JUDGMENT
Sanjay Kishan Kaul, J.
1. Rule
With the consent of the parties the petition is taken up for final disposal.
2. The petitioner by this petition is seeking quashing of the order dated 3.1.2002
in terms whereof the petitioner was deemed to have voluntarily abandoned the
services of the Corporation resulting in loss of lien on the post held by him and the
period of absence was directed to be treated as dies-non. The petitioner was
transferred on 14.7.2001 and was released from NTPC, Unchahar with direction for
joining at Badarpur Thermal Power Station which he failed to do and absented
unauthorisedly w.e.f. 16.7.2001. The petitioner approached the Allahabad High
Court, Lucknow Bench against his transfer. It is an admitted position that pending
consideration before Allahabad High Court, Lucknow Bench in C.W. No. 3883/
2001 transfer orders were not stayed. This petition was finally dismissed on
21.11.2001 after recording dismissal of the writ petition on merits. Learned Judge
observed as under:
“At this stage, learned Counsel for the petitioner submitted that the petitioner’s
three daughters are studying at Unchahar and one of them is in class Xth in
this academic session, therefore, the transfer order may be stayed till the end
of the academic session. Petitioner may approach for the same to the
departmental authorities as this Court rarely interferes with the transfer
orders on such grounds.”
3. The petitioners thereafter made representation on 3.12.2001 in view of the
order of the Allahabad High Court. This representation dated 3.12.2001 was
responded to by the respondents vide Annexure P-5. It is stated to have been
received by the petitioner on 16.12.2001. In this communication it is stated that
though reason for the petitioner seeking cancellation of the transfer was the fact that
his three daughters were studying in the School located in the Campus of NTPC,
Unchahar but no details of the same have been made available to the respondents.
Another communication available on record by the respondent is dated 20.12.2001
(Annexure P-9) where it is stated that when names, classes and admission details of
the three daughters were sought by the officer of the respondents from the petitioner,
the same were not informed and in fact NTPC, Unchahar school informed the office
of the petitioner that at present none of the children is studying in the School situated
in NTPC, Unchahar campus.
4. Learned Counsel for the petitioner contends that thought the names of these
children were not on record due to some dispute over fee with the School, they were
in fact studying in the school. Learned Counsel for the petitioner has further relied
on the judgment of the Supreme Court in D.K. Yadav v. J.M.A. Industries Limited,
, to further contend that even if the petitioner absented from duty
he cannot be taken to have abandoned his services and enquiry must take place
before an action is taken against him. Learned Counsel further referred to the
Constitution Bench judgment of the Supreme Court in DTC v. DTC Mazdoor
Congress and Ors, 1991 (Supp) 1 SCC 600, to support her said submissions.
5. Mr. Taneja, learned Senior Counsel for the respondent, on the other hand
contends that the petitioner has not joined duty despite opportunities and the
judgment in D.K. Yadav’s case (supra), was considered subsequently by Supreme
Court in Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and
Anr., . The Supreme Court in this case while
considering the requirements of principles of natural justice held that an action in
such a case where a delinquent officer absents himself from duty is not contrary to
law. The Supreme Court observed as under:
“16. It is no point laying stress on the principles of natural justice without
understanding their scope or real meaning. There are two essential elements
of natural justice which are: (a) no man shall be Judge in his own cause; and
(b) no man shall be condemned, either civil or criminally, without being
afforded an opportunity of being heard in answer to the charge made against
him. In course of time by various judicial pronouncements these two principles
of natural justice have been expanded e.g. a party must have due notice when
the Tribunal will proceed; Tribunal should not act on irrelevant evidence or
shut out relevant evidence; if the Tribunal consists of several members they
all must sit together at all time; Tribunal should act independently and should
not be biased against any party; its action should be based on good faith and
order and should act in just, fair and reasonable manner. These in fact at the
extensions or refinements of the main principles of natural justice stated
above.
17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement.
It rightly held that Dayananda has voluntarily retired from the service of the
Bank. under these circumstances it was not necessary for the Bank to hold any
inquiry before passing the order. An inquiry would have been necessary if
Dayananda had submitted his explanation which was not acceptable to the
bank or contended that he did report for duty but was not allowed to join by
the bank. Nothing of the like has happened here. Assuming for moment that
inquiry was necessitated evidence led before the Tribunal clearly showed that
notice was given to Dayananda and it is he who defaulted and offered no
explanation of his absence from duty and did not report for duty within 30
days of the notice as required in Clause 16 of the Bipartite Settlement.
18. This undue reliance on the principles of natural justice by the Tribunal and
even by the High Court has certainly led to miscarriage of justice as far as bank
is concerned. Conduct of Dayananda as an employee of the bank has been
astounding. it was not a case where the Tribunal should have given any relief
to Dayananda and yet the bank was directed to reinstate him with continuity
of service and mercifully the latter part of the relief High Court struck down.
There was no occasion for the Tribunal to direct that Dayananda be reinstated
in service or for the High Court not to have exercised its jurisdiction under
Article 226 of the Constitution to set aside the Award.”
6. I have considered the reval contentions advanced on behalf of the parties. It
is disputed position that the petitioner was transferred as far back as on 14.7.2001
and was required to join duty on 16.7.2001. The petitioner chose to stay away from
joining and continued to send medical certificates. The petition approached the
Allahabad High Court and no interim orders were granted to the petitioner. The
petition was finally dismissed on 21.11.2001 on merits but the High Court only
observed that in case the petitioner so desires it is open for him to approach the
respondent authorities. The petitioner thereafter approached the respondent
authority and wished to supply the details of the school of his children. In fact it is
recorded that on the information being sought from the school it was found that the
children of the petitioner were not on the rolls of the school. The Constitution Bench
judgment of the Supreme Court was concerned with the case where there is
termination of service by giving 1 month’s notice or pay in lieu thereof. Thus it
would have no application. The judgment of the Supreme Court in D.K. Yadav’s case
(supra) has been considered by the Supreme Court in Syndicate Bank’s case (supra),
where it has been held that where the officer fails to respondent he can be treated as
having voluntarily retired from the services of the Bank. It is not open for the
employee to decide the place where he wants to work and choose the time he wants
to join. The petitioner failed to join over a period of 5 months and even failed to
respondent to the notice issued to him. The petitioner’s name was thus truck off the
rolls of the respondent Corporation with immediate effect.
7. I see no infirmity in the office order and no ground to interfere under Article
226 of the Constitution of India.
Dismissed.
8. W.P. dismissed.