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Judgment
Writ petition has been submitted praying for quashing termination order No: 23IMS1987 dated 19.10.1987 The main submissions made in the
petition are that the petitioner was appointed as Lecturer in SheriKashmi Institute of Medical Sciences, Srinagar Petitioner proceeded on four days
casual leave on 07051986 and then ex tended the leave by a telegram. No re ply was received to convey that the leave had been sanctioned. The
petitioner continued to be on leave, presuming that his leave has been sanctioned. The petitioner returned from his leave on 27.10.1986. he was
not permitted to join. Petitioner again approached die not permit him to join his duty. The when the petitioner ultimately approached respondents
on 07071991 he came to know that his service has been terminated vide Order dated 19101987. Petitioner further submits that no notice was
served on him, no enquiry was conducted before his service were terminated in an arbitrary, irrational manner in violation of principles of natural
justice and the rights guaranteed by the Constitution. The petitioner, or these grounds, submits that the impugned order be quashed.
While admitting that the petitioner was employed as Lecturer In SheriKashmir Institute of Medical Sciences, Srinagar, the stand and submissions
of respondents is that the petitioner applied for four days casual leave on 01051986. The petitioner, on expiry of his casual leave, was to join his
duties on 11 051986 but the petitioner did not resume his duties and submitted a telegram for extension f 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/514/989808 dated 07081986 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 form him, a
charge sheet was framed against the petitioner under No: SKIMS/Per/514/ 812351 dated 31.12.1986 requiring him to show cause as to why
disciplinary action for unauthroised 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.
Subsequently another show cause notice was issued through publication in Government Gazettee dated 21.05.1987 and as no reply was submitted
by the petitioner to this notice and 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, with fully and intentionally absconded, leaving no followup 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.
Heard Learned Counsel for the parties at length, considered the submissions and perused the record.
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 07.05.1986, it is also admitted by the petitioner that he did not report on duty till 20.02.1987 i. e for more than nine months.
It seems that he assertions of the petitioner, that he approached respondents to allow him to join his duty on 20.02.1987 but the respondents
refused to permit him to join his duties, does not seem to be based in any convincing material on record, is rejected for multiple reasons.
There is nothing, by way of any ' official record, communication or joining report to indicate that the petitioner had actually approached the
respondents on 20.02.1987, seekingpermission to join his duties and that respondents refused to allow the petitioner to I 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 redresseal 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 has to wait more than four years to file this writ petition.
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 20021987, 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.
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 unauthorised absence 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 Vs. State and others, SLJ 1997, 266, which is reproduces as under:
...But there could be cases where an employee's 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 an delinquent employee can stay away from duty for years
on and return one day at the fag end and cash on the employer's omission to put him on notice or to pass a formal order which could result in his
reinstatement on 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. It 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.
In the instant case, it is admitted by the petitioner that he stayed away from duty right from 07.051986 till 19991. 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.
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
dispatched 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 settled proposition of law that in these circumstances the
petitioner cannot take advantage of his own concealments and suppression of facts and claim protection under principles of natural justice.
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 voluntarily retired from service Hence, termination of his service without holding any departmental enquiry, held \, was not
violative of principles of natural justice.
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 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 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."" The petitioner has, by his willful absence surrendered his right of employment and cannot claim any benefit because
of his own fault. Therefore, the writ petition has not merit and is accordingly dismissed. Under the peculiar circumstances of this case, there is no
order as to costs.