Sudershan Sethi vs State of J & K

T.S. Doabia, J.—Absence from service has been treated as a misconduct. The services of the petitioner have been brought to an end.

Relationship of master and servant stand snapped under the Service Regulations namely Article 113 of Jammu and Kashmir Service Regulations.

These regulations make a provision to the effect that if a particular employee remains absent for a specified period, then his service would

automatically come to an end. It is this action of respondentauthorities which is subject matter of adjudication in this petition. The facts in brief are

as under :

The petitioner was serving as teacher with the Government of Jammu and Kashmir. She joined the service as teacher on 11.12.1963. According

to the petitioner, she has been serving the department to the best of her ability. She however, fell ill somewhere in July 1982. The petitioner further

submits that on account of ill health, she was not able to report for duty. The further case of the petitioner is that on recovery, she submitted her

joining report. This according to her was done on 3rd June, 1987. The joining report as per the petitioner was sent to the District Education

Officer Jammu on 4th of June, 1987. A copy of this has been placed on record as Annexure P1. It is the further case of the petitioner that there

was interdepartmental correspondence visavis, the case of the petitioner. The case of the petitioner is that she was not allowed to join the duty. It

was in these circumstances, the present petition was filed in this Court.

Respondents have filed the return. It is stated that the petitioner remained absent for quite some time. It is the case of the respondents that the

petitioner did not join her duties after summer vacation of 1980. As the petitioner remained absent from duties for more than five years, therefore,

she would be deemed to have forfeited her job in view of deeming provisions contained in Article 113 of the Service Regulation referred to above.

It is further stated that no leave letter was ever sent by the petitioner and the story as put up in the petition regarding sending of the leave letters is in

correct. In these circumstances, it is stated that the stand of the respondentauthorities, which was communicated to the petitioner vide letter No.

Estt/3389 dated 22nd of June 1987 that she is not entitled to join the duties is absolutely correct.

The question as to whether absence from service or abandonment of service which term has been used in the Industrial Law is per se

misconduct and the relationship of master and servant can be brought to an end with or without holding enquiry, is required to be gone into in this

petition. The questions which would naturally arise for determination are being serialised below :

(i) whether absence from duty is per se misconduct;

(ii) if an employee who has proceeded on leave overstays his leave, can his or her services be brought to an end without holding enquiry;

(iii) whether the concept of automatic termination of services as visualised by some of the Service Regulations would come to the rescue of the

respondentauthorities in sustaining their claim that the enquiry is not required to be held.

The above are some of the matters which are required to be taken note of. 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 in per se misconduct, be examined at the first instance :

In service jurisprudence misconduct has its own meaning. Every commission or omission does not amount to misconduct.

In Stroud's Judicial Dictionary the terms stands defined as under :

Misconduct means, misconduct arising from ill motive; acts of 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 behavior by a public officer in relation to the duties of his office, wilful in character. The terms embraces acts which the officeholder

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

R. Ramnath Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines misconduct thus :

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

involving moral turpitude. The word misconduct is a relative term and has to be construed with reference to the subject matter 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. 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 indefinite 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 idefinite. 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, reported in 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 way 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 Law v. Landon Chronicae 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. Veghela v. Moosa Raza, 1969(10) Guj.

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.

The Supreme Court of India in the case of A.L. Kalra v. P&E Corpn. of India Ltd., AIR 1984 SC 1361 observed :

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 nowhere 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 enquiry 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 : 1996(4) SCT 79 (Calcutta) . 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.

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. Even in these 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 same ailment. He also stated

that his wife was ill. The punishing authority did not take into consideration this aspect of the matter. 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.

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. The Calcutta High Court in the case reported as Anula 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. There 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 of Punjab, 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 applies for leave and, thereafter, he absents himself. Even in

these cases, 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 1996 SC 492. The above

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

Regulation 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 reliance was placed on the decision of the Supreme Court of India

namely Jaishankar'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 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 case. 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 proposed 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 so 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 overstaying 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.

In this regard, the view expressed by this Court may also be noticed. 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 shows 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 Police 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 why he be not discharged from service is not justifiable.

An employee is entitled to reasonable opportunity to show case, 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 v. 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 1364, 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 causes, 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 appellant 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 audialterampartem 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 lump sum compensation of Rs. 20,000/ was paid, Devi Kewal Ram Madrani v. Sr.

High School, 1995(2) SCT 514.

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 and 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. Document of 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 as 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.

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.

With regard to the quantum of punishment the Allahabad High Court in Rajesh Kumar Tripathi's case (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 occasions this

Court has taken interference by the High Court on quantum of punishment as an act in 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 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) and Govt. 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. The Delhi High Court in the case

reported as Rahul Butalia v. State Bank of India, 1995(3) SCT 687 observed that absence cannot be termed as an abandonment of service unless

the intention of the employee is not to come back and assume duties even in future. Abandonment cannot be presumed, even deemed

abandonment has to be established by following principles of natural justice.

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 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 as 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.

In this case no enquiry was held. The case is fully covered by the ratio of the decision in Jai Shankar's case and other cases noted above. This

petition is allowed. The order of termination is set aside. The petitioner shall not be entitled to back wages. There would be no order as to costs.

Petition allowed.