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2016 Supreme(All) 2545
ALLAHABAD HIGH COURT
V.K. Shukla, Umesh Chandra Srivastava, JJ.
Mukhya Pariyojna Prabandhak And Another - Appellant
Versus
Shiv Nath Kushwaha And Another - Respondent
Special Appeal No. - 341 of 2016
Decided On : 30-05-2016
For the Petitioner: Mukesh Kumar Kushwaha,P.N. Saksena.
For the Respondent: Bhupendra Nath Singh
The central legal point established in the judgment is the need for an inquiry into alleged misconduct before taking final action, and the requirement for the employee to rebut the presumption of unauthorized absence with evidence.
Headnote:
Abandonment of Service - Employment Dispute - CSO L-2-12 - U.P. State Bridge Corporation vs. U.P. Rajya Setu Nigam, Civil Appeal No.443 of 2004, Kumaon Motor Owner Union Ltd. vs. State of U.P. 1994(2) UPLBEC 106 - The court discussed the application of CSO L-2-12 and the presumption against an employee for unauthorized absence. It emphasized the need for the employee to rebut the presumption with evidence and the duty of the forum to determine the factual basis. The court also highlighted that there cannot be any retrospective date of dispensation of service. The judgment quashed the termination orders and left it open for the respondent-appellant to initiate disciplinary proceedings against the petitioner-opposite party.
Fact of the Case:
The petitioner-opposite party, an Electrician, was transferred and subsequently terminated from service due to unauthorized absence. The court analyzed the circumstances of the absence, the communication between the parties, and the invocation of the standing order CSO L-2-12.
Finding of the Court:
The court found that the invocation of CSO L-2-12 was incorrect and emphasized the need for an inquiry into the alleged misconduct. It quashed the termination orders and left it open for the respondent-appellant to initiate disciplinary proceedings against the petitioner-opposite party.
Issues: The issues revolved around the application of CSO L-2-12, the presumption against unauthorized absence, the need for an inquiry into misconduct, and the retrospective date of dispensation of service.
Ratio Decidendi: The court emphasized the need for the employee to rebut the presumption of unauthorized absence with evidence and highlighted that there cannot be any retrospective date of dispensation of service. It also stressed the requirement for an inquiry into alleged misconduct before taking final action.
Final Decision: The Special Appeal was dismissed, and the termination orders were quashed, leaving it open for the respondent-appellant to initiate disciplinary proceedings against the petitioner-opposite party.
V.K. Shukla, ACJ.
Mukhya Pariyojna Prabandhak, U.P. Rajya Setu Nigam Ltd. Lucknow as well as U.P. Pariyojna Prabandhak Setu Nirman Ekai, 26 Kasturba Gandhi Marg, Allahabad are before this Court assailing the validity of judgement and order dated 07.04.2016 passed by learned Single Judge in Writ Petition No.39597 of 1998 (Shiv Nath Kushwaha vs. Mukhya Pariyojna Prabandhak and others) wherein learned Single Judge has proceeded to allow the writ petition in question with further follow up directions.
2. Brief background of the case is that Petitioner-opposite party was employed as Electrician in the respondent corporation in 1982. He was posted at different places from time to time and on 25.9.1999, he was deputed to work at Central Workshop of the respondent corporation at Allahabad. It appears that in December, 1996, he was transferred from Allahabad to Pratapgarh. A representation appears to have been made by the petitioner-opposite party against the order of transfer on 18.4.1997 on the ground that he is suffering from illness and he is being attended by doctors at Allahabad. Another representation was also given by petitioner-opposite party's wife. This much is reflected that Minister, Khadi and Gram Udhyog addressed a letter to the Deputy Project Manager of the Corporation for cancelling the order of transfer and thereafter an order was passed by the said Authority directing for cancellation of aforesaid transfer order and for posting the petitioner-opposite party at Ganda Nala Mahavir Setu, Allahabad.
3. Respondent-appellant have come up with the case that petitioner-opposite party did not report for duty and ultimately, a notice was published in the local daily newspaper 'Dainik Jagaran' on 22.7.1997, informing the petitioner-opposite party that he has remained absent from duty w.e.f. 16.12.1996 and that no reasons for absence has been disclosed and as a last opportunity 15 days' time is allowed to the petitioner-opposite party to report for duty. Petitioner-opposite party responded to the said notice by submitting that he is continuously working in the Corporation and the statement of of fact disclosed in the notice that he has remained absent from December, 1996, is factually incorrect. It was also stated by petitioner-opposite party that he has been paid salary till 20.4.1997 and the said fact itself reflected that incorrect statement of fact has been mentioned that he is not working since December, 1996. Mention has been made that petitioner-opposite party absented himself since 21.4.1997 and despite repeated letters petitioner-opposite party did not respond to the charge and termination letter dated 15.09.1997 has been sent informing the petitioner-opposite party that his services has been dispensed with on account of absence w.e.f. 21.04.1997. Petitioner-opposite party, at the said juncture, had filed Writ Petition No.39597 of 1998 (Shiv Nath Kushwaha vs. Mukhya Pariyojna Prabandhak) and initially the Writ Petition in question was dismissed on the ground of alternative remedy and thereafter Special Appeal in question has been filed and the Special Appeal in question was allowed and the matter was remitted back to be decided afresh. Para 3 to 5 of the judgement delivered in Special Appeal is reproduced below:
"3. Learned counsel appearing on behalf of the appellant submits that no disputed issues of fact are sought to be raised and three questions, purely on law, are sought to be advanced, namely, (i) no charge sheet was issued to the appellant and since the dismissal was on account of misconduct involving an absence from duty, a disciplinary inquiry ought to have been convened but it was not held; (ii) if the termination is simplicitor, in any event, it would amount to retrenchment and in the absence of retrenchment compensation, the action was invalid; and (iii) the termination with retrospective effect was unlawful.
4. Since the petition was pending before this Court for nearly 15 years, there would be a manif
