IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 2192/2008 (OA-1918/93). Reserved on : 18.05.2009. Date of Decision: 19.06.2009. Jai Ram Verma. Petitioner. Versus Managing Director, H.P.M.C., Shimla. Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting8? Yes. For the petitioner : Ms. Archana Dutt, Advocate, vice Mr. R.K. Gautam, Senior Advocate. For the respondent : Mr. Dilip Sharma, Advocate. ---------------------------------------------------------------------------- Rajiv Sharma, J. The petitioner was appointed as Auctioneer w.e.f. 22.10.1983. He proceeded on tour for procurement purpose from Delhi on 17th July, 1987. He un- authorisedly absented himself from duty w.e.f. 28th July, 1987. He sent two telegrams dated 22.8.1987 and 16.9.1987. A show cause notice was issued to him on 31.8.1987/5.9.1987, whereby he was informed that his un-authorised absence amounted to misconduct on his part and warranted strict action and was liable for Whether the reporters of Local Papers are allowed to see the Judgment? Yes. : 2 : punishment under bye laws 6.9, 6.17(1) and (2) of the H.P.M.C. employees service bye laws. He was directed to file reply within 10 days on receipt of the memo and join duty within 7 days, failing which, it was to be presumed that he had nothing to say and action contemplated was to be taken against him. He did not file any reply to the memo dated 31.8.1987/5.9.1987. He sent letter in the 1st week of January, 1988 with prescription slips from Matiyana Civil Hospital dated 23.7.1987 and 26.12.1987. A public notice was issued, whereby his services were terminated w.e.f. 31st May, 1988. It was also published in the daily edition of ‘Indian Express’ on 30.6.1988. He has worked for about 2 years and 9 months w.e.f. 22.10.1983 and 31.5.1988. Ms. Archana Dutt, learned vice counsel for the petitioner has strenuously argued that the public notice dated 31st May, 1988 was issued in violation of the principles of natural justice. She then argued that a regular inquiry was required to be held before terminating the services of the petitioner w.e.f. 31.5.1988. Mr. Dilip Sharma, Advocate has vehemently argued that the public notice dated 31st May, 1988, whereby the services of the petitioner have been terminated has been issued strictly in accordance with law. He then argued that the present petition is barred by : 3 : delay and laches. According to him, the services of the petitioner were terminated on 31.5.1988 and he had assailed the same in the year, 1993. He also argued that the petitioner had earlier filed Original Application bearing No. 1129 of 1992 which was decided on 17.9.1992. He had not chosen to assail the termination order dated 31.5.1988 in Original Application No. 1129 of 1992. He has supported the issuance of impugned order dated 15th June, 1993. I have heard the parties and gone through the pleadings carefully. The petitioner was appointed as noticed above in the year, 1983. He has absented himself from duty w.e.f. 28.7.1987. A show cause notice was issued to him to file reply within 10 days and resume his duties within 7 days. He has chosen neither to file reply to the show cause notice nor has joined his duties. In his medical prescription slip dated 23rd July, 1987, there is no mention that he was suffering from any mental ailment. He has relied upon the certificate issued by medical practitioner at Theog in the year, 1992. The petitioner had hardly worked for about two years and nine months between 22.10.1983 to 31.5.1988. The medical certificates relied upon by him does not inspire any confidence. He has not filed any reply to show-cause notices dated : 4 : 31.8.1987/5.9.1987. The petitioner has abandoned his job. He has approached the authorities of the respondent- Corporation vide letters dated 8.4.1992, 10.4.1992, 22.5.1992 and 8.9.1992, whereby he has claimed his dues from the Corporation. A bare perusal of Annexure S-12 reveals that the petitioner had used the expression “resignation from service”. Similarly, in Annexure S-13, he has used the expression “having left the job”. Since the petitioner has abandoned his job as per the expressions used in Annexures S-12 and S-13, no regular inquiry was required to be instituted. It is true that the services of a regular employee of the corporation could not be terminated without holding a regular inquiry as per the H.P.M.C. Service Bye Laws. A regular inquiry is required to be held as per Bye Law 6.17, however, it is also stipulated therein that in few cases if it is not practicable to hold the inquiry, the same can be dispensed with. In that eventuality, the reasons are required to be recorded separately. Their Lordships of the Hon’ble Supreme Court in Viveka Nand Sethi Versus Chairman, J&K Bank Ltd. And others (2005) 5 SCC 337 while dealing with the case of abandonment of service, have held that the principles of natural justice are required to be complied with having regard to the fact situation : 5 : obtaining therein. Their Lordships have further held that while imposing imposition of voluntary retirement on the basis of conduct amounting to abandonment of service, the principles of natural justice are required to be complied with, but the same would not mean that the full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do amounts to sufficient compliance with the requirements of the principles of natural justice. Their Lordships have held as under: 14. What fell for consideration before the Industrial Tribunal was the interpretation and/or applicability of the said settlement. The Industrial Tribunal committed an error of record in so far as it proceeded on the basis that the said settlement had not been proved. The settlement being an admitted document should have been considered in its proper perspective by the Industrial Tribunal. Clause 2 of the said settlement is a complete code by itself. It lays down a complete machinery as to how and in what manner the employer can arrive at a satisfaction that the workman has no intention to join his duties. A bare perusal of the said settlement clearly shows that it is for the employee concerned to submit a proper application for leave. It is not in dispute that after the period of leave came to an end in June, : 6 : 1983, the workman did not report back for duties. He also did not submit any application for grant of further leave on medical ground or otherwise. It is in that situation the memorandum dated 2.11.1983 was issued and he was asked to join his duties. It is furthermore not in dispute that despite receipt of the said memorandum, the workman did not join duties pursuant whereto he was served with a notice to show cause dated 31.12.1983. He was required to resume his duties by 15.1.1984. The Bank received a telegram on 17.1.1984 and only about a month thereafter he filed an application for grant of leave on medical ground. It is not the case of the workman that any leave on medical ground or otherwise was due to him. Opportunities after opportunities indisputably had been granted to the workman to explain his position but he chose not to do so except filing applications for grant of medical leave and that too without annexing proper medical certificates. 18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyer’s notice categorically stated that the workman had been carrying on some business elsewhere. 20. It may be true that in a case of this nature, the principles of natural justice were required to be complied with but the same : 7 : would not mean that a full-fledged departmental proceeding was required to be initiated. A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice. 21. Clause 2 of the bipartite settlement raises a legal fiction, which is of wide import. Once the action on the part of the employer is found to be fair, the Court in view of such legal fiction would call upon the workman to prove the contra. It will bear repetition to State that the only defence which came to be raised by the workman was non-applicability of the bipartite settlement. The notice dated 31.12.1983 refers to the said settlement by necessary implication, as on the failure of the workman to resume his duties by 15.1.1984, it was stated that he would be deemed to have been discharged from the services of the Bank. Yet again in terms of the memorandum dated 20.2.1984, attention of the workman was drawn to the fact that his : 8 : application for grant of leave was neither in the prescribed for nor any medical certificate was attached thereto. It was pointed out that the medical certificate shows that he was under the doctor’s treatment from 22.10.1983 to 22.1.1984 and as such he should have reported for duties on 23.1.1984 and as he failed to do so, it gave rise to an inference that he was not interested to continue in the Bank’s services. He did not submit any satisfactory explanation nor did he file any valid medical certificate. It was in that situation, the order dated 17.5.1984 was issued which again referred to the provisions contained in memorandum of settlement dated 8.9.1983. The workman ex facie appears to have accepted the said order as for a long period he maintained silence. Had he been interested in the Bank’s services, it was expected of him to resume his duties and/or file proper application for grant of medical leave with a valid medical certificate. 22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply.{See Gurjeewan Garewal (Dr.) V. Dr. : 9 : Sumitra Dash.} The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab V. Jagir Singh and Karnatka SRTC Vs. S.G. Kottturappa.) The petitioner had filed Original Application for the release of his benefits bearing O.A. No.1129 of 1992 which was decided on 17.9.1992. He has not assailed his termination in O.A. No. 1129 of 1992. He was terminated on 31.5.1988. He filed O.A. No. 495 of 1993 assailing his termination on the ground that he did not know about the public notice dated 31.5.1988 due to his mental ailment. The same was directed to be treated as representation on 22.3.1993. The representation was rejected by the Managing Director on 15.6.1993 by a self contained and speaking order. The petitioner was required to challenge his termination within a reasonable period. He has waited for five years to assail his termination in the year, 1993. The entire exercise is an after thought. He himself has represented that he has resigned/left the job and his dues be paid as per letters dated 8.4.1992, 10.4.1992, 22.5.1992 and 8.9.1992. It is in these circumstances, he has not chosen : 10 : to assail the termination order in earlier Original Application bearing No. 1129 of 1992. The plea raised by the petitioner that he was suffering from mental ailment cannot be believed. In earlier medical prescription slips dated 23.7.1987 and 26.12.1987, the ailment mentioned is ‘Broncinal Asthma Urticaria and Eczemntous Dermatitis’. These certificates were issued by Primary Health Centre, Mathiana. The medical certificate has been issued by Dr. Nalin Sharma, whereby the petitioner has been declared fit on 14.11.1992. However, he has stated that the petitioner had recovered from mental ailment in April, 1992. The petitioner, as noticed above, was terminated from service on 31.5.1988. He was called upon on 31.8.1987/5.9.1987 either to file reply to the show cause notice or to resume the duties within 7 days. In these circumstances, he will be deemed to have been terminated/left the services due to his non-joining after expiry of 7 days. He has not chosen to assail the order of termination for long five years. The Tribunal had erred in law while directing the Original Application to be treated as representation to the Managing Director of the Corporation without taking in to consideration the delay and laches. : 11 : The stale claim shall always remain stale and the representation cannot create a fresh cause of action or revive a stale or different claim. Their Lordships of the Hon’ble Supreme Court in C. Jacob B versus Director of Geology and Mining and another (2008) 10 SCC 115 while dealing with the case of abandonment of service have held that when a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of Voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Their Lordships further held that misplaced sympathy, encourages indiscipline, leads to unjust enrichment of employee and drain on public exchequer. Their Lordships have also deprecated the practice of entertaining applications/petitions without taking into consideration the huge delay preceding the representation. Their Lordships have further held that when a direction is issued by a Court/Tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience of Court order. When an order is : 12 : passed considering and rejecting the claim or representation, in compliance with direction of the Court or Tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgement of a jural relationship” to give rise to a fresh cause of action. The present petition is barred by delay and laches since the cause of action had arisen to the petitioner on 31.5.1988 and the same would not be revived after the disposal of the representation by the Managing Director of the Corporation in the year, 1993. Accordingly, in view of the observations made above, it is declared that since the petitioner himself has abandoned the job, no regular inquiry was required to be instituted. In the present case, the petitioner has not chosen to file replies to the show cause notices dated 31.8.1987 and 5.9.1987 nor he has resumed his duties. It is not believable that he was not aware of the public notice dated 31.5.1988 and 30.6.1988 published in the ‘Indian Express’. The authorities have never sanctioned leave. He was repeatedly being apprised to join his duties. He failed to do so. Consequently, there is no merit in this writ petition. The same is dismissed with no order as to costs. (Rajiv Sharma) Judge. June 19th, 2009. Bhupender