Judgment 1. Since common issues arise in both these writ petitions, they being decided by this common judgment. 2. The issue that arises for consideration is whether discontinuation of services of an employee on the ground that he has deemed to have voluntarily abandoned his services as per Rule 16(3) of the Maharashtra Employees of Private Service (Conditions of service) Rules, 1981 (for short, the Rules of 1981) should be preceded by an enquiry as contemplated under Rules 36 and 37 of the Rules of 1981. 3. The aforesaid issue arises on the following facts. Both the petitioners had been appointed as Assistant Teachers on 24/6/1985 at the respondent School. During their course of service, a complaint has been lodged against both of them by another Assistant Teacher resulting in their criminal prosecution. The petitioners remained absent from duty continuously from 1/1/2000. On 15/2/2003, the management passed a resolution that as the petitioners were continuously absent for a period of more than three years, in terms of provisions of Rule 16(3) of the Rules of 1981, it was deemed that the petitioners had abandoned their services. On that basis, the petitioners were intimated on 18/2/2003 about passing of aforesaid Resolution on 15/2/2003 and their consequent termination of service. The petitioners being aggrieved thereby filed separate appeals under Section 9 of the Maharashtra Employees of Private Schools (Conditions of service) Regulation Act, 1977 before the School Tribunal. The School Tribunal by the impugned judgment held that absence of the petitioners from 1/1/2000 for a period of more than three years had been proved and hence, the communication dated 18/2/2003 issued by the management in that regard was not contrary to law. Both the appeals came to be dismissed. Said judgment dated 7/11/2005 is under challenge in these writ petitions. 4. Shri S. V. Sohoni, the learned Counsel appearing for the petitioners submitted that the impugned judgment passed by the School Tribunal was contrary to law. It was submitted that the petitioners who were permanent employees had been terminated from service without holding any enquiry whatsoever. Relying upon the provisions of Rule 16(3) of the Rules of 1981, it was urged that if a permanent employee without sufficient cause fails to apply for leave within seven days from the date of absence, it is treated as breach of discipline making him liable for suitable disciplinary action after due enquiry. Relying upon the provisions of Rule 16(3) of the Rules of 1981, it was urged that if a permanent employee without sufficient cause fails to apply for leave within seven days from the date of absence, it is treated as breach of discipline making him liable for suitable disciplinary action after due enquiry. Hence, when a permanent employee is absent from duty without leave continuously for the period exceeding three years, it is deemed that he has voluntarily abandoned his services. However, if it could be shown that there was sufficient cause for such absence, the same could not result in termination of his services. He, therefore, submitted that availability of sufficient cause could be proved in an enquiry held in accordance with the Rules of 1981. He urged that Rule 16(3) of the Rules, 1981 were required to be read harmoniously thereby contemplating holding of an enquiry before doing away with the services of a permanent employee on the ground that he had voluntarily abandoned the services. According to the learned Counsel, as the impugned action had been taken without being preceded by an enquiry, the same was not in accordance with law and in that regard he placed reliance on the judgment of the Supreme Court in D. K. Yadav Vs. J.M.A. Industries Ltd, (1993) 3 Supreme Court Cases 259. He, therefore, submitted that the impugned judgment having failed to consider said position was contrary to law. 5. There is no appearance on behalf of the respondent-management though its is duly served. I have carefully considered aforesaid submissions. I have also gone through the provisions of the said Act and the Rules of 1981. The submission made on behalf of the learned Counsel for the petitioners though attractive, the same cannot be accepted in view of the scheme of the Rules of 1981. 6. The factual aspects of the matter as regards the absence of both the petitioners from duty for the period from 1/1/2000 to 15/2/2003 is not in dispute. Similarly, the finding recorded by the learned Presiding Officer of the School Tribunal in para 12 of the impugned judgment regarding issuance of notices dated 6/8/2001, 3/1/2002, 23/3/2002 and 3/1/2003 to the petitioners seeking their explanation for continuous absence is also not seriously disputed. Similarly, the finding recorded by the learned Presiding Officer of the School Tribunal in para 12 of the impugned judgment regarding issuance of notices dated 6/8/2001, 3/1/2002, 23/3/2002 and 3/1/2003 to the petitioners seeking their explanation for continuous absence is also not seriously disputed. The only issue, therefore, that is to be considered is while holding that a permanent employee is deemed to have voluntarily abandoned his service on account of continuous absence for a period of three years, whether the same should be preceded by an enquiry as contemplated by Rules 36 & 37 of the Rules of 1981. 7. It would, therefore, be necessary to consider certain provisions of the said Act and the Rules of 1981. Section 4(6) of the said Act mandates that services of an employee of a private school shall not be terminated except in accordance with the provisions of the said Act and the Rules of 1981. Rule 16(3) reads as under: 16(3). In the case of a permanent employee who, without sufficient cause, fails to apply for leave within 7 days from the date of absence, it shall be treated as breach of discipline and he shall be liable for suitable disciplinary action after due inquiry. A permanent employee who is absent from duty [without leave continuously for a period exceeding three years], shall be deemed to have voluntarily abandoned this Services. Rule 28 contemplates removal or termination of service and by sub rule 5(c), an employee is liable to be punished on account of willful and persistent negligence of duty. For the purposes of said Rule, the expression “wilful negligence of duty” includes persistent absence from duty without previous permission. Under Rule 29, if an employee is guilty of wilful and persistent negligence of duty, he is liable for penalties stipulated therein which include termination of service. Rule 31 (2) contemplates termination of service as a major penalty. Rule 33 thereafter prescribes the procedure for inflicting major penalties. Rules 36 & 37 provide for constitution of the Inquiry Committee and its procedure. 8. The provisions of Rule 16(3) are in two parts. The former part treats failure of a permanent employee to apply for leave within 7 days from the date of absence without any sufficient cause as breach of discipline making such employee liable for suitable disciplinary action after due enquiry. 8. The provisions of Rule 16(3) are in two parts. The former part treats failure of a permanent employee to apply for leave within 7 days from the date of absence without any sufficient cause as breach of discipline making such employee liable for suitable disciplinary action after due enquiry. In the latter part, there is a deeming fiction providing that a permanent employee who is absent from duty without leave continuously for a period of exceeding three years to have voluntarily abandoned his services. While the former part deals with a situation relating to failure to apply for leave, the latter part contains a deeming fiction relating to abandonment of service. The deeming fiction is, therefore, present only in the latter part of the sub rule (3) of Rule 16. In so far as a deeming provision is concerned, the same has the legal effect of presuming the state of affairs as stipulated to exist. Such deeming provision has to be given its full effect. In Bhavnagar University Versus Palitana Sugar Mill (P) Ltd. & Others, (2003) 2 SCC 111 , the Supreme Court in para 33 observed as under:“ 33. The purpose and object of creating a legal fiction in the statute is well known. When a legal fiction is created, it must be given its full effect. In East End Dwellings Co. Ltd. v. Finsbury Borough Council Lord Asquith, J. stated the law in the following terms: (All ER p. 599 BD) If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, LIC of India. See also Indian Oil Corpn. Ltd. v. ADM, Allahabad and G. Viswanathan v. Hon’ble Speaker, T. N. Legislative Assembly. 9. The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, LIC of India. See also Indian Oil Corpn. Ltd. v. ADM, Allahabad and G. Viswanathan v. Hon’ble Speaker, T. N. Legislative Assembly. 9. It is, therefore, necessary to consider whether the deeming fiction of a permanent employee having voluntarily abandoned his services can be treated as having the effect of imposing a major penalty and hence, liable to be preceded by an enquiry. As noted above, in so far as the former part of Rule 16(3) is concerned, it stipulates the failure to apply for leave within 7 days from the date of absence without sufficient cause to be treated as breach of discipline. It further contemplates disciplinary action after due enquiry. As the latter part contains a deeming fiction of a permanent employee having voluntarily abandoned his services, it is obvious that the period of absence without leave continuously is for the period exceeding three years. Thus, two different consequences are provided for in sub-rule (3) of Rule 16. It is, therefore, clear that former part of sub rule (3) would apply only when there is failure to apply for leave without sufficient cause within seven days from the date of absence. In the latter part, continuous absence for period exceeding three years has the effect of the employee having deemed to have voluntarily abandoned his service. 10. There is a clear distinction between the action of the employer terminating the services of an employee and willful abandonment of service by the employee. Aforesaid distinction has been referred to by the Supreme Court in Vijay S. Sathaye versus Indian Airlines Limited and others, (2013) 10 Supreme Court Cases 253. In paras 12 to 16, it has been observed thus: “12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 13. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 13. In Jeewanlal (1929) Ltd. v. Workmen this Court held as under: (AIR p. 1570, para 6) “6...... there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.” (See also Shahoodul Haque v. Registrar, Coop. Societies.) 14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as “retirement” from service. (See State of Haryana v. Om Parkash.) 15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah, while dealing with a similar case, this Court observed: (AIR p 1275, para 5) “5.......Abandonment or relinquishment of service is always a question of intention, and, normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.” A similar view has been reiterated in G. T. Lad v. Chemical and Fibres of India Ltd. 16. In Syndicate Bank v. Staff Assn. and Aligarh Muslim University v. Mansoor Ali Khan this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant, Chief Engineer (Construction) v. Keshava Rao and Bank of Baroda v. Anita Nandrajog.” 11. The provisions of Rule 28(5)(c) make an employee liable for being punished for wilful and persistent negligence of duties. If a penalty on account of wilful and persistent negligence of duty is to be imposed, then the procedure as prescribed by Rule 33 would have to be undoubtedly followed. The provisions of Rule 28(5)(c) make an employee liable for being punished for wilful and persistent negligence of duties. If a penalty on account of wilful and persistent negligence of duty is to be imposed, then the procedure as prescribed by Rule 33 would have to be undoubtedly followed. Where however on account of continuous absence without leave for a period exceeding three years a permanent employee is deemed to have voluntarily abandoned his services, there is no question of holding any enquiry as there is no termination of service on account of wilful and persistent negligence of duty. The deeming fiction operates when the situation as contemplated by the latter part of Rule 16(3) is shown to exist. Hence, if there is no termination of service on account of the wilful and persistent negligence of duty and a permanent employee is deemed to have voluntarily abandoned service under Rule 16(3) of the Rules of 1981, the same need not be preceded by an enquiry as contemplated by Rules 36 and 37 of the Rules of 1981. 12. In the decision of the Supreme Court in D.K. Yadav (supra) relied upon by the learned Counsel for the petitioner, the Standing Orders prescribed that if a workman did not report for duty within 8 calendar days after expiry of the leave granted or remained absent without sanctioned leave, he would be deemed to have abandoned the services and would also lose lien on his appointment. The employer therein had on the ninth day of absence without prior intimation informed the employee that he was deemed to have left service and had lost lien over the post. According to the employee therein, he had attempted to join duties on various occasions prior to expiry of eight days but was prevented from doing so. In that background, it was held that the principles of natural justice would have to be read into said Standing Orders or else it would be rendered arbitrary inasmuch as no opportunity of any nature had been given to said employee. The Industrial Tribunal in said case without recording any finding in that regard had held that under the Standing Orders, the management was justified in terminating the services of the employee. The Industrial Tribunal in said case without recording any finding in that regard had held that under the Standing Orders, the management was justified in terminating the services of the employee. In the present case, as noted above, four notices over the span of three years were issued to the petitioners seeking their explanation for absence and calling upon them to join their duties. There was no response in that regard. The principles of natural justice thus stood complied. It is further not the case of the petitioners that they were prevented from joining their duties. Moreover, the period of absence in above referred decision was for nine days while under Rule 16(3) of the Rules, it is for a period exceeding three years. Hence, the aforesaid judgment would not apply to the facts of the present case. 13. It is, therefore, clear that the learned Presiding Officer rightly held that in terms of provisions of Rule 16(3) of the Rules 1981, the petitioners had abandoned their duties. In view of aforesaid discussion, it cannot be said that any error was committed by the School Tribunal while dismissing the appeals preferred by the petitioners. 14. In view of aforesaid, no case for interference has been made out. The petitions accordingly stand dismissed. Rule stands discharged in both the writ petitions with no order as to costs.