Mohd Razaq v. State of J&K & Ors.

ORDER 17.03.2022

1. Heard Smt. Surinder Kour, Senior Counsel assisted by Sh. Sunil Kumar, learned counsel for the petitioner/appellant and Sh. KDS Kotwal, learned Dy. AG for the respondents.

2. The petitioner/appellant has preferred this appeal under Clause 12 of Letters Patent against the judgment and order dated 06.09.2019 passed by learned Single Judge dismissing the writ petition of petitioner/appellant.

3. The petitioner/appellant was appointed as Data Entry Operator on

11.12.1998 in the Excise & Sales Tax Department. He went on earned leave of 22 days with effect from 10.05.2012 to 31.05.2012. He remained absent from duties for a prolonged period of over 6 years and then vide letter dated

01.08.2018 made a request that he may be allowed to resume his duties. The petitioner/appellant was asked to explain his absence and was ultimately not allowed to join. LPA No. 265/2019

4. The petitioner/appellant in the above circumstances filed a writ petition seeking a direction to allow him to join duties and to accord him all consequential benefits after treating the period of his absence to be on leave. The writ petition was dismissed by the impugned order treating him to have voluntarily abandoned his services.

5. Smt. Surinder Kour, Senior Cousnel appearing petitioner/appellant argues that the absence from duty even if for long period would not amount to abandonment of duty without affording an opportunity of hearing to the petitioner/appellant. The learned Single Judge has, thus, committed an error of law in passing the impugned order. She has placed reliance upon Rule 33 of the Civil Services (CC& A) Rules, 1956 and upon the two decisions of the J&K High Court and one of the Supreme Court in the case Krushnakant B. Parmar v. Union of India and another, (2012) 3 SCC 178.

6. Rule 33 of the CC&A Rules provides for issuance of order of dismissal/removal or reduction in rank and it is in that regard that it stipulates for an adequate opportunity to the delinquent employee to defend himself i.e. by holding an enquiry.

7. The aforesaid Rule would have no applicability in the matter of abandonment of service on account of long overstay on leave without any information or sanction.

8. In Mustaq Ahmed Khan v. State of J&K and others, 2004 (II) Srinagar Law Journal 445, the Division Bench of this court in considering Rule 33 of the CC&A Rules held that absence from duty howsoever long cannot result in automatic cessation of employment. It will be dependent LPA No. 265/2019 upon the circumstances in which he remained on leave and in all such cases he must be given an opportunity of hearing.

9. A similar view was expressed by another Division Bench of this court in the case of State of J&K and others v. Dr. B. L. Koul, 2012 (I) Srinagar Law Journal 78. In the said decision also, it was observed that a government servant who proceeds on leave and thereafter overstays without sanction cannot be discharged/removed from service as there is no automatic termination of his service.

10. The decision of the Supreme Court in the case of Krushnakant B. Parmar v. Union of India and another, (2012) 3 SCC 178 has no application in the facts and circumstances of the case at hand, as in the aforesaid case, the unauthorized absence was for small periods of 32 days, 36 days and 234 days and it was in the above background that the court held that such allegations of misconduct must be proved in an enquiry.

11. The case, at hand, is not a case of dismissal/removal/reduction or even discharge from service or of misconduct but abandonment of service and not allowing the petitioner/appellant to resume the duties after he had remained absent for almost six years and two months, that too, after he was asked to explain the reason of absence which had not found approval of the competent authority and was accordingly refused joining.

12. Sh. KDS Kotwal, learned Dy. AG for the respondents had drawn the attention of the court to Regulation 113 of the J&K Civil Services Regulations, 1956 (for short ‘the Regulations’) which are applicable to services of all the civil departments of the J&K. The aforesaid Regulation 113 provides that after five years of continuous absence on leave, an officer is considered to be out of State employ. LPA No. 265/2019

13. For the sake of convenience, Regulation 113 of the Regulations is reproduced hereinbelow: “113. After five years continuous absence on leave, an officer is considered to be out of State employ.”

14. It appears that the aforesaid Regulation was not placed before the two Division Benches cited above and as such it has escaped notice of the court in holding that even long absence would not amount to automatic termination of service.

15. The law on abandonment of service appears to be quite clear and it is settled that absence from duty in the beginning may be a misconduct but once absence continues for a long period, it may amount to voluntary abandonment of services and in such an eventuality the bonds of service come to an automatic end without requiring any order to be passed by the employer.

16. The Apex Court in M/s Jeewan Lal (1929 Ltd) Calcutta v. Its Workmen, AIR 1961 SC 1567 has laid down that if the employee continues to be absent from duty without obtaining leave in an unauthorized manner and the period of such absence is long enough, an inference may reasonably be drawn that by his absence he has abandoned his service and that it may legitimately be held to be break in service.

17. In Shahoodul Haque V. Registrar, Cooperative Socieites Bihar and another, AIR 1974 SC 1896, the Supreme Court observed where the employee admittedly remained absent unauthorizedly for an exceedingly long period and then giving him an opportunity to disprove what he practically admits would not serve any useful purpose and inference can justifiably be drawn that he has abandoned his service. LPA No. 265/2019

18. In Aligarh Muslim University and others v. Mansoor Ali Khan, AIR 2000 SC 2783, the Supreme Court ruled 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.

19. The petitioner/appellant undisputedly had availed earned leave for 22 days but remained absent without any notice or information for six years and two months i.e. exceeding 5 years as stipulated under Regulation 113 of the Regulations. He never applied for the extension of leave and, therefore, he was refused joining without any order of discharge/dismissal or removal. Therefore, in the light of the above law, the learned Single Judge has not erred in refusing to exercise its discretion and in dismissing the writ petition.

20. In the facts and circumstances of the case, we do not disapprove of the decision taken by the writ court and if the learned single Judge has refused to exercise his discretion in the matter, we find no reason to interfere with it.

21. The appeal is dismissed. (SINDHU SHARMA) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE JAMMU 17.03.2022 Raj kumar Whether the order is speaking? Yes Whether the order is reportable? Yes LPA No. 265/2019