Shishir Kumar, J.
1. The present writ petition has been filed for quashing the orders-dated 31.3,1998 and 31.3.1998 (Annexures 9 and 10 to the writ petition) passed by the respondent No. 2 and 3. Further issuing a writ in the nature of mandamus commanding the respondents to reinstate the petitioner on the post on which he was working and treat him to be a regular employee on the post on which he was appointed.
2. The facts arising out of the present writ petition are that the petitioner was appointed on the post of pharmacist on 17.5.1976. From 17.5.1976 to 20.1.1986, the petitioner was working on the same post at same place that is Ram Nahar (Urua) and Karchana, Allahabad. The petitioner was transferred from Allahabad to Farrukhabad by order of the Joint Director, Allahabad Region, Allahabad, dated 24/25.6.1984 but the petitioner was relieved from Women Hospital, Karchana on 20.1.1986, The petitioner joined the duties under Chief Medical Officer Farrukhabad on 22.1.1986. Thereafter the petitioner was posted at Primary Health Centre Kayamganj on 23,1.1986. On 24.1.1986, the petitioner after giving leave application returned to his house. Thereafter, due to unavoidable circumstances, and illness he could not return on duty up to 19.5,1994, as such, the petitioner on 20.5.1994 reached Farrukhabad before the Chief Medical Officer, Farrukhabad and had given an application for joining.
3. It is relevant to submit here that the petitioner is all alone with his old father, mother and wife. The petitioner due to illness after giving application on 24.1.1986 return to his house and thereafter due to his own illness, father and mother's illness up to 19,5.1994, he could not resume his duties, but the petitioner has informed to the respondents regarding his illness and difficulties and has given leave applications and medical certificates. The petitioner has given by hand and by post leave applications dated 24.1.1986, 6.4.1986, 15.8.1986, 3.12.1986, 8.2.1987, 27.7.1988, 13.9.1989, 19.10.1990, 21.8.1992, 23.5.1992 and 3.12.92 respectively. The same has been annexed as Annexure 1 to the writ petition. It has been stated on behalf of the petitioner that due to natural calamities like illness, the petitioner was not in a position to do his duties properly and it was beyond his control. An information to that effect was being given to the respondents. The petitioner on 20.5.1994 reached before the respondent No. 3 and gave his joining application but the respondent No. 3 has not permitted to the petitioner to join. The respondent No. 3 sent an official letter dated 21.5.1994 to the respondent No. 2 for taking permission regarding joining the duties, but the respondent No. 3 has wrongly stated in his letter dated 21.5.1994 that the petitioner was absent from duty without any information. The respondent No. 2 sent a letter dated 4.8,1994 to the respondent No.3 for obtaining an information regarding the cause of absence of the petitioner from duty. The petitioner after receiving the letter dated 4.8.1994 has explained all the reasons for his absence and has given an affidavit in this regard to the fact that he has not done any duty at any place and he has not gone at any place in India or outside India and absence from duty was only due to illness and proper information to that effect has been given timely to the respondents. The petitioner made representation in the office of the respondent No. 2 but the same remained unattended then the petitioner has filed a Writ petition before this Court which was numbered as Writ Petition No. 26450 of 1997. The writ petition was finally disposed of on 21.8.1997 directing the respondent No. 2 to dispose of the representation of the petitioner within a period of six weeks. On the basis of the direction issued by this Court, the representation of the petitioner was disposed of on 31.3.1998 and in pursuance of the order, an order on the same day was passed itself by which the petitioner's services have been terminated. A copy of the same has been filed as Annexures 9 and 10 to the writ petition.
4. It has been stated on behalf of the petitioner that from the perusal of the impugned order, it clearly goes to show that the order is wholly illegal, unjust and unwarranted in the facts of the present case. The respondent has passed an order on totally incorrect facts and before passing the order, no opportunity has been given to the petitioner. The observation made in the impugned order that the petitioner remained absent in an authorized manner is totally misconceived. The petitioner being a permanent employee, the services cannot be terminated without following the proper procedure. The petitioner has submitted the application from time to time and has stated the reasons, as such, if the respondents were treating that the petitioner was absent without sanction of leave and permission, the proper disciplinary enquiry was to be initiated against the petitioner, as the same has not been done, the orders are liable to be quashed.
5. The reliance has been placed upon a judgment of the Apex Court reported in (1993) 3 Supreme Court Cases 259 D.K. Yadav v. J.M.A. Industries Ltd. and has place reliance upon Para 11 of the said judgment, the same is being reproduced below:
11. The law must therefore be now taken to be well-settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statue or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, Just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi-judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both.
6. The reliance has also been placed upon another judgment reported in (2001) 2 UPLBEC 1271 Sunil Kumar Pathak v. Chairman, Indian Oil Corporation, New Delhi and Ors. and has submitted that the Division Bench of this Court has taken a view that continuous absence or over stayal to leave without permission or intimation cannot be treated to be abandonment of job. Such provision providing automatic abandonment of job is violative to Article 14,
7. Another judgment has been relied upon by the counsel for the petitioner reported in (1999) 3 UPLBEC (Summary) 140 Mansoor Ali Khan v. Aligarh Muslim University, Aligarh and Ors. . In support of his contention the petitioner submits that absence from duty without permission, if the services have been terminated after expiry of maximum period of leave without complying the provision of Article 311 of the Constitution of India, the order is bad and, as such is liable to be quashed.
8. On the other hand, the counsel for the respondent has submitted that the petitioner was absent without leave from 1986 to 1994 and no application supported by medical certificate has been submitted before the authorities concerned. The petitioner is put to strict proof regarding sending and receiving any application or medical certificate to the authority concerned. There is no averment in the writ petition that any application, which has been annexed with the writ petition has ever been sent by registered post and the same has been received. It has further been submitted on behalf of the respondents and brought to the notice of the Court (Annexure 2 to the writ petition) which is a certificate issued by a doctor Mool Chandra Sharma on 27.3.1996. It is stated that the said certificate clearly states that the petitioner was suffering from Bronchitis and Jaundice and the certificate shows that the petitioner is being treated from 26.3.1986, but for which period and from which date the petitioner will be treated, has not been mentioned. The said certificate has been issued on 27.3.1996. This clearly goes to show the after thought of the petitioner for the purpose of taking the benefit. From the various applications, which have been annexed with the writ petition it is clear that the petitioner has not mentioned any disease that he is not in a position to join the duties. The application dated 20.5.1994 addressed to the Chief Medical Officer, Farrukhabad clearly states that he petitioner due to the family reason was not in a position to join the services from 23.1.1986 to 20.5.1994. It clearly shows that the petitioner was not interested in service and it will amount to abandonment of service, as under the Rules, if an employee is absent without any sanction of leave or without permission or beyond period of five years it will be presumed that he has abandoned his service. Admittedly, the petitioner is absent without any sanctioned leave from 1986 to 1994 i.e. about eight years.
9. In view of the aforesaid fact, the respondents submit that the writ petition is liable to be dismissed.
10. I have heard learned Counsel for the petitioner and learned Counsel for the respondents and have perused the record.
11. From the record, it is clear that the petitioner is absent without any leave from 1986 to 1994. There is no evidence on record to show that the petitioner has made any effort to give an application or medical certificate to the authorities concerned. There is no document to show that the petitioner was suffering from such disease due to that the petitioner was unable to join his duties. The application dated 23.5,1994 which is addressed to the Chief Medical Officer, Farrukhabad given by the petitioner, clearly goes to show that the petitioner himself has stated that after joining on 23.1.1986, the petitioner has obtained four days leave and went to his home and after that due to the family reasons, could not attend the duties. There is nothing on record to show that what were the reasons for absenting from service for a period of eight years. In my opinion, this will amounts to abandonment of service. The contention of the petitioner to this effect cannot be accepted that in spite of the aforesaid fact, a proper disciplinary proceeding or departmental proceeding should have been initiated before passing the impugned order. It appears that on the basis of the direction issued by this Court, the respondents have passed an order dated 31.3.1998, though there was no necessity under the law to pass such an order. Recently this Hon'ble Court has considered regarding principles of abandonment of service in case of Dr. Lakhte Mustafa Kazmi reported in (2003) 2 UPLBEC 1351 and this Court has held that if a person without any permission and grant of leave, go for a long period, the conduct of the petitioner amounted to be abandonment of service and cannot claim his right to continue in service.
12. There is another aspect of the matter. Even as per the own version of the petitioner, after joining on 23.1.1986 the petitioner has obtained a leave for four days and went to his home and did not join up to 20,5.1994. The services in such eventuality came to an end automatically by virtue of statutory provisions referred to by the respondents in the impugned order. Even otherwise, the respondents could have initiate the disciplinary proceeding against him as observed by the Hon'ble Apex Court in Gujarat Electricity Board and Anr. v. Atma Ram Sungomal Roshani reported in : (1989)IILLJ470SC .
13. Be that as it may, as petitioner remained absent from duty and there is no proof that he has submitted any representation or approached any authority for a continuous period of eight years, the question does arrive as to whether it could amount to abandonment of service voluntarily by the petitioner himself.
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 and 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.
In Jeewan Lal (1929) Ltd. Calcutta v. Its Workmen : (1961)ILLJ517SC , the Apex Court held as under:.if an employee continues to be absent from duty without obtaining leave and in an unauthorized manner for such a long period of time that an interference any reasonably by drawn from such absence that by his absence he has abandoned serviced, then such long unauthorized 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 unauthorized absence may reasonably give rise to an interference that such service is intended to be abandoned by the employee.Similarly, in Shahoodul Haque v. the Registrar, Co-operative Societies, Bihar and Anr. : AIR1974SC1896 , the Apex Court observed as under:
The undenied 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 giving him further opportunity to disprove what he practically admits, could serve no useful purpose. It could not benefit him to 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.
For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action of the employee and the employer has no role in it.
In the State of Haryana v. Om Prakash and Anr. : (1998)8SCC733 , the Hon'ble Apex Court explained the distinction between 'retrenchment' and 'abandonment' from service, observing as under:
Retrenchment t within the meaning of Section 2 (oo) means termination by the employer of the service of the workman for any reason whatsoever. Therefore, it contemplates an act on the part of the employer which puts an end to service to fall within the definition of the expression an end to service to fall within the definition of the expression 'retrenchment' in Section 2(oo) of the Act. There was nothing of the sort in the instant case.
It was the workman who ceased to report for duty...therefore, this is a case in which the employer has done nothing whatsoever to put an end to his employment and hence, the case does not fall within the meaning of Section 2(oo) of the act. Therefore, the case does not attract Section 2 (oo) nor does it satisfy the requirement of Section 25-F.
In Buchingham and Carnatic Co. Ltd. v. Venkatiah and another : (1963)IILLJ638SC , while dealing with a similar case, the Hon'ble Apex Court observed as under:
It is true that under common law an interference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstance an interference tot hat effect can be legitimately drawn and it can be assured that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention and normally, such an intention cannot be attributed to an employer without adequate evidence in that behalf.
Similar view has been reiterated in G.T. Lad and Ors. v. Chemicals and Fibres India Ltd. : (1979)ILLJ257SC .
In Syndicate bank v. General Secretary, Syndicate Bank Staff Association and Anr. : (2000)ILLJ1630SC ; and Aligarh Muslim University and Ors. v. Mansoor Ali Khan : AIR2000SC2783 , the Hon'ble Supreme Court relied 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 useless formalities.
14. In such a situation, whether the petitioner voluntarily remains absent for a period of eight years and made an application in the year 1994, without disclosing at to what he had been doing for a period of eight years in the interregnum, it is a fit case to declare that the petitioner had abandoned the services voluntarily and there was no privity of contract creating master and servant relation between the parties as the said relation came to an end on the date petitioner had chosen not to join after expiry of the sanctioned leave.
15. Similar view has also been taken by the Apex Court in a judgment reported in : (2004)IIILLJ1SC Dr. Gurjeewan Garewal v. Dr. Sumitra Dash (Mrs.) and Ors., the relevant paras 21 and 22 are being reproduced below:
21 Similarly, in the case in hand the 1st respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER, She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or the other.
22. Crucial aspect to be noted in this case is that Respondent No. 1 , on 6.9.1994 obtained a stay of disciplinary action against her vide an application bearing No. 8535 of 1994 in CWP No. 161212 of 1992. In the face of law, such a stay ought not to have been granted by the High Court since the prayer in that CWP cannot have any bearing upon the ex-India leave obtained by R-1 or on its subsequent extensions or on the outcome of disciplinary action. The disciplinary proceedings against her and the case filed by her are separate actions, They could proceed separately. Thus that stay is liable to be vacated. But the judgment impugned in this case arises from CWP No. 8504 of 2000 where in R-1 essentially challenges her rejection of her application to join duty under Rule 36 of the PGIMER Rules on the ground of violation of the principles of natural justice. In the facts of this case, that issue will not arise if the original disciplinary proceedings are completed. Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorized absence from duty. Since R-1 is allowed to rejoin her duty under the orders of the High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. PGIMER is at liberty to consider whether the continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary.
16. In the recent judgment reported in : (2005)IILLJ1034SC Viveka Nand Sethi v. Chariman J & K Bank Ltd and Ors., the Apex Court has also the similar view. Paras 22 and 23 are being reproduced below:
22. The principle of natural justice, it is trite, is not unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. (See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash.) The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant acts and circumstances of the case. (See State of Punjab v. Jagir Singh and Karnataka SRTC v. S.G. Kotturappas.)
23. The contention raise at the Bar appears to be squarely covered by two decisions of this Court relied upon by Mr. Alex. In Syndicate Bank Wadhwa, J, speaking for the Division Bench observed: (SCC p. 76, paras 14-15)
17. Keeping in view of the aforesaid fact, the Apex Court has also considered the D.K.Yadav's case (Supra) and has come to the conclusion that in such circumstance, it amounts to abandonment of service and there is no necessity for taking any action as the relationship of master and servant came to an end.
18. In view of the foresaid fact, the writ petition is devoid of merits and is hereby dismissed.
19. There shall be no order as to costs.