ORDER

Paul, J. -- 1. This intra-Court appeal assails the order dated 10.2.2021 passed in WP No.2250/2021 whereby writ petition filed by appellant was dismissed by holding that as per Clause-22 of the Contract, his services are deemed to have been terminated because he remained absent for a period of one month.

2. The appellant was appointed as Sub-Engineer by order dated 11.10.2006. The appellant was transferred by order dated 28.7.2016 from Janpad Panchayat Nalchha to Janpad Panchayat Tirala. The case of petitioner is that despite his entitlement and directions of higher authorities, the salary of appellant was stopped on the ground that his name is not reflected in the relevant departmental portal. The appellant being aggrieved with this served a legal notice, approached the authorities from pillar to post including the Human Rights Commission, but when such efforts could not fetch any result, filed WP. No. 2250/2021.

3. The appellant called in question the legality, validity and propriety of the order dated 3.9.2019 (Annexure P/1) whereby in reply to the legal notice sent by the appellant, the Department informed him that since appellant has tendered resignation, the question of taking work from him and payment of salary does not arise. The specific case of petitioner before the Writ Court was that i) petitioner has never tendered resignation, ii) there was no willful absence on the part of appellant. Indeed, the Department is not permitting him to work and consequently not paying him salary.

4. Ms. Deepika Rathi, learned counsel for appellant submits that the impugned order (Annexure P/1) nowhere shows that Clause-22 of Contract was pressed into service by the department and appellant was deemed to be terminated by operation of Clause 22. Indeed, it assigns a different reason i.e. resignation tendered by the petitioner. No resignation letter could be produced before the writ Court. Petitioner categorically stated that he never tendered resignation.

5. Furthermore, it is contended that the inquiry report dated 1.3.2018 (Annexure P/9) shows that the controlling authority of petitioner has not furnished any information to the inquiry officer regarding resignation submitted by petitioner. The conclusion of inquiry report shows that it was clearly established that factum of tendering resignation by appellant is not at all established.

6. The stand of petitioner is that he was all along willing to perform his duties, but was prevented to do so for the reasons attributable to the respondents. The reliance is placed on the order dated 18.3.2015 passed in WP No.20952/2012 (Amit Chandra v. State of MP) and another order dated 4.7.2013 passed in WP No.6937/2013 (Rahul Jain v. State of MP & Ors.).

7. Lastly, it is urged that appellant cannot be said to be unauthorizedly absent for one month in the factual backdrop of this matter and no deeming provision can be applied without giving opportunity to the appellant.

8. Shri S.R Saxena, learned Dy. AG supported the impugned order by contending that Clause 22 contains a deeming provision because of which appellant’s services stood automatically terminated after absence of one month. No fault can be found in the order of writ Court.

9. No other point is pressed by learned counsel for the parties.

10. We have heard the parties at length and perused the record.

11. The singular reason assigned in the impugned order dated 3.9.2019 is that appellant has tendered resignation. This finding is specifically controverted by the appellant and his stand that he has not tendered resignation could not be demolished by filing copy of resignation. Interestingly, in the inquiry report dated 1.3.2018 (Annexure P/9), it is recorded as under:-

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