. This explanation came up for interpretation before the Supreme Court in the decision in The Buckingham and Carnatic Co. Ltd. v. Workers of the Buckingham and Carnatic Co. Ltd. A.I.R. 1953 S.C. 47 and the Supreme Court had no difficulty in coming to the conclusion that an unauthorised absence from duty consequent on a lightning strike for a few hours would cause a break in continuous service, which would have the consequence provided by section 498 of the Factories Act, 1934. Ltd. A.I.R. 1953 S.C. 47 and the Supreme Court had no difficulty in coming to the conclusion that an unauthorised absence from duty consequent on a lightning strike for a few hours would cause a break in continuous service, which would have the consequence provided by section 498 of the Factories Act, 1934. But when a similar question arose about the meaning of the same words occurring in a gratuity scheme drawn up in an award passed under the Industrial Disputes Act, the Supreme Court took the view that continuous service therein meant the continued relationship of master and servant and not an interruption in the discharge of the duties. M/s Jeewanlal (1929) Ltd., Calcutta v. Its workmen A.I.R. 1961 S.C.156 (2). These two decisions illustrate that the words continuous service can have more than one meaning. It has not been contended before us that the relationship of master and servant had ceased to exist as a result of the break in service flowing from the unauthorised absence from duty. Conti­nuous service has not been defined in any of the relevant rules. No doubt the employer in these batch of cases has taken the view that continuous service would be disrupted by unauthorised absence from duty. This certainly cannot be said to be an unreasonable stand. But the question is whether for the purpose of the rules we can interpret conti­nuous service to mean a service without any interruption or without any break resulting from unauthorised absence. If the question arose under rule 27 of the Pension Rules, the very terms of the rule would justify the conclusion that if there has been an unauthorised absence from duty which absence was not linked with authorised leave, that absence would create an interruption in service because the wording of the rule itself indicated so. But when the question is what is meant by “continuous service� when that expression has to be construed without any assistance from the rule it is possible to hold that it may mean one or the other; break in the relationship of master and servant, or a non-break in the continuity of the discharge of service. In these circum­stances we are unable to hold definitely that a mere un­authorised absence from duty would entail an interruption in continuous service or would cause such a break as to disrupt continuous service. In these circum­stances we are unable to hold definitely that a mere un­authorised absence from duty would entail an interruption in continuous service or would cause such a break as to disrupt continuous service. Perhaps it would be desirable that there should not be the benefit of continuous service to those who unauthorisedly absent themselves from duty. If that is the intention it would be appropriate to define continuous service in the rules providing for such conse­quences. This is for the Government to decide. 14. The learned Judge has treated the insistence of the employer of treating the break as a break in continuous service as tantamount to inflicting punishment. We cannot agree with this view. The employer has merely interpreted the rule and as we said two views are possible. The learned Judge has taken the further view that the rules are not capable of bearing the interpretation that there has been a break in service. Since the view taken by the learned Judge is a possible view on the interpretation of the rules, we do not think we could be justified in interfering in appeal. 15. In the light of the above discussion we have to direct that no evil consequences should flow as far as the right to sit for the examination is concerned from the alleged unauthorised absence from duty. 16. As far as rule 27 of the Pension Rules is concerned for the reasons we have already stated, we hold that there will be an interruption in service in the case of an un­authorised absence from duty. But the very same rule pro­vides for the period being considered as extraordinary leave even in cases where there have been unauthorised absence from duty and the question therefore will have to be decided at the time when the matter of pension arises. 17. We must also make it clear that we express no opinion whatever on the question whether the employees have been absent from duty unauthorisdly. We have assumed so for the purpose of the discussion. We have been told that there have been applications for leave submitted by the employees. In cases where there are such leave appli­cations, those will be dealt with on the merits and disposed of in accordance with law and the question whether there has been unauthorised absence from duty would be determined. 18. We have been told that there have been applications for leave submitted by the employees. In cases where there are such leave appli­cations, those will be dealt with on the merits and disposed of in accordance with law and the question whether there has been unauthorised absence from duty would be determined. 18. Passing on now to the next batch of cases dealing with promotions it has not been contended by the employer that if there had been unauthorised absence from duty, it would affect the right to promotion. The judgment under appeal has to be upheld on this aspect as well. 19. In Writ Appeal No. 269 of 1975 the position is the same because the Central Government Pleader did not con­tend that the right of the children’s education allowances is adversely affected by the alleged unauthorised absence from duty. This appeal has also to be therefore dismissed. 20. We are left with the three cases, Writ Appeal Nos. 271, 274 and 299 of 1975 wherein no particular conse­quences have been pointed out as flowing from the alleged break in service. What we have said in the judgment on the specific points will apply to these appeals as well. 21. In the light of the above, we dismiss all the 16 appeals and direct the parties to bear their respective.