L.MOHAPATRA, J & S.PANDA, J. W.P.(C) NO.1301 OF 2005 (Decided on 26.10.2010) COMMISSIONER, K.V.S. & ANR. ……. ….. Petitioners. .Vrs. GAYATRI MISHRA & ANR. ………… Opp.Parties. KENDRIYA VIDYALAYA EDUCATION CODE– ART.81 (D). For Petitioners - M/s. Asok Mohanty, J.Sahu, H.K.Tripathy, S.P.Nayak & J.P.Patra. For Opp.Parties - M/s. Aswini Kumar Mishra, G.Rout, D.K.Panda, G.Sinha & A.Mishra. L.MOHAPATRA, J. Kendriya Vidyalaya Sangathan and its officers are the petitioners before this Court assailing the judgment and order of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.143 of 2001, disposed of on 4.11.2004. The opposite party was the applicant before the Tribunal. 2. The case of the opposite party before the Tribunal was that she joined the Kendriya Vidyalaya Sangathan on 17.7.1981 as a Primary Teacher and was posted at Kendriya Vidyalaya, FCI at Talcher. She was subsequently transferred to Kendriya Vidyalaya, Cuttack on 8.12.1982. She being an unmarried lady having heart problem and she being also the only member in the family to look after her ailing mother at Bhubaneswar, approached the authorities by way of representation for a transfer to K.V., Bhubaneswar where some posts were available and she could be adjusted as P.R.T. From 1990 to 1994 none of the representations submitted by her was considered and she was transferred by order dated 27.7.1996 as a surplus teacher to Kendriya Vidyalaya No.1 at Kalaikunda, in the State of West Bengal. Challenging the said transfer, she approached this Court initially but the same was transferred to the Central Administrative Tribunal after coming into force of the Administrative Tribunals Act and it was re-registered initially as a Transfer Application and subsequently as O.A. No.146 of 2000. The said Original Application having been dismissed by the Tribunal on 5.10.2000, a writ application was filed before this Court by her vide O.J.C. No.1454 of 2001. The further case of the opposite party is that in January, 1994, one Mrs. Sanjurani Misra joined as P.R.T. at K.V., Cuttack and she was transferred on her representation even though she had been posted to K.V., Saintala, in the district of Bolangir only in December, 1993. In May 1994, in K.V., Cuttack, one Primary Section was deleted and one Headmaster post was sanctioned. Thus the sanctioned posts became 12 P.R.Ts. and one Headmaster while the existing strength was 14 P.R.Ts. and no Headmaster. Accordingly, she was treated as a surplus teacher in July, 1994 and was transferred to Kalaikunda. From the date of transfer, she made several representations to the Assistant Commissioner indicating about adjustment of Mrs. Sanjurani Misra but instead of considering her grievance, by order dated 5.8.1996 she was given fifteen days extension for joining at the new place of posting. Because of her health condition, she applied for five days Earned Leave from 13.8.1996 to 17.8.1996. However, she was relieved from the post held by her at K.V., Cuttack on 27.8.1996 in her absence. She not only made a representation again to consider her case for posting at Bhubaneswar, she also applied for issuance of No Objection Certificate in order to go to U.S.A. for treatment where her sisters were staying. While the matter stood thus, she was communicated from the Head Office that her representation dated 11.11.1997 with regard to her transfer to Bhubaneswar shall be considered when annual transfer takes place in the year 1998-99. On 29.6.1998 also she was communicated by the authorities that during regional transfers if a clear vacancy arises at K.V., Bhubaneswar or at K.V., Cuttack, her case would be considered. On 6.8.1998, she was informed that her repeated representations for a posting at Bhubaneswar could not be acceded to and she was asked to resume duties at Kalaikunda by 14.8.1998. In November, 1998, her mother passed away and she was left alone. Only on 1.12.1998, an office order was passed to the effect that leave applied for by her is sanctioned and permission is also given to leave for U.S.A. subject to certain conditions. She was also informed that the grant of No Objection is without prejudice to the disciplinary proceedings contemplated against her due to her unauthorized absence since 1996. The Tribunal disposed of the Original Application on 19.11.1999 filed by her challenging the order of transfer with an observation to consider her representation for a posting at Bhubaneswar. But the same was not complied with and she was directed to again join at Kalaikunda on 19.1.2000. On 18.8.2000, she again wrote a letter for issuance of No Objection Certificate to go to U.S.A. for treatment and to her utter surprise, a notification was issued on 4.9.2000 indicating therein that under Article 81 (D) she has voluntarily abandoned her service. Challenging the said order/notification, she approached the Tribunal in the aforesaid Original Application and the said Original Application having been allowed by the Tribunal, the Kendriya Vidyalaya Sangathan has filed this writ petition. 3. Shri Asok Mohanty, the learned Senior Counsel appearing for the petitioners assailed the impugned judgment of the Tribunal on the ground that due to long absence of the opposite party from service, the Sangathan took a decision to apply Article 81 (D) which had been newly inserted instead of going for a regular disciplinary proceeding for unauthorized absence and accordingly, she was treated to have abandoned the service because of her long unauthorized absence. Shri A.K. Mishra, the learned Senior Counsel appearing for the opposite party submitted that having taken a decision at one point of time to initiate a departmental proceeding for the so called unauthorized absence, there was no necessity on the part of the K.V. Sangathan to take recourse to Article 81 (D) and treat the opposite party to have abandoned the service. 4. Undisputedly while working at Kendriya Vidyalaya, Cuttack, the opposite party was transferred to Kendriya Vidyalaya at Kalaikunda, in the district of West Bengal on 27.7.1996. She was transferred from Cuttack as the second surplus teacher. Prior to her transfer, she had made representations to the authorities for a posting at Bhubaneswar on the ground that she was unmarried and she was required to look after her ailing mother as all her brothers and sisters were staying away. Therefore, on the date the order of transfer was passed, the authorities were aware of her difficulties and her representations for a posting at Bhubaneswar were pending. Even after the order of transfer was passed in July, 1996, she repeatedly submitted representations for a posting at Bhubaneswar and all along she was kept under an impression that her 2 representations would be considered. Even in Annexure-14 to the Original Application by memo dated 29.6.1998 the opposite party was informed that her case for transfer to Bhubaneswar or Cuttack would be considered during regional transfers provided there will be any clear vacancy. On 6.8.1998 in Annexure-15 to the Original Application, the opposite party was informed that there being no post of PRT in any of the Kendriya Vidyalaya either at Bhubaneswar or Cuttack, her representation for such a posting could not be acceded to and she was directed to report for duty at Kalaikunda by 14.8.1998 On 22.3.1999 in Annexure-17 to the Original Application she was informed by Deputy Commissioner (Admn.) that the Assistant Commissioner, KVS, Bhubaneswar has already been requested to consider her request within the framework of the existing guidelines and she was asked to contact the Assistant Commissioner. After disposal of the Transfer Application, filed by the opposite party challenging the order of transfer, by the Tribunal, in compliance of the Tribunal’s order, the representation of the said opposite party was considered and rejected on 19.1.2000 and she was asked to join within fifteen days at the place of posting. Article 81 (D) was inserted to the Education Code of the Kendriya Vidyalaya on 4.9.2000 and by way of a memorandum dated 13.3.2001, she was informed that she has voluntarily abandoned the services of the Sangathan in terms of Article 81 (D) of the Education Code of the Sangathan. The question raised before this Court is as to whether Article 81 (D) has any application to the case of the opposite party or not and as to whether recourse to Article 81 (D) can be taken in the facts and circumstances of the present case avoiding the normal procedure laid down under the Education Code for initiation of a departmental proceeding for unauthorized absence. Article 81 (D) of the Education Code is quoted below: “(D) VOLUNTARY ABANDONMENT OF SERVICE 1. If an employee has been absent/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lose his lien on his post unless :- a)he returns within fifteen calendar days of the commencement of the absence or the expiry of leave originally granted or subsequently extended, as the case may be; and b)satisfies the Appointing Authority that his absence or his inability to return on the expiry of the leave, as the case may be, was for reasons beyond his control. The employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid, shall be deemed to have voluntarily abandoned his service and would, thereby, provisionally lose lien on his post. 2. An employee, who has provisionally lost lien on his post in terms of the aforesaid provisions, shall not be entitled to the pay and allowances or any other benefit after he has provisionally lost lien on his post.- The payment of such pay and allowances will be regulated by such directions as the Appointing Authority may issue while ordering re-instatement of the employee in terms of sub-clause (6) of this Article. 3 3. In cases falling under sub-clause (1) of this Article, an order recording the factum of voluntary abandonment of service by the employee and provisional loss of his lien on the post, shall be made and communicated to the employee concerned at the address recorded in his service book and/or his last known address, to show cause why the provisional order above mentioned may not be confirmed (Appendix – XIII). 4. The employee may make a written representation to the Appointing Authority, within ten days of the receipt of the order made under sub-clause (3). 5. The Appointing Authority may, on receipt of the representation, if any, and on perusal of materials available on record as also those submitted by the employee, grant, at his discretion, an oral hearing to the employee concerned to represent his case. 6. If the Appointing Authority is satisfied after such hearing that the employee concerned has voluntarily abandoned his service in terms of the provisions of sub-clause (1) of this Article, he shall pass an order confirming the loss of employee’s lien on his post, and in that event, the employee concerned shall be deemed to have been removed from the service of the Kendriya Vidyalaya Sangathan with effect from the date of his remaining absent. In case, the Appointing Authority is satisfied that the provisions of sub-clause (1) of clause (d) of this Article are not attracted in the facts and circumstances of the case, he may order re-instatement of employee to the post last held by him, subject to such directions as he may give regarding the pay and allowances for the period of absence. 5. The circumstances under which an employee can be said to have abandoned the services came for consideration by the Hon’ble Supreme Court in the case of Buckingham and Carnatic Co. Ltd. v. Venkatiah & another, reported in AIR 1964 SC 1272. The Hon’ble Supreme Court in the said judgment observed that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf. A similar view was also expressed by the Hon’ble Supreme Court in the case of G.T. Lad & others v. Chemicals and Fibres India Ltd., reported in AIR 1979 SC 582. In the present case, undisputedly the opposite party was transferred to Kalaikunda in the State of West Bengal on 5.8.1996 and Article 81 (D) was inserted to the Education Code of Kendriya Vidyalaya on 4.9.2000. Till 4.9.2000 the opposite party having not joined at Kalaikunda Kendriya Vidyalaya No.1, even if the contention of Shri Asok Mohanty, the learned Senior Counsel appearing for the petitioner is accepted to the extent that Article 81 (D) introduced on 4.9.2000 is applicable to the case of the opposite party, the circumstances must satisfy such action as indicated in the aforesaid two judgments. On a reading of the aforesaid two decisions, it is clear that absence from service has to be intentional. Undisputed facts involved in this case are that the opposite party is an unmarried lady and prior to her transfer to Kalaikunda on 5.8.1996, she made representations for a posting at 4 the Kendriya Vidyalaya, Bhubaneswar. Her representations in this regard were ignored and she was transferred to Kalaikunda. The instance given by her that one Mrs. Sanjurani Mishra on her representation had been adjusted in Cuttack Kendriya Vidyalaya is not disputed anywhere and therefore, her allegation that she has been discriminated is not without any basis. Apart from the above, there is also no dispute that immediately after she was transferred to Kalaikunda, she not only made several representations to reconsider her case for a posting at Bhubaneswar but also made representations for permitting her to go to U.S.A. for treatment. As stated earlier in paragraph-4 of the judgment, on 29.6.1998 the opposite party was informed that her case for transfer to Bhubaneswar or Cuttack would considered during regional transfer provided there is a clear vacancy. On 6.9.1998 she was also informed that there being no post of P.R.T. in any of the Kendriya Vidyalayas either at Bhubaneswar or Cuttack, her representation for such a posting could not be acceded to and she was directed to report for duty at Kalaikunda. On 22.3.1999 in Annexure-17 to the Original Application she was informed to contact the Assistant Commissioner, KVS, Bhubaneswar to consider her request for a posting at Bhubaneswar. Even after disposal of the Original Application filed by the opposite party challenging her transfer to Kalaikunda, on 19.1.2000 the representation of the opposite party for a posting at Bhubaneswar was rejected and she was asked to join at Kalaikunda. Therefore, as is evident from the aforesaid communications made by the petitioners at different times, though the opposite party had been transferred on 27.7.1996, all along she was given an impression that her case would be considered for a posting at Bhubaneswar till the last representation was rejected by the petitioners on 19.1.2000 in pursuance of the order of the Central Administrative Tribunal. It is, therefore, clear that not only from the representations made by the opposite party but also from the replies given by the petitioners at different times that she had no intention to abandon the service but only wanted a posting at Bhubaneswar on the ground that she is an unmarried lady and was also having heart problems. There is also no dispute so far as her ailment is concerned and the prayer made by her to visit U.S.A. for treatment had been allowed by the petitioners. Under these circumstances, we are of the view that the opposite party had no intention of abandoning the service but wanted a posting at Bhubaneswar not only before she was transferred to Kalaikunda but also after such transfer and all along she had been intimated till January 2000 that her prayer would be considered for a posting at Bhubaneswar. 6. Under these facts and circumstances, we are of the view that Article 81 (D) has no application to the facts and circumstances of the present case. Consequently the action taken under Article 81 (D) is bad in law and has been rightly set aside by the Tribunal. 7. For the reasons stated above, we find no justification to interfere with the impugned judgment and accordingly dismiss the writ application. Writ petition dismissed. 5