Kerala High Court
Abdul Salam S.Nazar Home vs Kerala State Electricity Board Ltd on 19 July, 2017
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 19TH DAY OF JULY 2017/28TH ASHADHA, 1939
WP(C).No. 17602 of 2014 (A)
----------------------------
PETITIONER :
----------
ABDUL SALAM S.NAZAR HOME,
VIZHINJAM P.O., THIRUVANANTHAPURAM - 695521.
BY ADV. SRI.S.MOHAMMED AL RAFI
RESPONDENTS :
-----------
1. KERALA STATE ELECTRICITY BOARD LTD.,
REP. BY THE MANAGING DIRECTOR,
VYDUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM - 695004.
2. THE CHAIRMAN AND MANAGING DIRECTOR,
KERALA STATE ELECTRICITY BOARD LTD.,
VYDHUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM - 695004.
3. THE CHIEF ENGINEER (H.R.M)
KERALA STATE ELECTIRICY BOARD LTD.,
VYDUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM - 695004.
R1 TO R3 BY SRI.K.S.ANIL, SC,
BY SRI.M.K.THANKAPPAN, SC,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 19-07-2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
bp
WP(C).No. 17602 of 2014 (A)
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF THE PROCEEDING NO. EB.1(a)/LAWA/2008,
ISSUED BY THE R3.
P2: COPY OF THE PROCEEDINGS NO.EB.1(a)/
LWA/2011/LWA, DT 29/4/2011, ISSUED BY THE R3.
P3: COPY OF THE SHOW CAUSE NOTICE
NO.EBVS.6/15/2013/269 DT 03/04/2013 ISSUED BY
THE R3.
P4: COPY OF THE REPLY DT 18/4/2013 SUBMITTED BEFORE
THE R3 SUBMITTED BY THE PETITIONER.
P5: COPY OF THE ORDER NO.EBVS.6/15/2013/47
DT 16/5/2013, ISSUED BY THE R3.
P6: COPY OF THE ORDER NO.VIG/BIV/3638/13/1428,
DT 11/6/2014 ISSUED BY THE R2.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY//
P.S. TO JUDGE
bp
CR
Devan Ramachandran, J.
-----------------------------------------------
W.P.(C)No.17602 of 2014 A
-----------------------------------------------
Dated this the 19th day of July, 2017
JUDGMENT
The concepts of 'absenteeism', 'abscondment' and 'abandonment' in work place sometimes are subject to confusion among employers, which causes them to deal with specific instances, presenting one or the other of these, incorrectly. In modern labour law there is a distinction between each of these concepts. Absenteeism generally when an employee remains without reporting for duty unauthorisedly for short periods of time. Abscondment is often deemed when an employee is absent from work for a time that warrants an inference that he does not intend to return to work. Abandonment occurs when an employee has intimated, expressly or by implication, that he does not desire to report to work. WPC 17602/14 2
2. In all these three cases, there is one some form of absenteeism but in the case of abandonment, there are three elements which are generally present, namely that an employee is absent without employer's authority; that he has not been in contact with the employer for substantially large periods of time to explain why he is absent and his intention is never to report to work.
3. This writ petition is at the instance of an employee in the services of the Kerala State Electricity Board, who is alleged to have remained continuously absent from duty leading to his dismissal from service without an enquiry. The petitioner asserts that such termination without even an enquiry is illegal while the respondents maintain that no such enquiry is required since the petitioner is not merely absent for long periods but that he should be deemed to have abandoned his service. It is in such circumstance that this Court is now called upon to consider whether every case of long WPC 17602/14 3 absenteeism would amount to abandonment of service or whether such a factum will require more substantiation to be offered by the employer relying either on the express or implied intent of the employee.
4. The petitioner impugns Exhibits P5 and P6 orders, issued by the Disciplinary Authority and the Appellate Authority respectively of the Kerala State Electricity Board ('the Board' for short), as per which the petitioner has been removed from service on the allegation that he has been continuously and habitually absent from duty.
5. The petitioner says that he had originally applied for leave to take up a foreign employment and that his leave, in two spells, was sanctioned by the competent authorities of the Board until 19.10.2011. He says that even though he had applied for further extension of leave for one year and three months, the same was declined by the Board as per order dated 09.08.2012.
WPC 17602/14 4
6. The petitioner, however, admits that he was unable to return to india even thereafter and while so, Exhibit P3 show cause notice was issued to him by the Chief Engineer (HRM), the third respondent herein, asking the petitioner to show cause why action should not be taken against him for unauthorised absence from duty. The petitioner immediately replied as per Exhibit P4 letter dated 18.04.013, issued from Qatar, requesting that he be given further extension of leave since he was not in a position to return to India on account of certain compelling employment obligations in Qatar. The respondents, however, did not accede to this and the third respondent issued Exhibit P5 order removing the petitioner from service in terms of the proposal contained in Exhibit P3 show cause notice.
7. The petitioner appears to have filed an appeal before the Statutory Appellate Authority who also confirmed Exhibit P3 through Exhibit P6 order, thus WPC 17602/14 5 rejecting his appeal. The petitioner has filed this writ petition impugning Exhibits P5 and P6 orders on the ground that they were issued illegally and that the punishment of removal from serve imposed against him cannot stand legal scrutiny, since it was not preceded by a proper inquiry as was required under the Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations, 1969.
8. I have heard Sri.S.Mohammed Al Rafi, learned counsel for the petitioner and the learned Standing Counsel for the respondents.
9. The third respondent has filed a counter affidavit on record, wherein he maintains that the petitioner's continued refusal to join duty is not merely unauthorised absence but is also to be construed as abandonment of his employment. The learned counsel appearing on behalf of the respondents relied on the judgment of the Hon'ble Supreme Court in Vijay WPC 17602/14 6 S.Sathaye v. Indian Airlines Limited and Others ((2013) 10 SCC 253), wherein the Hon'ble Court has declared the law relating to the right of an employee to abandon his service as under:
"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 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."
10. The learned counsel for the petitioner, in refutation of the above submissions made by the learned Standing Counsel for the Board, says that there is no case for the Board, even as per the orders impugned, that his client has voluntarily abandoned duty. He asserts vehemently that, even as is discernible from the orders issued against the petitioner, namely Exhibits P3 and P5, his client had followed statutory mechanisms of offering explanation and that he was only seeking to have his WPC 17602/14 7 leave extended on account of certain compelling situation that he faced in Qatar. According to him, the Board does not, even in Exhibits P3, P5 or P6, say that the petitioner has abandoned the service. He points to the specific contents of Exhibit P5 and asserts that even as per its terms the petitioner has been found to be on unauthorised absence only, thus amounting to a serious misconduct. Learned counsel, therefore, predicates that when the Board has found that the petitioner has committed serious misconduct, then the rigor of the Regulations would apply warranting that an enquiry be initiated against him.
11. I have considered the rival contentions of the parties as voiced through their counsel before this Court. It is, no doubt, true that a case of voluntary abandonment would apply when an employee absents himself for long without any reason and without informing his employer that he intends to join duty thereafter. That being said, WPC 17602/14 8 care should be exercised that every instance of long absence is not unfairly construed as abandonment of service. The word abandonment semantically means the act of intentionally and permanently giving up, surrendering, deserting or relinquishing. Hence, each case will have to be decided with reference to the particular facts available and a conclusion as to whether unauthorised absence in a specific instance has metamorphosed into abandonment will have to be made on a case to case basis after such evaluation.
12. In the case at hand, the petitioner has responded to Exhibit P3 show cause notice and has also filed a statutory appeal against Exhibit P5 order. The conduct of the petitioner in not joining duty after leave, even after a long duration, is certainly a factor that would facilitate an inference of abandonment. But the fact that he had been responding to all official communications and had been constantly showing his readiness to join WPC 17602/14 9 duty, though not immediately but in future, would perhaps be considerations in support of his contention that he had no intention to abandon the service but that he was unable to joint duty due to certain extenuating circumstances. This is why I have said earlier that the dividing line between these two concepts is very fine and it will require great circumspection to be employed while deciding either way.
13. The facts involved in this case and especially the orders impugned do not even whisper that the petitioner is guilty of abandonment of service and this would go substantially in favour of the petitioner and against such an allegation. Had it been otherwise and had the respondents thought that the conduct of the petitioner concedes only to a case of abandonment, nothing prevented them from saying so in the impugned orders or in notifying the petitioner that his continued absence would be construed as abandonment. WPC 17602/14 10
14. It is, therefore, not possible for this Court to come to a definite conclusion that the petitioner has abandoned his employment but it appears to be more or less certain that he has committed serious misconduct by remaining absent without authority for long periods of time. The line between these two is tenuous and it will require cogent and reliable evidence to prove that an employee, who has been on unauthorised absence, has given up his employment or abandoned the same. I am not sure, if such a situation can be affirmatively concluded in the facts of this case. As I have already stated above, the petitioner had been responding to the notices and orders, albeit without coming to India, which he says was because he was unable to do so.
15. In the background of what I have recorded above and since I notice that the petitioner was an officer of the rank of Assistant Engineer who had put in more than seven years of unblemished service, he should be WPC 17602/14 11 given some amount of leniency and latitude so that at least he can get some benefits from the Board on account of his past service. I think it will be in the best interest of the petitioner that he approaches the second respondent - The Chairman & Managing Director of the Board, who is also the Appellate Authority in this case, with a representation detailing all his contentions and seek a re- consideration of his appeal at the hands of the said authority for either being re-admitted to service or in the alternative to such other benefits, as may be legally permissible to him, for the period of service already rendered by him.
16. The Appellate Authority, based on such representation, can also consider whether the petitioner can be re-admitted to service on such suitable terms or whether he can be imposed with a lesser punishment so that at least the benefits for his past service can be given credit to him. I am not saying that the second respondent WPC 17602/14 12 is obligated to pass an order in a particular manner and it will be up to him to take a decision in accordance with law. I, therefore, do not deem it necessary to quash Exhibit P6 order of the Appellate Authority because my intention, as recorded above, is only that the Appellate Authority consider my observations in this judgment and take a fresh view and to modify Exhibit P6 order, if it is so warranted, after consideration of the representation of the petitioner.
In such circumstances, I dispose of this writ petition directing the petitioner to make a representation before the second respondent within a period of one month from the date of receipt of a copy of this judgment and the second respondent, on receipt of such a representation, shall be obligated to consider the same in terms of law and issue appropriate orders as expeditiously as possible but not later than four months thereafter.
Devan Ramachandran, Judge tkv