Judgments on Absence and automatic termination/Abandonment of service
Continued absence by itself cannot be termed as ‘continuance of service has come to an end’. In this regard, support could be had from Jeewanlal (1929) Ltd. v. Workmen, (1962) 1 SCR 717 wherein the Apex Court has held as under:-
If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted, but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service.
When the regulations provide for the certain drill to be performed before terminating the services of an individual, failure to follow the said drill is bad in law and consequently, the order of termination becomes an order of removal from service; In U.P. Coop. Federation Ltd. v. Ram Singh Yadav, (1998) 2 SCC 346 the Apex Court has held as under:-
The impugned order is, in fact, an order of removal of the respondent from service. It is not a termination in the strict sense within the meaning of Regulation 19 as the requirements of that Regulation have not been met and that is also not the case of the appellant that the action was under Regulation 19. That being so the impugned order of termination is in fact removal of the respondent from the service and procedure as prescribed in Regulations 84 and 85 had, therefore, to be met. That has admittedly not been done. There is no charge-sheet, no enquiry officer, and no enquiry proceeding. Regulations prescribe a detailed procedure for the conduct of the disciplinary proceedings.
In the above case, the Apex Court ultimately, held that the respondent therein was entitled to resumption of duties but without pay and allowance would be for the period he was absent. The following is the final direction in the above case:-
We, therefore, uphold the order of the High Court setting aside the termination of service of the respondent by order dated 25-5-1978 to the extent that the respondent has to be reinstated in the service though it does not preclude the appellant from holding an enquiry or passing a proper order in accordance with law. However, since on the admission of the respondent himself that he has not worked from 21-7-1977 till the impugned judgment dated 3-7-1989 of the High Court the respondent would not be entitled to any pay and allowances for that period. This is so as the respondent is at fault in not joining his new posting without any valid reason. Though ultimately if there is no enquiry or the respondent is exonerated this period shall be counted towards his pensionary and other benefits
In the above case, the period of absence was less than one year but that cannot be taken as a distinguishing feature. For, the ratio decidendi, in that case, was that when regulations provide for certain drill to be followed before an employee’s service is terminated, the same should, though not to the full extent, at least to the extent of calling for explanation for not reporting to duty after expiry of leave etc., be followed. In this regard, reliance is placed upon the decision of the Apex Court in the case of Central Bank of India v. Vijay Krishna Neema, (2009) 5 SCC 567, which is as under:-
19. This Court upon considering Viveka Nand Sethi (2005) 5 SCC 337 held as under (Shrikant (2006) 11 SCC 42) “60. A provision relating to abandonment of service came up for consideration yet again in Viveka Nand Sethi v. J&K Bank Ltd. 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.
’The Apex Court in the case of Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan,(2003) 1 SCC 197, held as under:-
An inadvertent error emanating from non-adherence to rules of procedure prolongs the life of litigation and gives rise to avoidable complexities. The present one is a typical example wherein a stitch in time would have saved nine.
In V.C., Banaras Hindu University v. Shrikant,(2006) 11 SCC 42, the Apex Court has held as under:-
51. An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness. Such a test of reasonableness vis-à-vis the principle of natural justice may now be considered in the light of the decisions of this Court.
52. The question came up for consideration before a three-Judge Bench decision of this Court in D.K. Yadav v. J.M.A. Industries Ltd (1993) 3 SCC 259 wherein emphasizing the requirements to comply with the principles of natural justice while terminating the services of the employees on the touchstone of Article 21 of the Constitution of India; it was held that not only the procedure prescribed for depriving a person of his livelihood must meet the challenge of Article 14 but also the law which will be liable to be decided on the anvil thereof.
53. Here again, this Court opined that Article 14 requires that the procedure adopted must be just, fair and reasonable. It was furthermore held: (D.K. Yadav case )
“Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to an animal existence. When it is interpreted that the color and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defense. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness.”
54.This Court opined that right to life enshrined under Article 21 would include the right to livelihood and thus before any action putting an end to the tenure of an employee is taken, fair play requires that reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.
Empty Formality need not be followed: Vide Haryana Financial Corpn. v. Kailash Chandra Ahuja,(2008) 9 SCC 31, the Apex Court has stated:-
40. In Aligarh Muslim University v. Mansoor Ali Khan (2000) 7 SCC 529 the relevant rule provided automatic termination of service of an employee on unauthorized absence for certain period. M remained absent for more than five years and, hence, the post was deemed to have been vacated by him. M challenged the order being violative of natural justice as no opportunity of hearing was afforded before taking the action. Though the Court held that the rules of natural justice were violated, it refused to set aside the order on the ground that no prejudice was caused to M. Referring to several cases, considering the theory of “useless” or “empty” formality and noting “admitted or undisputed” facts, the Court held that the only conclusion which could be drawn was that had M been given a notice, it “would not have made any difference” and, hence, no prejudice had been caused to M.