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2002 DIGILAW 187 (JK)

Gh. Nabi Magray (Dr. ) v. State Of J. &K.

2002-06-03

MUZAFFAR JAN

body2002
Writ petition has been submitted praying for quashing termination Order No. 23-IMS-1987 dated 19.10.1987. 2. The main submissions made in the petition are that the petitioner was appointed as Lecturer in Sher-i-Kashmir Institute of Medical Sciences, Srinagar. Petitioner proceeded on four days casual leave on 7.5.1986 and then extended the leave by a telegram. No reply was received to convey that the leave had been sanctioned. The petitioner continued to be on leave, presuming that his leave had been sanctioned. The petitioner returned from his leave on 27-10.1986. He was not permitted to join. Petitioner again approached the respondents on 20-2-1987 and the respondents did not permit him to join his duty. That when the petitioner ultimately approached respondents on 7-7-1991, he came to know that his service has been terminated vide Order dated 19-10-1987. Petitioner further submits that no notice was served on him, no enquiry was conducted before his services were terminated in an arbitrary, irrational manner in violation of principles of natural justice and the rights guaranteed by the Constitution. The petitioner, on these grounds, submits that the impugned order be quashed. 3. While admitting that the petitioner was employed as Lecturer in Sher-i-Kashmir Institute of Medical Sciences, Srinagar, the stand and submissions of respondents is that the petitioner applied for four days casual leave on 7-5-1986. The petitioner, on expiry of his casual leave, was to join his duties on 11-05-1986 but the petitioner did not resume his duties and submitted a telegram for extension of the leave. As the casual leave in favour of an employee could not be granted for more than ten days, at a stretch, the petitioner was informed under registered letter No: SKIMS/Per/514/98-9808 dated 7-8-1986 that his leave has not been sanctioned and the petitioner was instructed to report on duty, failing which it was impressed that action under rules would be initiated against him. The petitioner did not join his duties and as nothing was heard from him, a charge sheet was framed against the petitioner under No: SKIMS/Per/ 514/86-12351 dated 31.12.1986 requiring him to show cause as to why disciplinary action for unauthorised absence be not taken against him. The petitioner was required to submit his reply by 26th of January, 1987. Charge sheet was returned back undelivered with the report that the petitioner had gone to Arab. The petitioner was required to submit his reply by 26th of January, 1987. Charge sheet was returned back undelivered with the report that the petitioner had gone to Arab. Subsequently another show cause notice was issued through publication in Government Gazette dated 21.05.1987 and as no reply was submitted by the petitioner to this notice and a no cause was shown to justify the absence, termination order was passed, taking effect from 11-05-1986. On these submissions it is urged that the petitioner had deliberately, wilfully and intentionally absconded, leaving no follow-up address and remained absent from duty in such a manner which would amount to abandonment of service, therefore, the order of termination is fully Justified. 4. Heard learned counsel for the parties at length, considered the submissions and perused the record. 5. The facts which are not denied but are admitted are that the petitioner, who was employee of the respondents, as Lecturer, proceeded on four days casual leave on 7-5-1986. It is also admitted by the petitioner that he did not report on duty till 20.2.1987 i.e., for more than nine months. It seems that the assertions of the petitioner, that he approached respondents to allow him to join his duty on 20.2.1987 but the respondents refused to permit him to join his duties, does not seem to be based on any convincing material on record, is rejected for multiple reasons. 6. There is nothing, by way of any official record, communication or joining report to indicate that the petitioner had actually approached the respondents on 20.2.1987, seeking permission to join his duties and that respondents refused to allow the petitioner to join, by any written order. If the petitioner would have been keen to join his duties in the year 1987 and was refused permission, the petitioner could have approached this court for redressal of his grievance in the year 1987. The petitioner has filed the present writ petition in the year 1991. There is no explanation why the petitioner had to wait for more than four years to file this writ petition. 7. In any case, the petitioner in para No.8 of his writ petition submits that he again approached the respondents in the month of June, 1989 with the request to allow him to join his duties, which was refused. There is no explanation why the petitioner had to wait for more than four years to file this writ petition. 7. In any case, the petitioner in para No.8 of his writ petition submits that he again approached the respondents in the month of June, 1989 with the request to allow him to join his duties, which was refused. On these admitted facts it is shown that after the first refusal to allow the petitioner to join his duty on 20-2-1987, the petitioner remained silent for a period of two years and four months. It is also admitted that the petitioner did not seek any legal remedy till 1991 i.e., after a further period of silence of two years and five months from the second refusal in June 1989. 8. It is a settled proposition of law that where an employee stays away from his duty for more than four years, as in the instant case, without justification or acceptable explanation, the un-authorised absence constitutes a mis-conduct to infer that the employee has surrendered the employment. Admittedly the employee has a right to be heard under Article 311 of the Constitution, provided the employee is available and keen to explain the absence. This legal position was considered by this court in Munshi Ram v. State & Ors., SLJ 1997 266, which is reproduced as under :- "....But, there could be cases where an employees services could be treated to have ended by his conduct and under the force of circumstances. If an employee stays away from duty years on and does not express his desire and intention to return, even after a decade or so, and where his fitness for duty is under cloud, it cannot be said or held that he should be treated in service because the employer had omitted to put him on notice or to pass a formal order of termination. In such cases the conduct of the employer would constitute a base for concluding that he had surrendered his employment even if he was not removed from service by a formal order. Otherwise a delinquent employee can stay away from duty for years on and return one day at the fag end and cash on the employers omission to put him on notice or to pass a formal order which could result in his reinstatement on a technicality. Otherwise a delinquent employee can stay away from duty for years on and return one day at the fag end and cash on the employers omission to put him on notice or to pass a formal order which could result in his reinstatement on a technicality. In the circumstances, I find it easy to hold that the petitioner can no longer be treated in service in the facts and circumstances of the case even when no formal order of his termination of service was passed. lt would also be administratively inexpedient at this stage to allow him to return to duty when he is at the verge of retirement and when his fitness for such duty is in doubt." 9. In the instant case, it is admitted by the petitioner that he stayed away from duty right from 07-05-1986 till 1991. Although the petitioner urges that he made attempts to join his duties and was not permitted to do so, but as observed above, there is nothing substantial on record to accept this submissions. 10. It is the positive case of the respondents that the petitioner absented from duty and took employment in Arabia, without leaving his forwarding address, under a design to prevent the respondents to communicate with the petitioner on his address in Arabia. Show cause notices were despatched on the correct address available with the respondents in their official record. The notices were returned with the report that the petitioner is in Arabia. This being the admitted factual background of the case, it is a settled proposition of law that in these circumstances the petitioner cannot take advantage of his own concealments and supressions of facts and claim protection under principles of natural justice. 11. When it becomes impracticable for the respondents to communicate with the employee, on his absence, the Apex Court has held the termination of service without holding any departmental enquiry would not be violative of principles of natural justice. The relevant portion of the view taken by the Apex Court in a judgment reported as 2000 (5) SCC, 65, is as under :- "Notice though sent on correct address, received back with the endorsement, "refused" - In such circumstances the Bank, held, rightly treated the employee to have voluntarilly retired from service - Hence, termination of his service without holding any departmental enquiry, held, was not violative of principles of natural justice." 12. This view is further supported by a judgment of the Apex Court, reported as AIR 1974 SC, 1896, wherein the petitioner had left for Mecca and was absent from duty without leave of absence or permission. The Court, in that case, held that petitioner cannot claim violation of his rights of natural justice in such circumstances. The relevant portion of the judgment is reproduced as under :- "...After having been taken through the assertions made by both sides, we have no hesitation in coming to the conclusion that even if the appellant was being punished, so that Article 311 could apply, he had been, in the circumstances of the case, given sufficient opportunity to explain his conduct. He had failed to avail of that opportunity. It could not, therefore, be said that the requirements of natural justice or of Article 311 of the Constitution had been contravened. In any case, on the facts before us, we think that it will be useless to afford any further opportunity to the appellant to show cause why he should not be removed from service. The undenied and indeniable fact that the appellant had actually abandoned his post of duty for an exceedingly long period, without sufficient grounds for his absence, is so glaring that giving him further opportunity to disprove what he practically admits could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. It would only prolong his agony." 13. The petitioner has, by his wilful absence surrendered his right of employment and cannot claim any benefit because of his own fault. Therefore, the writ petition has no merit and is accordingly dismissed. Under the peculiar circumstances of this case, there is no order as to costs.