Dismissed

S.Vinod v. Kerala State Electricity Board Ltd.

Kerala HC13 Nov 2020WP(C)/11213/2015

Case brief

AI extract

What is this about?

A Board employee who overstayed five years' leave without allowance and failed to rejoin duty challenged his removal from service. The court held that his long unauthorised absence, coupled with an explanation showing no intention to return, amounted to voluntary abandonment of service, so no departmental enquiry was required, and dismissed the writ petition.

What the court decided

AI extract

S.Vinod Vs Kerala State Electricity Board Ltd. — Service and Employment | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942 WP(C).No.11213 OF 2015(B)

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PETITIONER:

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S.VINOD SUB ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., SCADA SUB DIVISION, KANNUR, (RESIDING AT TC VII/1730, HOUSE NO.A3, VEENA MANDIRAM, CHITRA NAGAR, PANGODE P.O., THIRUVANANTHAPURAM)

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BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.ANOOP.V.NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.N.MANU THAMPI SRI.S.VIBHEESHANAN SRI.SUDHINKUMAR

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RESPONDENTS:

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1 KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS SECRETARY (ADMINISTRATION), VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695004

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2 THE CHIEF ENGINEER (H.R.M.) KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695004

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W.P.(C) No.11213/15

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3 THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LTD., KANHIRODE, KANNUR-670 592

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R1-3 BY SRI. K.S. ANIL, SC, KSEB R1-3 BY SMT. ANEETHA.A.G.(SC)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2020, THE COURT ON 13-11-2020 DELIVERED THE FOLLOWING:

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W.P.(C) No.11213/15

“ C.R.”

JUDGMENT

Dated this the 13^th day of November, 2020

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Leave for employment abroad is a concept prevailing in various departments under the Government. It is contemplated as a piece of beneficial action for Government employees. However, occasionally, such beneficial schemes are exploited by some employees. When the situation turns unfavourable, they turn around and claim that they must be treated as continuing in the employment of the Government. No wonder, this court observed in Bini John v. Regional Deputy Director of Collegiate Education, Kochi & Others [2017 (2) KHC 213] that such long leaves are putting to peril the efficiency of employment and even the chances of another aspirant who does not have the circumstances to go abroad, all of which call for the requirement of a re-look at the policy.

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Petitioner while working as a Sub Engineer in the Kerala State Electricity Board (for short 'the Board'), was granted leave without allowance for a period of five years for taking up employment abroad. At that time, 5 years was the maximum possible duration for such leaves. The period of five years was

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from 14.11.2007 to 13.11.2012. He failed to rejoin duty on the day after the expiry of his leave. On noticing the absence of the petitioner and after a period of 7 months from the date of expiry of petitioner’s leave, the Board issued a notice on 12.06.2013, requesting the petitioner to rejoin duty immediately. Thereafter, on 22.06.2013 a show-cause notice was issued seeking an explanation from the petitioner for his failure to rejoin duty. Though there was no reply for the former, an explanation dated 01.08.2013 was submitted for the latter. The explanation was issued from Dubai, stating that his absence from 14.11.2012 to 24.7.2013 may be condoned. Petitioner also sought an extension of his leave without allowance for a further period of five years from 14.11.2012. After eleven months of the above-referred show-cause notice and reply, when the petitioner did not turn up to rejoin duty, a second notice was issued on 11.07.2014 to the petitioner requesting him to show cause why he should not be removed from the service of the Board with effect from the date of unauthorized absence i.e. from 14.11.2012. Even after the aforesaid notice posted to the address given in Dubai as well as that in Thiruvananthapuram, he did not rejoin service. Thereafter by Ext.P5 order dated 28.10.2014, petitioner was removed from the services of the Board with effect from the date of

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unauthorized absence. Petitioner thus challenges Ext.P5 order.

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A counter affidavit has been filed by the 2^nd respondent pointing out that after the expiry of the leave originally sanctioned, petitioner never rejoined duty nor submitted an application for extension of leave, and the same was applied for the first time only on 01.08.2013, that too, as a reply to the show cause notice dated 22.06.2013. It is further stated that from 14.11.2012, till the date of filing of the writ petition, petitioner had never approached the Board with an offer to rejoin duty, and instead, he continued to remain in Dubai. Respondents further pleaded that even though the notice was sent to the petitioner's residence as well as to his address abroad, he never responded to the same and in such circumstances, the petitioner was removed from service on account of the unauthorized absence.

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I have heard Sri.Sudhinkumar, learned counsel for the petitioner and Smt.Aneetha A.G., learned Standing Counsel for the Board along with Adv. Smt. Anshala.

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Adv. Sudhinkumar referred to various dates and submitted that it was not legally valid for the respondents to impose a major penalty of discharge from service for the alleged unauthorized absence of the petitioner. He submitted that there was no enquiry or any charge framed as mandated under the

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Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations, 1969 (for short ‘the Regulations’). Learned counsel for the petitioner invited my attention to Regulation 11(5)(vii) and (viii) of the Regulations and submitted that the penalty imposed upon the petitioner is a major penalty for which the rules mandate a procedure as prescribed under Regulation 16 of the Regulations. In the absence of such a procedure, Ext.P5 was unsustainable in the eye of law. Learned counsel also invited my attention to the decisions in G.T.Lad and Others v. Chemicals and Fibres India Ltd. [(1979) 1 SCC 590], D.K.Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC 259], Krushnakant B. Parmar v. Union of India and Another [(2012) 3 SCC 178], V.C.Banaras Hindu University and Others v. Shrikant [(2006) 11 SCC 42], Senior Divisional Engineer, Palghat Division and Others v. V.Padmavathy (2015 (3) KHC 388), Jose Philip v. The Thodupuzha Taluk Cooperative Rubber Marketing Society No.E.222 and Ors. (2018 (3) KLT 251), Union of India and Others v. Dinanath Shantaram Karekar and Others [(1998) 7 SCC 569], Government of Kerala and Others v. P.Gopinathan (2019 (4) KHC 896) and canvassed the proposition that even in cases of unauthorized absence or alleged abandonment of employment, it

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was mandatory to comply with the rules of procedure if the penalty proposed is a major penalty.

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On the other hand, Adv.Anshala, and Adv.Aneetha appearing for the respondents submitted that it was incumbent upon the employee of every institution, who had gone on leave without allowance, to report for duty on the day after the leave expires. It was argued that since the date of expiry of leave was known to the petitioner the day he went on leave, it was obligatory for the employee to report for duty on the date of expiry of the leave. According to the counsel, the petitioner thought of communicating with the Board for the first time several months after the leave expired and that too after the show-cause notice was issued by the Board to the petitioner. Even after the show-cause notice, petitioner remained elusive and refused to rejoin duty and on the other hand, sought an additional period of five years as leave without allowance. Adv. Anshala, further argued that, had it been a case where petitioner had rejoined duty and then sought leave, the situation could have been different. Since such a situation did not occur in the instant case, the petitioner could be treated only as having abandoned the employment, so argued the counsel. According to the counsel, the rules of procedure while dealing with the case

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of deemed abandonment and unauthorized absence for a few days require a completely different approach altogether, and the decisions relied upon by the petitioner are distinguishable. It was further pointed out that even as per Regulation 19, a different approach is permissible in cases where the Disciplinary Authority is satisfied that it is not reasonably practicable to follow the procedure prescribed in Regulation 16. The learned Standing Counsel also relied upon the decisions in Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Another [(2000) 5 SCC 65], Union of India and Others v. A.S.Shaji (2016 (5) KHC 552), State of Kerala and Others v. A.K.Gopakumar [(2013) 11 SCC 606] and Cheripalli Madar v. Assistant Division Engineers and Others [(2005) 11 SCC 546].

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The arguments raised at the Bar by Adv.Sudhinkumar and Adv.Anshala provided for an interesting listening.

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Petitioner was granted leave without allowance for taking up employment abroad from 14-11-2007 to 13-11-2012. Surprisingly, the order sanctioning leave is not produced, and hence this Court is not in a position to understand the terms of the grant of leave. Until 25-7-2013, the maximum permissible duration for grant of leave for an employee of the Board was 5

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years. The maximum duration of leave was increased from 5 years to 10 years only by the order dated 25-07-2013. Thus, on the date of the expiry of the petitioner’s leave, there was no provision to extend the leave beyond 5 years. The corollary is that petitioner ought to have reported for duty without fail on 14-11-2012. Under no circumstances could the petitioner have expected that his leave would be extended beyond 13-11-2012. From 14-11-2012, petitioner was absent from duty. No intimation was given to the Board nor was any request made, prior to the expiry of the leave, or immediately thereafter. Thus, petitioner’s absence from 14-11-2012 was unauthorized.

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The first show-cause notice issued to the petitioner was on 22-06-2013, while the second show-cause notice was on 1107-2014. At the time when the first show-cause notice was issued, Ext.P1 Board order had not come into force and petitioner could not have under any circumstances whatsoever sought extension of his leave. Thereafter, petitioner submitted Ext.P3 reply dated 1-08-2013. A perusal of the said reply notice evinces that even though petitioner was attempting to get relieved from the company, where he was then working, he had understood that once he is relieved, he will not be able to obtain further employment in the Gulf apart from having to pay Rs.2 lakhs to

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Rs.5 lakhs as penalty. He then refers to Ext.P1 order and requests for an extension of his leave. It is pursuant to the said reply notice that he applied, as seen from Ext.P2 dated 4-8-2013, for extension of his leave by a further period of 5 years.

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A reading of Ext. P3 reply notice will convey that petitioner was not intending to leave his employment in the Gulf due to the difficulty of obtaining another employment there and also on account of the requirement to pay a penalty. This indicated the intention of the petitioner not to return to his employment in the near future.

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Apart from the above, it is seen that petitioner had not replied to Ext.P4 show-cause notice. Though the learned counsel for the petitioner contended that Ext.P4 had not been received by the petitioner, a perusal of Ext.P4 reveals that the same had been issued to the petitioner in two addresses, one of which was his Dubai address, while the other was his permanent residential address in Kerala. The address shown in Ext.P4 and the address shown by the petitioner himself in Ext.P3 reply notice are the same. Thus, the contention of the petitioner that he had not received Ext.P4 cannot be believed in the facts and circumstances of the case. The decision in Senior Divisional Engineer, Palghat Division and Others v. V.Padmavathy

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(2015 (3) KHC 388) may not thus be of avail to the petitioner since, in the aforecited decision, notice was alleged to have been served by pasting it in the workplace of the employee alleging that he was absent from that workplace. Facts are different in the instant case.

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The respondents have proceeded to terminate the petitioner by Ext.P5, after considering the aforesaid facts and after observing that one of the conditions on which the leave was sanctioned to the petitioner was that if he failed to return for duty immediately on the expiry of the leave sanctioned, his service will stand automatically terminated. Petitioner cannot be oblivious of the aforesaid condition. The said condition was the mandate stipulated for the grant of leave at the very first instance. That mandate was known to the petitioner the day he proceeded on leave. After accepting the mandate in the grant of leave at the first instance, petitioner cannot thereafter, turn around and state that he was expecting an extension of leave beyond the period originally sanctioned.

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Legally, there is a difference in temporary absence and abandonment of service. Absence for short intervals or a few days, but always reflecting an intention to rejoin duty may not be an indication of 'abandonment of service'. In order to constitute

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abandonment, there must be a complete and intentional giving up of duties. This has to be garnered from the facts and circumstances arising in each individual case. Length of absence may also be a circumstance in arriving at the conclusion. Reliance for the above proposition can profitably be gained from the decision in G.T.Lad and Others v. Chemicals and Fibres India Ltd. [(1979) 1 SCC 590]. However, in the said decision, the absence was on account of a strike called by the workers and when the workers failed to report for duty on the day specified for reporting, the management proceeded to terminate the services of the employees alleging abandonment of service. In the decision in D.K.Yadav v. J.M.A. Industries Ltd. [(1993) 3 SCC 259], the absence was only for a period of eight days due to which the court, relying upon Article 14 and the right to be heard, interfered with the termination of service. Similarly in Krushnakant B. Parmar v. Union of India and Another [(2012) 3 SCC 178] the absence was only for intermittent periods and that too due to compelling circumstances like illness. In such instances, the courts have held that it cannot be regarded as abandonment of service. Similarly the decisions relied upon by the learned counsel for the petitioner in Viswamithran v. Manager, S.N.College and Others (1997 (1) KLJ 147) and

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State of Uttar Pradesh and Others v. Saroj Kumar Sinha

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[(2010) 2 SCC 772] are distinguishable on the facts of the case. Suffice to say, those were all cases where either the period of unauthorised absence were for short durations or at intervals or for compelling reasons. Though a slight similarity can be drawn in the decisions in V.C.Banaras Hindu University and Others v. Shrikant [(2006) 11 SCC 42], the court on a consideration of the entire circumstances arising in the case, held that the termination of the employee was contrary to rule of law.

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On the other hand, the decisions relied upon by the learned counsel for the respondents especially the decision in State of Kerala and Others v. A.K.Gopakumar [(2013) 11 SCC 606] and Cheripalli Madar v. Assistant Division Engineers and Others [(2005) 11 SCC 546] apply to the instant case. The decision of this Court in Union of India V. Shaji (2016 (4) KLT 605) can also be profitably relied upon to justify the action of the respondents.

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Failure of the petitioner to report for duty on expiry of his leave, absence of any communication till the petitioner received the first show-cause notice, the nature of explanation offered in his reply notice, non-joining of duty even after the show-cause notices and the subsequent failure to reply to the

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final show-cause notice, all go to show that the petitioner had given up all duties as an employee of the Board and was absenting himself with an intention not to rejoin duty.

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When there is such an explicit and intentional abandonment of service, should there be an undue reliance upon carrying out a departmental enquiry? Will failure to conduct a departmental enquiry violate the principles of natural justice and lead to miscarriage of justice?

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An employee cannot be termed 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 also by remaining absent for long. Absence from duty initially or for intervals or for compelling reasons may be misconduct or grounds to proceed for alleged misconduct. But when absence is for a long period it can indicate voluntary 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. it is a unilateral action by the employee and the employer has no role whatsoever. In M/s. Jeevanlal (1929) Ltd., Calcutta v. Its Workmen (AIR 1961 SC 1567), it was held that there would be the class of cases where long unauthorized absence may reasonably give rise to an inference that such

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services were intended to be abandoned by the employee. There is a difference between abandonment of service and termination of service. Abandonment of service is a unilateral action by the employee and the employer has no role to play in such an action. Termination is a positive action by the employer.

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The above said distinction in the matter of abandonment of service vis-à-vis termination assume significance while considering the necessity to hold an enquiry to declare the services by the employee as abandoned. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Another (AIR 2000 SC 2198), and in Aligarh Muslim University and Others v. Mansoor Ali Khan (AIR 2000 SC 2783), the Supreme Court held 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 ceases 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. The aforesaid principle has also been relied upon in the decisions in V.C. Banaras Hindu University and Others v. Shrikant (AIR 2006 SC 2304) and Chief Engineer (Construction) v. Keshav Rao (Dead) by LRS [(2005) 11 SCC

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229]. The above principles were relied upon by the Supreme Court, while considering a case of abandonment of service reported in Vijay S. Sathaye v. Indian Airlines Ltd. and Others [(2013) 10 SCC 253]. In the aforenoted case, the employee submitted an application availing the voluntary retirement scheme which was subject to the approval of the competent authority. Without waiting for the approval, after submitting the application, the employee absented himself for long periods. In spite of notice to join, pending consideration of the application, the employee did not attend to duty. The Supreme Court held that such act of long absence amounted to voluntarily abandoning of services requiring no further orders to be passed.

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There is yet another aspect in the instant case. The conduct of a disciplinary enquiry after granting an opportunity to the employee may not change the situation in favour of the employee since based on the indisputable facts, there was only one conclusion possible, which is that the employee had abandoned the service. In S.L.Kapoor v. Jagmohan and Others [(1980) 4 SCC 379], it was held that the principle that breach of natural justice will be prejudicial has an exception if, on

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the admitted or indisputable facts only one conclusion was possible and in such an instance the order impugned need not be quashed on the ground of violation of principles of natural justice. In fact, the above proposition had been relied upon by the Supreme Court in Aligarh Muslim University and Others v. Mansoor Ali Khan (AIR 2000 SC 2783) also.

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The requirement of compliance of a procedure for imposing penalty for misconduct is to be treated differently while considering a case of abandonment of service. The procedure prescribed under Regulation 16 for imposing a major penalty is to be scrupulously followed when a penalty of discharge or termination is proposed to be imposed upon an employee for misconduct. However, when the employee has abandoned the service by his unilateral action, he is no longer in the rolls of the establishment for the purpose of requiring such a procedure to be complied with. Thus, when there is an explicit and intentional abandonment of service based on willful failure to rejoin duty after long leave, as evident from the facts in each case, it is not required to conduct a departmental enquiry. Failure to conduct a departmental enquiry in such cases will not violate the principles of natural justice.

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Viewed in the above perspective, this Court finds no reason to interfere with Ext.P5 and accordingly, the writ petition is

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dismissed.

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Sd/BECHU KURIAN THOMAS JUDGE

vps

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W.P.(C) No.11213/15

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE BOARD ORDER NO. 1625/2013 DATED 25.7.2013 EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 4.8.2013 EXHIBIT P3 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 1.8.2013 TO THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE SHOW-CAUSE NOTICE DATED 11.7.2014 EXHIBIT P5 TRUE COPY OF THE ORDER NO.EBVS/6/17/2014/752 DATED 28.10.2014 ISSUED BY THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE COVERING LETTER DATED 12.11.2014 WFRITTEN BY THE 3RD RESPONDENT RESPONDENT'S/S' EXHIBITS:

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NIL

S.Vinod v. Kerala State Electricity Board Ltd.

Case brief

What is this about?

What the court decided

S.Vinod v. Kerala State Electricity Board Ltd.

Case brief

What is this about?

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