Indian Kanoon - Search engine for Indian Law

Delhi High Court

Amarjeet Singh vs The Management Of National Thermal ... on 11 October, 2012

Author: Rajiv Sahai Endlaw

Bench: Chief Justice, Rajiv Sahai Endlaw

$~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of Decision: 11th October, 2012

+     W.P.(C) 2836/2000

      AMARJEET SINGH                                     ..... Petitioner
                  Through:             Mr. H.K. Chaturvedi & Ms. Anjali
                                       Chaturvedi, Advs.
                     versus

      THE MANAGEMENT OF NATIONAL
      THERMAL POWER CORPORATION LTD. ..... Respondent

Through: Mr. S.K. Taneja, Sr. Adv. with Mr. Rajesh Gupta, Mr. Puneet Taneja & Mr. Anand Kumar Singh, Advs.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CHIEF JUSTICE

1. The petitioner was an Assistant Controller (Grade-I) in the respondent National Thermal Power Corporation Ltd. (Corporation). He has questioned the order of termination dated 18.10.1999 passed by the respondent Corporation in exercise of powers under Rule 24.9 of the NTPC Service Rules applicable to the petitioner. The said Rule is as under:

"24.9. Termination on account of unauthorized absence:

An employee who remains unauthorizedly absent from duty or place of work either without sanction of any leave or after expiry of sanctioned leave, if any, and does not report for duty for any reason whatsoever within 90 (ninety) consecutive days from the WP(C) No.2836/2000 Page 1 of 6 date of his/her unauthorized absence, shall automatically lose lien on his/her post and he/she shall be deemed to have voluntarily abandoned and left the service of the Corporation, without notice.

Provided, however, if the employee subsequently substantiates and accounts for his/her unauthorized absence from duty within 90(ninety) consecutive days from the date of the termination order to the entire satisfaction of the Management, the Management may regularize his/her period of unauthorized absence on such terms and conditions as it may deem fit and proper."

Unauthorized absence is defined in Rule 2(s) as under -

"2 (s) "Unauthorized Absence" means absence by an employee from his/her duty or place of work without authority either without sanction of any leave or after expiry of sanctioned leave, if any."

2. The petitioner has challenged the order of termination on two grounds. Firstly, it is contended that the Rule aforesaid is violative of Article 14 of the Constitution of India inasmuch as it empowers the respondent Corporation to terminate the service of an employee without giving any chargesheet or any opportunity of being heard and without holding any inquiry resulting in violation of principles of natural justice and secondly on the merits of the order of termination

3. Insofar as challenge to Rule 24.9 of the NTPC Service Rules is concerned, we need not to trouble ourselves for the simple reason that the validity of the said Rule came up for consideration before a Division Bench of this Court in W.P.(C) No.762/2011 titled Surendra Kumar Tiwari Vs. WP(C) No.2836/2000 Page 2 of 6 National Thermal Power Corporation Ltd. and after referring to various judgments of this Court as well as the Apex Court, the validity of said Rule was upheld in the judgment dated 1st June, 2012. In view of the said law, the issue of challenge to the said Rule is res integra. Accordingly, the challenge must be negatived.

4. As far as the merits of the order of the termination are concerned, it is not controverted that a show cause notice dated 11 th /15th September, 1997 was issued by the respondent to the petitioner asking the petitioner to show cause for his habitual absence as under:

      "Month              Total Number of Days       Period of Absence

      September, 1996           30                                13
      October, 1996             31                                16
      November, 1996            30                                10
      December, 1996            31                                19
      January, 1997             31                                20
      February, 1997            28                                15
      March, 1997               31                                22
      April, 1997               30                                15
      May, 1997                 31                                22
      June, 1997                30                                18
      July, 1997                31                                24
      August, 1997              31                                25
      Total                    365                               219"

Significantly the petitioner in his reply dated 26th September, 1997 did not dispute his absence as detailed in the show cause notice but merely pleaded that he had been taking leave explaining his domestic problems and the said WP(C) No.2836/2000 Page 3 of 6 leave was approved as leave without pay and ought not to be treated as unauthorized absence.

5. It is also not controverted that another notice dated 26 th /27th April, 1999 was issued by the respondent to the petitioner to show cause as to why he should not be deemed to have voluntarily absented himself from work since the month of October, 1997, when his leave had never been approved as claimed by him in his earlier reply. The details of unauthorized absence since 1992 set out in the said show cause notice were as under:

"Year No. of Unauthorized No. of closed Total absence Days Days 1992 124 66 190 1993 246 66 312 1994 188 66 254 1995 178 66 244 1996 181 66 247 1997 256 66 322 1998 299 66 365 1999 83 17 100 (upto10.4.99) Total 1555 462 2017"

6. The petitioner submitted a reply dated 13th May, 1999 to the said show cause notice, stating, that leave were taken verbally; that he had applied for regularization of his absence in terms of Circulars dated 7 th October, 1997 and 7th /15th April, 1998 of the respondent; that he was not allowed to sign the attendance register for the last 20 months and denying that he had been absent from 1st October, 1997.

7. The respondent however, vide order dated 18th October, 1999 (supra) held the petitioner to have voluntarily left the service within the meaning of Rule 24.9 (supra). In the said order it was also observed that the occasion for the petitioner being not permitted to sign the attendance register did not arise as the same was always kept in the Section with everyone free to mark the attendance till 9.00 a.m. in the morning; thereafter the register was kept in the room of the Senior Manager so that he could supervise the late comers and the petitioner had never reported for signing the register.

8. The counsel for the petitioner has at the outset relied on the Circulars dated 7th October, 1997 and 7th /15th April, 1998 issued by the respondent giving opportunity to employees to get their unauthorized absence regularized. We however do not deem the necessity to go into the said plea inasmuch as the regularization vide the said Circulars was at best till the issuance thereof. Even if it were to be held that the unauthorized absence of the petitioner till the end of April, 1998 stood regularized, the second show cause notice was issued only on 26th /27th April, 1999 i.e. after one year and claiming the appellant to have remained unauthorizedly absent during the said time. The appellant has been unable to show any application for leave or sanction thereof for the said one year. Though he claimed that he was not being permitted to mark his attendance but it is inconceivable that an employee who though working, is not being permitted to mark his attendance for one year, would not take up the matter. We have during the hearing inquired from the counsel for the petitioner that if the petitioner, though was not being permitted to mark his attendance, was during the said time attending office, there would certainly be proof of his having worked during the said time. Neither any plea has been raised in this regard nor does WP(C) No.2836/2000 Page 5 of 6 the counsel has any knowledge. The petitioner is stated to be not present in the Court today also. On the contrary the counsel for the respondents has stated that the petitioner has not collected his pay also from the month of October, 1997 onwards and no demand therefor was made. On the comments of the petitioner being solicited to the said argument, the counsel for the petitioner again expresses ignorance in this regard. Rather the counsel for the respondent has stated that the inquiries have revealed that the petitioner has a lucrative business and is thus not interested in the employment.

9. We are satisfied that there is no perversity in the application of Rule 24.9 (supra) qua the petitioner and in deeming the petitioner to have abandoned his employment by remaining unauthorizedly absent from duty for more than consecutive 90 days and no case for judicial review is made out.

10. There is thus no merit in the petition and the same is dismissed. We refrain from imposing any costs on the petitioner.

CHIEF JUSTICE RAJIV SAHAI ENDLAW, J OCTOBER 11, 2012 M'..