Mahabali vs Central Administrative Tribunal and Others

B.S. Chauhan, J.—This writ petition has been filed for setting aside the judgment and order dated 27/11/2003 (Annex-1) by which the original application of the petitioner has been dismissed by the Central Administrative Tribunal, Allahabad and order dated 23.8.2004 (Annex-2) by which the review application of the petitioner has been dismissed.

2 Facts and circumstances giving rise to this case are that petitioner was appointed as a Gang Man under the Northern Railways Meja Road, Allahabad on 9.2.1981. Petitioner fell ill on 17.4.1988 and remained absent from duty. Respondent employer made its best efforts to hold the enquiry after serving the charge sheet, but the same could not be served as whereabouts of the petitioner were not known even to his family members. Their efforts to serve the charge sheet by special messengers and Registered Post failed. Thus, in view of the provisions of Rule 14(ii) of the Railway Servants (Discipline and Appeal) Rules, 1968 (in short Rules), enquiry was dispensed with and petitioner was removed from service vide order dated 11.5.1992. After being surfaced, after eight years, petitioner preferred an appeal which was dismissed vide order dated 19.6.1996 on the ground of delay as well as on merit. Being aggrieved, petitioner filed Original Application No. 1163 of the 1997 before the Tribunal which was also dismissed vide impugned judgment and order dated 27.11.2003. Review application thereof has also been dismissed vide order dated 2.9.2004. Hence, this peiition.

Shri Sudama Ram, learned Counsel for the petitioner submitted that the services of the petitioner had been terminated without holding the enquiry and once the domestic enquiry had been initiated against the petitioner even if the charge sheet could not be served upon him; it could have been completed ex-parte. Appeal preferred by the petitioner ought to have been allowed. Learned Tribunal failed to appreciate the facts in correct perspective and therefore the petition deserves to be allowed.

Admittedly, the petitioner remained absent from duty from 17.4.1988 to 17.6.1996 i.e. for a period of more than eight years and his whereabouts were not known even to his family members.

It is settled law that as a Government servant cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation or alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily 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 or completing the requirement of holding the inquiry.

In Jeewanlal (1929) Ltd., Calcutta Vs. Its Workmen, the Apex Court held as under:

...if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cast a break in continuity of service....... We would like to make it clear that. .... there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended lo be abandoned by the employee.

Similarly, in Shahoodul Huque v. The Registrar, Cooperative Societies, Bihar and Anr. 1974 (29) FLR 305 the Apex Court observed as under:

The undented and undeniable fact that the appellant had actually abandoned his post or duty for an exceedingly long period, without sufficient ground for his absence, is so glaring that given him further opportunity to disprove what he practically admits, could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. It would prolong his agony. On the view we have adopted on the facts of this case, it is not necessary to consider the further question whether any notice for termination of service was necessary or duly given on the assumption that he was not punished. We do not think that there is any question involved in this case which could justify an interference by us....

In the State of Haryana Vs. Om Parkash and Another, the Hon''ble Apex Court explained the distinction between ''retrenchment'' and ''abandonment'', observing that retrenchment means termination of the services of the employee by the employer for any reason, whatsoever. It requires a positive action on the part of the employer. In case the employee ceases to report for duty voluntarily, he abandons the service and in such a case, the employer has neither to pass any order nor any action is required oh his part.

In The Buckingham and Carnatic Co.Ltd. Vs. Venkatiah and Another, while dealing with a similar case, the Hon''ble Apex Court observed as under:

It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service.

Similar view has been reiterated in G. T. Lad and Others Vs. Chemical and Fibres of India Ltd., .

In Syndicate Bank Vs. The General Secretary, Syndicate Bank Stff Association and Another, and Aligarh Muslim University and Others Vs. Mansoor Ali Khan, the Hon''ble Supreme Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceased to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to empty formalities.

In a case where the facts ate undeniable and not in dispute, it is not necessary at all to hold enquiry or give an Opportunity of hearing to the other party for the reason that if the other party has no explanation to offer, holding enquiry would be a futile exercise. Vide Khem Chand Vs. The Union of India (UOI )and Others, State of Uttar Pradesh Vs. Om Prakash Gupta, S.L. Kapoor Vs. Jagmohan and Others, and Laxmi Shankar Pandey Vs. Union of India and others, .

Therefore, in view of the above, where on admitted or indisputable facts, only one conclusion is possible and under the law only one penally is permissible, the Court may not issue its writ to compel the observation of natural justice or set aside the order for non-compliance thereof.

The case may be considered from another angle, though the issue is not involved herein directly. If the whereabouts of a person is not known for a period of seven years, there is a statutory presumption u/s 108 of the Evidence Act that the person is no more alive. However, though this presumption is to be made only when the issue as to whether a person is dead or alive, is pending consideration before the Court, Tribunal or an Authority. Vide L.I.C. of India Vs. Anuradha, .

The question does arise that in a case like this, where admittedly petitioner''s whereabouts were not known to anyone and he surfaced after absence of more than 8 years, whether he could seek a declaration from any forum that he had been terminated illegally or without following procedure prescribed by law. Writ is an equitable and discretionary relief and should not be granted unless injustice is ensued.

Whether a person has voluntarily abandoned the service is a question of fact and can also be determined by considering the surrounding circumstances. There is nothing on record to show that petitioner was justified for remaining absent for such a long period or he could take leave of such a long period in law. Thus, presumption could have been drawn by the Authority that he had abandoned the service and in such a fact situation, there is no requirement of holding the enquiry.

In view of the above the petitioner is not entitled for any relief, whatsoever, as he has not disclosed any reason for his absence for such a long period nor he could satisfy the Authority or the Tribunal or this Court as where he had been and could not produce any rule permitting such a long leave.

Petition is devoid of any merit and is accordingly dismissed.