Dismissed

Mahesh P. Dange v. Gas Authority of India Ltd.

Bombay HC15 Sept 2009WP/1475/1998

Case brief

AI extract

What is this about?

This writ petition challenged the validity of Rule 22 of GAIL Leave Rules and the orders striking the petitioner off the rolls for voluntary abandonment. The court held the rule not ultra vires as the petitioner was repeatedly cautioned to join duties without success, thus justifying the authorities' action.

What did the court decide?

Petition dismissed; Rule 22 of Leave Rules discharged.

Mahesh P. Dange Vs Gas Authority of India Ltd. — Property and Title | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1475 OF 1998

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Mahesh P.Dange V/s

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Gas Authority of India Limited

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.. Petitioner

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.. Respondents

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Mr.K.S.Bapat i/by Mr.Vinod Juwale for the Petitioner. Mr.A.D.Shetty for the Respondents.

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CORAM : D.K.DESHMUKH &

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R.G.KETKAR, JJ.

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DATE : 15TH SEPTEMBER, 2009.

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P.C.:

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By this petition under Article 226 of the Constitution of India, the petitioner prays for declaration that the Rule 22 of Leave Rules of the Respondents-Gas Authority of India Limited (for short “GAIL”) is arbitrary and unconstitutional and violative of the Constitution of India. The petitioner also challenges the impugned orders dated September 2, 1996 and September 5, 1996 at Exhibits “J” and “L” respectively passed by the Respondents whereby his name was struck off the rolls of GAIL in terms of Rule 22 on the ground that the petitioner has voluntarily abandoned the service of the GAIL.

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The facts necessary for the disposal of the writ petition are as follows: While the petitioner was working as Assistant Accounts Officer at Mumbai, by an order dated October 25, 1995 he was transferred from

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Mumbai to Baroda for Gas Processing Complex Gandhar with immediate effect. The transfer order mentioned that the petitioner may be relieved of his duties within seven days that is by November 6, 1995. Instead of joining duties at Baroda, it appears that the petitioner attended office at Mumbai till November 13, 1995. On November 13, 1995 he submitted his first leave application. By letter dated December 4, 1995 the Manager (F & A) informed the petitioner that the application for leave will be sanctioned by the Competent Authority of Gandhar project, GAIL, Baroda. He was advised to report for duty with firness certificate to the place of posting on transfer.

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By letter dated February 6, 1996, Senior Deputy Manager (Personnel) informed the petitioner that consequent upon his transfer from Mumbai to Baroda he was released from Mumbai on November 8, 1995 with a direction to report to the Senior Manager, (F & A), GAIL, Baroda. However, instead of reporting duty at Baroda he applied for half pay leave from from November 14, 1995 to December 1, 1995. It is further set out therein that the petitioner neither resumed his duties nor sent any communication. The petitioner was advised to report at Baroda office within seven days from the date of receipt of that letter and in case he was unable to attend duty on account of sickness he was requested to send medical certificate from the Civil Surgeon of the area, failing which, action would be taken against him. After receipt of the said letter, the petitioner addressed letter on February 9,

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1996 acknowledging the receipt of letter dated February 6, 1996. By the said letter he disputed that he was relieved w.e.f.November 8, 1995 as according to him he was reporting office at Mumbai till November14, 1995 before proceeding on sick leave. He further set out therein that he was advised to take rest for another 15 days, and only after the Doctor giving complete recovery certificate he would be able to resume office at Mumbai and that the medical certificate would be submitted in due course.

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The said letter of the petitioner was replied by the Respondent on February 22, 1996. It was reiterated that on transfer he was relieved from the services of GAIL, Mumbai on November 8, 1995 to report to Senior Manager (F & A), GAIL, Baroda and the copy of the office order dated November 8, 1995 was enclosed therewith. The grievance was made to the effect that the petitioner did not comply with the transfer order. It was further set out that the Director (Finance) had desired to inform the petitioner that his retention at Mumbai was not possible. The petitioner was once again advised to report to the Senior Manager (F & A), Gail, Baroda for further assignment of duties. It seems that the Director (Finance) GAIL, New Delhi, passed an order to the effect that -

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“his request cannot be accepted and his transfer be implemented immediately”

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This order was quoted in letter dated March 26, 1996 addressed by Senior Manager (Transfer) to the petitioner. Attention of the petitioner was invited to Rule 22 of GAIL Leave Rules, which provides that if an employee remains absent without proper intimation for a period of more than 10 days or does not report for duty within 10 days from the date of expiry of leave granted to him, the appointing authority may presume that he is not interested in the employment and has voluntarily abandoned the services of the Company and accordingly, his name will be struck off the rolls of GAIL without any notice. It was further set out that the petitioner was absent from duty unauthorisedly for four months. He was once again called for to report on duty at Senior Manager (F & A) GAIL, Baroda, immediately, failing which action would be taken against him under the above leave rules or under any of the rules of the Company as the competent authority may decide.

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After receipt of this letter, the petitioner addressed a letter on March 29, 1996 setting out therein that he is fit and willing to join at Baroda provided the release order is served on him as on the date at Mumbai on joining, and sanctioning of leave submitted by him from time to time at Mumbai. He requested to issue a direction for joining him at Mumbai for receiving the release order which was not served on him till the date and he further requested not to initiate any action under Rule 22 of the Leave Rules.

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By office order dated September 2, 1996 after recording events that took place earlier, the petitioner’s name was struck off the rolls with immediate effect in terms of Rule 22 of the Leave Rules of GAIL. By letter dated April 20, 1998 the petitioner requested for review and revocation of the office order dated September, 22, 1996. This request was turned down by letter dated June 5, 1998. The petitioner has challenged the letters dated September 2, 1996 at Exhibit “J”, June 5, 1998 at Exhibit “L” in this petition apart from the challenging the validity of Rule 22 of the Leave Rules.

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In support of this petition, we have heard Mr.Kiran Bapat, learned counsel for the petitioner and Mr.Ashok Shetty, learned counsel for the Respondents. Mr.Bapat, learned counsel for the petitioner submitted that the relieving order was never served on the petitioner and consequently he was justified in not joining duties at Baroda. He further submitted that the petitioner had submitted an application for leave and consequently it cannot be termed that the petitioner refused to join duties at Baroda. The petitioner was requesting the authorities to permit him to receive the release order at Mumbai and therefore he requested the authorities to issue directions for his joining at Mumbai for receiving the release order which according to him was not served.

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We are unable to appreciate this submission. Assuming that the

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petitioner was not served with the release order dated November 8, 1995 at any rate the copy of the said order was enclosed alongwith the letter dated February 22, 1996. The petitioner was repeatedly advised to first resume duties at Baroda. He was also called upon to submit the leave application alongwith the medical certificate from the Civil Surgeon of the area to the Competent Authority of GAIL at Baroda. The petitioner did not choose to do so and continued to remain absent unauthorisedly w.e.f. November 14, 1995. The petitioner was repeatedly given opportunities to join duties at Baroda. Despite receiving several letters to that effect, the petitioner did not resume duties at Baroda. In fact, the petitioner was cautioned in the letter dated March 26, 1996 that he was absent from duties unauthorisedly for more than four months and that the authority may be constrained to initiate action against him under the relevant rules of GAIL. Despite cautioning the petitioner did not join duties. We are clearly of the opinion that the petitioner was adamant and was insisting to be continued in Mumbai office only. The petitioner was never interested in joining duties at Baroda. Under these circumstances, we do not find any fault with the authorities in invoking Rule 22 of the Leave Rules.

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10.In so far as challenge to the virus of Rule 22 of the Leave Rules is concerned, the petitioner contends that the said rule is arbitrary, illegal and devoid of fairness and reasonableness. According to him

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the said rule gives unbridled, uncandalised and arbitrary power on the respondents. It is further submitted that the said rule is opposed to public policy and is invalid & unconstitutional. Rule 22 of the Leave Rules reads as under:-

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“If an employee remains absent without proper intimation, he will be marked absent and it will render him liable for disciplinary action for misconduct. If an employee remains absent for a period of more than 10 days or does not report for duty within 10 days from the date of expiry of leave granted to him, the Appointing Authority may presume that he has no interest in the employment and has voluntarily abandoned the service of the Company and accordingly his name shall be struck off the rolls of GAIL, without any notice.”

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11.In terms of Rule 22 of the Leave Rules, the petitioner was given several opportunities to resume duties. Despite affording several opportunities to the petitioner to resume duties at Baroda, he deliberately did not resume duties at Baroda on the pretext that he was not served with the release order dated November 8, 1995. In the first place, the said contention is totally false. Assuming that the petitioner was not earlier served with the release order, nonetheless the said release order was enclosed alongwith the letter dated February 22, 1996. At any rate after receipt of the letter dated February 22, 1996 the petitioner ought to have resumed duties at Baroda. Secondly, assuming that the petitioner was not served with the release order dated November 8, 1995 nonetheless he should have reported for duties at Baroda under protest when he was repeatedly

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called upon to resume duties at Baroda. This adamant attitude of the petitioner dis-entitles him for any relief from this court in exercise of our extra-ordinary jurisdiction under Article 226 of the Constitution of India.

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12.We are also not satisfied that the Rule 22 of the Leave Rules of GAIL is ultra-virus of the Constitution of India. As already indicated above, the petitioner was given very many chances to resume duties at Baroda. He does not deny receipt of these letters. Though the petitioner was absent from duties unauthorisedly w.e.f.November 14, 1995 his name was struck off from the rolls only by the order dated September 2, 1996, that too after giving several opportunities to the petitioner. In the facts and circumstances of the case, it cannot be accepted that the actions of the Respondents based on Rule 22 of the Leave Rules are arbitrary and unreasonable.

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13.In the result the petition being devoid of substance deserves to be dismissed. Accordingly the petition is dismissed. Rule is discharged, with no order as to costs.

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(D.K.DESHMUKH,J.)

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(R.G.KETKAR, J.)

Mahesh P. Dange v. Gas Authority of India Ltd.

Case brief

What is this about?

What did the court decide?

Mahesh P. Dange v. Gas Authority of India Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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