Delhi High Court
B.G. Saraswat vs Engineers India Ltd. on 1 December, 1995
Equivalent citations: 61(1996)DLT588, 1996(36)DRJ539, 1996LABLC1319
Author: J.B.Goel
Bench: J.B. Goel
JUDGMENT J.B.Goel, J.
(1) Rule D.B. Both the parties have filed their detailed pleadings and have also Filed some documents in support of their respective cases. A short point is involved and we have heard the learned counsel for the parties and we are finally deciding this writ petition.
(2) The petitioner was appointed as an Assistant Engineer with respondent No.1 (Engineers India Limited) since 14th December, 1983 and subsequently he was also promoted as Senior Engineer with effect from 1.7.1989.
(3) While working with respondent No.1, the petitioner was appointed on deputation basis for a period of two years by State Trading Corporation of India (For Short STC) as Manager Electrical with effect from 13.6.1989. While working with Stc he did not attend his duty with effect from 2.7.1990 and on 3.8.1990 he was relieved by that office and repatriated to his parent department, i.e" respondent No.1. He did not join duty even there and was posted by respondent No.1 at their office at Gandhar. As he did not report for duty, vide letter dated 24.9.1990 he was required by respondent No.1 to join duty by 15.10.1990 and he was also required to tender his explanation for his unauthorised absence. It was also notified to him that if he failed to report for duty by that date his name would be struck off from their Rolls. No reply was received by respondent No.1 from the petitioner and vide their letter dated 30.11.1990 he was informed that the name of the petitioner was struck off the rolls of respondent No.1 as he was deemed to have voluntarily abandoned their service.
(4) After receipt of this letter of 30.11.1990, in reply dated 12.12.1990 the petitioner informed respondent No.1 that he had not received any previous letters from them and that he was sick and had been advised to take rest and sought grant of further leave. In reply Vide letter dated 21.12.1990 he was informed by respondent No.1 that his name had already been struck off the rolls of the company. The petitioner then made representation dated 9.1.1991 alleging that he was unable to attend the duty because of his illness inter alia staling that he had telephoned and sent a telegram and application to the Stc where he was working for leave and therefore, he was not absent unauthorisedly. This representation was rejected on 8.2.1991. He made another representation dated 22.1.1992 to the Chairman-cum-Managing Director of respondent No.1 again reiterating that his absence was due to his illness and termination of his service was not legal and proper but without success and vide letter dated 17.6.1992 he was informed that respondent No.1 had already communicated their decision.
(5) The petitioner has Filed the present petition dated 7.8.1992 alleging that he was not absent from duty unauthorisedly but was unable to attend his duty because of illness and intimation of which was sent by him telephonically to Shri J.C.Goel, Chief Marketing Manager of Stc on 2.7.1990 followed by application sent on 2.7.1990 and a telegram was sent on 11.7.1990 to the Additional Director, Stc for extension of leave on medical grounds and a medical certificate was also sent to him and was unable to attend to work till 25.12.1990 and remained under treatment and had been submitting applications for extension of leave last being 12.12.1990. After receipt of reply dated 21.12.1990 he came to know that his name had been struck off from the rolls and made representation dated 9.1.1991 which was rejected on 8.2.1991. Another representation dated 22.1.1992 was rejected on 17.6.1992. It is alleged that termination of his service was illegal, arbitrary and against the principles of natural justice, fair play as no opportunity to explain had been given to him and this action was against public interest/ public policy. It was also alleged that in fact the order is an order of termination of his service for misconduct which could not be done without due inquiry as provided in "Discipline, Appeal, and Certain Other Conditions of Service Rules for Officers" as contained in circular No.13/80 (hereinafter called the Service Rules).
(6) In their counter affidavit filed on behalf of respondent objections had been taken that the petition was belated and it involved disputed questions of fact which could not be gone into in writ jurisdiction. On merits it was alleged that the petitioner had been irregular in attendance throughout his service; he remained absent while on deputation to Stc without leave and without making any application for leave and even after repatriation from there he did not report for duty nor gave any explanation in reply to letter dated 24.9.1990 sent to him for his unauthorised absence. Thus the petitioner has voluntarily abandoned the service of the respondent and so they were justified in striking off his name from their rolls in accordance with the service regulations.
(7) During arguments the only point argued was whether the service has been brought to an end by the petitioner by abandonment or whether it amounts to termination of service without due inquiry and is in violation of Service Rules or principles of natural justice and fair play.
(8) On behalf of the petitioner reliance has been placed on National Engineering Industries Limited Vs. Hanuman ; and Buckingham and Camatic Co. Ltd. Vs. Venkatiah and Am. 1964(4) Scr 265, whereas on behalf of respondent reliance has been placed on Jai Shankar Vs. State of Rajasthan , D.K-Yadav Vs. Jma Industries Ltd. , and Rahul Butalia Vs. State Bank of India .
(9) It is not disputed that petitioner did not report for duty since 2.7.1990. Petitioner was relieved and repatriated by Stc vide letter dated 3.8.1990 but he did not report for duty as directed at Gandhar.
(10) In their letter dated 24.9.1990 (Annexure R-2) respondent had informed the petitioner that he had neither reported for duty at Gandhar site nor had given any intimation for absence and so his name was liable to be struck off from their rolls for his unauthorised absence from duty for more than 21 days under Rule 4.5 of the aforesaid Service Rules and, he was called upon to join duty by 15.10.1990 and to tender his explanation for his unauthorised absence. This remained unacknowledged and unreplied and vide letter dated 30.11.1990 (Annexure E) to the writ petition the petitioner was informed that as he had neither joined the duty by 15.10.1990 nor sent any communication giving reasons for his absence, so under the terms and conditions of appointment, his name was struck off the rolls under Rule 4.5 of the Service Rules.
(11) Rule 4.5 of the Service Rules invoked in the present case provides as under: "4.5If an employee remains absent beyond 21 days continuously/without prior permission or intimation, he shall be deemed to have voluntarily abandoned the Company's service and the Company will notify him accordingly at his last known address."
(12) Rule 7.1 of the Rules defines 'misconduct' and under its sub clause (19) "Habitual or prolonged absence from the employee's appointed place of work without permission or sufficient cause" is also misconduct.
(13) Rule 7.5 of the said rules provides for penalties including removal and dismissal from service which could be imposed on an employee of the company for mis-conduct committed by him or for any other good and sufficient reasons after due inquiry. However, under Explanation (iv) (f) of this Rule "termination of service of an employee on voluntarily abandoning of service" is not penalty".
(14) The petitioner has not brought on record any material to show that he had made any proper written application for leave of absence on the grounds of illness or otherwise either to the Stc or to the respondent but now he has come with the plea that he could not attend his duty because of his illness and remained under treatment of a private medical practitioner. However, he has asserted that he never abandoned the service.
(15) Whether or not the petitioner had abandoned the service of the respondent is a matter of inference to be drawn from the facts and circumstances of the case. Unless there is material available to show intention on the part of the petitioner to totally give up duties, it will not be possible to arrive at the conclusion that the petitioner would have abandoned the service of respondent No.1. This was a matter which could be gone into by the respondent if the petitioner was afforded an opportunity of being heard. On behalf of the respondent it was contended that a notice dated 24.9.1990 was sent to the petitioner on his last known address wherein it was notified to him that he was continuously absent unauthorisedly and after he failed to report by 15.10.1990 as notified he was to deemed to have abandoned the service of the respondents and thereby sufficient opportunity to show cause was given.
(16) But the petitioner has denied having received any such letter. Except an averment to this effect made in counter affidavit no documentary proof has been placed on record to show that such a letter had actually been sent or served on the petitioner inspite of the fact that an opportunity was also given to the respondent to produce relevant postal receipts but the respondent has come up with the explanation that the records being old have been weeded out. Again no material has been brought on record to show when such records had been weeded out and why such records were not preserved when the present proceedings were pending where postal receipts were likely to be required. In the absence of any proper material on record it is not possible. to come to the conclusion that the letter dated 24.9.1990 had actually been sent or delivered to the petitioner. From the material it cannot be said that the petitioner would have abandoned the service.
(17) As already noticed under Service Rules prolonged absence from duty without permission or sufficient cause is 'mis-conduct' and undoubtedly the name of the petitioner has been struck off the rolls because of his prolonged absence. In that case in the absence of a finding based on material that the petitioner had abandoned the service of respondent No. 1 inference necessarily would be that the service of the petitioner had been terminated by way of removal or dismissal from service on account of 'misconduct'. Such a penalty could be imposed after holding due inquiry as provided under Rule 7.7 of the Service Regulations. Admittedly, no such inquiry was held by the respondent and the petitioner was not given an opportunity to show cause if he had good or sufficient cause for being absent. For this reason also the impugned order which entails removal from service without following the procedure prescribed by Service Rules is illegal.
(18) In Jai Shanker Vs. State of Rajasthan (Constitution Bench Judgment) the appellant, a Head Warder had proceeded on two months leave ending June 13, 1950; he applied for extension of leave on medical grounds in piecemeals. Two months extension was allowed but still he did not join and thereafter further applied for extension inspite of being told that no more leave will be granted. He did not join and then he was informed that he was discharged from service. His appeal to the authorities was rejected. Then he filed a suit for declaration that his termination of service was illegal inasmuch as he was entitled to a notice enabling him to show cause against the termination of his service as required by Article 311 of the Constitution. The case of the government was that-the government did not terminate his service and that it was the appellant who gave up the employment by remaining absent and he himself terminated the service under Service Regulation.
REGULATION13 which was relied on behalf of the government provided as under:- "AN individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."
IT was held that the regulation involved punishment for overstaying one's leave and it amounted to removal from service. This could be done after giving an opportunity of showing cause why he sh.ould not be removed, no matter how the regulation describes it and as no such Opportunity has been given to him his termination was held to be illegal.
(19) In D.K.Yadav Vs. J.M.A. Industries the respondent vide its letter dated December 12, 1980 intimated that the appellant willfully absented from duty continuously for more than eight days from December 3, 1980 without leave or prior information or previous permission from the management and therefore he was deemed to have left the service of the company on his own and lost his lien w.e.f. December 3, 1980. In this case reliance was placed on Clause 13(2)(iv) of its Certified Standing Order. The appellant in his letter dated December 3, 1980 had explained the circumstances in which he was prevented from joining duty but he was not allowed to join the duly. The Labour Court has upheld the termination of his service. On appeal it was held by the Supreme Court that automatic termination under Certified Stand- inn Order on absence without or beyond the period of sanctioned leave for more than eight days without holding any domestic inquiry or affording any opportunity to the workman was violative of principle of natural justice, Articles 14 and 21 of the Constitution and also Section 25F of Industrial Disputes Act.
(20) In the two cases cited on behalf of respondent right of. management to terminate service for unauthorised absence under Standing Order has not b.e disputed. No plea appears to have been taken about violation of principle of natural justice and it also does not appear that opportunity of being heard was not given or that domestic inquiry was'not held. .Those cases thus are of no help.
(21) In the circumstances, the impugned order dated 30th November, 1990 passed by the respondent thereby terminating his service is violative of principle of natural justice and also contrary to the Service Rules inasmuch as domestic inquiry has not been held and so is not sustainable and is illegal.
(22) Now the question is whether the petitioner whose termination of service has been set aside would be entitled to back wages or not. It would depend upon the circumstances of the case and the role and conduct of the parties. The petitioner remained absent from duty for more than about five months when his services were terminated. No material has been brought on record to show that he had made proper applications to Stc or to the respondent for leave or for extension of leave. Respondent did not hold proper inquiry to determine the misconduct or to give reasonable opportunity of being heard. Both are responsible for this situation. In somewhat similar circumstances in D.K.Yadav's case, the Hon'ble Supreme Court had granted 50% of the back wages on quashing of order of termination of service. In our view the same course would be just and proper in the present case also.
(23) The petition is accordingly allowed. Impugned order dated 30th November, 1990 whereby the name of the petitioner was struck off from the rolls of the company is set aside. We direct the respondent to reinstate the petitioner in service forthwith and pay him 50% of back wages from the date of termination of his service, as above within a period of two months failing which petitioner would be entitled to interest @ 12% p.a. on such arrears from today till payment. Petitioner shall have costs quantified as Rs.3,000.00 .