WP/189/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.189 OF 1999 Anjuman Khairul Islam & Anr. ... Petitioners V/s. Khan Ayub M.R. Pathan & Anr. ... Respondents Mr.A.M. Joshi for Petitioners Mr.R.K. Mendadkar for Respondent No.1 Respondent No.2 – formal party CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 23, 2010 JUDGMENT: 1. This petition challenges the order passed by the Presiding Officer, University and College Tribunal, Pune on 14.8.1998. By this order, the Tribunal had allowed the appeal filed by Respondent No.1 herein and has set aside the order of his termination from service dated 2.10.1996. The petitioners were directed to reinstate Respondent No.1 and to pay him the arrears of salary from 2.10.1996 till the date of reinstatement. 2. When the petition was admitted, no interim relief was granted to the petitioners. It appears however that the petitioners have not reinstated the respondent employee during the pendency of this petition. I would, therefore, have been justified in dismissing the petition as the petitioners have not complied with the WP/189/1999 : 2 : impugned order although it has not been stayed by this Court. However, I will consider the merits of the petitioners' case. 3. The petitioners appointed Respondent No.1 as a class IV employee in their college from 20.6.1990. On 5.8.1996, Respondent No.1 applied for casual leave for one day. This application was granted. The Petitioners claim that Respondent No.1 was absent from 7.8.1996 to 2.10.1996. No explanation was given by the respondent for his absence. According to the Petitioners they sent letters to the Respondent No.1 on 19.8.1996, 2.9.1996 and 2.9.1996 calling upon him to report for duty. The petitioners in exercise of their rights under Rule 50 of the Maharashtra Non- Agricultural Universities and Affiliated Colleges Standard Code rules 1984 (hereinafter referred to as the `Standard Code') dismissed Respondent No.1 from service on 2.10.1996. 4. An appeal was filed before the College Tribunal by Respondent No.1 contending that his services had been wrongly terminated by the Petitioners. He claimed that he was ill and was under medical treatment at Ambejogai and that the petitioners had wrongly dismissed him from service. In their written statement the petitioners submitted that this was not a case of dismissal but of abandonment of service. It was also contended that the respondent had deserted his services and, therefore, action had been taken under Rule 50 contained in the Standard Code. 5. The College Tribunal after considering the material on record held that the termination of service was illegal and hence set it aside. The Tribunal was of the view that no notice had been given to the employee before he was declared a WP/189/1999 : 3 : deserter as understood under Rule 50 of the Standard Code. The Tribunal then relied on the medical certificate produced by the employee and held that the respondent could have justified his absence had the Petitioners given him adequate notice to show cause why he was absent. 6. Mr.Joshi, appearing for the petitioners, takes exception to the impugned order. He contends that the order is based on erroneous findings recorded by the Tribunal. He submits that under Rule 50 of the Standard Code, the Respondent was a deserter as he had remained absent from duty without permission for a period of more than 30 days. According to the learned advocate, the respondent was absent from 7.8.1996 till he was dismissed from service on 2.10.1996. Therefore, the College was right in declaring him a deserter under the Rules. The learned advocate relies on the judgments in Punjab & Sind bank & Ors. vs. Sakattar Singh, (2001) 1 SCC 214 and Viveka Nand Sethi vs. Chairman, J&K Bank Ltd. & Ors., (2005) 5 SCC 337. 7. In the present case, the respondent had applied for casual leave on 5.8.1996. He was sanctioned that leave. A letter was issued on 19.8.1996 to him, according to the petitioners, calling upon him to report for duty. The letter also mentioned that he was negligent in the discharge of his duties as he had remained absent without intimation or prior sanction from 5.8.1996. Similar letters were allegedly issued on 2.9.1996 and on 12.9.1996. The services of the respondent were terminated by a letter dated 2.10.1996 in which it has been stated that he was absent without prior permission from 7.8.1996 and, therefore, he was treated as a deserter under Rule 50. WP/189/1999 : 4 : 8. The Tribunal while considering these letters allegedly issued by the petitioners has held that the petitioners ought to have held a domestic enquiry and afforded an opportunity to the respondent to defend himself of the charge of absence without sanction. It has therefore held that the termination of services was bad on the ground that there was a violation of the principles of natural justice and fair play. The medical certificate issued to the Respondent mentioned that he was suffering from Hepatitis and was an indoor patient in the Government hospital at Ambejogai between 7.8.1996 to 17.10.1996. The Tribunal did not accept the contention of the learned advocate for the petitioner that the medical certificate was fabricate and therefore held that the Respondent could have justified his absence. 9. Rule 50 of the Standard Code reads as follows: 50. Deserter. - The employee who absents from duty without permission for a period of more than thirty days, shall be deemed to be deserter and his services shall stand terminated automatically on the expiry of the period of thirty days: Provided that, whenever the employee is not able to attend the duties as prescribed and not able to communicate reasons of his absence for the reasons beyond his control, the Competent Authority may, by a special order condone his absence. 10. Under Rule 50, an employee can be treated as a deserter if he is absent for more than 30 days. However, although the power to deem an employer as a deserter is vested in the College, it would be necessary for the College to hold some enquiry or investigation before taking such action. There may be genuine reasons for the absence of an employee and it would be too harsh to accept the submission of Mr.Joshi that once there is an unauthorised absence for more than 30 days, the employee must be deemed to be a deserter without anything more. Before a College or a management of a college decides to treat an employee as a deserter there must WP/189/1999 : 5 : be material on record to indicate that an opportunity was given to the employee to report for duty or to show cause why he is unable to report for duty. In the present case, although it is the case of the petitioners that they had sent three letters to the respondent calling upon hm to report for duty, it appears that those letters were not served on him. There is no material on record to establish that the Respondent had received the letters. In these circumstances, the contention of Mr.Joshi that ample opportunity was granted to the respondent to report for duty cannot be accepted. Even assuming an employee can be treated as a deserter under Rule 50 without much ado, the management would have to conduct some investigation as to the reason for the absence of the delinquent employee and in any case call upon him to show cause why he should not be deemed to be a deserter. Apparently this has not been done in the present case as the letters allegedly sent to the Respondent have not been received by him. 11. Mr.Joshi has relied on the judgment in the case of Punjab & Sind Bank Ltd. & Ors. (supra) in support of his submission that no enquiry is necessary prior to declaring an employee as a deserter. He relies on the following observations of the Supreme Court: 4. A reading of clause XVI of IV bipartite settlement will make it clear that in the event an employee absents himself from duty for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended the management may, at any time thereafter, give a notice to the employee at the last known address calling upon him to report for duty within 30 days of notice stating, inter alia, the grounds for the management coming to the conclusion that the employee has no intention of joining duty and furnishing necessary evidence wherever relevant and unless the employee reports for duty within 30 days of the notice or gives an explanation for his absence satisfying the management that he has not taken up another employment or avocation and he has no intention of not joining the WP/189/1999 : 6 : duty, the employee will be deemed to have voluntarily retired from the banks service on the expiry of the time fixed in the said notice. In the event of the employee giving a satisfactory reply, he will be permitted to report for duty thereafter within 30 days from the expiry of the aforesaid notice without prejudice to the banks right to take any action under the law or rules of service. Under this Rule the employee is given an opportunity to rejoin duty within a stipulated time or explain his position to the satisfaction of the management that he has no intention of not joining duty, and a presumption will be drawn that the employee does not require the job any more and will stand retired from service. Thus, there is no punishment for misconduct but only to notice the realities of the situation resulting from long absence of an employee from work with no satisfactory explanation thereto. The principles of natural justice cannot be examined in vacuum without reference to the fact- situation arising in the case. This rule has been incorporated in an agreement where representatives of employees' unions were party. They also realised the futility of continuing a situation when an employee without appropriate intimation to the management is playing truant. 12. In the case of Vivekananda Seth (supra), the Supreme Court considered whether the Management can deem abandonment of service by an employee, without preceding it by a full fledged departmental enquiry. The Supreme Court has observed that although a full fledged departmental proceeding would not be required when a person is deemed to have abandoned his service, a limited enquiry must be conducted. This enquiry was necessary to ascertain whether the employee concerned had a sufficient explanation for not reporting for work. It would then be a sufficient compliance with the requirements of principles of natural justice. 13. Thus, the judgments indicate that although a full fledged domestic enquiry is not required to be constituted before a person can be deemed to have abandoned his duties or treated as a deserter or an absconder, a limited enquiry or investigation is necessary. This would then give the employee adequate opportunity to state whether he had any reason for his absence. WP/189/1999 : 7 : 14. The Supreme Court in the case of D.K. Yadav vs. J.M.A. Industries ltd., (1993) 3 SCC 259 has observed thus: “8. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent he authority from acting arbitrarily affecting the rights of the person concerned.” 9. It is a fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and be given him/ her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors. [1978] 2 SCR 272 at 308F the Constitution Bench held that 'civil consequence' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotion every thing that affects a citizen in his civil life inflicts a civil consequence. Black's Law Dictionary, 4th edn., page 1487 defined civil rights are such as belong to every citizen of the state or country .... they include ... rights capable of being enforced or redressed in a civil action.... In State of Orissa v. Dr. (Miss) Binapani Dei., this court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. 1. These observations have been approved in the case of Viveka Nand Sethi (supra). 2. The principle which emerges from all these judgments is that even in case of an automatic termination of service of an employee who absents himself for a long period of time, the employer is duty bound to act in a fair, just and reasonable WP/189/1999 : 8 : manner. A full fledged domestic enquiry is not necessary when action is to be taken under the deeming fiction provided in law of automatic termination of service. A reasonable opportunity to be heard is implied in the nature of function to be performed by the authority which has the power to take punitive or damaging action against the employee. The employer therefore cannot act in a whimsical, arbitrary and capricious manner. Rule 50 does not expressly exclude the application of the principles of natural justice and, therefore, these principles must be read into the rule. The essential requisite of acting fairly, justly and reasonably are pre-requisites of taking action under Rule 50. The employee must be afforded an opportunity to show cause because any action taken under Rule 50 would have civil consequences. In the present case the Petitioners have relied on letters which have not been received by the Respondent and since he had no opportunity to explain his absence. 3. The petition therefore must be dismissed. Rule discharged accordingly. No costs.