WA 211/2002 BEFORE HON’BLE MR JUSTICE D.BISWAS, CHIEF JUSTICE(ACTING) HON’BLE JUSTICE MR. JUSTICE B.D.AGARWAL Agarwal,J 1. The appellant who was the writ petitioner in C.R. No.784 of 1996 is assa iling the judgment and order dated 20.9.2001 passed by the learned Single Judge of this Court. By this impugned judgment the learned Single Judge has affirmed the memorandum/order dated 30.01.1995 issued by the General Manager (Tech), Oil and Natural Gas Commission ( for short ’ONGC’) whereby the writ petitioner was t reated to have resigned from the job with effect from 20.9.1993 under Regulation 14(5) of the Oil and Natural Gas Commission Leave Regulations, 1968. 2. We have heard Shri G.N. Sahewalla, learned Sr. Counsel appearing on beha lf of the appellant/writ petitioner. The respondents were represented by Shri P. K. Roy, Standing Counsel, ONGC, Shri S.K.Chakraborty, CGSC and Mrs. B.Goyal, lea rned State counsel, Assam. 3. Facts in narrow compass are that the appellant/writ petitioner was appoi nted as Assistant Engineer(Elect.) in the year 1982. Subsequently, his appointme nt was regularized and appellant was also promoted to the rank of Executive Engi neer. In this capacity, the appellant/writ petitioner was transferred to Nazira in the District of Sibsagar, Assam in the year 1988. In the month of June, 1993 the appellant was deputed to look after the ONGC Lakwa Maintenance Unit with ef fect from 24.6.1993. However, the appellant did not join to his new assignment a t Lakwa and remained absent from the job. In the month of August, 1994 when the appellant returned from his native place in the State of U.P and expressed his w illingness to resume the duty, he was told about his transfer to Silchar. Simult aneously, the appellant was also served the notice to vacate his official quarte r at Nazira vide notice dated 27.8.1994. This notice was challenged in W.P(C )No .3410 of 1994. 4. When the appellant/writ petitioner did not get a favourable order, an ap peal numbered as W.A. No.540 of 1994 was filed. During the pendency of that appe al, the appellant/writ petitioner was removed from the job vide order dated 30.1 .1995 issued under Memo. No.NZR/Estt/3(50)/94-95/1252-62 (Annexure-XX to the wri t petition). This order has been upheld under the impugned judgment. 5. Shri G.N. Sahewella, learned Sr. counsel appearing for the appellant/wri t petitioner confined his arguments to the application of ONGC Leave Regulations , 1968 in the present facts and circumstances. According to the learned Sr. coun sel, the provisions of Regulation 14(5) can be invoked only if an employee fail s to resume his duty on the expiry of extra-ordinary leave and not for any other alleged misconduct. Elaborating his submissions, the learned Sr. counsel submit ted that the appellant/ writ petitioner neither asked nor he was granted any lea ve and as such no punitive action could be taken under the said Leave Regulation s. 6. Per contra, the learned counsel for the respondents submitted that when an employee does not turn up for duty, it is to be presumed that he/she is on le ave and on this basis the ONGC has rightly invoked the provisions of Leave Regu lations. 7. For better appreciation of rival contentions as well as correctness of t he impugned judgment, it would be apposite to look at Regulation 14(5) of the ON GC Leave Regulations, 1968 which runs as follows: 14. Extraordinary Leave: xxx xxx xxx xxx (5) Where an employee fails to resume duty on the expiry of the period of extrao rdinary leave if the leave granted to him is the maximum that can be granted und er this regulation or where an employee who is granted a lesser amount of extrao rdinary leave than the maximum admissible under this regulation, remains absent from duty for any period which, together with extraordinary leave so granted exc eeds the limit upto which he could have been granted leave under this regulation , he shall be deemed to have resigned his appointment and shall accordingly ceas e to be in the employment of the Commission, unless the Commission may determine otherwise, in view of the exceptional circumstances of the case. 8. It may be mentioned here that prior to removing the appellant/writ petit ioner from the Rolls of the Corporation, the ONGC had issued certain notices to the appellant/writ petitioner for his unauthorized absence. At this stage itself , the ONGC had made up its mind that unauthorized absence shall be dealt with un der Regulation 14(5) of the aforesaid Regulations. At the same time, we find fro m the notices dated 1.7.1993 and 14.12.1993 (Annexures-XIII and XIV to the affid avit-in-opposition filed in the writ petition) that simultaneously the ONGC also alleged that unauthorized absence amounted to misconduct in terms of Regulation 2(K) and Regulation 6 of ONGC CDA Regulation, 1976. In the subsequent notice da ted 1.2.1994, the provisions of CDA Regulations, which deals with misconducts we re omitted. 9. After going through the impugned judgment, we find that the learned Sing le Judge directed himself to examine the order of dismissal of the writ petitio ner from service only on the basis of notice and memorandum/order of dismissal d ated 30.1.1995. The learned Single Judge held that since the writ petitioner rem ained unauthorizedly absent for the period more than 90 days w.e.f. 28.9.1993, h e was rightly deemed to have resigned from the job. It may be mentioned here tha t Regulation 14 deals with extra-ordinary leave and under this provision such ex tra-ordinary leave can be granted for a maximum period of 3(three) months. 10. In our considered opinion, had it been a case of over staying or remaini ng absent unauthorisedly beyond the maximum period of 3(three) months after obta ining leave simpliciter, the appellant/writ petitioner would have no case to cha llenge the order of dismissal dated 30.1.1995. However, we find from the record that it is not the case of either side that the appellant/writ petitioner either requested for extra-ordinary leave or any such leave was so granted. This aspe ct was not considered by the learned Single Judge. Similarly, the learned Single Judge failed to appreciate as to why the ONGC had initially invoked the provisi ons of CDA Regulations, 1976; but subsequently took the disciplinary action unde r leave regulations. 11. In our considered view, since the ONGC CDA Regulations deals with the qu estion of misconduct, the appellant/writ petitioner ought to have been punished under the said Regulations. To say it differently that we hold that the applicat ion of Regulation 14(5) of ONGC Leave Regulations, 1968 was totally misconceived as the misconduct of the employee could have been adequately dealt with under 1 976 Regulations. 12. For the foregoing reasons, with due respect we differ with the view take n by the learned Single Judge. We are constrained to set aside the judgment date d 20.9.2001 passed by the learned Single Judge in C.R.No.784 of 1996. However, l iberty is granted to the ONGC, more particularly respondents 1,2 and 3, to initi ate appropriate disciplinary proceeding under ONGC’s CDA Regulations, 1976. If t he ONGC desires to initiate disciplinary proceeding, it should commence within a period of 3(three) months from the date of receipt of this judgment. The reinst atement of the appellant/writ petitioner in service will be subject to initiatio n and decision of disciplinary proceeding. 13. With the aforesaid directions, the Writ Appeal stands allowed.