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2019 DIGILAW 1116 (ALL)

State of U. P. v. State Public Services Tribunal

2019-04-29

K.J.THAKER, SUDHIR AGARWAL

body2019
JUDGMENT : 1. Judgment dated 19.1.2017 having been recalled vide order of date passed on Recall Application, the writ petition is restored to its original number. 2. Heard Sri Narendra Kumar, Advocate, holding brief of Sri Akhilesh Kumar, learned counsel for petitioners and perused the record. 3. This writ petition is directed against order dated 4th September, 2003 passed by State Public Services Tribunal partly allowing claim petition filed by respondent 2. 4. District Basic Education officer, Basti (hereinafter referred to as "DBEO") terminated petitioner on the ground of absence. Tribunal has found that claimant-respondent Ambika Prasad Mishra continued to remain absent. It was a misconduct and as stated in para 7 of counter affidavit that departmental inquiry was contemplated, petitioners ought to have held disciplinary inquiry and after completion thereof, may be ex parte, if claimant-respondent was not cooperating, could have passed appropriate order, but, without such an inquiry, termination founded on continuous absence amounts to dismissal or removal and without completing disciplinary proceedings, such termination is not permissible. 5. Brief facts giving rise to present dispute are that Ambika Prasad Mishra claimant-respondent was appointed as Assistant Teacher at Primary School Nagarhara, Block Basti Sadar, District Basti on 29.1.1964. He was promoted in Junior High School as Assistant Teacher on 7.1.1969. On promotion he was posted at Junior High School, Lalganj, District Basti wherefrom he was transferred to Junior High School Mohason, Block Basti Sadar, District Basti. Thereat, he remained absent for 21 days from December, 1983 to January 1984 when an inspection was made by Assistant District Basic Shiksha Adhikari (hereinafter referred to as "ADBSA"). The petitioner was suspended and further transferred to Junior High School Sitarampur, Block Berdpur, District Basti and relieved on 22.7.1985 to join at transferred place. However, he did not report at the transferred place. District Basic Education Officer issued a letter dated 15.7.1992 stating that claimant-respondent being absent for 8 years is not entitled for salary. In the meantime, claimant-respondent filed Claim Petition No. 297 of 1991 which has been allowed by Tribunal vide judgment and award dated 4.9.2003, impugned in the present writ petition. 6. Learned counsel appearing for petitioner submitted that under Fundamental Rule 18, if an employee has remained absent for more than five years, his services are liable to be treated to have been terminated and it is this provision, which was relied by DBEO. 7. 6. Learned counsel appearing for petitioner submitted that under Fundamental Rule 18, if an employee has remained absent for more than five years, his services are liable to be treated to have been terminated and it is this provision, which was relied by DBEO. 7. We find that Fundamental Rule 18 itself came up for consideration before Supreme Court in State of Assam v. Akshaya Kumar, AIR 1976 SC 37 . There was a provision under Fundamental Rule 18 that a Government servant who remains continuously absent for a period of five years or more would automatically seize to be in service. A contention was raised on behalf of the employer that cessation of service or termination under the aforesaid rule is neither removal nor dismissal if the employee remains absent for a period of five years or more. Rejecting this contention, Court held that cessation on account of continuous absence would in substance and effect stay on the same footing as removal of service within the contemplation of Article 311(2) of the Constitution of India, particularly when it is against the will of the employee who is willing to serve or who had never lost animus to rejoin duty on the expiry of his leave. It was also held that the unauthorized absence is nothing but a ground personal to an employee involving imputation, which may conceivably be explained by him and therefore it is a removal of service and is not permissible without complying the provision of Article 311 (2) of the Constitution of India. Therefore, it cannot be doubted now that a termination on account of absence is removal on account of alleged misconduct and hence penal in nature. An employee cannot be punished without complying the principle of natural justice. In the case of Government servants, since a procedure is prescribed under the rules to hold inquiry, any action without complying the said procedure is illegal and unsustainable. 8. Similar issue in respect of pari materia provision again was considered in Jai Shankar v. State of Rajasthan, AIR 1966 SC 492 , Court held that a Government cannot order a person to be discharged from service without at least telling him that they propose to remove him and give him an opportunity of showing cause why he should not be removed. 9. 9. Learned counsel for petitioner next submitted that it is case of 'abandonment' due to long absence and therefore, it was justified on the part of DBEO to treat that claimant-respondent has abandoned the job and on this aspect has placed reliance on following authorities: A. M/s. Jeewan Lal (1929) Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1957, wherein Court held: "... if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cause a break in the continuity of service.......we would like to make it clear that....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." B. Shahoodul Haque v. The Registrar, Cooperative Societies, Bihar and another, AIR 1974 SC 1896 , wherein Court observed: "The undenied and undeniable 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. On the view we have adopted on the facts of this case, it is not necessary to consider the further question whether any notice for termination of services was necessary or duly given on the assumption that he was not punished. We do not think that there is any question involved in this case which could justify an interference by us....." C. State of Haryana v. Om Prakash and another, (1998) 8 SCC 733 , wherein Court observed: "Retrenchment within the meaning of Section 2(oo) means termination by the employer of the service of the workman for any reason whatsoever. Therefore, it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression "retrenchment" in Section 2(oo) of the Act. There was nothing of the sort in the instant case. Therefore, it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression "retrenchment" in Section 2(oo) of the Act. There was nothing of the sort in the instant case. It was the workman who ceased to report for duty.... nothing whatsoever to put an end to his employment and hence the case does not fall within the meaning of Section 2(oo) of the Act. Therefore, the case does not attract Section 2(oo), nor does it satisfy the requirements of Section 25-F." D. Buckingham & Carnatic Co. Ltd. v. Venkatiah and others, AIR 1964 SC 1272 wherein Court observed: "It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to all employee without adequate evidence in that behalf." E. G.T. Lad and others v. Chemicals and Fibres India Ltd., AIR 1979 SC 582 , wherein similar view has been taken. F. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another, AIR 2000 SC 2198 ; and Aligarh Muslim University and others v. Mansoor Ali Khan, AIR 2000 SC 2783 , 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 ceased 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. G. V.C. Banaras Hindu University and others v. Shrikant, AIR 2006 SC 2304 : (2006) 11 SCC 42 , wherein Court has taken the similar view. 10. A bare perusal of above authorities clearly shows that the same pertain to cases of employer and employee, wherein the employer is an 'industry' and terms and conditions were governed by Labour Laws applicable to the industrial establishments. 11. In the present case, petitioners have taken recourse to Fundamental Rule 18 applicable to Government servants i.e. employees governed by statutory provisions. 11. In the present case, petitioners have taken recourse to Fundamental Rule 18 applicable to Government servants i.e. employees governed by statutory provisions. It is not in dispute that claimant-respondent is also governed by statutory provisions. Moreso, abandonment presupposes an intention to leave the job. 12. In a recent case i.e. Manju Saxena v. Union of Indian and others, (2019) 2 SCC 628 , concept of 'abandonment' has been considered and relying on a three Judges judgment in The Buckingham & Carnatic Co Ltd. v. Venkatiah and others, (1964) 4 SCR 265 , Court has observed that abandonment of service can be inferred from the existing facts and circumstances which prove that the employee intended to abandon service. 13. In The Buckingham & Carnatic Co. Ltd. v. Venkatiah and others (supra) Court said: "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." (emphasis added) 14. Court has further held that for the purpose of 'termination' there has to be positive action on the part of Employer while 'abandonment' is a consequence of unilateral act on behalf of employee and Employer has no role in it. Such an act may be termed as "retrenchment from service" 15. In Vijay S. Sathaye v. Indian Airlines Ltd. and others, (2013)10 SCC 253 , while considering concept of 'abandonment', Court has also observed that if a statute provides for approval of higher Authority, the order cannot be given effect to unless it is approved and the same remains inconsequential and unenforceable. Court relied on its earlier decision in Sant Lal Gupta and others v. Mordern Cooperative Group Housing Society Ltd. and others, (2010) 11 SCC 336. 16. In the present case, we find that plea of Employer is not that employee has abandoned his job but DBEO has infact terminated claimant-respondent treating his continued absence as 'misconduct' and therefore, plea of 'abandonment' in the present case, in our view, is not permissible to be taken by petitioners. 16. In the present case, we find that plea of Employer is not that employee has abandoned his job but DBEO has infact terminated claimant-respondent treating his continued absence as 'misconduct' and therefore, plea of 'abandonment' in the present case, in our view, is not permissible to be taken by petitioners. Moreso, statutory provisions do not provide that an employee can give up his job as and when he likes and there has to be an order passed by competent appointing authority to discontinue with relationship of employer and employee, when relationship is governed by statute and employment is a matter of status, and hence law laid down by Supreme Court in State of Assam v. Akshaya Kumar (supra), in our view, will be applicable. 17. We, therefore, find no reason to interfere with the judgment of Tribunal, which is consistent with the provisions of law applicable to Government servants and in particular Fundamental Rule 18. 18. Writ petition lacks merit. Dismissed. 19. Interim order, if any, stands vacated.