Gh. Hassan Mir vs State and Others

Muzaffar Hassain Attar, J.—The petitioner claims to be appointed as orderly in the year 1970 on adhoc basis in the respondent institute and

subsequently confirmed on the said post. The petitioner further claims that in order to get his wife medically treated at Delhi he submitted leave

application on 9th March 1981 requesting therein for sanction of leave for a period of three months. The petitioner thereafter claims to have sought

medical leave as also leave without pay for six months. The petitioner claims that he reported for duty in the year 1982 but the respondents did not

allow him to join. The petitioner submitted representation to the respondents for allowing him to join duties. The representation annexed with the

writ petition is dated 15th June 1997. The petitioner has thus prayed for issuance of writ of mandamus to direct the respondents to allow the

petitioner to join his services and give him all service benefits which would have been given to him had he been allowed to join his service in time.

The petitioner further prays for issuance of mandamus commanding the respondents to pay salary to him and other monitory benefits for the period

he was kept out of service by respondents with further direction for being promoted to next higher post.

During pendency of the writ petition Regional Engineer College was taken over by Central Government and the name of the college has been

changed from Regional Engineering College to National Institute of Technology. The petitioner during the pendency of the writ petition moved an

application for allowing him to change the cause title of the writ petition. The amended writ petition has been filed.

In the reply filed by respondents 2 and 3 objections were raised about the maintainability of the writ petition on the ground that the petitioner has

voluntarily relinquished his employment in the erstwhile engineering college with effect from 18.04.83. Further objection is raised by respondents

that as the college was a Society registered under J & K Societies Act the employees of the said college as such were not holding any post under

the State and the erstwhile college was not amenable to writ jurisdiction as employees were not coming under the protective umbrella of Article

311 of the Constitution of India. The respondents have further stated that the erstwhile college was held to be an authority under Article 12 of the

Constitution and was thus, amenable to writ jurisdiction only so far claim would be made of violation of the guarantees as contained in part-Ill of

the Constitution. It is further pleaded that petitioner who held the post of Laboratory Attendant right from his engagement had shown lack of

interest to discharge his duties properly which is proved by the fact that in the short span of service he applied for various kinds of leave particulars

where of have been given at para 4 under the head ""statement of material facts"". It has been further pleaded that petitioner applied for one year

leave w.e.f., 19th April, 1983 upto 18th April 1984 and after expiry of the leave period petitioner failed to resume his duties and has voluntarily

relinquished his employment in the erstwhile Society. It has been further pleaded that petitioner has failed to resume his duties pursuant to the

communication No. REC/PD/84/470 dated 12.06.1984 which was send to him under registered postal cover wherein he was asked to resume his

duties and also to explain for having remained unauthorized absent. After having failed to respond to the said communication, another

communication bearing No. REC/PD/85/5147-48 dated 10th Sept. 1985 was served upon petitioner to inform him once again to join his duties on

or before 01.10.1985 and it was further informed in the said communication that in the event of his failure to resume his duties he shall be deemed

to have voluntarily relinquished the employment in the erstwhile college. The copy of the communication dated 10th Sept. 1985 has also been

placed on record along with the reply. The petitioner having again failed to respond, constrained the respondents to issue notice bearing No.

REC/PD/85/5911-12 dated 6th Dec. 1985 giving final opportunity to petitioner to resume duty on or before 12th Dec. 1985. It was further

conveyed in the said communication that in case the petitioner fails to resume duties in the college his services shall stand automatically terminated.

The petitioner instead of resuming his duties applied for final withdrawal of GP Fund which was sanctioned, released and disbursed to him vide

receipt dated 3rd Oct. 1987. The stand of the respondents is thus, the petitioner has abandoned/voluntarily relinquished his employment. The

respondents have further stated that the writ petition has been filed in the year 1997 and no explanation whatsoever has been given for filing the

delayed writ petition.

Heard Learned Counsel for parties. Considered the matter.

Ld. Counsel for petitioner has submitted that the petitioner being permanent employee of the respondent Institute and no order of termination

having been passed, he will be deemed to be in continuance service of the respondents. The ld. Counsel further submitted that petitioner cannot be

deemed to have abandoned/relinquished his service as claimed by the respondents but would be deemed to be in the employment of the

respondents. Ld. Counsel further submitted that even when an employee remains unauthorisedly absent from duty, the employer is duty bound in

law to conduct an enquiry and then pass orders, as the unauthorized absence constitutes misconduct in law. The ld. Counsel further submitted that

the respondent Institute being an authority under Article 12 of the Constitution, the employer was thus duty bound to issue show cause notice to

the petitioner before taking any penal action against him. Ld. Counsel has further submitted that the issue 6f latches cannot be raised at the final

hearing of the case after the writ petition has been admitted to hearing. Ld. Counsel further submitted that even thought petitioner has received

amount of G.P Fund still it cannot be said that he has voluntarily abandoned his service. The Id Counsel in support of his contention has referred to

SLJ 2005 JK 389, SLJ 2005 JK 757, SLJ 2005 JK page 1, AIR 2001 SC1401, AIR 1994 SC page 215, AIR 1996 page 492, & AIR 1999

SC page 309.

The ld. Counsel for respondents argued on the same lines and in tune with the stand taken in the counter affidavit. The ld. Counsel for

respondents submitted that writ petition suffers from un-explained latches and delay and thus merits dismissal. Ld. Counsel for the respondents

further submitted that the petitioner of his own volition has abandoned his employment and is not entitled to seek any relief from the Court.

The Rule 32 referred to by the petitioner as also the bye-laws of Engineering College Society Srinagar, thereof refer to, powers to impose

penalties. Rule 35 and 36 deals with the procedure provided for imposing penalty on the employees of the College. In Rule 35-36 it is provided

that no penalty can be imposed on an employee unless he is granted an opportunity of hearing in the case of minor penalty and in the case of major

penalty unless enquiry has been held and employee has been given reasonable opportunity for showing the cause for the action proposed to be

taken against him. What appears from the Rules is that these are in the shape of bye-laws of the erstwhile Society of which petitioner was

admittedly an employee.

In view of rival stand taken by parties, what emerges for consideration in this case is as to whether the petitioner can be said to be holding status

of employee in terms of Article 311 of Constitution of India read with Section 126 of Constitution of J & K. Admittedly the petitioner was

employee of a Society registered under Societies Registration Act and as such cannot be said to be holding employment under the State and in

view of the clear and lucid language of Article 311 of Constitution of India read (sic) Constitution of J & K only those persons who are the

employees of the State/Central Government can claim to have the protection of the said provisions of Constitution. The employee of a Society

cannot claim the protection and benefits flowing from Article 311 of Constitution of India read with Section 126 of Constitution of J & K.

Petitioner thus is not entitled a show cause notice. Even in the fact situation of this case, the petitioner who had proceeded on leave, despite

issuance of notice did not resume his services and ultimately vide communication dated 6.12.1985 he was given last opportunity to resume his

duties and in case of failure he was informed that his services shall automatically stand terminated. The question which arises for consideration of

Court in these circumstances is whether the petitioner's services stand automatically terminated in terms of the said communication or whether still

respondents were duty bound to conduct an enquiry and then pass order of dismissal. The respondents have not imposed any punishment on the

petitioner as no action has been taken by the respondents against the petitioner for his alleged misconduct of remaining unauthrisedly absent for a

long period of time, The petitioner admittedly did not resume his duties from year 1983 and first time filed representation in the year 1997 for

allowing him to join his services. The question of conducting an enquiry and passing of orders in the fact situation of this case does not arise. Even

otherwise the bye-laws of a Society do not constitute a law which can be enforced by invoking the extra-ordinary jurisdiction of this Court. The

bye-laws may constitute an agreement between employee and employer, and for alleged breach thereof the employee may seek appropriate

remedy by claiming damages seeking declaration from court of competent jurisdiction of his being in continuation of service. The writ petition

cannot be filed to seek enforcement of bye-laws of a Society. The other aspect of this case is that the employer has made all efforts by requesting

the petitioner to resume his duties which petitioner without any just and lawful cause failed to resume. The communication dated 6.12.1985 was

information to the petitioner that in case he still fails to resume his duties his service shall stand automatically terminated. The said communication is

not an order of the employer but is a consequence of the act of the petitioner himself. The petitioner having abandoned his services without any just

and lawful cause and having failed to resume 'tis duties even when he was requested to do the same it can be safely concluded in the facts and

circumstances of this case that the petitioner by his own act has terminated the contract of service with the respondents. In such eventuality the

respondents both in fact and law were not required to conduct any enquiry. The judgments which have been referred to by ld. Counsel for

petitioner pertain to the cases where the petitioner was holding employment under the State and his services were governed by Statutory Rules.

The law laid down in these judgments as such cannot be applied to the facts of the present case.

For the reasons stated hereinabove and otherwise also complete answer to the contention of the ld. Counsel for the petitioner is given in case

titled Dr. (Mrs.) Gurjeewan Garewal, Appellant v. Dr. (Mrs.) Sumitra Dash and Ors. Respondents reported in AIR 2004 Supreme Court 2530.

The relevant paras from 14 to 20 are reproduced as under:

Reverting back to the case in hand, Section 4, of the Post-Graduate Institute of Medical Education and Research, Chandigarh Act, 1966

(PGIMER Act) says that PGIMER is a 'body corporate which is having a perpetual succession and a common seal with power.' This clearly

provides that PGIMER is a separate entity in itself. Admittedly the employees of any authority which is a legal entity separate from the State,

cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant

relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be

said to have a status of holding a 'civil post' under State merely because his salary is paid from the State fund or that the State exercises a certain

amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesn't mean that the same is

a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be

claimed only by the members of a civil service of the Union or of All India Service or of a civil service of a State or by persons who hold a civil

post under the Union or a State. PGIMER cannot be treated as a 'State' for the purpose of Article 311 and the employees therein are not holding

any 'civil post.' In result, the 1st respondent is not holding a 'civil post' and she cannot claim the guard of Article 311.

In this background the view subscribed by the High Court, that the 1st respondent was not given an opportunity of hearing and since her

removal is bad under Article 311, is not correct. The premise in which the High Court has proceeded is faulty. High Court has not examined the

applicability of Article 311 in the present case. This results in its wrong conclusion. Therefore, the cases relied upon by the High Court Jai Shanker,

State of Assam v. Akshaya Kumar, Deokinandan Prasad and Uptron India Ltd. (all cited supra) are not applicable in the present context. All of

them are distinguishable.

Jai Shanker Vs. State of Rajasthan,

The State of Assam and Others Vs. Akshaya Kumar Deb,

1975 Lab IC 1753

Deokinandan Prasad Vs. The State of Bihar and Others,

1971 Lab IC 881

The last case relied upon by the High Court is Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, .

Here this Court allowing the appeal in favour of the appellant-Bank and holds that:

Uptron India Limited Vs. Shammi Bhan and Another, :

1998 Lab IC 1545

Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, :

2000 AIR SCW 2288 : 2000 Lab IC 2326. para 18

...This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as

far as the bank is concerned."" Here the dismissal of an employee by the Bank was upheld. Hence it is not clear how High Court placed its reliance

on this case to decide the present issue in favour of the 1st respondent. On the other hand, in our view, the decision in the case of Syndicate Bank

justifies the action taken by PGIMER.

Now the only question that remains for consideration is the correctness of PGIMER's stand that the 1st respondent 'deemed to have

permanently left the institute due to her non-joining after the expiry of granted leave period.

This Court dealt with similar situations in Aligarh Muslim University and Others Vs. Mansoor Ali Khan, . In this case an employee of Aligarh

Muslim University obtained ex-India leave for two years. Then he applied for an extension of leave for another three years. But University granted

an extension of leave for only one year and clearly conveyed to him that no further extension will be allowed. Later he applied for another

extension. Rejecting his request the University informed him that in case of overstay he would be deemed to have 'vacated' his post and cease to

be in University service. However, University extended the joining time. Yet he failed to join. Consequently the University deemed him to have

vacated the office. His writ before single Bench was dismissed but Division Bench allowed the same mainly on the ground of 'non-compliance of

natural justice.' University preferred an appeal before this Court. Allowing the appeal, this Court, following S.L. Kapoor Vs. Jagmohan and

Others, holds that ""based on admitted and indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused

to Mr. Mansoor Ali Khan though notice has not been issued.

Aligarh Muslim University and Others Vs. Mansoor Ali Khan, :

(2000) AIR SCW 2976

S.L. Kapoor Vs. Jagmohan and Others,

Elaborating this aspect it was observed that:

Aligarh Muslim University and Others Vs. Mansoor Ali Khan, :

2000 AIR SCW 2976 : 2000 All LJ 2436, Para 27

We may state that the University has not acted unreasonably in informing him in advance - while granting one year extension, in addition to the

initial absence of 2 years - that no further extension will be given. We have noticed that when the extension is sought for three years, the

Department has given extension only for one year as he had already availed 2 years extraordinary leave by that time. It has to be noticed that when

employees go on foreign assignments which are secured by them at their own instance, in case they do not come back within the original period

stipulated or before the expiration of the extended period, the employer in the parent country would be put to serious inconvenience and will find it

difficult to make temporary alternative appointments to fill up the post during the period of absence of those who have gone abroad. However,

when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In this case, giving

of further extension only for one year out of the further period of three years sought for is not reasonable. In such a situation, if the employee has

entangled himself into further commitments abroad, he has to blame himself.

On the above facts, the absence of a notice to show cause does not make any difference for the employee has been told that if his further overstay

is for continuing in the job in Libya, it is bound to be refused.

(Emphasis supplied)

Recently in another case of a very similar nature Anil Bajaj Vs. Post Graduate Institute of Medical Education and Research and Another, this

Court held:

Anil Bajaj Vs. Post Graduate Institute of Medical Education and Research and Another,

...A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if

does not come back, his lien will automatically be regarded as being terminated, he cannot turn around and challenge the said condition on the

basis of which sanction to go abroad was granted...but where the facts are not in dispute, the inquiry would be an empty formality. In any case

principle of estoppel would clearly apply and the High Court was right in dismissing the writ petition filed by the appellant wherein he had

challenged his termination.

(Emphasis supplied)

In view of the reasons stated and law laid down by the Hon'ble Supreme court the writ petition being meritless, is dismissed.

The bye-laws produced by the respective Counsel be returned to them.