Manohar Lal vs State of Jammu and Kashmir

T.S. Doabia, J.—Counsels heard. Petition admitted.

Petition is taken up for final disposal with the consent of the parties.

The petitioner stands removed from service. This is on account of a misconduct which is said to be arisen out of his wilful absence.

The petitioner submits that in the month of January, 1993, his wife became seriously ill. She was admitted in the hospital. There was no body to

look after her. He accordingly applied for leave. This happened in the month of May, 1993. It is stated that after his wife recovered, he wanted to

resume duties. He was, however, not permitted to do so. He submits that an order came to be passed on 14th of November, 1993. The absence

from duty was treated as a serious act of indiscipline. The petitioner was accordingly removed from since w.e.f. 15th of September, 1993.

Some other facts may also be noticed.

On 11th of May, 1993, the petitionerManohar Lal appeared before the Deputy Superintendent of Police, Transport Workshop, Jammu, who

made some recommendations to the Senior Superintendent of Police, Udhampur. Copy of this is annexure `B'. This reads as under :

Kindly refer this office No. 482/P TWS dated 9.4.1993 whereunder findings against Const. Manohar Lal No. 990/U recommending his removal

have been submitted (.) Const. Manohar Lal No. 990/U has appeared before me today 11th May, 1993 alongwith application requesting therein

to allow him to rejoin his duties (.) It is requested that this office may kindly be guided whether the said constable may be allowed to rejoin.

On 14th of May, 1993, a show cause notice was issued to the petitioner. For facility of reference this is also being noticed :

Whereas you Constable Manohar Lal No. 990/U S/o Sh. Gian Chand R/o Rehari Mohalla, P/S Pacca Danga have absented yourself

unauthorisedly from duty w.e.f. 20.1.1993 and have not resumed your duties so far.

Despite repeated notices from Deputy Superintendent of Police, Workshop Jammu, you have failed to rejoin. Whereas absence without leave

involves loss of appointment and is also against the discipline of the force.

I, D.R. Doley, IPS Senior Superintendent of Police, Udhampur issue show cause notice to you Constable Manohar Lal No. 990/U to explain your

conduct in this regard. You may explain why you should not be discharged from service w.e.f. the date you have absented without leave.

Ultimately, as indicated above, an order of removal came to be passed. This order is Annexure `E'. It is this order which is the subjectmatter of

challenge in this writ petition. The challenge is being made on the ground that this was passed without affording opportunity of hearing.

Objections have been filed. It is stated that the petitioner was unauthorisedly absent w.e.f. 20th of January, 1993. As he did not report for duty,

a show cause notice was issued to him. This happened on 20th of March, 1993. The petitioner was asked to rejoin his duties. The petitioner was

again served with a show cause notice on 14th of May, 1993. He was asked to explain his conduct. It is stated that the petitioner again absented

himself on 15th of September, 1993. A wireless message was sent to him on 6th of October, 1993 asking him to resume his duties. As he failed to

do so, the other Annexure `E' came to be passed against him.

The legal position in the matter of unauthorised absence be noticed. What is required to be gone into in this petition is whether mere absence

from service or abandonment of service which term has been used in the Industrial Law is per se misconduct. The further question would be as to

whether the relationship of master and servant can be brought to an end without holding enquiry. The questions which would naturally arise for

determination in this petition are being serialised below :

(i) Whether absence from duty is per se misconduct ?

(ii) Whether enquiry is required to be held with a view to determine as to whether act of absence is wilful and voluntary ?

(iii) If an employee who has proceeded on leave overstays his leave, can his or her service be brought to an end without holding enquiry ?

(iv) Whether the concept of automatic termination of services as visualised by the Service Regulations would come to the rescue of the Employer in

sustaining the claim that the enquiry is not required to be held ?

The other ancillary matters which would arise for adjudication are as to relief the petitioner is entitled to, if a finding is recorded that the service

tenure was brought to an end contrary to the known principles of service jurisprudence. Under this category, the questions which would require to

be gone into are :

(i) Whether on reinstatement, the concerned employee is entitled to back wages ?

(ii) Whether the court while recording a finding that service tenure was wrongly brought to an end can pass an order of reinstatement or whether it

should leave further action to be taken to the departmental authorities ?

(iii) Whether the court while passing the order of reinstatement, record a finding that the action taken with a view to break the relationship of

master and servant is harsh in nature and change nature of punishment ?

The question as to whether absence from duty is per se misconduct, be examined at the first instance.

In service jurisprudence misconduct has its own meaning. It can be said with certainty that every commission of an act or omission to do something

does not amount to misconduct.

It Stroud's Judicial Dictionary the term stands defined as under :

Misconduct means, misconduct arising from ill motive acts or negligence, errors of judgment, innocent mistake, do not constitute such

misconduct.

Misconduct has been defined in Black's Law Dictionary :

As a forbidden act, a dereliction from duty, unlawful behaviour wilful in character, improper or wrong behaviour.

Misconduct in offence has been defined as :

Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. The term embraces acts which the officeholder

had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act.

The word misconduct is a relative term and has to be construed with reference to the subjectmatter and the context wherein the term occurs,

having regard to scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct.

The term misconduct would thus imply a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as

conduct involving moral turpitude. In usual parlance, misconduct means a transgression of some established and definite rule of action where no

discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgression of some established, but

definite rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law, carelessness, a forbidden

quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public official by which the

rights of a party have been affected.

In Union of India v. V.J. Ahmed, AIR 1979 SC 1022, it has been said that code of conduct as set out in the Conduct Rules clearly indicates the

conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of

Conduct Rules would be misconduct. If a servant conducts himself in a manner inconsistent with due and faithful discharge of his duty in service, it

is misconduct. The same view would be found when decision reported as Pearce v. Foster, 1886(17) QBD 536 at page 542 is perused. A

disregard of an essential condition of the contract of service may constitute misconduct. See Laws v. London Chronicle Indicator Newspapers,

1959(1) WLR 698. This view was adopted by the Bombay High Court in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central

Railway, Nagpur Division, Nagpur, AIR 1961 Bombay 150 and by the Gujarat High Court in Satubha K. Vaghela v. Moosa Raza, 1969(10)

Gujarat LR 23. In S. Govinda Menon v. Union of India, AIR 1967 SC 1274 the manner in which a member of the service discharged his

quasijudicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. In A.L. Kalra v. P&E

Corpn. of India Ltd., AIR 1984 SC 1361, the Supreme Court of India dealt with the subject and observed as under :

What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not

amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if

necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. It

is not necessary to dilate on this point of view of a recent decision of this Court in Flaxo Laboratories (P) Ltd. v. Presiding Officer, Labour Court,

Meerut, AIR 1984 SC 505, where this court held that everything which is scribed with precision and no argument can be entertained that

something not prevarying what is prescribed. In short it cannot be left to the vagaries of management to say ex post facto that some acts of

omission or commission no where found to be enumerated in the relevant Standing Order is nonetheless a misconduct not strictly falling within the

enumerated misconduct in the relevant Standing Order but yet a misconduct for the purpose of imposing a penalty.

From the aforementioned judicial precedents, it can be concluded that every omission or commission does not amount to misconduct. The

competent authority has to see the defence taken by the employee. It has to determine as to whether the alleged lapse is wilful and intentional.

Misconduct would mean misconduct arising out of bad motives. Acts of negligence, error of judgment, innocent mistake per se would not

constitute such misconduct. Even though it may be too technical to hold that absence from duty is not a misconduct but then this question would

depend upon the facts and circumstances of each case. The Competent Authority must see the material on the record and this can be done only if

the concerned authority goes into the matter and affords opportunity of hearing to the delinquent. It thus becomes apparent that the requirement of

law is that even in the event of unauthorised absence an inquiry is required to be held. If the enquiry is not held, then the order by which the service

tenure is brought to an end would be bad. Such a view is discernible from the decision reported as Supdt. of Police v. Joy Dev Roy, 1996(4) SCT

79 and A. Sudhakar v. Executive Director, 1994(4) SCT 104 . The Andhra Pradesh High Court has reached the same conclusion while placing

reliance on the decision reported as Kamlesh Sharan v. Union of India, 1990(3) SLR 616.

Absence from duty can amount to misconduct. But this has to be established as a fact. Gurcharan Singh v. Presiding Officer, 1997(4) SCT

768 .

There are cases where an employee initially applied for leave. Thereafter, he did not report for duty and overstayed. Some explanation was

given for this absence. In such cases, the judicial opinion is that some enquiry is required to be held. In the case of State of Punjab v. Aman

Kumar, 1997(1) SCT 256 , the employee overstayed leave. The reason given for this was that he was suffering from some ailment. He also stated

that his wife was ill. The punishing authority did not take into consideration this aspect of the mater. No satisfaction was recorded by the concerned

authority visavis the explanation given by the employee. Under these circumstances, it was held that the order by which the relationship of master

and servant was brought to an end, would be bad. The fact that long service record of the petitioner was not taken into consideration, was also

given due consideration. See also Gurdev Singh v. State, 1976(2) SLR 442, Bhim Singh v. Haryana State, 1991(3) SLR 721, State of Punjab v.

Parkash Chand, 1992(1) SCT 123 . In the above cases the view expressed is that in such cases length of service and right to receive pension

should also be kept in view. Again mere refusal to work would not amount to abandonment. Saraswati Industrial Syndicate v. Jai Bhagwan Jain,

1994(4) SCT 25 . When name is struck off the rolls without compliance of principles of natural justice the order of termination would be bad.

See A. Sudhakar v. Executive Director, 1994(4) SCT 104 (supra), Nagar Palika Parishad Lahar v. Ram Naresh Rajonya, 1994(4) SCT 261 .

See also Rolston John v. Central Government Industrial Tribunal, AIR 1994 SC 131 and Union of India v. Giriraj Sharma, AIR 1994 SC 215.

In another case, the employee was on leave for one year. He applied for extension of leave. This was declined. The relationship of master and

servant was brought to an end. This factor was taken into consideration with a view to record a finding that the employee had no intention to not to

resume duties. The fact that he had expressed a desire to rejoin and applied for extension of leave was interpreted to mean that the concerned

employee had all the intentions to not to sever relationship of master and servant. This case is reported as Gursewak Singh v. P.O. Labour Court,

Bhatinda, 1997(1) SCT 661 . Employee wanted to rejoins after he took treatment. He was not permitted to do so on the ground of abandonment.

It was held that if abandonment is pleaded by the management then it is to be established that the act of abandonment was wilful and voluntary. If

this is not done then the employee would be entitled to reinstatement. T. Jagadiswara v. Manager Madanapalli Spinning Mills, Chittor, 1997(1)

SCT 319 CAP . The Calcutta High Court in the case reported as Anjula Pal Roy v. State of W.B., 1996(4) SCT 424 , has expressed similar

opinion. The employee was absent. She initially applied for leave. Thereafter, she sought extension. Thee was no proof that she was employed

somewhere else. By treating this a misconduct, her service was terminated. This termination was set aside by Calcutta High Court. In another case,

the workman was illegally transferred. He was not allowed to work. In these circumstances, it was held that it is difficult to conclude that the

workman was wilfully absent. The workman was held entitled to past wages on reinstatement. This case is reported as Dr. (Miss) Malti Batra v.

State, 1997(3) SCT 284.

As indicated above, there may be a service Regulation which provides for automatic termination of service where an employee is on

unauthorised absence. Unauthorised absence may occur when initially an employee applied for leave and, thereafter, he absents himself. Even in

these case, the view is that the principles of natural justice would be attracted and if these are not observed, then the order of termination would be

bad. In this regard reference may be made to the decision reported as Jai Shankar v. State of Rajasthan, AIR 1966 SC 492. The above decision

sands referred to in the case reported as Atul Krishna Kundu v. Union of India, 1994(3) SCT 753 . Thus even though the Service Regulations

provide that in case an employee overstays leave or is absent then his service can be brought to an end. Even in these cases it is incumbent upon

the authorities to hold an enquiry. In Atul Krishna Kundu case (supra) reliance was placed on the decision of the Supreme Court of India namely

Jai Shankar's case. The Supreme Court had observed that the removal of a Government servant from service for overstaying his leave is illegal

even though it is provided by the service regulation that any individual who absents himself without permission after the end of his leave would be

considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority. It was observed as under :

A discharge from service of an incumbent by way of punishment amounts to removal from service and the constitutional protection of Article 311

cannot be taken away from him contending that under the service regulations the incumbent himself gives up the employment and all that the

Government does not to allow the person to be reinstated. It is true that there is compulsion on the part of the Government to retain a person in

service if he is unfit and deserves dismissal or removal and one circumstance deserving removal may be overstaying one's leave. But a person is

entitled to continue in service if he wants until his service is terminated in accordance with law. It is true that the regulation speaks of reinstatement;

but what it really amounts is that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of

reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way

one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The regulation

involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. No doubt

the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but

it cannot order a person to be discharged from service without atleast telling him that they propose to remove him and giving him an opportunity of

showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds,

he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not

tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the

protection of Article 311. A removal is removal and it is punishment for overstating one's leave an opportunity must be given to the person against

whom such an order is proposed no matter how the regulation describes it.

In the case of Deokinandan Prasad v. The State of Bihar, reported in AIR 1971 SC 1409, the Supreme Court held that although rule 76 of

Bihar Service Code, 1952 prescribes automatic termination of service for continuous absence for five years, an order passed to that effect without

giving opportunity to Government servant offends Article 311 of the Constitution. In the case of the State of Assam v. Akshaya Kumar Deb,

reported in AIR 1976 SC 37, the Supreme Court in similar circumstances held that the Government servant should have been given an opportunity

to show cause against the termination of the service by application of Fundamental Rule 18. Supreme Court held that the same was a requirement

of natural justice. In the absence of such opportunity the termination was illegal. This view is expressed by Bombay High Court in Devi Kewal Jain

v. Premier High School, 1995(2) SCT 514 . The Punjab and Haryana High Court has expressed similar view in Pepsu Road Transport

Corporation v. Presiding Officer, Labour Court, 1995(1) Lab. I.C. 88 and Sita Ram v. Presiding Officer, Labour Court, 1995(4) SCT 321 .

In this regard, the view expressed by this Court may also be noticed.

A Division Bench in Khair Din v. State of Jammu and Kashmir, 1995(1) SCT 566 found the order of termination bad as enquiry was not held. The

employee had sought extension of leave by sending telegrams. These were not taken note. Employee was held entitled to reinstatement.

R.C. Gandhi, J. in Mohd. Aslam v. State of Jammu and Kashmir, 1996(3) SCT 538 has observed that the termination without affording

reasonable opportunity to show cause is not apt. What was observed in para 6, is being reproduced below :

The next contention of the petitioner is that he has been discharged from service without affording an opportunity of being heard. The petitioner

has not even been issued show cause notice for explaining the reasons of his absence. The order has been passed without holding any enquiry

contemplated in terms of Rule 359 of the Police Rules, 1960. No Government servant can be removed or discharged from service except in the

manner provided by law. The respondents were under legal obligation to afford an opportunity of being heard to the petitioner and after having

considered the explanation of the petitioner resort should have been taken after holding an enquiry. The order of the respondents on the face of it

appears to be arbitrary and not sustainable in law, as the action of the respondents has resulted in depriving the petitioner of his services without

adhering and observing the mandate of Rule 359 of the Public Rules and the principles of natural justice. The petitioner was holding a civil post and

termination of service without affording him reasonable opportunity of show cause as to whey he be not discharged from service is not justifiable.

An employee is entitled to reasonable opportunity to show cause, which includes an opportunity to deny his guilt and establish his innocence, which

he can do only when he knows the charge levelled against him. The learned Counsel for the petitioner in support of his contention has cited at the

Bar 1988 KLJ 640, Kulbir Singh v. State; AIR 1966 SC 1364, Mafatlal Narandas Barot v. J.B. Rathod, Divisional Controller, State Transport

Mehsana and another. In 1988 KLJ 640, the Court was dealing with an identical case of a constable of the respondent Department, whose

services were terminated without prior notice and no opportunity was afforded to meet the allegations. The order of termination was held to be

illegal and quashed. In AIR 1966 SC 492, Jai Shankar case, the Apex Court has held that while the Government employee is absent without

leave, without reasonable cause, termination of service, without giving him an opportunity of show cause, contravenes the principles of natural

justice. The Apex Court observed as under :

It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave

and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show

cause why he be not removed. The applicant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt

and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such

charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against

him.

Rule of audi alteram partem was held to be attracted to a case where a finding is sought to be recorded that the employee was wilfully absent.

Before taking a drastic step of termination, opportunity was required to be given. As this was not done the order of punishment was held to be

bad. In this case, instead of granting relief of reinstatement lumpsum compensation of Rs. 20,000/ was paid, Devi Kewal Ram Madrani v. Sr. High

School (supra).

An employee was dismissed from service. The reason was absence from duty. The order was a nonspeaking order. This order was challenged

on the ground that the copy of order of dismissal was not made available to the delinquent and the evidence which had come to the record was not

taken note of. The Allahabad High Court in the above circumstances in the case reported as Rajesh Kumar Tripathi v. State of U.P., 1993(3)

SCT 274 , observed that the order of dismissal should have been a speaking order and the court referred to the decisions of the Supreme Court of

India reported as S.N. Mukherjee v. Union of India, 1991(1) SCT 241 , A.L. Kalra v. Project Equipment Corpn., 1990(2) SLR 446, B.P.

Chaurasia v. State of M.P., 1983 LCD 169, Bakshak Indra Narain Tripathi v. Union of India, 1987(5) LCD 178. It was ultimately held that the

order of dismissal was bad.

The legal heirs of the delinquent came to the court and took a plea that the delinquent was absent on account of his serious illness. This illness was

said to be that of cancer. Documents indicating illness and death on account of cancer was disbelieved by the enquiry Officer. It was observed that

the punishment of termination was not called for and the view was that the legal heirs are entitled to the consequential benefits. The Karnataka High

Court took note of the decision reported in Ranjit Thakur v. Union of India, AIR 1984 SC 2386 wherein the view expressed by Lord Diplock in

Council of Civil Services Union v. Minister for Civil Services, 1984(3) SLR 1174 was noticed. In the above case the House of Lords had an

occasion to consider the question as to whether judicial interference was permissible in a case where the question was limited to the issue as to

whether punishment was disproportionate with the gravity of charges that were proved.

The Delhi High Court in the case reported as Rahul Butalia v. State of Bank of India, 1995(3) SCT 687 observed that abandonment cannot

be inferred unless the intention of the employee is not to come back and assume duties even in future. Even deemed abandonment had to be

established by following principles of natural justice.

In M. Krishna Raju v. E.S.I.L., Hyderabad, 1995(3) SCT 389 , the misconduct which was attributed was absence without leave. The

employee had however submitted application for seeking extraordinary leave. The services were terminated without enquiry. The order was held

to be bad. Again in Transport Commissioner, Haryana v. Mohinder Singh, 1995(3) SCT 198 termination without holding an enquiry and without

issuing any notice was held to be bad.

In Chief Engineer v. K. Raman, 1997(1) SCT 106 (S.C.) , the employee a jeep driver was granted leave to look after his ailing mother.

Having obtained leave, the employee went abroad without permission. Enquiry was conducted. Employee was compulsorily retired. This was held

to be valid. Where enquiry is held and absence is held to be wilful then interference is not to be made. Ram Krishan v. Municipal Corporation of

Delhi, 1996(3) SCT 828 .

With regard to the quantum of punishment the Allahabad High Court in Rajesh Kumar Tripathi v. State, 1993(3) SCT 272 (supra) observed

that the punishment of dismissal was not commensurate with the alleged acts of the delinquent. The view expressed in V.R. Katarki v. State of

Karnataka, AIR 1991 SC 1241 was noticed. What was observed by the Supreme Court be noticed again :

Ordinarily justification of the quantum of punishment with a disciplinary action is not for the court to decide and there have been occasion this

court has taken interference by the High Court on quantum of punishment as an act in access (excess ?) of jurisdiction while we are prominent of

that fact. Keeping in view the residue of the charges in view we are inclined to hold that the dismissal of the appellant from service was out of

proportion.

In Ved Parkash Gupta v. M/s. Delton Cable Co. (P) Ltd., 1984(2) SLR 5, the Supreme Court of India observed that the punishment should

not be disproportionate to the offence proved. Similar view was expressed in State of U.P. v. Sadanand Mishra, 1984(2) LCD 294.

Taking note of above decision the order of dismissal in the case Rajesh Kumar Tripathi, was set aside by the Allahabad High Court.

Where the employee was absent for two days he was ordered to be reinstated but he was held not entitled to back wages. Mandeep Kumar

v. State of Haryana, 1996(2) SCT 306 . This view was expressed by the Supreme Court of India.

In Punjab State v. Surjit Singh, 1997(2) SCT 87 where there was absence of 23 hours and 5 minutes reinstatement was ordered without back

wages. See also Malkiat Singh v. State of Punjab, 1996(2) SCT 758 (S.C.) . See also Joginder Lal v. The Presiding Officer, Labour Court,

1996(1) SCT 434 . A police constable was absent for 48 days. He suffered 17 punishments in 12 years. He was dismissed. Direction was

considered (issued ?) to consider the quantum of punishment. Krishan Lal v. State, 1996(4) SCT 592 . Reliance was placed on the observations

made by the Supreme Court of India in G.S. Sodhi v. Union of India, 1994(3) SCT 335 .

Where an employee is reinstated on account of the fact that there was some procedural lapse in respect of the snapping the relationship of

master and servant and the employee was absent then such an employee is not entitled to back wages. State of Punjab v. Om Parkash, 1997(3)

SCT 186 (P&H), M. Anunachalam v. T.N. Elec. Board, 1997(3) SCT 565 (Mad), Government of Tamil Nadu v. K. Rajaram Appaswami,

1997(3) SCT 67 SC . Relief of back wages is to be granted when an employee is reinstated on the technical ground that enquiry was not held into

the alleged misconduct of unauthorised absence. Rajinder Kumar v. State of Haryana, 1996(4) SCT 772 , Punjab State Electricity Board v.

Naresh Chand, 1996(1) SCT 832 . See also Smt. Veena Sikha v. State of Haryana, 1996(4) SCT 741 .

It would be worthwhile to indicate here that even under the Industrial Law, back wages can be granted only if a finding is recorded that the

concerned workman was not gainfully employed. In case reported as Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt.

Ltd., AIR 1979 SC 75, the Supreme Court of India expressed an opinion that whenever a Labour Court passes an order of reinstatement then

back wages are to be allowed. It may however be seen that when a dispute is there before the authorities constituted under the Labour Law

Legislation an opportunity is available to the parties to lead evidence. A finding of fact is recorded i.e. after evidence is led, as to whether a

workman was gainfully employed or not. Such a finding cannot be recorded in writ jurisdiction and it would not be apt to grant back wages when

the question as to whether the petitioner was gainfully employed elsewhere or not cannot be gone into the present litigation.

In view of the above judicial precedents it can be concluded :

(i) Absence from duty is not per se misconduct.

(ii) Where an employee proceeds on leave and does not resume duties even then services cannot be brought to an end without holding enquiry.

(iii) Even if there is some service regulation visualising concept of automatic termination in case of absence even then enquiry is required to be held.

(iv) Where order of reinstatement is ordered then preponderance of view is that back wages are not to be allowed.

(v) Again where order of termination is set aside then the competent authority should be left free to decide as to whether it wishes to leave the

matter was it is or wants to hold further enquiry.

(vi) The order of termination has to preceded by hearing and the order so passed has to be reasoned one.

Coming to the facts of this case, the file indicates:

(i) That the petitioner wanted to resume duties. He submitted a joining report before Deputy Superintendent of Police, Transport Workshop,

Jammu. This fact is clear from Annexure `B';

(ii) That while passing order of termination, absence from 14.5.1993 is also taken note of;

(iii) That failure to comply with the wireless message dated 6.10.1993 has also been indicated in the termination order. Regarding above, no

showcause notice was ever issued to the petitioner;

It can accordingly be said that there was failure to comply with the principles of natural justice. The petition is accordingly allowed. The petitioner

would be entitled to reinstatement. He would not be entitled to any back wages. He would start getting his wages with effect from the date he

produces the copy of this order before the respondent No. 2. The aforementioned officer if he proposes to proceed further into the matter, may

serve a specific chargesheet either on that date. In the alternative, the aforementioned officer would be at liberty to indicate any other date on

which the petitioner is to put in appearance. If it is proposed to hold further enquiry then not only specific chargesheet would be served but Enquiry

Officer would also be named. As indicated above, the petitioner would not be entitled to any back wages.

This petition is accordingly allowed in the manner indicated above.