Union of India and others v. A.S. Shaji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938 WP(C).No. 32286 of 2009 (S) ---------------------------- AGAINST THE ORDER IN OA 642/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 27.8.2009 PETITIONERS/RESPONDENTS:: ------------------------ 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, HEADQUARTERS, SOUTH BLOCK, NEW DELHI. 2. THE FLAG OFFICER COMMANDING-IN-CHIEF, HEADQUARTERS, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI-682004. 3. THE CHIEF STAFF OFFICER (PERSONNEL & ADMINISTRATION), SOUTHERN NAVAL COMMAND, KOCHI-682004. BY ADVS.SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL RESPONDENT/APPLICANT: -------------------- A.S.SHAJI, ADUVAKKAPARAMBIL HOUSE, GOVERNMENT HOSPITAL EAST, NARACKAL P.O., ERNAKULAM DISTRICT. R BY ADV. SRI.N.RADHAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.32286 of 2009 ## APPENDIX ## PETITIONER'S EXHIBITS: |EXT.P1|A PHOTOSTATA COPY OF THE ORDER DTD.27.8.2009 OF THE| |---|---| ||CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN| ||ORIGINAL APPLICATION NO.642 OF 2008.| |EXT.P2|A PHOTOSTAT COPY OF THE ORIGINAL APPLICATION NO.642 OF| ||2008 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT| ||BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE| ||TRIBUNAL, ERNAKULAM BENCH.| |EXT.P3|A PHOTOSTAT COPY OF THE REPLY STATEMENT ALONG WITH ITS| ||ANNEXURES FILED BY THE PETITIONER/RESPONDENT IN| ||ORIGINAL APPLICATION NO.642 OF 2008 BEFORE THE| ||HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL,| ||ERNAKULAM BENCH.| |EXT.P4|A PHOTOSTAT COPY OF THE REJOINDER STATEMENT FILED| ||BY THE RESPONDENT/APPLICANT IN ORIGINAL APPLICATION| ||NO.642 OF 2008 BEFORE THE HONOURABLE CENTRAL| ||ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.| |EXT.P5|A PHOTOSTAT COPY OF THE AFFIDAVIT FILED BY THE| ||PETITIONER/RESPONDENTS IN ORIGINAL APPLICATION NO.| ||642 OF 2008 BEFORE THE HONOURABLE CENTRAL| ||ADMINISTRATIVE TRIBUNAL, ERNKAULAM BENCH.| |EXT.P6|A PHOTOSTAT COPY OF THE LETTER NO.15972/OPT/Naval/| ||NAC/SNC/MP-4 (CIV)(b) DATED 30.6.2009 ISSUED BY| ||THE ADJUTANT GENERAL UNDER THE PETITIONERS.| |EXT.P7|A PHOTOSTAT COPY OF RELEVANT PAGE OF THE REGISTER,| ||MAINTAINED FOR ENGAGEMENT OF CASUAL LABOURERS.| |EXT.P8|A PHOTOSTAT COPY OF THE SCHEUDLE OF REGISTERED| ||LETTER (SL.NO.1131) DTD.30.7.2008.| |EXT.P9|A PHOTOSTAT COPY OF THE ORDER DATED 23.11.2009 IN| ||O.A.No.491 of 2009 PASSED BY THE CENTRAL ADMINISTRATIVE| ||TRIBUNAL, ERNAKULAM BENCH.| TRUE COPY css/ P.S.TO JUDGE **C.R. P.R.Ramachandra Menon & Dama Seshadri Naidu, JJ.** ------------------------------------------- WPC No.32286 of 2009 -------------------------------------------Dated this the 19[th] day of September, 2016 ## **JUDGMENT** Dama Seshadri Naidu, J. ## **Issue:** The Service jurisprudence, including the judicial precedents, recognizes the doctrine of abandonment: an employee voluntarily giving up his service, say, by continued absence from duty. Here an employee was found to have been continuously absent without leave—on medical grounds though. The employer disengaged him. Has the employer been justified in disengaging the employee on the grounds of abandonment of service despite the employee’s defence of illness? ## **Introduction:** 2. Here the petitioners are the employers; the respondent is an employee. When the employee absented himself for long spells from duty, albeit, under the cover of illness; the employer dispensed with his services: It disengaged the employee. Assailing the employer’s action, the employee filed O.A. No.642 of 2008 W.P.(C)No.32286/2009 2 before the Central Administrative Tribunal, Ernakulam Branch. Through Order, dt.27.08.2009, (Ext.P1) the learned Tribunal directed the employer to reinstate the employee. Amelioratively, the Tribunal permitted the employer to subject the employee to suitable medical tests to ascertain the employee’s fitness to resume duty. Aggrieved by the direction of reengagement, the employer has filed this writ petition. ## **Facts:** 3. The facts in brief are that the employee was appointed a casual labourer on 21.11.1983 in the employer’s Southern Naval Command, Kochi. In the gradation list prepared in course of time by the employer, the employee’s name was shown at Sl.No.74. 4. To put the issue in perspective, we may have to refer to certain chronology of events to examine whether the petitioners are justified in deleting the respondent's name from the array of casual labourers; that is, from the gradation list. The employee joined the service as a casual labourer in 1983. From 28.3.2005, the employee absented himself; it prompted the employee to send a notice on 5.4.2005 asking the employee to report for duty. Though the employee did report for duty on 5.7.2005, it is the W.P.(C)No.32286/2009 3 employer’s case that even thereafter he absented himself from duty, often. 5. Eventually, from 11.12.2006, the employee entirely stopped from attending duty. Under those circumstances, the employer issued Annexure-R2 communication dated 24.7.2007 cautioning the employee: that he should either appear for duty or face discontinuation of his services. While the employee continued his absence, the employer on 31.12.2007 deleted the employee’s name from the gradation list, treating it as abandonment of service. The employee was disengaged. 6. Aggrieved, the employee filed O.A.No.642/2008 inviting Ext.P1 order. The Tribunal has found that the employer issued Annexure-R2 cautionary communication on 24.7.2007, but it also deleted the employee’s name from the gradation list on the same day. So it has held that the employer’s action cannot be sustained. That apart, on the merits, the Tribunal has concluded that the employee had been in service since 1983 and his absence was only in 2006. According to the Tribunal, it cannot be said that the respondent intended to abandon the service. 7. Essentially, on the premise that the employer has not W.P.(C)No.32286/2009 4 doubted the medical certificates produced by the employee, the Tribunal has allowed the O.A: The employer was directed to reengage the employee subject to any medical examination to ascertain the employee’s fitness to function as a casual labourer. ## **Submissions:** 8. The learned Assistant Solicitor General has contended that it is a clear case of abandonment of service. According to him, the respondent is a habitual absentee. He has laid specific emphasis that the employee’s first bout of absence was on the ground of his suffering from Arthritis. Thereafter, for his prolonged absence beyond two years, he has assigned an entirely differently reason—disc prolapse. 9. The learned ASG has drawn our attention to the employee’s Annexure-A2 representation, in which he stated that he had his treatment from Maharaja Hospital, Karuvelippady. But Annexure-A3 medical certificate was from a private medical practitioner but not from the hospital. In other words, the learned ASG specifically contends that the employee’s claim that he had been medically incapacitated from attending the duty is palpably false. W.P.(C)No.32286/2009 5 10. The learned ASG has eventually urged us to set aside Ext.P1 order and uphold the employer’s action in disengaging the employee on the sole ground that he had abandoned the post. 11. The employee, as the record reveals, was served with a notice and is represented by a counsel, who is, however, unavailable. Alternatively, we perused the record, including the counter affidavit filed by the employee, in which Ext.P7 musterextract is not expressly denied. 12. Heard the learned Assistant Solicitor General of India and perused the record. ## **Discussion:** 13. We may, to begin with, examine the employee’s defence as is available on record. Annexure-A1, dt.20.08.2007, is the letter he is said to have sent to the employer. But the employer has denied receiving it. We may, still, examine its contents. The employee has gone on record that he could not attend duty as he had been under treatment in Maharaja Hospital because of ‘disc complaint.’ The pleading in the O.A., was that the employee was getting treated for ‘arthritic complaint in his lower limbs.’ But Annexure-A1 was blissfully silent whether the employee had still W.P.(C)No.32286/2009 6 been under treatment then. All that he requested the authorities was for one year’s time to join the duty. Curious is the chronology: On 11.12.2006 the employee went on leave unathorisedly; on 20.08.2007 he wrote to the employer that he wanted one year time for joining duty; on 08.09.2008 he submitted a representation (Annexure A2) that he wanted to resume his duty. 14. Annexure-A3 medical certificate submitted by the employee along with Annexure-A2 representation further compounds the issue and adds force to the employer’s claim. The employee asserts that he underwent treatment in Maharaja Hospital, Karuvelipady. But Annexure-A3 medical certificate is from a private medical practitioner. The seal on Annexure-A3 reveals that the private practitioner is attached to Lakshmi Hospital, Panayappally, Cochin. 15. The disorder—Arthritis or disc problem—cannot be said to have totally disabled the employee even from applying for leave and getting it sanctioned. First, the employee did not respond until the employer had issued notices on more than one occasion, asking him to report for duty. There is discrepancy or incongruity W.P.(C)No.32286/2009 7 in the illnesses cited by the employee—with a lot of cloud cast on the cause of absence. How ever debilitating the employee’s disorder might have been, it could not have prevented him from obtaining a leave of absence—in the least, from making an effort to apply beforehand for leave. 16. Given that the employee had been working on a casual basis, he ought to have been more vigilant. He ought not to have jeopardized his employment with persistent absence, the repeated warnings from the employer notwithstanding. 17. Indisputably, the employee placed no material to show that the employer had received Annexure A1 communication from him. Further, as has already been adverted to, Annexure-A2 representation and A3 medical certificate inspire no confidence being mutually contradictory. 18. We need to, at this stage, address one vital aspect—the reason that has weighed with the Tribunal: that the employee’s name was deleted on the same day when Annexure R2 was sent. We are afraid it may not be factually correct if we peruse the record. Annexure-R2 is a notice dated 24.7.2007 issued by the employer to the respondent requiring him “to be present regularly W.P.(C)No.32286/2009 8 at the Vembanad Gate on the first working day of the week”. The notice was a sequel to another notice dated 6[th] May 2004, which has been referred to in Annexure-R2. The notice has expressly cautioned that the deletion of the employee’s name in the light of his continued absence in future could be with no further reference to the employee. 19. From Ext.P5 it is clear that the employee’s name was deleted. In that context, reference was made to the communication dated 24.7.2007. In our view, it cannot be said that the name was deleted on the very same day, i.e. 24.7.2007. At best, what has been referred to is the communication based on which the action was taken. On the other hand, the learned ASG has brought to our notice Ext.P7 muster-extract, in which it has been specifically mentioned that the petitioner's name was deleted on 31.12.2007. 20. The courts have consistently held that if an employee abandons his service, the cessation occurs not at the behest of the employer but because of the employee's conduct. In such an eventuality, the employer must comply with any due procedure, such as departmental proceedings for terminating the absenting W.P.(C)No.32286/2009 9 employee’s services. It is a clear case, in our view, of abandonment of service by a casual labourer who has persistently absented himself from duty for years on end. ## **Precedents:** 21. In Viveka Nand Sethi v. Chairman, J and K Bank Ltd[1] ., the Hon’ble Supreme Court has observed that mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act by the workman. The workman in that case has contended that a full-fledged departmental proceedings had to be initiated in compliance with the principles of natural justice. Repelling that contention, the Apex Court has held that a limited enquiry whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do amounts to sufficient compliance of the principles of natural justice. Of course, in Vivek Nand Sethi the settlement between the employer and the employees recognizes abandonment as a mode of cessation of duty. > 1 (2005) 5 SCC 337 W.P.(C)No.32286/2009 10 22. As far back as in 1961, the Supreme Court in Jeewanlal (1929) Ltd., Calcutta v. Workmen[2] has acknowledged that there would be a class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee. In the recent past, the Apex Court has accentuated the principle of abandonment of service to telling effect. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association[3] and in Aligarh Muslim University v. Mansoor Ali Khan[4] the Court has 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 a useless formality. So is the proposition in V.C. Banaras Hindu University v. Shrikant,[5] Chief Engineer (Construction) v. Keshava Rao,[6] and Regional Manager, Bank of Baroda v. Anita Nandrajog.[7] > 2 AIR 1961 SC 1567 > 3 AIR 2000 SC 2198 > 4 AIR 2000 SC 2783 > 5 AIR 2006 SC 2304 > 6 (2005) 11 SCC 229 > 7 (2009) 9 SCC 462 W.P.(C)No.32286/2009 11 23. In Vijay S. Sathaye v. Indian Airlines Ltd.,[8] the Apex Court surveyed most of the above judicial authorities and reiterated in para 9 that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation, and, alternatively, by not joining the duty and by remaining absent for long. Absence from duty initially 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 requiring no order to be passed by the employer. **Conclusion:** 24. To sum up, the employee, here, is a casual employee, though working for a long time; he had been absent from duty, repeatedly and for long spells; the employer gave a long rope and required him to mend his ways; but he remained unreformed; and finally the employer warned the employee of the consequences. After the employee’s persistent, prolonged absence, it disengaged him. In the matters of service, trite to observe, the employer is to be given sufficient leverage in the interest of efficacy of > 8 (2013) 10 SCC 253 W.P.(C)No.32286/2009 12 administration. So the scope for judicial interference falls in a narrow compass: Only patent and gross illegalities and irregularities bordering on blatant violation, for instance, of the principles of natural justice call for interference. Here, we find no such contingency arising so that a judicial forum could interfere with the employer’s discretionary action. We, therefore, hold that the Tribunal’s order is unsustainable, and thus calls for interference. ## **Result:** 25. Under these circumstances, compelling the employer to re-engage an erratic employee is not in public interest. Therefore, we hold that Ext.P1 judgment cannot be sustained and is accordingly sets it aside. As a result, this writ petition is allowed as prayed for. No order on costs. ## **Sd/- P.R.Ramachandra Menon, Judge** ## **sd/- Dama Seshadri Naidu, Judge** css/ true copy P.S.TO JUDGE