Municipal Corporation of Greater Bombay and Others vs Pradip Shyam Kanekar

Pendse, J.—The Municipal Corporation of Greater Bombay has preferred this appeal to challenge the legality of judgment dated February 18, 1993 delivered by learned single Judge in Writ Petition No. 3776 of 11987. By the impugned judgment, the learned Judge set aside the decision of the Municipal Corporation that the respondent has ceased to be in service and directed that the respondent should be reinstated in service but without any back wages or other emoluments for the period commencing from February 1, 1985 till the date of reporting for duty. The facts which gave rise to the passing of this order are not in dispute and a re required to be briefly stated to appreciate the grievance of the appellants.

The respondent was appointed as an acting peon in a temporary capacity with effect from December 7, 1979. The respondent worked for a period of 4 years, 6 months and 25 days and remained absent from July 2, 1984 onwards. By letter dated July 12, 1984, the Corporation informed the respondent to resume duty. The letter also recites that if the respondent failed to report for duty, action will be taken. The respondent then for warded an application on July 16, 1984 applying for earned leave from July 2, 1984 till September 30, 1984 on medical ground. The respondent also produced a certificate from his private Doctor. As the leave sought was for a period in excess of two months, the Municipal Medical Examiner was directed to examine the respondent by visiting the residence, if necessary. The Municipal Medical examiner was also directed to confirm the certificate produced by the respondent from his private Doctor. Accordingly, the Medical Examiner visited the residence of the respondent and found that the respondent was not available. The Corporation then called upon the respondent to attend the office by memo dated September 1, 1984 and to collect the necessary forms for appearing before the Municipal Medical Examiner. The respondent did not care to carry out the direction but merely asked the Corporation to extend leave from time to time. The application was rejected and the leave sought by the respondent was never sanctioned.

The Corporation by another memo dated November 20, 1984 directed the respondent to attend office and collect the necessary forms for appearing for medical examination before Municipal Medical Examiner. again the respondent did not care to carry out the directions. The Corporation further requested the Municipal Medical Examiner to visit the residence of the respondent and, accordingly, on January 8, 1985, the Municipal Medical Examiner visited the residence and after examining the respondent submitted report revealing that the respondent was not suffering by any disease whatsoever and was healthy and fit for resuming the service. The Corporation then realised that the respondent was making false claims to remain away from duty and had lost interest to serve the Corporation.

The respondent being a temporary employee under revised Municipal Service Rules, the total leave available to the respondent was :

(a) Earned Leave for 21 days,

(b) Leave without pay for 137 days,

(c) Half pay leave for 20 days, and

(d) Leave without pay for a period of 43 days.

The Corporation, in accordance with the Rules, adjusted the said leave from July 2, 1984 till February 7, 1985. The Municipal Service Regulations are framed by the Municipal Corporation in exercise of powers conferred u/s 81 of the Bombay Municipal Corporation Act and Regulation 19E reads as under :

"After continuous absence from duty to the extent of all leave with or without pay admissible under the Municipal Service Regulations, a temporary Municipal Servant shall automatically cease to be a Municipal Servant".

The respondent was accordingly informed by letter dated January 14, 1985 that respondent had ceased to be an employee, but the letter was returned with the postal remark "Not found".

On January 15, 1985, the Corporation received an application from the respondent for extension of leave from January 1, 1985 to end of January 19, 1985 on medical ground and sought permission to resume duty on February 2, 1985. Though the respondent ceased to be Municipal employee the corporation on humanitarian ground directed the respondent to appear before the Municipal Medical Examiner and to secure fitness certificate. The respondent then visited the office of the Corporation and collected the application form on February 4, 1985. The respondent thereafter did not care to appear before the Municipal Medical Examiner. The respondent took no steps for a period of almost five months and then on July 1, 1985 informed the Corporation that the respondent was undergoing treatment at K. E. M. Hospital. The Corporation made enquiries with the hospital authorities and realised that the respondent was never admitted to K. E. M. hospital at any time. Although the respondent and ceased to be Municipal employee, the Corporation with a view not to give any opportunity for complaint served a show cause notice dated September 13, 1985 upon the respondent setting out all the relevant facts and calling upon the respondent to show cause why action should not be taken under Regulation 19-E. Though the show cause notice was duty served on the respondent on September 17, 1985, the respondent did not care to replay to the notice. The Corporation, therefore, was left with no option but to inform the respondent that his service stands terminated by letter dated October 10, 1985.

The respondent then moved the Municipal Commissioner in July 1986 representing against the termination of the employee. The Municipal Commissioner, after considering all the facts, dismissed the representation on March 26, 1987. The respondent then preferred writ petition under Article 226 of the Constitution of India before learned single Judge in October, 1987.

The trial Judge by the impugned judgment held that the conduct of the respondent was not free from blame, but sympathetic view is required to be taken because the respondent was claiming that he was unwell. The learned Judge held that Regulation 19-E cannot be applied mechanically and if the employee remains absent for a reasonable cause, Regulation, at all, cannot be applied The trial Judge held that the representation or appeal was preferred by the respondent, but the Municipal Commissioner did not examine the case sympathetically On the strength of these findings, the trial Judge decided to set aside the order of termination of employee and reinstated the respondent in service. The trial Judge then declined to award back wages by holding that the respondent was at fault. The decision of the learned single Judge is under challenge at the behest of the Corporation.

Shri Bharucha, learned counsel appearing on behalf of the Corporation, submitted that it was improper for the learned single Judge to exercise writ jurisdiction on the undisputed facts and ignore the provisions of Regulation 19-E by taking into consideration imaginary sympathetic consideration. The learned counsel urged that an unwilling employee cannot be foisted upon the administration to the detriment of the administration. Shri Bharucha urged that the respondent remains absent from July 1984 and never cared to resume duty till the intimation was given on October 19, 1985 that employment of the respondent has come to an end.

Shri Bharucha wondered as to how administration can function if the temporary employee remained absent for more than one year and three months without any cause whatsoever. In our judgment, the submission on behalf of the appellants is sound and deserves acceptance. Sympathetic considerations are very well in case of lowly paid employee, but undeserved sympathy is not called for when an employee remains away from job for more than one year and the report clearly indicates that the claim of the employee that he was unwell is totally false. The facts unmistakably establish that the Medical Examiner of the corporation went to the resident of the employee on more than one occasion and found that the employee was absolutely in perfect health. The employee was a young man in his 30''s and we were informed at the Bar that the only complaint was some backache. Though the service of the employee stands terminated, in view of Regulation 19-E after exhausting all the permissible leave the corporation on humanitarian ground called upon the respondent to resume duty but the respondent failed to do so. Even then the corporation served show cause notice in September 1985 but to which the respondent did not care to reply It is impossible, in these circumstances, to appreciate how the order of termination of employee can be set aside.

Shri Parte, learned counsel appearing on behalf of the respondent, submitted that the claim of the corporation that the respondent was a temporary employee is not correct and the respondent should be deemed to be a permanent employee. The learned counsel did not dispute that the appointment letter clearly recites that the respondent was appointed as a temporary employee. The expression "temporary post" is defined under Regulation 8(19) and means post carrying a definite rate of pay sanction for a limited time. Shri Parte rightly conceded that the respondent was never made permanent by any; order passed by the corporation, nor the Regulation provides for automatic confirmation as a permanent employee. The only contention urged was that the respondent was in employment for a duration of four years and that should make respondent permanent. It is impossible to accede to the submission. A faint attempt was made to urge that the respondent was holding a permanent post because the respondent was appointed in a post which was vacant because of retirement of an employee We are unable to appreciate how the recruitment of the respondent on retirement of an employee will automatically make the respondent permanent employee or the appointment be treated as one to a permanent post The trial Judge also did not find any merit in the contention on this count.

The second contention of Shri Parte is that Regulation 19 provides that after five years continuous absence from duty whether with or without leave a Municipal servant ceases to be a Municipal employee Shri Parte referred to Rule 10 of Municipal Service Rules and which inter alia provides that extra-ordinary leave may be granted to any Municipal servant in special circumstances Sub-rule (2) provides that in case of a temporary employee the duration of extraordinary leave should be as admissible to permanent Municipal servant if the service of the temporary employee is of five years or more Shri Parte submitted that this provision is applicable in case of respondent and in addition to the leave which was calculated by the appellants and which is referred to hereinabove, the respondent is entitled to remain absent for a duration of five years. The submission is required only to be stated to be rejected. In the first instance, the assumption of the learned counsel that respondent was in service for a duration of five years or more is not correct. Secondly, the assumption that extra-ordinary leave can be claimed as a matter of right is totally incorrect. It is futile for the respondent to claim that in case he serves for a period of five years he will be entitled to go on leave for next five years. Such a construction would lead to disruption in service and would make the application of rue meaningless. It hardly requires to be stated that the extra-ordinary leave is granted in exceptional circumstances and cannot be claimed as of right an not for a total duration of five years Shri parte submitted that as the respondent was entitled in addition to the leave sanctioned by the Corporation for extra-ordinary leave for five years, regulation 19-E has no application, In our judgment, the submission is devoid of any merit.

Finally, Shri Parte urged that on January 14, 1985, the Corporation had addressed a Memo to the respondent to report for duty on or before February 8, 1985. Shri Parte submitted that the respondent reported for duty on February 2, 1985 but was not allowed to resume and was directed to approach the Municipal Medical Examiner and secure certificate. According to the learned counsel and which contention found favour with the trial Judge once the respondent returned to the office the application of Regulation 19-E is not called for. The contention is entirely faulty an misconceived. It is not open for an employee who was on unsanctioned leave from July 2, 1984 merely to visit the office on February 2, 1985 and claim that the employee was medically fit to attend the duties. Regulation 83 provides that a Municipal servant who was taken long leave on medical certificate including special disability may not return to duty until he has produced a medical certificate of fitness from Municipal Medical Examiner. Regulation 84 provides that any Municipal servant who has been granted leave or extension of leave for reasons of health, may at the discretion of the authority be required to produce a similar certificate of fitness. Both the regulations contemplate that an employee has gone on leave with permission. In the present case the respondent remained absent from July 2, 1984 without obtaining permission and when the respondent was desirous of resuming duty the authorities were perfectly justified in calling upon the respondent to produce certificate from the Municipal Medical Examiner. The assumption of the learned trial Judge, with respect, that once the employee visits the Office of the Corporation, then that fact amounts to resumption of duty is not correct. It is not open for the employee to claim resumption of duty merely by visiting the office but, it is necessary for the authorities to permit employee to resume duty, an such permission is not granted as long as the fitness certificate is not produced from the Municipal Medical Examiner. Shri Parte then submitted that the respondent approached the Medical Examiner of the Corporation and was directed to appear before the Office at K. E. M. Hospital. The respondent did not do so, and never went back to the office any time after February 2, 1985. Even after the Corporation served show cause notice on September 13, 1985, the respondent did not care to reply to the notice or produce any fitness certificate demanded by the authority. The submission of Shri Parte that on February 2, 1985, the respondent had produced a certificate from his private doctor certifying that on that day, the respondent was medically fit to resume is sufficient compliance cannot be accepted. The fitness certificate is not only for the purpose to determining whether on the date of resumption of duty the employee is fit but the certificate must also indicate as to whether the employee who is claiming to be absent from duty on the ground of illness was really ill. In our judgment, the claim that respondent has resume duty is entirely frivolous and cannot be accepted. We do not find any reason to disturb the decision of the Corporation that the employee had ceased to be in service in accordance with Regulation 19-E. We are also unable to share the observation of the learned trial Judge that the Municipal Commissioner exercising the appellate powers had not applied mind to all the facets of the matter. In our judgment, the learned trial Judge was in error in exercising writ jurisdiction in favour of an employee who had no desire at all to attend to duty for more than one year. The decision of the learned single Judge is, therefore, required to be set aside.

Accordingly, appeal is allowed and judgment dated February 18, 1993 delivered by trial Court in Writ Petition No. 3776 of 1987 is set aside and the petition stands dismissed. In the circumstance of the case, there will be no order as to costs.