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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Virendra Pratap Singh – Appellant
Versus
U.P. State Bridge Corp. Ltd. Through Managing Director Lko. – Respondent
Writ A No. 718 of 2014, Service Single No. 718 of 2014 (Old Number)
Decided on : 27-04-2022
Model Conduct, Discipline and Appeal Rules, 1991 - Rules 33 and 35 - Uttar Pradesh State Bridge Corporation Limited Service Rules - Rule 40 – Termination - Age of superannuation - Petitioner is an ex-employee of the Uttar Pradesh State Bridge Corporation Limited - His services were terminated by an order on ground of wilful absence from duty - It is this order that petitioner has impugned in present writ petition - Whether petitioner's services for wilful absence from duty were terminated as a matter of misconduct or in exercise of some power of abandonment of employment exercised (sic) by employer under relevant leave rules – petitioner’s services have been terminated by the Corporation for his wilful absence from duty, as a matter of misconduct; not as a matter of abandonment of employment, under the leave Rules.(Para 31, 323)
Finding of the Court :
Impugned order is unsustainable - At same time, it has to be borne in mind that the petitioner has remained absent from duties for a period of four years, where he put in his joining report - It is Corporation which has kept petitioner out of employment - Once impugned order goes, petitioner would be entitled to benefit of his post held with Corporation until the age he attained superannuation, and thereafter, whatever consequential benefits would follow - Petitioner would, in no case, be entitled to any pecuniary benefit for period that he remained absent from duty - For period until attaining age of superannuation, petitioner, for whatever reason not having worked for Corporation, would be entitled to 50% of his emoluments and no more - Petitioner would, nevertheless, be entitled to continuity in service for purpose of reckoning his post retiral benefits –
Result: Writ petition allowed
JUDGMENT :
1. The petitioner is an ex-employee of the Uttar Pradesh State Bridge Corporation Limited. His services were terminated by an order dated 31.12.2012 on the ground of wilful absence from duty. It is this order that the petitioner has impugned in the present writ petition.
2. Heard Mr. Ram Singh Paliwal, learned Counsel for the petitioner and Mr. Ram Ratan, learned Counsel for all the respondents.
3. The petitioner was appointed on the post of a Junior Engineer with the Uttar Pradesh State Bridge Corporation Limited (for short, 'the Corporation') w.e.f. 18.03.1981 vide a letter of appointment dated 09.03.1981. He joined service on 18.03.1981 at Allahabad (now Prayagraj). Until the date of the impugned order terminating his services, the petitioner had rendered 31 years service. It is the petitioner's case that he suffered from spondylitis followed by paralysis and sciatica during the period 04.05.2008 to 18.05.2012. This long spell of ailment of the petitioner was followed by his wife's illness. It is not in dispute that during the period 04.05.2008 to 18.05.2012, the petitioner did not discharge his duties, which the Corporation have termed as unauthorized absence.
4. It is the petitioner's case that during the aforesaid period of time, he had applied for sanction of all kinds of leave available, including medical leave, through applications made on various dates. Some of these leave applications were granted. The petitioner says that his absence from duty is neither deliberate nor intentional. It was caused by his own sickness, followed by that of his wife. The petitioner was under treatment for his spondylitis at Gorakhpur. The petitioner submitted his joining report on 19.05.2012 to the Office of the Deputy `Project Manager of the Corporation at its Pratapgarh unit. The petitioner was not allowed to join, though he submitted repeat representations before the Corporation through their competent Authorities. The petitioner says that the impugned order of termination dated 31.12.2012 was sent to his local address, whereas he was residing at Gorakhpur in connection with his treatment. For the said reason, he could not come to know of the order in good time. It is the petitioner's case that his services have been terminated without issuing him a show-cause notice or initiating disciplinary proceedings on ground of misconduct, in accordance with the provisions of Rules 33 and 35 of the Model Conduct, Discipline and Appeal Rules, 1991 (amended in the year 1998, as applicable to the Corporation) (for short, ‘the 1991 Rules).
5. A counter affidavit on behalf of the Corporation has been filed on 07.08.2014, to which the petitioner filed a rejoinder on 1st of November, 2014. The stand of the Corporation in the counter affidavit, briefly put, is that the petitioner remained unauthorizedly absent from duty since 04.05.2008 for a period of more than four years. It is their case that the petitioner unauthorizedly absented himself from duty for a long period of time and did not join for a single day during this period of four years. The petitioner was, therefore, held to have abandoned employment with the Corporation and his services were terminated as such by the order impugned dated 31.12.2012. Dilating more upon the petitioner's conduct during the period of his unauthorized absence, it is averred in the counter affidavit that he was sanctioned earned leave for the period 21.04.2008 to 03.05.2008, but after 03.05.2008, the petitioner did not join duty. The Deputy Project Manager of the Corporation's unit at Pratapgarh, under whom the petitioner was posted, vide a letter dated 08.05.2008, directed the petitioner to join duty. He also sent a telegram.
6. It is the Corporation's case that the petitioner did not join his duties but submitted a leave application through another person, that was answered by the Deputy Project Manager v
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