S. Nainar Sundaram, C.J.
1. This Letters Patent Appeal is directed against the order of the learned single Judge in Special Civil Application No. 2098 of 1986. The respondents in the Special Civil Application are the appellants in the Letters Patent Appeal and the petitioner in the Special Civil Application is the respondents in the Letters Patent Appeal. Convenience suggests that we adopt the nomenclature assigned to the parties in the Special Civil Application while we deal with them in the course of this order of ours.
2. The petitioner, who was working as a Supervisor with the respondents, was ousted from service, by proceedings dated 14-9-1984. The preceding facts can be recapitulated as follows:
The petitioner worked upto 27-1-1981. From the day next onwards, he proceeded on leave, without having the same sanctioned. However, on 3-2-1981, the petitioner sent his leave report and there he indicated that he will resume work on and from 1-3-1981. No proceeding reflecting the reaction of the respondents on this leave report has been disclosed to us. On 25-5-1982, the respondents issued a show cause notice, calling for explanation from the petitioner. True translation of this proceeding has been provided for us and the body of the communication, as per the true translation, runs as follows:
XXX XXX XXXWith reference to the above subject, it is stated that you have remained absent from 28-1-1981 in the office at Kana Katha Lift Irrigation Circle Kosva. Till this day, you have not reported for duty. You are asked to submit immediately your explanation to this office for having remained absent at your sweet will. You have neither sent in your resignation. So, as per the rules and regulation of the Corporation, you are asked to explain by return of post as to why you should not be considered as having left the services by recovering one month's notice pay from you so that further action can be taken in the matter.
On 16th June, 1982, the petitioner replied and here again, we find a true translation has been provided for us and the body of the reply by the petitioner is to the following effect:
XXX XXX XXXWith reference to the above subject, it is stated that due to unavoidable circumstances of my family, I could not remain present on duty, so it is requested to please grant pardon. Delay has been caused in reporting for duty in accordance with the Rules and Regulations of the Corporation for which I seek pardon, xxx
On 4th May, 1983, the respondents issued proceedings and as per the true translation of the same, its contents run as follows:
XXX XXX XXXSub : In the matter of remaining absent from duty.
With reference to the above subject, it is stated that you have continuously remained absent from 1-3-1981. Hence amount of notice pay etc. is liable to be recovered from you. So you are requested to send within seven days the recovery of the dues of the Corporation recoverable from you. If you fail to do so, then after following appropriate procedure, the information regarding your having been dismissed will be informed to all the departments of the Government of Gujarat which please note.
This was replied by the petitioner on 7-5-1983 and the contents of the reply, as per the true translation placed before the Court, are to the following effect:
XXX XXX XXXWith reference to the above subject, I have to inform you that I hereby give my consent to make recovery from the amount being due to me from the Corporation towards an amount of notice pay payable by me to the Corporation. So, your Honour may please recover from the outstanding amount whatever amount is to be recovered from me. I hereby give my consent for making recovery from my savings towards notice pay for which I sent you a letter which might not have been received in your office. Owing to the present circumstances and situations, I could not remain present continuously for which I express regret. So my consent is hereby given to your Honour for recovering notice pay.
On 9-9-1984, the petitioner wrote to the respondents as follows:
XXX XXX XXXWith reference to above due to unavoidable circumstances sickness of my father I could not resume my duty from 28-1-1981 to 30-9-1984. It is kindly requested to grant me L.W.P. from 28-1-1981 to 30-9-1984. I am will to resume duty from 1-10-1984. Formaly I was working in G.W.R.D. Lift Irrigation Sub-Division Kosamba. So it is kindly requested to do needful in the matter. Necessary Medical Certificate of my father's illness is being submitted, xxx xxx
The respondents have, however, chosen to terminate the services of the petitioner, as per the proceedings impugned in the Special Civil Application preferred by the petitioner. The true translation of the impugned proceedings is to the following effect:
XXX XXX XXXServices of Shri K. A. Shah, VMS (Civil) who was performing duly in the office in Right Bank Lift Irrigation Scheme Sub-Circle Kosamba under (the control) Deputy Executive Engineer under the control of Executive Engineer Lift Irrigation Scheme Circle Ukai are terminated with effect from 28-1-1981 being the date from which he is absent from this Corporation. In accordance with his consent, order is also hereby given to recover the amount due to the Corporation from the amount payable to him.
3. As we could see from the order of the learned single Judge, two contentions were pressed forth by the petitioner and they have been countenanced by the learned single Judge. One is, the petitioner was ousted from service without adhering to the principles of natural justice and the other is that the order of termination was passed by an authority not competent to do so. The learned single Judge sustained both the contentions, on facts, and as a result, the learned single Judge directed the reinstatement of the petitioner in his original post, with continuity of service and further, directed disbursement of 50% of the backwages from 1-1-1986 till the date of reinstatement.
4. In this Letters Patent Appeal, as already noticed directed against the order of the learned single Judge, Mr. K. B. Trivedi, learned Counsel for the respondents, would submit that it is a case of abandonment of service and that is borne out by the facts of the case and the learned Counsel for the respondents requests us to apply the ratio decidendi of the pronouncement of the Supreme Court in Shahoodul Hague v. The Registrar, Co-operative Societies, Bihar and Anr. : AIR1974SC1896 to the facts of the present case. The facts of the case, dealt with by the Supreme Court, are succinctly summed up in paragraph 2 of the report as follows:
XXX XXX XXX2. Other facts, relating to the service of the appellant are not material until we come to 15-11-1963, when the applicant applied for leave to go on pilgrimage to Mecca. It appears that the applicant had left without grant of any leave, but had applied, on 27-4-1964, from Mecca, for an extention of a leave which was, in fact, never granted. He came back nearly a year afterwards. He alleges that he resumed duty on 8-10-1964 and was then compelled to take leave. He says that he fell ill on 7-11-1964 and could not attend to work until he got the order of his removal retrospectively from 4-1-1964. He asserted that he had been dismissed contrary to the Constitutional guarantee conferred upon him by Article 311 of the Constitution inasmuch as he had been dismissed without giving him any opportunity to show cause, without any proceeding and without any enquiry.
Straightway, we must point out that we are not able to draw any parity between the set of facts that was before the Supreme Court and the set of facts we are confronted with. On the facts of the case before the Supreme Court, it was opined that, in the circumstances of the case, the Government servant has been given sufficient opportunity to explain his conduct and he failed to avail of that opportunity. Further, it has been observed:
XXX XXX XXXThe undenied and undeniable fact that the appellant had actually abandoned his post of duty for an exceedingly long period, without sufficient grounds for his absence, is so glaring that giving 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 only prolong his agony.
5. Abandonment is a theory which cannot be naively accepted by Courts. It has got to be pleaded and further, it has got to be substantiated through acceptable and convincing evidence. Though to some extent, the theory could be advanced in the presumptive level, there must be exposure of sufficient materials, even to enable the Court to draw the presumption, without any ambiguity in mind, that it was a case of abandonment. Abandonment is total and unreserved relinquishment of employment and the facts and circumstances must bear out that the relinquishment was absolute and with actual or imputed intention to abandon employment, Such could not be the conviction brought to our mind on the facts of the present case. We agree with the learned single Judge that the termination of the service of the petitioner was in breach of the principles of natural justice and that enables the petitioner to succeed in obtaining reinstatement. This is sufficient for the petitioner to succeed. Though we did hear submissions by Mr. K. B. Trivedi, learned Counsel for the respondents, that even the finding by the learned single Judge on the question of competency of the authority, who terminated the services of the petitioner, is not correct, we are not going into it since on the ground of violation of the principles of natural justice, the petitioner has succeeded before the learned single Judge and we have sustained the success on the question of reinstatement.
6. Then the learned Counsel for the respondents would address us on the propriety of awarding 50% of the backwages from 1-1-1986. Once it has been found that the order of termination suffers from the vice of violation of the principles of natural justice, it must be treated as non est and there could not be denial of award of backwages, unless exceptional and extraordinary circumstances are made out. The learned single Judge on facts, found a warrant to award 50% of the backwages. We have not been convinced that we should interfere with the discretion of the learned single Judge on the question of award of backwages.
Thus, we are obliged to dismiss and we do dismiss the Letters Patent Appeal, as lacking in merits.