Allahabad High Court
Virendra Pratap Singh vs U.P. State Bridge Corp. Ltd. Through ... on 27 April, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 RESERVED A.F.R. Case :- WRIT - A No. - 718 of 2014 SERVICE SINGLE No. - 718 of 2014 (Old Number) Petitioner :- Virendra Pratap Singh Respondent :- U.P. State Bridge Corp. Ltd. Through Managing Director Lko. Counsel for Petitioner :- Ram Singh 'Paliwal',Ramesh Pandey Counsel for Respondent :- Shishir Jain,Ram Ratan Hon'ble J.J. Munir,J.
1. The petitioner is an ex-employee of the Uttar Pradesh State Bridge Corporation Limited. His services were terminated by an order dated 31.12.2012 on the ground of wilful absence from duty. It is this order that the petitioner has impugned in the present writ petition.
2. Heard Mr. Ram Singh Paliwal, learned Counsel for the petitioner and Mr. Ram Ratan, learned Counsel for all the respondents.
3. The petitioner was appointed on the post of a Junior Engineer with the Uttar Pradesh State Bridge Corporation Limited (for short, 'the Corporation') w.e.f. 18.03.1981 vide a letter of appointment dated 09.03.1981. He joined service on 18.03.1981 at Allahabad (now Prayagraj). Until the date of the impugned order terminating his services, the petitioner had rendered 31 years service. It is the petitioner's case that he suffered from spondylitis followed by paralysis and sciatica during the period 04.05.2008 to 18.05.2012. This long spell of ailment of the petitioner was followed by his wife's illness. It is not in dispute that during the period 04.05.2008 to 18.05.2012, the petitioner did not discharge his duties, which the Corporation have termed as unauthorized absence.
4. It is the petitioner's case that during the aforesaid period of time, he had applied for sanction of all kinds of leave available, including medical leave, through applications made on various dates. Some of these leave applications were granted. The petitioner says that his absence from duty is neither deliberate nor intentional. It was caused by his own sickness, followed by that of his wife. The petitioner was under treatment for his spondylitis at Gorakhpur. The petitioner submitted his joining report on 19.05.2012 to the Office of the Deputy `Project Manager of the Corporation at its Pratapgarh unit. The petitioner was not allowed to join, though he submitted repeat representations before the Corporation through their competent Authorities. The petitioner says that the impugned order of termination dated 31.12.2012 was sent to his local address, whereas he was residing at Gorakhpur in connection with his treatment. For the said reason, he could not come to know of the order in good time. It is the petitioner's case that his services have been terminated without issuing him a show-cause notice or initiating disciplinary proceedings on ground of misconduct, in accordance with the provisions of Rules 33 and 35 of the Model Conduct, Discipline and Appeal Rules, 1991 (amended in the year 1998, as applicable to the Corporation) (for short, ''the 1991 Rules).
5. A counter affidavit on behalf of the Corporation has been filed on 07.08.2014, to which the petitioner filed a rejoinder on 1st of November, 2014. The stand of the Corporation in the counter affidavit, briefly put, is that the petitioner remained unauthorizedly absent from duty since 04.05.2008 for a period of more than four years. It is their case that the petitioner unauthorizedly absented himself from duty for a long period of time and did not join for a single day during this period of four years. The petitioner was, therefore, held to have abandoned employment with the Corporation and his services were terminated as such by the order impugned dated 31.12.2012. Dilating more upon the petitioner's conduct during the period of his unauthorized absence, it is averred in the counter affidavit that he was sanctioned earned leave for the period 21.04.2008 to 03.05.2008, but after 03.05.2008, the petitioner did not join duty. The Deputy Project Manager of the Corporation's unit at Pratapgarh, under whom the petitioner was posted, vide a letter dated 08.05.2008, directed the petitioner to join duty. He also sent a telegram.
6. It is the Corporation's case that the petitioner did not join his duties but submitted a leave application through another person, that was answered by the Deputy Project Manager vide his letter dated 03.06.2008. The petitioner then requested for extension of leave due to his illness, that was placed before the Corporation Headquarters. The Corporation Headquarters issued a letter dated 18.07.2008, directing the Deputy Project Manager of the Pratapgarh unit to ensure the petitioner's medical examination. In compliance, the Deputy Project Manager of the Corporation at the Pratapgarh unit vide his letters dated 29.07.2008 and 14.08.2008, directed the petitioner to appear before the Chief Medical Officer, Pratapgarh for his medical examination, but the said letters were returned by the postal agency with the remark: "लिखित पते पर कोई नहीं रहता है". It is then said that the petitioner did not get himself medically examined and continued to send leave applications on the ground of his illness and subsequently that of his wife. In this manner, the petitioner remained unauthorizedly absent without sanction of leave for more than four years.
7. It is pleaded that consequently, the Corporation inferred that the petitioner was not interested in serving them, but somehow to maintain his lien, he would send leave applications, without receiving letters sent to him by the Corporation. He was, in the Corporation's submission, trying to avoid resuming duties on one pretext or the other. The Corporation, therefore, say that the impugned order dated 31.12.2012 is just, legal and valid. The medical certificate dated 10.01.2010 relied upon by the petitioner, a copy of which is annexed as Annexure No.4 to the writ petition, has been castigated as one not issued by any Government Hospital. It is further said that by the said certificate, the petitioner was declared fit to join, but he did not join duties after the date of the said certificate and remained unauthorizedly absent for about two and a half years thereafter.
8. In paragraph No.9 of the counter affidavit, the Corporation have referred to a certain Rule 40 of the Uttar Pradesh State Bridge Corporation Limited Service Rules (hereinafter referred to as, 'the Service Rules'), which inter-alia governs the right to leave. The Rule says that leave cannot be claimed as a matter of right. It is also provided that "when the exigencies of service so require, discretion to refuse or revoke leave of any description, is reserved to the Authority empowered to grant it", to quote the words of the Rule. The Corporation have taken a stand that as leave could not be claimed as a matter of right and no leave in point of fact was sanctioned beyond 3rd of May, 2008, the petitioner remained unauthorizedly absent from duty for more than four years. As such, his services have rightly been terminated in accordance with the Rules by the order impugned.
9. The petition was not formally admitted to hearing when it came up before this Court on 25.10.2021, but since parties had exchanged affidavits, it was formally admitted. The Court formulated the following question for consideration at the hearing, while admitting the writ petition:
'Whether the petitioner's services for wilful absence from duty were terminated as a matter of misconduct or in the exercise of some power of abandonment of employment exercised (sic) by the employer under the relevant leave rules?'
10. Since in the counter affidavit, and otherwise too no Rule was placed before the Court, indicating the nature and the source of the power that was exercised to terminate the petitioner's services, the Court required the Managing Director of the Corporation to file his personal affidavit, adjourning hearing to 28.10.2021. The Managing Director of the Corporation filed his personal affidavit on 28.10.2021 in Court. The Managing Director has come out with a more informed stand on behalf of the Corporation. The source of power to terminate the petitioner's services has been clearly indicated to be Rule 40.13 (referred to in the Managing Director's affidavit as ''paragraph 13') of the Service Rules, more particularly, Rule 40.13.3. It is stated by the Managing Director in paragraph No.11 of the counter affidavit that vide letter No. 1376/2E/08-09 dated 24.09.2001, the petitioner was informed that a disciplinary inquiry had been instituted against him vide Memo No. 1921 ESB/2429 SBC/08 dated 08.09.2008, but the inquiry could not be completed against him because of his non-cooperation.
11. The stand of the Corporation would, therefore, show that initially they decided to initiate disciplinary proceedings in the year 2008, but gave up the same mid-way and chose to fall back upon their power under Rule 40.13.3 of the Service Rules to terminate the petitioner's services simplicitor, on account of his long absence, without holding disciplinary proceedings. It is, thus, evident that the petitioner's services have been terminated, according to the Corporation, by the order impugned simplicitor on account of his long absence, which could have been dealt with as a misconduct, but was not. In fact, disciplinary proceedings were initiated, but not pursued to their logical conclusion. The power under Rule 40.13.3 of the Service Rules was exercised by the Corporation after the petitioner submitted his joining report on 09.05.2012. It was done by the impugned order dated 31.12.2012 with effect from the date of the said order.
12. The question posed hereinabove is, therefore, required to be carefully examined.
13. Learned Counsel for the petitioner has strenously argued that the petitioner's services could not have been dispensed with by an order simplicitor even if he had absented from duty, as he was a permanent employee. Absenting from duty is also a kind of misconduct, on the basis of which the petitioner could have been proceeded with against by the Corporation in their disciplinary jurisdiction and dealt with according to law, but the Corporation could not have terminated the petitioner's services, where, under the statutory Rules, he holds a lien on the post, simply on account of long absence. It is emphasized that the petitioner is not a temporary employee or a probationer, but the holder of a post under the Corporation, who are a State establishment and his conditions of service are governed by statutory Service Rules. Therefore, for the claimed misconduct, the petitioner ought to have been proceeded with departmentally, affording him due opportunity in disciplinary proceedings, where the Corporation would have to establish charge against the petitioner to the effect that he remained not only absent, but did so intentionally and deliberately, without justification. At the inquiry, the petitioner would be entitled to show that his absence was not intentional or deliberate, and further, that he had a justification to offer on account of his ill-health. The Corporation have deprived him of a civil post held under them, protected by Statute, without following the procedure prescribed for holding disciplinary proceedings in such matters. The impugned order, according to the learned Counsel for the petitioner, is, therefore, bad in law.
14. The learned Counsel for the petitioner, in support of his contention, has placed reliance upon the decision of the Constitution Bench of the Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others, 1991 Supp (1) SCC 600, where it has been held:
"Nature of the power of statutory authority to terminate the services of its employees
264.In Sukhdev Singh v. Bhagatram [(1975) 1 SCC 421 : 1975 SCC (L&S) 101 : (1975) 3 SCR 619] the Constitution Bench of this Court put a nail in the coffin of the play of the private master's power to hire and fire his employees and held that Regulations or Rules made under a statute apply uniformly to everyone or to all members of the same group or class. They impose obligations on the statutory authorities who cannot deviate from the conditions of service and any deviation will be enforced through legal sanction of declaration by courts to invalidate the actions in violation of the Rules or Regulations. The statutory bodies have no free hand in framing the terms or conditions of service of their employees. The Regulations bind both the authorities and also the public. The powers of the statutory bodies are derived, controlled and restricted by the statutes which create them and the Rules and Regulations framed thereunder. The statute, thereby, fetters the freedom of contract. Accordingly declaration was granted that dismissal or removal of an employee by statutory corporation in contravention of statutory provision as void. Mathew, J. in a separate but concurring judgment held that a Public Corporation being the creation of a statute is subject to statutory limitation as a State itself. The preconditions of this Part II viz. that the corporation is created by statute and, the existence of power in the corporation is to invade a statutory right of the individual. Therefore, the governing power must be subject to fundamental statutory limitations. The need to subject the power centres to the control of the Constitution requires an expansion of concept of State action. The duty of State is affirmative duty seeing that all essentials of life are made available to all persons. The task of State today is to make the achievement of good life both by removing obstacles in the path of such achievement and by assisting individual in realising his ideal of self-perfection. The employment under public corporation is a public employment and, therefore, the employee should have the protection which appertains to public employment. (emphasis supplied) The court must, therefore, adopt the attitude that declaration is a normal remedy for a wrongful dismissal in case of public employees which can be refused in exceptional circumstances. The remedy of declaration should be a remedy made an instrument to provide reinstatement in public sector. This principle was extended to numerous instances where the termination of services of the employees of a statutory corporation was affected in violation of the principles of natural justice or in transgression of the statutory rules etc. In Managing Director, U.P. State Warehousing Corporation v. Vinay Narayan Vajpayee [(1980) 3 SCC 459 : 1980 SCC (L&S) 453 : (1980) 2 SCR 773] (SCR pp. 780-F to G and 783-C to 784-A (sic): SCC p. 466, para 14 and pp. 467-68, para 18) this Court held that statutory body cannot terminate the services of its employees without due enquiry held in accordance with the principles of natural justice. The persons in public employment are entitled to the protection of Articles 14 and 16 of the Constitution, when the service was arbitrarily terminated. The question, therefore, is whether the statutory corporations are entitled to be invested with absolute freedom to terminate the services of its employees in terms of the contract of service.
265. In Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489 : (1979) 3 SCR 1014 : AIR 1979 SC 1628] this Court held that expression of welfare and social service functions necessitate the State to assume control over natural and economic resources and large scale natural and commercial activities. For the attainment of socio-economic justice, there is vast and notable increase of frequency with which ordinary citizens come into relationship of direct encounters with the State. The government in a welfare State is the regulator and dispenser of social services and provider of large number of benefits, including jobs etc. Thousands of people are employed in Central/State Government Services and also under local authorities. The government, therefore, cannot act arbitrarily. It does not stand in the same position as a private individual. In a democratic government by rule of law, the executive government or any of its officers cannot be held to be possessed of arbitrary power over the interests of the individuals. Every action of the government must be informed with reason and should be free from arbitrariness. That is the very essence of rule of law. It was further held: (SCC p. 506, para 12) "It must, therefore, be taken to be the law that where the government is dealing with the public, whether by way of giving jobs or entering into contracts ... the government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard of norm which, is not arbitrary, irrational or irrelevant. The power of discretion of the government in the matter of grant of largesse including award of jobs, ... must be conditioned and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action or the government would be liable to be struck down, unless it can be shown by the government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
266. This statement of law, though was made in the context of contractual relations, it is a general law with width and amplitude which permeates the entire spectrum of actions, legislative as well as executive.
The position of the public employee whether is status
271. The distinguishing feature of public employment is status. In Roshanlal Tandon v. Union of India [(1968) 1 SCR 185, 195 D-E : AIR 1967 SC 1889 : (1968) 1 LLJ 576] the Constitution Bench held that the legal position of a government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The employment of the government servant and his terms of service are governed by statute or statutory rules. Once he is appointed to the post or office, the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules. The relationship between the government and its servants is not like an ordinary contract of service between a master and servant. The legal relationship is in the nature of status. The duties of statute (sic status) are fixed by the law and in the enforcement of the duties society has an interest. Status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. In Calcutta Dock Labour Board v. Jaffar Imam [(1965) 3 SCR 453 : AIR 1966 SC 282 : (1965) 2 LLJ 112] it was held that the statutory scheme of employment confers on the worker a status. An unlawful act is an interference with status. This view was followed in Sirsi Municipality v. Cecelia Kom Francis Tellis [(1973) 1 SCC 409 : 1973 SCC (L&S) 207 : (1973) 3 SCR 348] . Beg, J. (as he then was) held that the principles applicable to the relation of a private master and servant unregulated by statute, could not apply to the cases of a public statutory body exercising powers of punishment fettered or limited by statute and relevant rules of procedure. This Court in a recent decision extended all the benefits of pay scales to all the Central Government corporate sector employees. It is, thus, I hold that the employees of the corporations, statutory authority or instrumentality under Article 12 have statutory status as a member of its employees. The rights and obligations are governed by the relevant statutory provisions and the employer and employee are equally bound by those statutory provisions.
Nature of the right of a permanent employee to a post
272. In Parshotam Lal Dhingra v. Union of India [1958 SCR 828 : AIR 1958 SC 36 : (1958) 1 LLJ 544] it was held that the appointment to a permanent post may be substantive or on probation or on officiating basis. A substantive appointment to a permanent post in a public service covers normally substantive right to the post and he becomes entitled to hold a lien on the post. He is entitled to continue in office till he attains the age of superannuation as per rules or is dismissed or removed from service for inefficiency, misconduct or negligence or any other disqualification in accordance with the procedure prescribed in the rules, and fair and reasonable opportunity of being heard or on compulsory retirement or in certain circumstances, subject to the conditions like re-employment on abolition of post. In Moti Ram Deka v. General Manager [(1964) 5 SCR 683 : AIR 1964 SC 600 : (1964) 2 LLJ 467] a majority of seven Judges' bench held that a permanent post carries a definite rate of pay without a limit of time and a servant who substantively holds a permanent post has a title to hold the post to which he is substantively appointed, and that in terms, means that a permanent servant has a right to hold the post until, of course, he reaches superannuation or until he is compulsorily retired under the relevant rule. If for any other reason that right is invaded and he is asked to leave the service the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of penalty and amounts to removal. In other words, termination of service of a permanent servant, otherwise than on superannuation of compulsory retirement, must per se amount to his removal and so, by Rule 148(3) or Rule 149(3) of Railway Establishment Rules if such a termination is brought about, the rule clearly contravenes Article 311(2) and must be held to be invalid. A permanent employment assures security of tenure which is essential for the efficiency and incorruptibility of public administration. In Gurudev Singh Sidhu v. State of Punjab [(1964) 7 SCR 587, 592-93 : AIR 1964 SC 1585 : (1965) 1 LLJ 323] another Constitution Bench held that for efficient administration of the State, it is absolutely essential that permanent public servant should enjoy a sense of security of tenure. The safeguard which Article 311(2) affords is no more than this that in case it is intended to dismiss or remove or reduce them in rank, a reasonable opportunity should be given to them of showing cause against the action proposed to be taken in regard to them. In Moti Ram Deka case [(1964) 5 SCR 683 : AIR 1964 SC 600 : (1964) 2 LLJ 467] it was further held that in a modern democratic State, the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Article 311(2); but in regard to honest, straightforward and efficient permanent civil servants, it is of utmost importance, even from the point of view of the State, that they should enjoy a sense of security which alone can make them independent and truly efficient. The sword of Damocles hanging over the heads of permanent railway servants in the form of Rule 148(3) or Rule 149(3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may conceivably be abused. Thereby this Court laid emphasis that a permanent employee has a right or lien on the post he holds until his tenure of service reaches superannuation so as to earn pension at the evening of his life unless it is determined as per law. An assurance of security of service to a public employee is an essential requisite for efficiency and incorruptibility of public administration. It is also an assurance to take independent drive and initiative in the discharge of the public duties to alongate (sic actuate) the goals of social justice set down in the Constitution.
273. This Court in Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122 : 1988 SCC (L&S) 138 : (1987) 5 ATC 228] (SCC pp. 130-31) further held that the right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment etc. and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of most importance. If a person does not have the feeling that he belongs to an organisation engaged in production he will not put forward his best effort to produce more (emphasis supplied). That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production.
274. It must, therefore, be held that a permanent employee of a statutory authority, corporation or instrumentality under Article 12 has a lien on the post till he attains superannuation or is compulsorily retired or service is duly terminated in accordance with the procedure established by law. Security of tenure enures the benefit of pension on retirement. Dismissal, removal or termination of his/her service for inefficiency, corruption or other misconduct is by way of penalty. He/she has a right to security of tenure which is essential to inculcate a sense of belonging to the service or organisation and involvement for maximum production or efficient service. It is also a valuable right which is to be duly put an end to only as per valid law."
15. The learned Counsel for the Corporation, on the other hand, has submitted that Rule 40.13.3 is as much a statutory rule as any other, and prescribes a valid mode by which the services of a permanent employee may come to an end. He submits that for long and unauthorized absence that cannot be adjusted or regularized against any class of leave available to an employee, it has to be presumed that the employee concerned has resigned his position and abandoned employment.
16. This Court has carefully considered the rival submissions, perused the impugned order, the provisions of the Service Rules and the stand taken by the Authorities in their affidavits, particularly, the personal affidavit filed by the Managing Director of the Corporation.
17. In order to understand the nature of the power exercised by the Corporation, reference must be made to Chapter VII of the Service Rules. This is so because the Corporation's stand appears to be that they have chosen not to proceed against the petitioner for his long and unauthorized absence as an act of misconduct, but an act of abandonment of employment under sub-Rule 13.3 of Rule 40 of the Service Rules. It must be clarified here that the Corporation in their affidavit have seemingly, by error of nomenclature, referred to sub-Rule 13 of Rule 40 as Paragraph 13 of the Service Rules. The scheme of Chapter VII shows that it carries a single Rule 40, which has 23 sub-Rules and their clauses. It would be gainful to quote sub-Rules 1 to 13 of Rule 40 of the Service Rules:
अध्याय - सात अवकाश नियम अवकाश का अधिकार :40.1
अवकाश का दावा अधिकार के रूप में नहीं किया जा सकता है। जब सेवा की अत्यावश्यकता के कारण ऐसा करना अपेक्षित हो तो किसी भी प्रकार के अवकाश को अस्वीकृत या प्रतिसंहृत (रद्द) करने का विवेक, अवकाश स्वीकर्ता प्राधिकारी का होगा।
अवकाश का अर्जन :2
कार्य करने के पश्चात ही अवकाश अर्जित किया जाता है अवकाश की समाप्ति के पश्चात भी जानबूझकर कार्य से अनुपस्थित रहने को दुराचार माना जा सकता है।
अवकाश स्वीकर्ता प्राधिकारी :3
अन्यथा रूप से स्पष्टतः विहित प्राविधान के सिवाय, ऐसे अवकाश को छोड़कर जो सेवानिवृत्ति की तिथि से आगे तक का हो, अन्य अवकाश निगम के ऐसे प्रधिकारियों द्वारा स्वीकृत किया जा सकता है जिन्हे बोर्ड नियमों अथवा आदेशों द्वारा विनिर्द्रिष्ट करें।
अवकाश का प्रारंभ और समापनः 4 अवकाश, साधारणतया, उस दिनांक से शुरू होता है जिस दिनांक को कार्यभार हस्तांतरित किया गया हो और उस दिनांक से ठीक पूर्व के दिनांक को समाप्त होता हैं जिस दिनांक को कार्यभार पुनः ग्रहण किया गया हो। अवकाश या कार्यभार ग्रहण के समय पूर्व या पश्चात में पड़ने वाले रविवार या अन्य मान्य अवकाश दिवसों को ऐसी शर्तो और ऐसी परिस्थितियों के अधीन रहते हुए, जिन्हें बोर्ड द्वारा विहित किया जाय, जोड़ा जा सकता है।
अवकाश को संयुक्त करना :5
नियमावली में उपबंधित के सिवाय इस नियमावली के अधीन किसी भी प्रकार के अवकाश को किसी अन्य प्रकार के अवकाश की निरन्तरता में अथवा उस के साथ संयुक्त करके स्वीकृत किया जा सकता।
अवकाश की अवधि में सेवायोजन :6
अवकाश पर रहते हुए कोई कर्मचारी, सक्षम प्राधिकारी की पूर्व स्वीकृति प्राप्त किए बिना कोई सेवायोजन नही प्राप्त करेगा।
अवकाश से वापस बुलाया जानाः 7 1 किसी कर्मचारी को उसके अवकाश की समाप्ति के पूर्व कार्य पर बुलाये जाने के सभी आदेशों में बताया जाना चाहिए कि कर्तव्य (ड्यूटी) पर आना ऐच्छिक है या अनिवार्य है।2
यदि यह अनिवार्य है तो वह उस दिनांक से जब वह उस स्टेशन के लिए यात्रा शुरू करता है जिसपर पहुँचने के लिए उसे आदेश दिया गया है, ड्यूटी पर समझे जाने का और अपनी यात्रा के लिए यात्रा भत्ता आहरित करने का हकदार होगा।
अवकाश की समाप्ति पर कार्य पर वापसीः 8 जब तक कि अवकाश स्वीकृत करने वाला प्राधिकारी उसे अनुमति न दे दे अवकाश पर गया हुआ कोई कर्मचारी उसे स्वीकृत किए गये अवकाश की अवधि की समाप्ति के पूर्व कार्य पर वापस नही आ सकेगा।
आकस्मिक अवकाशः 9 कोई भी कर्मचारी एक कैलेण्डर वर्ष में 14 दिन से अनधिक और किसी एक समय में 10 दिन से अनधिक आकस्मिक अवकाश लेने का हकदार होगा। प्रतिबन्ध यह है कि यदि कोई कर्मचारी निगम की सेवा कैलेण्डर वर्ष के बीच में ग्रहण करता है तो स्वीकर्ता प्राधिकारी स्वविवेक से आनुपातिक रूप में आकस्मिक अवकाश प्रदान कर सकता है।
आकस्मिक/ विशेष अवकाश को किसी अन्य अवकाश के साथ संयुक्तिकरण पर प्रतिबन्धः 10 आकस्मिक अवकाश को किसी अन्य अवकाश को किसी अन्य अवकाश के साथ संयुक्त नहीं किया जायेगा और वह कैलेण्डर वर्ष की समाप्ति के साथ व्यपगत हो जायेगा।
अर्जित अवकाशः 11 किसी कर्मचारी द्वारा उसके सेवाकाल की अवधि में अर्जित अवकाश की दर, आगामी संचयन व्यपगत होने के पूर्व संचित होने वाले अवकाश की अधिकतम संख्या तथा किसी कर्मचारी को एक समय में स्वीकृत की जा सकने वाले अवकाश की संख्या राज्य सरकार के कर्मचारियों पर लागू नियमों एवं विनियमों के समान होगी। फिर भी, विनिर्दिष्ट मामलों में, जहाँ बोर्ड इन नियमों को संशोधित करने का निर्णय ले तो वह राज्य सरकार के पूर्वानुमोदन से ऐसा कर सकता है। प्रतिनियुक्ति पर कार्यरत कर्मचारी और संविदा पर कार्यरत कर्मचारी भी निगम में प्रवृत्त अवकाश नियगों से शासित होंगें जबतक कि उनकी नियुक्ति/ प्रतिनियुक्ति के समय अन्यथा रूप से उपबंधित न किया गया हो।
निजी कार्य पर अर्ध औसत वेतन पर अवकाशः 12 किसी कर्मचारी को, जिस पर यह नियम लागू होते है, उसकी सम्पूर्ण सेवा की अवधि में निजी मामलो में अर्ध औसत वेतन पर कुल 180 (एक सौ अस्सी) दिन से अनधिक का अवकाश भी प्रदान किया जा सकता है। ऐसा अवकाश उसके द्वारा कर्तव्य पर व्यतीत अवधि के 1/11 की दर से अर्जित किया जायेगा और किसी एक अवसर पर 90 से अनधिक दिनों के लिए प्रदान नही किया जायेगा।
परन्तु इस नियम के अधीन कोई अवकाश तब तक न किया जाय, जब तक कि अवकाश स्वीकृत करने के लिए सक्षम प्राधिकारी के पास यह विश्वास करने के पर्याप्त कारण न हों कि कर्मचारी उसकी समाप्ति पर अपने कर्तव्य (ड्यूटी) पर वापस लौट आएगा।
असाधारण अवकाशः 13 1 जहाँ नियमों के अधीन कोई अन्य अवकाश अनुमन्य न हो, किसी कर्मचारी को असाधारण अवकाश प्रदान किया जा सकता है, जिसकी गणना सेवा के प्रत्येक पूर्ण वर्ष के लिये 15 दिन की दर से की जाएगी और जो साधारणतया किसी एक अवसर पर 120 दिनों से अधिक न होगा और उसकी सम्पूर्ण सेवा की अवधि के दौरान 365 दिनों से अधिक नहीं होगा।2
प्राधिकारी जिसे अवकाश स्वीकृत करने का अधिकार है, वह इस नियम के अधीन किसी ऐसे अवकाश के साथ में या निरंतरता में जो कि अनुमन्य हो असाधारण अवकाश प्रदान कर सकता है और बिना अवकाश के अनुपस्थिति की अवधि को पूर्वगामी प्रभाव से असाधारण अवकाश के रूप में परिवर्तित कर सकता है।3
जहाँ कोई कर्मचारी, जिस पर यह नियम लागू होते हों, इन नियमों के अन्तर्गत उसको स्वीकृत असाधारण अवकाश की समाप्ति पर कार्य पुनर्ग्रहण करने में विफल रहता है या जहाँ ऐसा कर्मचारी जिसको अधिकतम अनुमन्य अवधि से कम अवधि का अवकाश स्वीकृत किया गया हो, किसी ऐसी अवधि, जो स्वीकृत असाधारण अवकाश सहित उस सीमा से अधिक हो जाय जो इस नियमावली के अधीन उसे स्वीकृत किया जा सकता हो, के लिए निरन्तर कार्य से अनुपस्थित रहे तो जब तक कि सक्षम प्राधिकारी मामले की आपवादिक परिस्थितियों को ध्यान में रखते हुए अन्यथा निर्णय न करे, यह समझा जायगा कि उसने अपनी नियुक्ति से त्याग पत्र दे दिया है और वह निगम की सेवां में तदनुसार नहीं रह जायगा। प्रतिबन्ध यह है कि ऐसे सभी मामलों में, जहाँ उप नियम (3) के अधीन किसी कर्मचारी की सेवाओं को समाप्त हुआ प्रस्तावित समझा जाय, सक्षम प्राधिकारी उक्त कर्मचारी को लिखित रूप में उस आशय की एक सूचना देगा।
18. This Court must remark that in keeping with the question formulated on 25.10.2021, there are indeed two distinct and different modes through which, on account of wilful absence from duty, the services of a permanent employee of the Corporation may come to an end. One is by treating the unauthorized absence as an act of misconduct and proceeding against the employee concerned in the disciplinary jurisdiction. If that option is elected by the Corporation, they have to proceed in accordance with the provisions of Rules 33 and 35 of the 1991 Rules. That is the usual option pursued by an employer to punish a recalcitrant employee, who unauthorizedly absents from duty. The other option that the Corporation have under the Service Rules in the Chapter dealing with leave for employees, is a special provision about abandonment of service. This mode of determination of the employer-employee relationship is known to service jurisprudence and rests on the principle that an employee, who absents himself from service without leave or without extension of leave for an unduly long period of time, can be deemed to have abandoned employment. If a rule provides for cessation of service on account of abandonment, the status of a permanent employee, whose tenure is governed by statutory rules, can validly come to an end.
19. The question of abandonment from service found early mention in the context of industrial jurisprudence, where the issue was about 'continuous service' pitted against the break in it, in the context of an employee, who had remained absent from duty for nearly eight and a half months without permission or leave of the employer. This was the controversy in Jeewanlal (1929) Ltd., Calcutta v. Workmen, AIR 1961 SC 1567, where it was held:
"6. "Continuous service" in the context of the scheme of gratuity framed by the Tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If the employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service. Similarly, participation in an illegal strike which may incur the punishment of dismissal may not by itself bring to an end the relationship of master and servant. It may be a good cause for the termination of service provided of course the relevant provisions in the standing orders in that behalf are complied with; but mere participation in an illegal strike cannot be said to cause breach in continuity for the purposes of gratuity. On the other hand, 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. It would thus always be a question of fact to be decided on the circumstances of each case whether or not a particular employee can claim continuity of service for the requisite period or not. In our opinion, therefore, the view taken by the Tribunal is substantially right though we would like to make it clear that in addition to the cases where according to the Tribunal continuity of service would come to an end 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. ..............."
20. The question again arose in the context of the industrial law, where a particular clause in the relevant Standing Order postulated abandonment of service in the event of an employee absenting himself for eight consecutive working days without obtaining leave from the employer. In the context of the certified Standing Orders applicable to parties, under which the issue arose in Buckingham and Carnatic Co. Ltd. v. Venkatiah and another, AIR 1964 SC 1272, it was held by their Lordships of the Supreme Court:
"5. .........
This Standing Order is a part of the certified Standing Orders which had been revised by an arbitration award between the parties in 1957. The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has terminated his contract of service. The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service. The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service. 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 can not be attributed to an employee without adequate evidence in that behalf. But where parties agree upon the terms and conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant. It is then a matter of construing the relevant term itself. Therefore, the first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment."
21. The question again fell for consideration in the context of the industrial law in G.T. Lad and others v. Chemical and Fibres of India Ltd., (1979) 1 SCC 590. The law relating to abandonment was adumbrated in G.T. Lad (supra) thus:
5a. Re Question 1: In the Act, we do not find any definition of the expression "abandonment of service". In the absence of any clue as to the meaning of the said expression, we have to depend on meaning assigned to it in the dictionary of English language. In the unabridged edition of the Random House Dictionary, the word "abandon" has been explained as meaning "to leave completely and finally; forsake utterly; to relinquish, renounce; to give up all concern in something". According to the Dictionary of English Law by Earl Jowitt (1959 Edn.) "abandonment" means "relinquishment of an interest or claim". According to Black's Law Dictionary "abandonment" when used in relation to an office means "voluntary relinquishment". It must be total and under such circumstances as clearly to indicate an absolute relinquishment. The failure to perform the duties pertaining to the office must be with actual or imputed intention, on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Temporary absence is not ordinarily sufficient to constitute an "abandonment of office".
6. From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham & Carnatic Co. v. Venkatiah [AIR 1964 SC 1272 : (1964) 4 SCR 265 : (1963) 2 LLJ 638 : (1963-64) 25 FJR 25] it was observed by this Court 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 a employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case."
22. As a source of termination of statutory employment, abandonment, if contemplated under the leave rules, was accepted as a valid mode to bring to an end the employee's lien by the Supreme in Aligarh Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529. While answering point Nos.1 and 2 formulated by their Lordships, it was held in Aligarh Muslim University v. Mansoor Ali Khan (supra) quoting the relevant Rules, thus:
"10. It reads as follows:
Overstayal of leave:
"5. 8(i) If an employee absents himself from duty without having previously obtained leave or fails to return to his duties on the expiry of leave without having previously obtained further leave, the head of the department/office concerned in cases where he is the appointing authority, after waiting for three days, shall communicate with the person concerned asking for an explanation and shall consider the same. In cases where the head of the department/office is not the appointing authority, he shall, after waiting for three days from the date of unauthorised absence without leave or extension of leave, inform the Registrar/Finance Officer, and the Registrar (Finance Officer in the case of staff borne on the Accounts Cadre) shall communicate with the person concerned asking for an explanation which shall be submitted to the Vice-Chancellor/ Executive Council.
Unless the appointing authority regards the explanation satisfactory, the employee concerned shall be deemed to have vacated the post, without notice, from the date of absence without leave.
(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council."
11. It will be seen that Rule 5(8)(i) applies to an employee who absents himself from duty without having previously obtained leave or where he has failed to return to his duties on the expiry of leave without having previously obtained further leave. Then Rule 5(8)(i) refers to the manner in which the employee is to be given an opportunity. If the appointing authority regards the explanation as not satisfactory, the employee concerned shall be deemed to have vacated his post, without notice, from the date of absence without leave. In the context of Rule 10 of the 1972 Rules, which deems vacation of post if the absence was for 5 years, it must follow that the above Rule 5(8)(i) applies to absence for a period less than 5 years.
12. Rule 5(8)(ii) deals with a different situation. It relates to a case where such an officer is permitted to rejoin duty. It says that if he is so permitted, he will be entitled to no leave allowance or salary for the period of such absence and such period shall be debited against his leave account as leave without pay. The Rule says that these consequences will not, however, follow if his leave is extended by the authority empowered to grant leave. Then in its latter part, Rule 5(8)(ii) refers to another situation enabling disciplinary action to be taken treating unauthorised absence as misconduct. If a person has been absent without leave being sanctioned, he could be proceeded against for misconduct.
13. These are the different situations in which Rules 5(8)(i) and (ii) apply. Point 1 is decided accordingly.
Point 2
14. Rules 10(c)(i) and (ii) of the 1972 Rules read as follows:
"10. Employee absent from duty.--(a)-(b)***
(c)(i) No permanent employee shall be granted leave of any kind for a continuous period exceeding five years;
(ii) when an employee does not resume duty after remaining on leave for a continuous period of five years, or whether an employee after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension for any period which together with the period of the leave granted to him exceeds five years, he shall, unless the Executive Council in view of the exceptional circumstances of the case otherwise determine, be deemed to have resigned and shall accordingly cease to be in the university service."
It will be seen that Rule 10 deals with a different aspect. Now Rule 10(c)(i) states that no permanent employee shall be granted leave of any kind for a continuous period of more than 5 years. However, Rule 10(c)(ii) states that when an employee does not resume duty after remaining on leave for a continuous period of 5 years, or where an employee after the expiry of his leave remains absent from duty (otherwise than on foreign service or on account of suspension) for any period which together with the period of the leave granted to him exceeds 5 years, he shall (unless the Executive Council in view of the exceptional circumstances of the case otherwise determine), be deemed to have resigned and shall accordingly cease to be in the university service. This is the purport of Rule 10(c). Point 2 is decided accordingly."
23. In Vijay S. Sathaye v. Indian Airlines Limited and others, (2013) 10 SCC 253, the law about abandonment of employment was considered in the context of facts, where a Pilot of the Indian Air Force applied for voluntary retirement under the Voluntary Retirement Scheme, but did not wait for the outcome of the decision on that application. He was asked to continue till a decision was taken, but the employee did not report for duty the day following receipt of the communication that he should continue until a decision was taken on his V.R.S. Application. The facts in Vijay S. Sathaye (supra) can best be recapitulated in the words of their Lordships, which say:
"3. The respondents came out with a Voluntary Retirement Scheme (in short "VRS") for its employees in 1989 in order to reduce the surplus manpower. The said Scheme was for the employees who had completed 25 years of service or had attained 55 years of age. Subsequently, the condition prescribed in the aforementioned Scheme was reduced to 20 years of service in 1992. Regulation 12 of the Service Regulations provided that if an employee fulfils the aforesaid criteria of eligibility he can give three months' notice for voluntary retirement. However, the acceptance of the said resignation would be subject to the approval of the competent authority.
4. The petitioner completed 20 years of service on 19-3-1992. He was promoted as Deputy General Manager (Operations) on 30-8-1994. On 7-11-1994 the petitioner submitted an application seeking VRS w.e.f. 12-11-1994. The petitioner was informed vide letter dated 11-11-1994 that he should continue in service till the time decision is taken. However, the petitioner did not attend the duty after 12-11-1994. The petitioner joined the services of Blue Dart Ltd., and as he did not go to the respondents to work from 12-11-1994 and there had been no response from the respondents, he filed Writ Petition No. 19143 of 1994 for issuance of a writ of mandamus directing the respondents to accept the petitioner's application for voluntary retirement.
5. During the pendency of the said writ petition, the petitioner was informed by Respondent 4 vide letter dated 13-12-1994/15-12-1994 that his application had been rejected. Thus, the writ petition filed by the petitioner had become infructuous and the petitioner preferred another Writ Petition No. 21384 of 1994 challenging the order dated 13-12-1994/15-12-1994. The respondents contested the said writ petition and during the pendency of the said writ petition the petitioner attained the age of superannuation i.e. 58 years of age on 7-3-2001. The learned Single Judge dismissed the said writ petition vide order dated 12-3-2002 [ WP No. 21384 of 1994, decided on 12-3-2002 (Mad)] . Aggrieved, the petitioner preferred Writ Appeal No. 2415 of 2002 which has been dismissed vide impugned judgment and order [ Writ Appeal No. 2415 of 2002, decided on 20-7-2007 (Mad)] . Hence, these petitions."
24. In the context of the aforesaid facts, the law regarding abandonment was summarized in Vijay S. Sathaye thus:
"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
13. In Jeewanlal (1929) Ltd. v. Workmen [AIR 1961 SC 1567] this Court held as under: (AIR p. 1570, para 6) "6. ... 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."
(See also Shahoodul Haque v. Registrar, Coop. Societies [(1975) 3 SCC 108 : 1974 SCC (L&S) 498 : AIR 1974 SC 1896] .)
14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as "retrenchment" from service. (See State of Haryana v. Om Parkash [(1998) 8 SCC 733 : 1999 SCC (L&S) 262].)
15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah [AIR 1964 SC 1272] , while dealing with a similar case, this Court observed: (AIR p. 1275, para 5) "5. ... 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."
A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd. [(1979) 1 SCC 590 : 1979 SCC (L&S) 76 : AIR 1979 SC 582]
16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC 65 : 2000 SCC (L&S) 601] and Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2002 SCC (L&S) 965 : AIR 2000 SC 2783] this 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 ceases 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. A similar view has been reiterated in Banaras Hindu University v. Shrikant [(2006) 11 SCC 42 : (2007) 1 SCC (L&S) 327] , Chief Engineer (Construction) v. Keshava Rao [(2005) 11 SCC 229 : 2005 SCC (L&S) 872] and Bank of Baroda v. Anita Nandrajog [(2009) 9 SCC 462 : (2009) 2 SCC (L&S) 689].
25. A perusal of Rule 40.13.3 of the Service Rules, under which the Corporation have purported to act, would show that the said Rule postulates a case where the employee fails to join duty upon expiry of his sanctioned extraordinary leave, or a case where leave for a shorter duration has been sanctioned than the maximum admissible to an employee, upon expiry whereof he fails to rejoin, despite expiry of the maximum extraordinary leave that could be sanctioned under the Service Rules and remains continuously absent from duty. In either case, the employee concerned would be deemed to have resigned his post and ceased to be in the Corporation's employ, unless the competent Authority, in view of exceptional circumstances, takes decision otherwise.
26. The purport of the Rule aforesaid is an automatic severance of the employer-employee relationship by a deemed resignation or constructive resignation, where the employee overstays his leave within the mischief of the Rule. There is absolutely no requirement for the Corporation, where it treats an employee to have resigned his post under sub-Rule 13.3 of Rule 40 of the Services Rules, to pass an order terminating his services. Thus, if the Corporation intended to treat the petitioner as an employee who had resigned his job on the expiry of the maximum period of extraordinary leave that could be sanctioned to him, they were not required to pass an order terminating his services. Upon the employee submitting his joining report, they could have simply intimated him that he would be deemed to have resigned his post with effect from the date indicated when the maximum leave that could be sanctioned to him ended in his leave account.
27. There is a communication of this kind between the Manager (Personnel-I) of the Corporation addressed to the Chief Project Manager, Allahabad saying that the petitioner be informed that his joining report, presented after four years of unauthorized absence, had been rejected by the Managing Director. Strangely, this communication dated 11.10.2012, which has been annexed to the personal affidavit of the Managing Director filed on 28.10.2021, does not at all appear to have been communicated to the petitioner or acted upon by the Chief Project Manager or the Project Manager of the Corporation at their Pratapgarh unit. Instead, the impugned order dated 31.12.2012 was passed by the Managing Director himself, terminating the petitioner's services with effect from the date of the said order, employing the following words:
"श्री वीरेन्द्र प्रताप सिंह का इतनी लम्बी अवधि तक अनुपस्थित रहना wilful absence from duty की श्रेणी में आता है। अतः निगम से इनकी सेवायें तत्काल प्रभाव से समाप्त की जाती हैं।"
28. A perusal of the impugned order dated 31.12.2012 would show that though it mentions all facts and events about the manner in which the petitioner absented himself after expiry of the initial earned leave that was sanctioned to him from 21.04.2008 to 03.05.2008, it does not show at all that the Corporation treated the petitioner to have resigned his post, or abandoned employment, upon expiry of the maximum leave that could be sanctioned to him, under Rule 40.13.3 of the Service Rules. Rather, the clear purport of the impugned order dated 31.12.2012 is that the Corporation treated the petitioner to be in service until the date of the impugned order and for his act of wilful absence from duty, ordered the termination of his services with immediate effect. The impugned order is, by no means, an order merely communicating the petitioner the fact that his services have come to an end on account of his unilateral action in abandoning employment, with the employer passively refusing the petitioner to rejoin. The impugned order is a positive and affirmative order, putting to an end the petitioner's services for the misconduct of wilful absence from duty. The impugned order is, therefore, one that is an order of punishment passed by the Corporation for a perceived misconduct of the petitioner, on which they have acted to terminate his services. This kind of an order or action could only be taken after holding disciplinary proceedings in accordance with Rules 33 and 35 of the 1991 Rules; not under Rule 40.13.3 of the Service Rules. The personal affidavit filed by the Managing Director also shows that the Corporation have treated the act of the petitioner as a misconduct. This is evident from the following averments in Paragraph Nos.15 and 16 of the personal affidavit of the Managing Director:
"15. Therefore, under the above paragraph the services of the petitioner can be terminated without conducting regular departmental enquiry against him. The true copy of the U.P. State Bridge Corporation Service Rules paragraph no. 13(1) and 13(3) are being annexed herewith as and marked as ANNEXURE NO. A-04 & A-05 to this personal affidavit.
16. Moreover, several letters were written to the petitioner and the petitioner did not resume his duty and therefore by office order no. 1988 ESB/407 SBC/2012 dated 31-12-2012 petitioner's services were terminated with immediate effect for wilful absence from duty. Therefore, termination order is perfectly legal and justified."
(Emphasis by Court)
29. It may also be noticed that in the personal affidavit filed by the Managing Director of the Corporation, it has been averred in Paragraph No.11 that the petitioner was informed that a disciplinary inquiry has been instituted against him vide Office Memo No. 1921 ESB/2429 SBC/08 dated 08.09.2008, but it is said that the inquiry could not be carried to its logical conclusion because of the petitioner's non-cooperation. This stand of the Corporation could have been consistent with the exercise of power under Rule 40.13.3 of the Service Rules, provided there was just a communication to the petitioner that after the long lapse of time that he had put in his joining report, he would be deemed to have resigned his post. As already noticed, this was not the course of action that the Corporation followed. They chose to terminate the petitioner's services ex facie for his misconduct of wilful absence from duty, with effect from the date of the impugned order i.e. 31.12.2012. This, as already remarked, could not be done without holding disciplinary proceedings in accordance with law.
30. There is another facet of the matter as well. If by a patently imaginary stretch of Rule 40.13.3 of the Service Rules, the impugned order were held to be one passed under it, it would still not fulfill the intrinsic requirement of the Rule, subject to which alone power under it can be invoked. Rule 40.13.3 of the Service Rules envisages that upon continuous absence from duty of an employee, that exhausts his extraordinary leave and the other kind of leave that can be granted to him, he would be deemed to have resigned his post with the Corporation, but subject to the proviso that in all such matters the Corporation would have to serve a notice upon the employee that his services would be deemed to have come to an end under the Rule on a proposed basis. The proviso to Rule 40.13.3 shows that a notice carrying a proposal that the employee's services are deemed to have come to an end in terms of the rule for overstaying his leave has to be served. The employment of the word ''proposed' in the proviso is clearly suggestive of the unmistakable requirement that before the Corporation regards the services of an employee abandoned or ended under the aforesaid Rule, he has to be given some kind of an opportunity to explain. The explanation would, of course, be about his long absence. The purpose is to adhere to the minimum requirement of natural justice in both the formal and substantial exercise of power, or the enforcement of the Rule, to hold an employee of the Corporation having resigned his post for overstaying the maximum period of his leave. The explanation given is not an empty formality, for Rule 40.13.3 of the Service Rules envisages exceptional circumstances, "आपवादिक परिस्थितियों", to quote from the Rule, under which the employee may not be regarded by the Corporation to have resigned. This is not to say that in the present case the petitioner was never asked the reason to justify his unduly long absence from duty of four years, but certainly no notice under Rule 40.13.3 was ever served or his case dealt with under the said Rule.
31. This is not a case where on the facts of it, the Corporation could not have exercised their power under Rule 40.13.3 to hold the petitioner to have abandoned employment. In the opinion of this Court, they could have done so, subject to consideration of the petitioner's explanation before the decision to regard him as having resigned his post was made final. But, the power in the nature of the transaction and the clear terms of the impugned order was never exercised by the Corporation. The impugned order is clearly an instance of affirmative action by the Corporation, exercising their power to punish the petitioner for his misconduct in overstaying his leave. It is not by any means an invocation of Rule 40.13.3 of the Service Rules, passively holding the petitioner to have resigned his post, or abandoned employment, in terms of the said Rule. For an added assurance about the conclusion, if it were a case of abandonment of employment or deemed resignation under the said Rule, the services of the employee would not have been terminated by and with effect from the date of the impugned order. It is, therefore, held in answer to the question mooted that the petitioner's services have been terminated by the Corporation for his wilful absence from duty, as a matter of misconduct; not as a matter of abandonment of employment, under the leave Rules.
32. According to the petitioner, his date of birth, as entered in his service record, is 01.07.1958. He would, therefore, have attained the age of superannuation in the year 2018. He can no longer be reinstated in service. Nevertheless, in the clear opinion of the Court, the impugned order is unsustainable. At the same time, it has to be borne in mind that the petitioner has remained absent from duties for a period of four years, where he put in his joining report on 19.05.2012. From 19.05.2012 until the date of the impugned order i.e. 31.12.2012, it is the Corporation which has kept the petitioner out of employment.
33. Once the impugned order goes, the petitioner would be entitled to the benefit of his post held with the Corporation until the age he attained superannuation, and thereafter, whatever consequential benefits would follow. The petitioner would, in no case, be entitled to any pecuniary benefit for the period that he remained absent from duty i.e. 04.05.2008 to 19.05.2012. For the period from 19.05.2012 until attaining the age of superannuation, the petitioner, for whatever reason not having worked for the Corporation, would be entitled to 50% of his emoluments and no more. The petitioner would, nevertheless, be entitled to continuity in service for the purpose of reckoning his post retiral benefits.
34. In the result, the writ petition succeeds and is allowed. The impugned order dated 31.12.2012 is hereby quashed. The petitioner shall be deemed to have been in service of the Corporation until the date of his superannuation and entitled to consequential benefits as indicated hereinabove.
35. There shall be no order as costs.
Order Date :- 27.4.2022 Anoop