Ajay Kumar Jha v. Life Insurance Corporation of India, a Government of India

the learned counsel for the respondents during the course of hearing. As per the charge sheet-cum-show cause notice, it reveals that the authority provisionally held the petitioner guilty of abandonment of post and therefore, proposed to impose penalty of removal in terms of Regulation 39(1) (f) the Life Insurance Corporationof India (Staff) Regulations, 1960 (hereinafter referred to as Regulations of 1960). (f) The petitioner did not respond to any of the communications issued by the respondents asking the petitioner to join the duty and ultimately, it was held that the petitioner had abandoned the post in terms of Regulation 39(4)(iii) read with Explanation-1. (g) The petitioner was terminated vide order dated 27.04.2004 (Annexure-7). (h) The appeal was also dismissed. The petitioner filed W.P.(S) No. 3501 of 2006 and the writ petition was disposed of by setting aside the appellate order with certain observations and directions.

Paragraph-10 to 12 of the order passed in W.P.(S) No. 3501 of 2006 is quoted hereunder:- 3 “10. Keeping in mind the aforesaid Regulation 46, I have scrutinized the appellate order as contained in Annexure-9 as to whether Regulation 46 has been complied with or not? The appellate authority has held that the petitioner did not inform the office about his remand since 28.03.2003 and he did not reply to the letters issued and sent to him by the office at his address on 28.07.2003, 12.08.2003 and by registered post on 29.09.2009 for his absence. It was further held that the contention of the petitioner that disciplinary proceeding was initiated without issuing any show cause notice to defend himself on the charge of abandonment of post against him stood fully proved was not tenable and on that basis, he was dismissed from service. 11. On consideration of the above findings, I am of the view that the same is not conformity with the requirements of Regulation 46 of the Staff Regulation 1960 already quoted herein above since it did not fulfill the requirement of Regulation 46.

From the impugned appellate order, I further find that thoughthe petitioner raised several points in the memo of appeal as contained in Annexure-8, but those points have not been considered/discussed by the appellate authority, therefore, I am constrained to hold that the appellate authority in fact dismissed the appeal without application of his own mind. 12. For the reasons stated above, I am of the view that the appeal is required to be reconsidered by the appellate authority afresh on its own merit. Accordingly, this writ petition is allowed. The order dated 12.05.2006 passed by the appellate authority as contained in Annexure-9 is hereby set aside and the matter is remitted back to him to consider the appeal of the petitioner afresh on its own merit in the light of the observations and directions made herein above considering the points raised by the petitioner in his memo of appeal as well as complying the requirements of Regulation 46 of the Staff Regulation, 1960 of the Life Insurance Corporation of India.” Pursuant to the order of the writ court, the petitioner approached the appellate authority and the appellate authority has passed the reasoned order as contained in Annexure-11 dated 23.08.2010 which is impugned in the present proceedings.

(i) Arguments on behalf of the petitioner 5. The learned counsel for the petitioner while assailing the impugned order has submitted that the petitioner was facing a criminal case for the offences under various Sections including Sections 302 and 498A/34 of the Indian penal Code in connection with Sessions Case No. 941/96 and the judgment was to be pronounced on

28.03.2003 and it was necessary for the petitioner to appear before the 4 court on that day. Consequently, the petitioner appeared before the court and was taken into custody. 6. Upon conviction, the petitioner preferred appeal being Cr. Appeal No. 148 of 2003 and was released on bail by the appellate court vide order dated 12.08.2005 and consequently, the petitioner could not join duty during the period from 16.05.2003 to 21.08.2005 and he ultimately gave his joining on 22.08.2005 and was informed that his service has been terminated and he was served with the order of punishment. 7. The learned counsel for the petitioner has submitted that all the notices were sent at the address of the petitioner, but the petitioner did not receive any one of them as admittedly the petitioner was in jail custody. The learned counsel submits that the petitioner being in jail custody was unable to join duty and was not in a position to inform the respondents regarding the reason for not joining the duty.

The entire action was taken against the petitioner ex-parte. 8. He has also submitted that the order of the appellate authority also reveals that no enquiry was in fact conducted and the appellate authority was of the view that no enquiry was required to be conducted as the petitioner was not appearing inspite of issuance of letters. 9. The learned counsel submits that neither the absence of the petitioner was intentional, nor the action of the petitioner can be said to be an act of abandonment of service as the petitioner was prevented from joining the duty on account of being in judicial custody. The learned counsel submits that the appellate authority while passing the impugned order has rejected the ground of the petitioner regarding suddenly being taken into custody by observing that the petitioner had not revealed about the pendency of criminal case to the employer and he had proceeded on leave just a couple of days before the judgment and the duration of leave applied gave a clear hint that the petitioner had anticipated the judgment.

10. The learned counsel submits that the petitioner had bonafide reasons for not joining the duty after expiry of the leave period and it cannot be said that the petitioner had abandoned the duty and consequently, the impugned order as contained in Annexure-7 and the 5 appellate order as contained in Annexue-11 holding that the petitioner had abandoned the duty by his long absence, are ex-facie perverse and call for interference by this Court. The learned counsel for the petitioner has relied upon a judgment passed by the Hon’ble Supreme Court reported in AIR 1982 SC 854(L. Robert D’Souza -versus- The Executive Engineer, Southern Railway and another)Para-21.The learned counsel submits that it cannot be said that the petitioner had abandoned his duty as he was absent from duty for the reasons beyond his control. The learned counsel has also relied upon a judgment passed by this Court in W.P.(S) No. 1786 of 2005 decided on

14.02.2013 (Kinu Manjhi –vs- Central Coal Fields Ltd.) and submits that in that case, since the petitioner remained in jail custody throughout till his acquittal, he could not have participated in the enquiry and it has been held that the law does not compel a man to do what he cannot possibly perform and in such circumstance, the order of dismissal passed on ex-parte enquiry was held to be not sustainable. Arguments on behalf of the Respondents 11. The learned counsel appearing on behalf of the respondents on the other hand has opposed the prayer and has submitted that the entire action of the respondents was strictly in accordance with the regulations of the respondents and the petitioner had not disclosed about his pending criminal case. The learned counsel submits that the petitioner had purposely taken a long leave because he knew that he will be taken into custody pursuant to the judgment in the criminal case.

He also submits that all the notices were sent at the proper address to the petitioner, but inspite of such notices, the petitioner did not respond and consequently, in terms of the regulations, it was found that the petitioner has abandoned the service and the impugned order has been passed. He submits that the impugned order is a well- reasoned order and every aspect of the matter has been taken into consideration. The learned counsel for the respondents has referred to the Regulation 39(4)(iii) read with the Explanations to submit that for the purposes of the said regulation, an employee is deemed to have abandoned his post, if he absented himself from duty without leave or overstays his leave for a continuous period of 90 days without any intimation therefore in writing. He has also referred to Explanation-2 6 to submit that all the communications under the regulations and copies of the order passed thereunder are to be delivered personally to the employee, if he is attending the office, otherwise it is to be sent by registered post to the address mentioned in the service record and where such communication cannot be served on him personally or by registered post thereon, copy thereof shall be affixed on the notice board of the office in which the employee is employed and on such affixation, such communication and orders shall be deemed to have been properly served on him. The learned counsel submits that the necessary procedure as prescribed under the regulations has been followed with regard to service of notice and when the petitioner did not appear, then the impugned order has been passed. The learned