JUDGMENT V.K. Shukla, ACJ. Mukhya Pariyojna Prabandhak, U.P. Rajya Setu Nigam Ltd. Lucknow as well as U.P. Pariyojna Prabandhak Setu Nirman Ekai, 26 Kasturba Gandhi Marg, Allahabad are before this Court assailing the validity of judgement and order dated 07.04.2016 passed by learned Single Judge in Writ Petition No.39597 of 1998 (Shiv Nath Kushwaha vs. Mukhya Pariyojna Prabandhak and others) wherein learned Single Judge has proceeded to allow the writ petition in question with further follow up directions. 2. Brief background of the case is that Petitioner-opposite party was employed as Electrician in the respondent corporation in 1982. He was posted at different places from time to time and on 25.9.1999, he was deputed to work at Central Workshop of the respondent corporation at Allahabad. It appears that in December, 1996, he was transferred from Allahabad to Pratapgarh. A representation appears to have been made by the petitioner-opposite party against the order of transfer on 18.4.1997 on the ground that he is suffering from illness and he is being attended by doctors at Allahabad. Another representation was also given by petitioner-opposite party's wife. This much is reflected that Minister, Khadi and Gram Udhyog addressed a letter to the Deputy Project Manager of the Corporation for cancelling the order of transfer and thereafter an order was passed by the said Authority directing for cancellation of aforesaid transfer order and for posting the petitioner-opposite party at Ganda Nala Mahavir Setu, Allahabad. 3. Respondent-appellant have come up with the case that petitioner-opposite party did not report for duty and ultimately, a notice was published in the local daily newspaper 'Dainik Jagaran' on 22.7.1997, informing the petitioner-opposite party that he has remained absent from duty w.e.f. 16.12.1996 and that no reasons for absence has been disclosed and as a last opportunity 15 days' time is allowed to the petitioner-opposite party to report for duty. Petitioner-opposite party responded to the said notice by submitting that he is continuously working in the Corporation and the statement of of fact disclosed in the notice that he has remained absent from December, 1996, is factually incorrect. It was also stated by petitioner-opposite party that he has been paid salary till 20.4.1997 and the said fact itself reflected that incorrect statement of fact has been mentioned that he is not working since December, 1996. It was also stated by petitioner-opposite party that he has been paid salary till 20.4.1997 and the said fact itself reflected that incorrect statement of fact has been mentioned that he is not working since December, 1996. Mention has been made that petitioner-opposite party absented himself since 21.4.1997 and despite repeated letters petitioner-opposite party did not respond to the charge and termination letter dated 15.09.1997 has been sent informing the petitioner-opposite party that his services has been dispensed with on account of absence w.e.f. 21.04.1997. Petitioner-opposite party, at the said juncture, had filed Writ Petition No.39597 of 1998 (Shiv Nath Kushwaha vs. Mukhya Pariyojna Prabandhak) and initially the Writ Petition in question was dismissed on the ground of alternative remedy and thereafter Special Appeal in question has been filed and the Special Appeal in question was allowed and the matter was remitted back to be decided afresh. Para 3 to 5 of the judgement delivered in Special Appeal is reproduced below: "3. Learned counsel appearing on behalf of the appellant submits that no disputed issues of fact are sought to be raised and three questions, purely on law, are sought to be advanced, namely, (i) no charge sheet was issued to the appellant and since the dismissal was on account of misconduct involving an absence from duty, a disciplinary inquiry ought to have been convened but it was not held; (ii) if the termination is simplicitor, in any event, it would amount to retrenchment and in the absence of retrenchment compensation, the action was invalid; and (iii) the termination with retrospective effect was unlawful. 4. Since the petition was pending before this Court for nearly 15 years, there would be a manifest miscarriage of justice to relegate the appellant to raise an industrial dispute at this belated stage. Since it has been clarified before the Court that pure questions of law, as recorded above, are only sought to be raised before the Court, we are of the view that it would be appropriate to allow the special appeal and restore the writ petition to the file of the learned Single Judge for disposal afresh. 5. We, accordingly, allow the special appeal, set aside the impugned judgement and order dated 8 October 2013 and restore Writ A No. 39597 of 1998 to the file of the learned Single Judge for disposal afresh. 5. We, accordingly, allow the special appeal, set aside the impugned judgement and order dated 8 October 2013 and restore Writ A No. 39597 of 1998 to the file of the learned Single Judge for disposal afresh. We clarify that we have kept open all the rights and contentions of the parties on merits of the petition to be urged before the learned Single Judge." 4. Thereafter this much is reflected that records have been produced before this Court and the matter has been heard on merits resulting in allowing the Writ Petition and thus impelling the appellants to be before this Court by way of intra-court appeal. 5. Shri P.N. Saxena, Learned Senior Advocate assisted by Shri Mukesh Kumar Kushwaha, Advocate submitted that in the present case the Learned Single Judge has clearly misread the provisions of the standing order and has wrongly allowed the Writ Petition in question whereas the case in hand, on its face value, is one of deemed abandonment from service, in view of this, Special Appeal deserves to be allowed. 6. Shri B.N. Singh, Advocate has submitted that learned Single Judge has rightly proceeded to declare the action of the respondent-appellants being illegal as here accepted position is that dispensation of service has been done from retrospective date and once misconduct had been attributed, then it ought to have been preceded with enquiry, in view of this, Writ Petition in question has been rightly allowed in the facts of case and Special Appeal deserves to be dismissed. 7. After respective arguments have been advanced, the factual situation that so emerging is that petitioner-opposite party has absented himself from service since 21st April, 1997. This much is also clear that a notice was published in local daily newspaper ‘Dainik Jagaran’ on 22.7.1997, informing the petitioner-opposite party that he has remained absent from duty w.e.f. 16.12.1996 and that no reasons for absence has been disclosed and as a last opportunity 15 days’ time is allowed to the petitioner-opposite party to report for duty. Petitioner-opposite party filed his reply dated 17.07.1997 wherein he has proceeded to submit that he was continuously working in the Corporation and in lieu of the same, his salary has also been paid to him till 20.04.1997. Petitioner-opposite party filed his reply dated 17.07.1997 wherein he has proceeded to submit that he was continuously working in the Corporation and in lieu of the same, his salary has also been paid to him till 20.04.1997. This reply has been responded by the respondent-appellant vide reply dated 28.08.1997 mentioning therein that date ‘16.12.1996’ in the notice published in newspaper contained a typographical error and the correct date of absence of petitioner-opposite party is w.e.f. ‘21.4.1997’. It has also been stated that since petitioner-opposite party has remained absent with effect from 21.4.1997, therefore, no question arises for payment of salary. The reply dated 28.8.1997 has also been responded by the petitioner-opposite party on 3.10.1997, upon which an endorsement has been made that services of petitioner-opposite party has already been terminated, but the order of termination has not been received/accepted and as such the notice is based on incorrect facts. This much is also reflected that thereafter the order of termination dated 15.09.1997 has been brought on record and same records statement of fact to the effect that petitioner-opposite party without any information has unauthorisedly remained absent since 21.04.1997 and petitioner-opposite party has not responded to various communications send, in view of this, presumption is that petitioner-opposite party is not desirous of working in the corporation, and consequently his services are terminated in exercise of authority conferred under Clause L-2-12 of the standing orders w.e.f. 21.04.1997. At this juncture, the relevant provision relied upon namely Clause L-2-12 of the standing order is being extracted below: - “L-2-12. Any workman who remains absent from duty without leave or in excess of the period of leave originally sanctioned or subsequently extended for more than 13 consecutive days, he shall be deemed to have left the services of the corporation on his own accord, without notice, there by terminating his contract of service with the corporation and his name will accordingly be struck of the rolls.” 8. A bare perusal of the aforementioned clause would go to show that the said Standing Order governs the service conditions of petitioner-opposite party and same is statutorily imposed condition of service and as per the aforementioned clause if an incumbent, who remains absent from duty without leave or in excess of the period of leave originally sanctioned or subsequently extended for more than 13 consecutive days, he would be deemed to have left the services of the corporation on his own accord, without notice, thereby his services would be terminated with the corporation and his name will accordingly be struck of the rolls. 9. Apex Court in the case of U.P. State Bridge Corporation vs. U.P. Rajya Setu Nigam, Civil Appeal No.443 of 2004 has taken the view that under CSO L-2 12 a presumption is to be drawn against an employee if such employee is unauthorizedly absent. CSO L-2-12 raises a presumption against the employee and it is for the employee to rebut that presumption by adducing the evidence. It is therefore imperative that the factual basis is determined by the appropriate forum. Merely because the action is punishable does not mean that the consequence of an unauthorized absence is not available under the CSO (Certified Standing Orders) if it so specifically provides. 10. Consequences of unathorized absence is clearly available to the employer under CSO but said consequences are rebuttable by the employee by providing evidence and on said score when issues are raised, then it is bounden duty of the forum invoked to take a call and answer the issue as to whether the case in hand is one of abandonment of service or a case of misconduct where enquiry ought to have been preceded before taking final decision for dispensation /disengagement of service. 11. Now coming to the facts of present case the record in question reflects that service of petitioner-opposite party has been shown to be dispensed with from the date 21.04.1997 i.e. the date after which he has not worked. W.e.f. 21.04.1997 if without leave or in excess of period of leave originally sanctioned or subsequently extended for more than 13 consecutive days, the incumbent remains absent from duty then presumption can be drawn that incumbent has left the service. 12. W.e.f. 21.04.1997 if without leave or in excess of period of leave originally sanctioned or subsequently extended for more than 13 consecutive days, the incumbent remains absent from duty then presumption can be drawn that incumbent has left the service. 12. Here, the factual situation that is so emerging in the present case that the impugned order of termination of service that is being described as 'abandonment' therein the said abandonment has started w.e.f. 21.04.1997 whereas abandonment can be presumed after the expiry of 13 days as per the terms and conditions of the clause. Here most surprisingly termination has been made from a retrospective date i.e. 21.04.1997. 13. The law on the subject is clear, see Kumaon Motor Owner Union Ltd. vs. State of U.P. 1994(2) UPLBEC 106 that there cannot be any retrospective date of dispensation of service as has been done in the present case. 14. In the present case, what we find from the judgement of learned Single Judge that petitioner-opposite party was making all efforts to ensure his place of posting being restored to Central Workshop at Allahabad though there were orders passed in favour and in view of this, the dispute in question has been emanating on the spot. The allegations against the petitioner-opposite party was that without any leave he has unauthorisedly absented himself. Petitioner-opposite party has been candid that once transfer order has been rescinded, then he should be permitted to work at particular place. Petitioner-opposite party, in the present case, before the Learned Single Judge has successfully demonstrated that case in hand by no stretch of imagination would fall in the category of abandonment of service, and learned Single Judge has also formed opinion, that allegation in essence, in the facts of the case was of unauthorizedly remaining absent from duty. 15. Such act, in terms of the applicable Standing Orders, amounted to misconduct. In case it was done for the first time it amounted to minor punishment, but if it was habitual it warranted imposition of major penalty. Clause P of the Standing Orders defines misconduct. It is further sub-divided into minor misconduct or major misconduct. Clause P-1(9) and P-2(5) are being reproduced: - "P-1. Minor Misconducts (9). Absence without permission. P-2. Major Misconducts (5). Habitual late attendance/Habitual absence without permission." 16. Clause P of the Standing Orders defines misconduct. It is further sub-divided into minor misconduct or major misconduct. Clause P-1(9) and P-2(5) are being reproduced: - "P-1. Minor Misconducts (9). Absence without permission. P-2. Major Misconducts (5). Habitual late attendance/Habitual absence without permission." 16. Once such is the factual situation that clause L-2-12 had wrongly been invoked and as per the standing order P-1 (9) and (-2 (5) it was misconduct, then inquiry ought to have been done and learned Single Judge, in the present case, has rightly considered at the point when he has proceeded to quash the orders dated 15.09.1997 and 16.08.1998 by leaving it open to the respondent-appellant to initiate disciplinary proceedings against petitioner-opposite party and the back wages to abide by the outcome of the same. Special Appeal is dismissed accordingly. No order as to cost.