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Judgment
The petitioner was working with the respondent Bank. He was transferred somewhere in 1986 from one place to another. He filed a writ petition in the Court which was dismissed, thereafter he applied for leave. Leave as granted but still he did not join the duty after expiry of the period of leave, consequently he was placed under suspension on 3rd September, 1986. A charge-sheet was also served and an enquiry was initiated. Ultimately he filed Writ Petition No. 16686 of 1989 by which he claimed subsistence allowance at the rate of 100%. An order was passed by this Court on 29-11-1989 directing the second respondent to pay 100% subsistence allowance to the petitioner. The petitioner states that during the year 1990 he suffered serious sickness and was under treatment at NIMS, Hyderabad from February, 1990 onwards as in-patient and some time as out-patient. He further states that in pursuance of the order of the High Court dated 29-11-1989 he was receiving 100% subsistence allowance but this allowance was stopped and he approached the management where he was informed that his name has been struck off from the rolls and he has no-longer in service. He states that, with great difficulty he got a copy of the proceedings issued by the third respondent on 19th February, 1991. He further states that prior to this notice he had not received any other order or notice from the respondents. This communication he obtained in the year 1991 itself, according to the petitioner, but he filed this Writ petition in the year 1996 and challenged this communication by the medium of this Writ petition. The stand taken by the petitioner for being late by about five years is that, he had given the papers to the Union who misplaced the papers somewhere and therefore he could not approach the Court for about five years. This is a serious lapse, from 1991 the petitioner was not receiving any remuneration, he was in know of the fact that in the year 1991 his services had been dispensed with for his prolonged absence and his dispensation was termed, in accordance with rules, as voluntary retirement, but still, he did not enquire for five long years as to what has happened to the letter which he had given to the Union which was challenged in this petition. In my view, the delay of five years has not at all been explained and this Writ petition is liable to be dismissed on this count alone, but the matter has been heard at length therefore this Court would like to consider the petition on merits as well.
The impugned order reads as under:
"We advise that you are absenting from duty unauthorisedly since 7-6-1990. In this connection, please refer to the Memorandum No.F.25, dated 5-12-1990 sent to you to your last recorded address by registered A.D. post calling upon you to report for duty within 30 days of that notice.
(2) Now that you have failed to report for duty by 4-1-1991 it is deemed that you have voluntarily retired from service on 4-1-1991. You are hereby called upon to pay to the Bank within 15 days of the date of this notice, one month''s pay and allowances in lieu of notice failing which the Bank will be constrained to file a suit for recovery of the same without prejudice to its right to set off terminal dues and any other amounts that may be due to you towards satisfaction of the amounts you are required to pay to the Bank."
This order is merely a communication that the petitioner has abandoned his service, in accordance with bipartite agreement. Clause 17 of Bipartite agreement reads as under:
"17. Voluntary cessation of Employment by employees :--The earlier provisions relating to the voluntary cessation of employment by the employee in the earlier settlements shall stand substituted by the following :
(a) When an employee absents himself from work for a period of 90 or more consecutive days, without submitting any application for leave or for its extension or without any leave to his credit or beyond the period of leave sanctioned originally/subsequently or when there is a satisfactory evidence that he has taken up employment in India or when the management is reasonably satisfied that he has no intention of joining duties, the management may at any time thereafter give a notice to the employee at his last known address calling upon him to report for duty within 30 days of the date of the notice stating inter alia the grounds for coming to the conclusion that the employee has no intention of joining duties, the employee will be deemed to have voluntarily retired from the bank''s service on the expiry of the said notice. In the event of the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within 30 days from the date of the expiry of the aforesaid notice without prejudice to the bank''s right to take any action under the law or rules of service."
By bare perusal of clause 17 of bipartite agreement it becomes abundantly clear that, if an employee absents for more than 90 days without submitting an application for leave he shall be given a notice of 30 days to report back for duty and also explain his absence, in the event of giving a satisfactory explanation for his absence, the management may permit him to join duty and in the absence of a satisfactory explanation he shall be deemed to have retired voluntarily from service.
On facts there is no dispute in this case. The petitioner absented himself without applying for leave. His order of suspension had been revoked by the management as has been stated in the counter affidavit on 14-5-1990 and he was directed to report for duty at Venukonda branch. This order was sent through registered post which was acknowledged by petitioner''s wife on 19th July, 1990. The order was sent on the residential address of the petitioner. The petitioner had been reinstated, he was informed about it on his residential address, the order has been received by his wife, therefore there can be no dispute over the fact that petitioner knew that he had been reinstated but he failed to join at Vinukonda branch and did not even apply for leave and remained absent continuously. After he was reinstated, subsistence allowance which was being paid to him under the orders of the High Court was also stopped. Therefore, there was no doubt that the petitioner had been reinstated and it had been communicated to him. When he did not join after receiving the notice on 19-7-1990, the respondents served another 30 days notice under registered cover on 5-12-1990 which was acknowledged by the petitioner himself on 7-12-1990. This has been stated in the counter affidavit and it has not been denied by the petitioner. Inspite of this notice the petitioner failed to join duty nor explained his absence in terms of clause 17 of the Bipartite agreement. Thereafter, on 19-2-1991 the impugned communication was communicated to him. It was also acknowledged by the petitioner himself on 21st February, 1991. It took him five years to challenge this communication in this Court.
Two grounds were agitated by the learned Counsel for the petitioner before this Court while challenging the impugned order. Firstly he contended that the order was passed by respondent No. 3 who was not appointing authority of the petitioner therefore lie could not pass the order. Secondly it was contended that, no action could be taken against the petitioner in terms of clause 17 of the bipartite agreement even if the petitioner had remained absent without applying for leave unless an enquiry was conducted.
Coming to the first argument that the order was passed by a person who was not competent to pass such an order, the learned Counsel for respondents submits that it was not a fact that the order has been passed by the 3rd respondent, the third respondent merely communicated the decision which had been passed by the 2nd respondent in terms of the bipartite agreement. This has not been denied by the petitioner therefore this argument fails.
Now coming to the second argument, the petitioner had relied on various judgments, one of the judgments is Uptron India Ltd, v. Shammi Bhan, 1998 LAB IC 1545. A rule similar to the Bipartite agreement clause 17 was interpreted by the Supreme Court in this judgment. In that case, following Standing Order was being interpreted by the Supreme Court:
"The services of a workman are liable to automatic termination if he overstays on leave without permission for more than seven days. In case of sickness, the medical certificate must be submitted within a week."
The person aggrieved in that case over stayed leave and following order was passed against her:
"The services of Ms. Shammi Bhan, Token No. 158, Operator ceased automatically from Uptron Capacitors Ltd., Lucknow with immediate effect, in accordance with the Clause 17(g) of the Certified Standing Orders of Uptron Capacitors Limited."
The Supreme Court was of the view that unless a chance is given to the aggrieved person to explain the absence there cannot be automatic termination of service because there might be reasons well beyond the control of the aggrieved person for overstaying leave. Unless that material is brought to the notice of the appointing authority and he has a chance to consider that material the termination will be violative of Article 14. In para-20 of the judgment the Supreme Court held:
"20. There is another angle of looking at the problem. Clause 17(g) which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that "the services are liable to automatic termination." This provision therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It is obvious that this discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave; why he overstayed the leave; was there any just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave; whether any medical certificate was sent if he had, in the meantime fallen ill? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave, who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave."
In this case the Supreme Court also relied on a judgment in D.K. Yadav v. J.M.A. Industries Ltd., 1993 AIR SCW 1995, in which case it was held that the services of an employee who overstays the leave if treated to have been automatically terminated would be bad and violative of Articles 14, 16 and 21 of the Constitution. Ultimately in para 25 the Supreme Court laid down that, any clause in the Standing orders providing for automatic termination of service would be bad if it does not purport to provide an opportunity of hearing to the employee whose services are treated to have come to an end automatically.
Another judgment which was relied upon by the petitioner is D.K. Yadav v. J.M.A. Industries Ltd, 1993 (II) LLJ SC 698. This is a judgment which has been referred by the Supreme Court in judgment (supra). A similar rule was being interpreted in this judgment also and in this case also the Supreme Court held that, before automatic termination is effected, reasonable opportunity of presenting a case should be given to a delinquent official and the authority should act fairly, justly, reasonably and impartially.
The petitioner also relies on a judgment of a Division Bench of this Court being Chief Engineer, Chief Engineer, Central Zone, Andhra Pradesh State Electricity Board, Vijaywada and Others Vs. K. Naga Hema, , in which the Court said that, unauthorised absence of a person is an allegation wluch could lead to a charge of misconduct on the part of an employee. When such a charge is levelled the employer is duty bound to enquire into the alleged misconduct. While going through this judgment I found that there was no rule of automatic termination or automatic retirement, as in the present case or in the cases referred to herein above which were before the Supreme Court, was before the Division Bench. Therefore, this judgment is not at all applicable to the facts of the present case.
Another judgment on which reliance has been placed is Jai Shanker Vs. State of Rajasthan, . This is a judgment by the Constitution Bench of the Supreme Court. A similar rule was being interpreted in this judgment also. The rule is reproduced below:
"An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."
Justice Hidayatullah as His Lordship then was speaking from the Court, while interpreting this rule found that, before this rule could be acted upon, a show-cause notice was a must. Although the rule states that the petitioner on showing reasonable cause for his absence could be reinstated, but the Court found that, before dismissal a show-cause notice was a must, and it held:
"Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying one''s leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharged or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one''s leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it."
In view of the clear pronouncement of the Constitution Bench as mentioned above and in view of the fact that this view has been consistently taken by the Supreme Court even upto 1998, the following law crystalises that, a regulation or rule prescribing automatic termination or retirement from service for unauthorised absence is not bad perse, the only requirement before giving effect to such a regulation is that, an opportunity of explaining has to be given to the delinquent officer. The regulation with which this Court is concerned presently takes care of it in itself where it postulates that a thirty days notice has to be given before regulation is given effect to, and in the present case notice was served which was acknowledged by the petitioner. Since he did not respond the requirement of natural justice and requirement of law as laid down by the Supreme Court were fulfilled. Since the petitioner did not chose to reply to the notice given to him and received by him, this Court cannot uphold the argument made by the learned Counsel for the petitioner.
For these reasons, I do not find any merit in this Writ petition which is accordingly dismissed. No costs.