Case: V.C., Banaras Hindu University  Vs. Shrikant

Standing Orders which reads as under: "9.(f) Any workman who,* * *(ii) absents himself for ten consecutive working days without leave shall be deemed to have left the firms service without notice, thereby terminating his service." 59. The workman therein offered an explanation and having regard thereto, the Labour Court came to the conclusion that the action of the management in terminating the services of the workman therein was not justified. When the matter reached this Court, it was opined:- "Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts." 60. Referring to the decisions noticed by us hereinbefore, it was held : "It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed." 61. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating:- "Arbitrariness is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law." 62. A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding : "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." 63. Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529] . In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term : "Rule 5(8)(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council." 64. It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.65. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.66. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein.67. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.68. For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75%. The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-.69

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]61. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated,is an antithesis to rule of law, equity, fair play and justice contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. Chairman, J&K Bank Ltd. & Ors. [(2005) 5 SCC 337] before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holdinglimited 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.Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529] . In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term5(8)(ii) An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council.It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.65. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.66. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein.67. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.68. For the reasons abovementioned, we do not find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is concerned, although the conduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has not been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75%. The Respondent shall also be entitled to costs of the appeal. Counsels fee is assessed at Rs.10,000/-.