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1991 DIGILAW 530 (CAL)

Partha Sarathi Mitra v. Union of India

1991-12-19

MONORANJAN MALLICK

body1991
JUDGMENT The writ petitioner filing the writ petition followed by a supplementary affidavit has challenged the order of termination of service issued by the Deputy Chief Personal Manager (works) Alloy Steel Plant Durgapur. 2. The facts are briefly as follows : The petitioner while working Assistant Roller Sheet Mill Alloy Steel Plant Durgapur application for leave on 6.6.1982 to the concerned authority for the purpose of visiting Bangkok, Singapur and Qualalmpur. For the purpose of the said visit the petitioner applied for no objecting certificate from M.K. Banerjee, Asst. Manager (PL/OP) issued the requisite no objection. According to the petitioner the petitioner did not get any reply or objection to the said leave application till June 27, 1982, that he again submitted an application on June 27, 1982 inter alia, pointing out that the had not yet received the reply to this leave application but the concerned authority filed to communicate the decision on the leave application dated 6.6.1982 and that as such as a man of ordinary prudence it was natural for him to proceed on the basis that the leave as prayed has been sanctioned by the concerned authority. It is further case of the petitioner that on 29.6.82 he sent a telegraph intimating the authorities that he was proceeding aboard on 29.6.82 and would join his duty on 20.7.1982, but when he went to join his duty on 20.7.1982 he was not allowed to join on the plea that his services have already been terminated by the order dated 14.7.1982, that he did not receive that letter till 22.7.1982, that the petitioner challenged the said order as illegal and unvalid, that even if it be assumed that the petitioner was in unauthorized absence the Respondent had to draw up departmental proceeding by issuing proper notice and reasonable opportunity to defend the charge but without giving such opportunity such order of termination could not have been passed. 3. Hence the writ petition for quashing the order of termination and the reinstatement of the petition in service with all back wages. The Respondents have constitution this writ petition in filing an affidavit-in-opposition for the main writ petition and another affidavit-in-opposition to the supplementary affidavit. 3. Hence the writ petition for quashing the order of termination and the reinstatement of the petition in service with all back wages. The Respondents have constitution this writ petition in filing an affidavit-in-opposition for the main writ petition and another affidavit-in-opposition to the supplementary affidavit. The case of the Respondent is as follows :- The application for leave of the petitioner was refused by the letter dated 20th June, 1982 which was attempted to be handed over to the petitioner in office but smelling refusal he did not accept the letter. According to Standing Order 29 (ii) (g), a copy of this order was sent to his address by Registered Post and another copy was pasted in the notice Board on observing necessary formalities. The petitioner was thus fully aware of the refusal of the leave, 21st June, 1982 was the off-day of the petitioner. He enjoyed the leave. But has started remaining absence from 22nd June, 1982 without any leave or permission even though in his application for leave he applied for leave from 26.9.1982. Having found no notice or explanation from the petitioner as to why he was absenting from 22nd June, 1982 the Alloy Steel Authority invoked standing order No. 15(xi) and informed this decision of termination of service in terms of the said standing order. As the Standing order forms terms and conditions of service. The Respondent acted in accordance with the terms of this above standing order and when the said clause has been invoked there was no necessity to issue any show cause notice or stand any departmental proceeding before passing the order of termination. 4. In the affidavit-in-reply the petitioner contests all the above allegation and submit that when under clause 27(v) absence without leave is a misconduct under the standing order then proceeding for dealing cases of misconduct as provided in clause 29 of the standing order has to be invoked and without holding enquiry no order of termination can be passed. Clause 15(xi) reads as follows : “If a workmen remains absent beyond the period of leave, originally granted or subsequently extended, he shall lose his lien on his appointment unless he returns within 15 days of the expiry of the leave and explains to the satisfaction of the management his inability to return before the expiry of the leave. Clause 15(xi) reads as follows : “If a workmen remains absent beyond the period of leave, originally granted or subsequently extended, he shall lose his lien on his appointment unless he returns within 15 days of the expiry of the leave and explains to the satisfaction of the management his inability to return before the expiry of the leave. In case the workman loses his lien on his appointment, he shall be entitled to be kept on the ‘badly’ list. Where, however, the period of such absence exceeds 15 days the workman shall be presumed to have left the services of the company of his own accord without notice.” 5. It is the case of the Respondent that it can invoke this provisions of Standing order even though unauthorized absence without leave is a in misconduct and the Respondent did not have the obligation to resort to that procedure when the Respondent could very well deal the case of the petitioner under clause 15(xi). 6. I am of the view that if a particular clause of the Standing order is attracted the authority can resort to that clause even if it could have acted under any other clauses. 7. The petitioner submit that clause 15(xi) is not attracted as he had applied for leave but his leave was not refused till he started avoiding of the leave with effect from 29.6.1982 and the authority not refusing the leave and connecting such decision till the date when he availed of the leave with effect from 26.6.1982 then clause 15(xi) cannot be invoked. But the case of the respondent is that the petitioner started to remain absence with effect from 22.6.1982 after he was on leave on 21.6.1982 it being his off day he did not join his duty. The petitioner did not whisper as regard the contention of the respondent that after availing of his leave on 21.6.1982 he was remaining absent. There can be no reason for the petitioner to remain absent with effect from 22.6.1982 when in his application for leave dated 29.6.1982 he was to proceed on leave with effect from 29.6.1982. The Respondent’s case is that petitioner was duly intimated of the refusal of that leave also even on 20.6.1982 and he did not resume his duty on 22.6.1982 and extended his period of leave for more than 15 days. The Respondent’s case is that petitioner was duly intimated of the refusal of that leave also even on 20.6.1982 and he did not resume his duty on 22.6.1982 and extended his period of leave for more than 15 days. He admittedly wanted to report of duty on 20.7.1982 about a month thereafter. Therefore the presumption under clause 15(xi) arose that he left the service of the company of his own accord without notice. In my view when the condition of applicability of clause 15(xi) of the standing order have been fulfilled he has been validly terminated from service and intimates to that effect made to him by the letter dated 14.7.1982 cannot be held to be illegal. The petitioner is bound by the terms and conditions of the standing order. When the Standing Order No. 15(xi) is a part of the condition of service the petitioner has ceased to be in the employment of the employment on the expiry of 15 days of 22nd June, 1982. He could have been on the badly list if he returned within 15 days of the expiry of the leave. But he admittedly wanted to join on 20.7.1982 i.e. long thereafter. 8. When the statutory terms and conditions clearly exclude the issuing any show cause notice when clause 15(xi) is attracted then the petitioner was not entitled to any show cause notice. 9. When clause 15 (xi) is attracted the termination is automatic and no intimation by the respondent is necessary and the worker is presumed to have left has service of the company of his own accord without notice. 10. In this case when the principle of natural justice has been expressly excluded by statute the order dated 14.7.1982 can be struck down on the ground that no show cause notice was issued. 11. The respondent could have invoked clause 29 of the standing order for unauthorized absence. But in this case, the petitioner’s case attracts clause 15(xi) and therefore there is no necessity to draw up a Departmental proceeding. In the result the Writ petition is dismissed. All interim orders, if any, are vacated. No order for costs is passed.