Calcutta High Court
Hindusthan Fertilizer Corpn. Ltd. And ... vs Sri Subhas Chandra Mukherjee on 6 September, 1991
Equivalent citations: (1992)1CALLT391(HC)
Author: Monoj Kumar Mukherjee
Bench: Monoj Kumar Mukherjee
JUDGMENT
1. The respondent joined the services of the appellant Corporation sometime in August, 1971 as a Trainee Craftman. He was subsequently, promoted to the post of Operator Grade, in the month of January, 1979. The respondent allegedly was laid down with acute dry Pleurisy and other ailments and remained confined in his house from 11th of March, 1984 to the 10th of September, 1987. He sent information to the appellant by several letters from 20th November, 1984 to 12th February, 1987 under Certificate of Posting intimating his inability to resume his duties. On recovery from illness he approached the appellant for grant of leave during the period of absence and permission to resume his duties. His letter in this behalf dated 14th of September, 1987 was accompanied with a Medical certificate. The respondent sent another letter dated 4th February, 1988. By a letter dated 24th of May, 1988, the appellant informed the respondent that his requests for re-appointment after a lapse of 3 years and a half was examined and his prayer could not be acceded to. The respondent alleges that the question of re-appointment does not arise since his service was not terminated. The respondent thereafter had filed a writ application being Civil Rule No. 8153(W) of 1988 for redressal of his grievances. The learned Judge of this court quashed the impugned order of the appellant and directed the management to consider the representation of the respondent and to decide the matter afresh on the basis of an order passed in the case of R.C. Chowdhury by the appellant. Further direction was given to afford an opportunity of hearing to the respondent. The respondent in his application cited the case of one R.C. Chowdhury whose absence from duty for a longer period was condoned by the Management and he was allowed to resume his duties. Pursuant to the order of this court the respondent submitted a representation which was rejected by the Management. Aggrieved thereby the respondent filed another writ petition which was allowed by a learned Judge of this court on 23.9.88 principally on the ground that the respondent was not given a personal hearing before rejection of his representation, Pursuant thereto the respondent was given a personal hearing but this time also the appellant rejected his representation. So the respondent filed the third writ application being Civil Order No. 13213 (W) of 1988. The learned Single Judge by his order dated 25th January, 1989 ordered that the respondent might be allowed to join his duties within 7 days from the date of the order. The Management was further directed to consider the case of the respondent with respect to payment of salary commensurate with the facts and circumstances of the case and the hardship suffered by the respondent during the period of absence.
The Management felt aggrieved by the said order and preferred this appeal.
2. There is no controversy that the respondent was in the service of the appellant. It is also not disputed that the respondent was absent from duty from 11th March, 1984 to 10th September, 1987. The respondent claims that he sent several letters intimating the Management as to his illness under Certificate of Posting. The annexure put in by the respondent of course indicates that several letters were sent under Certificate of Posting by the respondent. But the appellant denies the receipt of any of the said letters. As a matter of fact, no document has been produced to show that either of the said letters had ever reached the Management or as a matter of that the respondent ever made a serious effort to contact the Management while he did not receive any reply to his letters. The Management sent letters dated 7.2.1985 and 17.12.1984 by registered post to the address furnished by the respondent in his letters said to have been sent under Certificate of Posting. Those registered letters came back without service. By the letter dated 17.12.1984, the Management asked the respondent to appear before the Chief Medical Officer forthwith. Since the letter could not be served by registered post at the address furnished by the respondent himself, the Management preferred to issue another letter dated 7.2.1985. That letter also came back "unserved". In the circumstances, the Management considered the absence for three years and a half to be an unauthorised absence and preferred to fall back upon para 6 of the Leave Rules of 1970. The Leave Rules have the sanction of Certified Standing Orders of Hindusthan Fertilizer Corporation Ltd. Rule 17 of the Standing Orders provides that the leave facilities would be allowed in accordance with the leave facilities provided under the Fertilizer Corporation of India Leave Rules, 1970. Paragraph 6 of the Leave Rules provides that an absence without permission for more than 10 days will be treated as voluntary abandonment of employment, and the name of the employee will be struck off the rolls without any notice to the employee. Similar provision has been provided form the Certified Standing Orders. Rule 23 catalogues different acts of misconduct. The last item of the said catalogue provides that a continued absence without permission from work for more than 10 days will amount to misconduct.
3. The Management did not prefer to treat the absence as an act of misconduct which would warrant an enquiry before the award of any punishment. On the contrary the Management has relied upon the provision contained in the Leave Rules, while the former requires an enquiry for termination of service in the latter case the termination is automatic. The respondent has relied upon a large number of decisions to contend that termination of service without a reasonable opportunity can by no means be supported. L. N. M. Institute v. State of Bihar, 1988(2) SLR 210 (SC) is relied upon by the respondent. In that case by an ordinance Institute was taken over and the service of the Registrar was terminated. It was held that it involved civil consequence and natural justice demanded that the opportunity to show cause must be given. In R. R. Singh and Ors. v. Union of India, -similar view was entertained. In that case service was terminated on account of strike. The court held that opportunity of hearing should be given. In Delhi Transport Corporation v. D. T. S. Mazdoor Congress, . service of some permanent employee was terminated without enquiry in terms of Regulations 9(b) of Conditions of Appointment of Service Regulation. The said provision provided the termination with reasonable notice or pay in lieu thereof without holding an enquiry. Supreme Court held that the provision was arbitrary since it does not lay down any guideline as to the circumstances when termination can be effected. In M. D., U.P. Warehousing Corporation v. Vijoy Narayan, charges were framed, but no enquiry was held nor the delinquent was allowed to cross-examine. It was a public employment. The court held that Statutory bodies had to hold due enquiry in accordance with Statutory Regulations and in their absence according to Rules of natural justice. In an earlier decision in Deokinandan Prasad v. State of Bihar, 1971(1) SLR. 175 the court opined that despite provision for automatic termination of service Article 311 of the Constitution would be attracted. Article 311 of the Constitution will be violated if no opportunity to show cause is given. In Mafatlal v. D. Rathod, service was terminated without giving an opportunity. Clause 4(b) of the Regulations provides for reasonable opportunity to show cause.
4. Learned Counsel for the respondent relied upon all these decisions to substantiate his argument that the Management in the instant case could not dispense with the service of the respondent without giving an opportunity to show cause. According to him, a denial of such opportunity is a violation of the Rules of natural justice. On a careful analysis of these cases it will be found that they are either cases of termination of service or a case governed by Article 311 of the Constitution of India. Ours is a case of abandonment of service. The Management is not required by any overt act or otherwise to terminate the service of an employee. As soon as the incumbent remains absent from duty for requisite number of days he is deemed to have abandoned his service. If his representation to the Management assigning reasons for failure to ask for leave is accepted the authority may grant him leave and allow him to resume his duties. In the case of Buckingham & Carnatic Co. Ltd. v. Venkatiah, a similar question as in the case in hand came up for consideration before the Supreme Court. In that case also provision was made in the Standing Order that an absence for a certain number of days would amount to abandonment of service. Similar absence was also treated to be a misconduct. The employee remained absent for a number of days and thereby attracted the mischief of the provision of abandonment of service. Supreme Court opined that in that case termination of service was automatic and ultimately refused to grant relief to the employee.
5. In the instant case the Management refused to believe the plea of illness of the respondent and thereby refused to allow him to resume duties or to reinstate him. High Court will not sit in appeal over the judgment of the Management unless the same is malafide. High Court will strike down the decision of the Management if the decision is arbitrary, discriminatory or without any guideline. It is argued on behalf of the respondent that the case of the respondent was not treated at par with the case of R. C. Chowdhury. The Management preferred to grant him leave and regularised the absence. The Management has furnished reasons as to why the case of R. C. Chowdhury was treated differently. R. C. Chowdhury genuinely fell ill and he had occassion to receive treatment from the hospital of the appellant. In the face of such an explanation it can not be contended that the respondent was treated differently without good reasons. The appellant tried to contract the respondent by registered post unsuccessfully. In this connection, we may look to an earlier order of the trial court passed in Civil Order No. 1853(W) of 1988. The learned trial Judge directed the Management to consider representation that might be filed by the respondent. The appellant had actually considered the representation of the respondent and finally by a reasoned order dated 29.8.1988 had refused to give any relief to the respondent. In the said order the appellant had said as to why the case of R. C. Chowdhury was differently treated. It was further noted that the letters the respondent claims to have sent to the appellant were not received. Evidently, therefore, the respondent remained absent for three years and a half without any intimation to the Management whatsoever. The Management was directed to consider the representation that might be submitted by the respondent. As a matter of fact, the Management considered the representation and rejected the same. We cannot hold that the decision is either perverse or discriminatory. In that view of the matter, we should not revise the decision that was taken by the Management.
6. The respondent cannot fall back upon Rule 8 of the Standing Orders. Rule 8 contemplates termination of service of a permanent employee. We have already pointed out that this is no case of termination of service ; rather this is a case of abandonment of service. In the latter case, it operates automatically. Therefore, Rule 8 of the Standing Orders has no application.
7. In view of our foregoing reasons the writ petitioner cannot succeed. We accordingly allow the appeal and dismiss the writ petition. No order as to costs.