Rejection of a writ petition by the petitioner challenging his termination for desertion after unauthorized absence. The Court upheld the Tribunal's finding that the petitioner failed to resume duty after being certified fit.
The writ petition was rejected and the order of termination and the Tribunal's judgment were upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
WRIT PETITION NO.1156 OF 2005
Ramesh Govind Tarvani ..Petitioner.
vs.
K.J.Somaiya College of
Engineering & anr. ..Respondent.
Mr.Neel Helekar for the Petitioner.
Mr.A.K.Jadhav for Respondent No.1.
CORAM : DR.D.Y.CHANDRACHUD, J.
3rd May, 2005.
P.C.:
1. The Petitioner has been dismissed from
service on the ground of unauthorized absence from
duty after the charges of misconduct contained in a
charge-sheet dated 10th September, 2001 were held
to have been proved. The Petitioner was absent
from duty from 29th September, 2000. The order of
termination has been upheld by the Presiding
Officer of the Mumbai University and College
Tribunal. The Tribunal has noted the provisions of
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the rules known as the Maharashtra Non-Agricultural
Universities and Affiliated Colleges Standard Code
(Terms and Conditions of Service of non-teaching
Employees) Rules, 1984. Rule 41(13) inter alia
provides that an employee shall not absent himself
from duties, without first having obtained the
permission of the Competent Authority. In the
event that it is not possible for an employee to
obtain such permission for reasons beyond his
control, intimation has to be furnished to the
Competent Authority within a period of three days
from the first period of absence failing which, the
employee would be liable to disciplinary action and
the period of absence will be treated as leave
without pay. Rule 42 enumerates acts and omissions
which amount to misconduct and among them is any
action of the employee contrary to the provisions
of the rules. Under Rule 50 an employee who
absents from duty without permission for a period
of more than 30 days is deemed to be a deserter and
his services stand automatically terminated on the
expiry of the period of 30 days.
2. The Petitioner was absent from duty from
29th September, 2000 without permission. On 9th
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October, 2000 he addressed a telegram seeking leave
for a period of one week on the ground that he was
suffering from Jaundice. This period of extension
that was sought by the Petitioner expired on 6th
October, 2000. On 20th October, 2000 the
Petitioner sought the grant of sick leave for a
further period of four weeks. The case papers
which were submitted by the Petitioner showed that
he had been admitted to the G.T.Hospital on 4th
October, 2000 and had been discharged on the same
day. Upon the receipt of the aforesaid
communication on 4th November, 2000 an endorsement
was made to the effect that the Petitioner may be
directed to appear for a medical test at the
medical college associated with the First
Respondent management. A letter was accordingly
addressed to the Petitioner on 6th November, 2000.
On 9th November, 2000 the Petitioner addressed a
communication for the grant of four weeks leave on
the ground that he was suffering from Piles. On
15th December, 2000 the Petitioner appeared before
the Medical Officer of the Hospital and he was
certified fit to resume duties. Accordingly he
should have resumed duties on 16th December, 2000,
but he failed to do so. The defence of the
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Petitioner in his statement of defence was that on
16th December, 2000 he was not allowed by the
Principal to resume duties. The Presiding Officer
of the Tribunal analysed this defence and rejected
it. That was because on 15th March, 2001 the
Petitioner had addressed a letter to the First
Respondent claiming that when he had appeared
before the Medical Officer on 15th December, 2000
he had fainted and according to the Petitioner he
was advised to take rest. The Petitioner stated in
his letter that he would be willing to reappear
before the Medical Officer and to join duty after a
fresh certificate of fitness was issued. The
Presiding Officer has, therefore, correctly come to
the conclusion that this would show that it was
improbable that the Petitioner had approached the
Principal on 16th December, 2000 for joining duty.
If an incident had taken place on 16th December,
2000 in which the Petitioner had been prevented
from joining duty, he would have immediately
written a letter or given a notice to that effect.
On the contrary, in the Petitioner’s letter dated
15th March, 2001 there was no reference to the
Petitioner having been prevented from joining duty.
In these circumstances, the case of the Petitioner
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has been correctly evaluated on the evidence. The
Tribunal has noted that by his long and
unauthorized absence the Petitioner has deserted
his duty within the meaning of Rule 50 of the
Standard Code.
3. The order of the Tribunal does not
warrant any interference under Article 227 as it
does not suffer from any infirmity. The petition
is accordingly rejected.
2 issues framed by the court
Whether the writ petition challenging the termination of service based on unauthorized absence and desertion warrants interference under Article 227.
Whether the findings of the Tribunal that the petitioner deserted duty after exceeding 30 days of unauthorized absence are legally untenable.
2 provisions across 2 enactments
Ramesh Govind Tarvani
K.J.Somaiya College of Engineering
DR.D.Y.CHANDRACHUD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court