JUDGMENT
S.N. Jha, C.J.
1. A short but significant question of law- whether unauthorized absence of an employee beyond the period prescribed under the rules results in automatic cessation of employment ? – arises for consideration in this Letters Patent Appeal. The question is not res integra. However, in view of the stand taken on behalf of the State, we consider it appropriate to record a brief order clarifying position in law.
2. Facts of the case may be stated first. The appellant was initially appointed as an Orderly in the Forest Department. He was later promoted to the post of Forest Guard which post he claims to be holding on substantive basis at the relevant time. In December, 1991, he professedly proceeded on one month’s leave. According to the appellant, he went on leave because his uncle had been killed by some unidentified assailants and he apprehended threat to his life. He stayed away from his job until 26th February, 2000 when he reported for duty. His joining was accepted by Range Officer, Doabagh. On 28th February, 2000, Divisional Forest Officer, Baramulla, informed the Range Officer that the entry in the receipt register, meaning thereby the joining of the appellant, had been struck off as he was absconding from duty since 1992 and asked him (Range Officer) to get an explanation from the appellant as to how he was interfering in the business of the office. On 27th May, 2000, the appellant was informed by the Range Officer, Headquarters, J.V. Division, Baramulla that, as per CSR (Civil Service Regulations) he no longer existed on the rolls of the Department and, therefore, the question of his resuming the duties did not arise,
3. The appellant approached this Court by way of writ petition, SWP No. 613/2001, for quashing the aforesaid communications dated 28th February, 2000 and 27th May, 2000 and seeking suitable mandamus for acceptance of his joining etc. He also sought interim relief. An interim order was passed on 22nd February, 2002 to effect that if the appellant had been removed from service or placed under suspension, he may be permitted to join against the post. In course of time, when the case came up for admission on 16th April, 2004, the learned Single Judge, while admitting the writ petition, vacated the interim order, directing that the writ petition will be heard in due course. The appellant has approached this Division Bench against said order dated 16th April, 2004.
Inasmuch as the writ petition is pending, in ordinary course, this Court would not have entertained this appeal, muchless gone into the question involved. But considering that any order – this way or that way – would take us into the gamut of the dispute, with the consent of the counsel for the parties, we heard the case on merit. We were also given to understand that the question aforesaid is involved in many cases, and the decision by this Court would facilitate disposal of such cases and also serve as guidance to the authorities.
4. We have referred to above the substance of orders dated 28th February, 2000 and 27th May, 2000. It would be appropriate to quote verbatim the relevant part of the latter order as under:
“Question of allowing you to resume duties doesn’t arise at all as per CSR since you no longer exist on the annual establishment rolls of this Department since 1992. Your application for ‘arrival’ on 26-02-2000, has been rejected formally vide this Office No. 2661-62/Estt dated 28-02-2000.”
A bare reading makes It clear that the respondent authorities are of the view that on account of the appellant’s continued absence from duty his employment came to an end in 1992 itself. In course of hearing, we observed that unauthorized absence from duty is a misconduct for which the delinquent is liable to suitable action but there cannot be a deemed termination of employment without being given opportunity of hearing to him. Learned Advocate General, in response, fairly agreed that there cannot be automatic termination of service of an employee. He, however, took a stand that Regulation 113 of the Jammu and Kashmir Civil Service Regulations prescribes a maximum period of absence i.e. five years, after which the person is considered to be out of state employment, the enquiry is, therefore, to be held with respect to only the period of absence. Where it is found, as a fact, that the person has remained absent for five years or more, he would be deemed to have abandoned his service/job. We find the submission difficult to accept. If it were so, it would amount to the same thing as deemed or automatic termination of employment. It is this aspect of the case which needs to be clarified. But before we do so, we may notice a few decisions relating to unauthorised absence.
5. In Jai Shanker v. State of Rajasthan, AIR 1966 SC 492, the relevant Regulation reads as under:
“An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority.”
It was considered on behalf of the state that the Regulation operates automatically and no question of removal is involved as the person concerned must be considered to have sacrificed his appointment. Rejecting the contention, a Constitution Bench of the Supreme Court observed:
“One circumstance deserving removal may be over-staying one’s leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a Regulation is made, it is necessary that Government should give the person an opportunity of showing cause why he should not be removed…It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. A removal is removal and if it is punishment for over-staying one’s leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened there.”
6. In Deokinandan Prasad v. State of Bihar, (1971)2 SCC 330, a case from the State of Bihar, the relevant provision was a under:
“Unless the State Government, in view of the special circumstances of the case shall otherwise determine, Government servant after five years of continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, ceases to be in Government employ.”
Referring to the decision in Jai Shanker v. State of Rajasthan, the Supreme Court held that even if it was a question of automatic termination of service for being continuously absent for five years, Article 311 applied to such a case and, therefore, without enquiry, the person cannot be treated as out of employment on account of his absence from duty.
7. What has been said in the context of Regulation 13 of the Jodhpur Service Regulations or Rule 76 of the Bihar Service Code, respectively, would apply with full force in the instant case as Regulation 113 of the J&K Civil Service Regulations is akin to said provision. Regulation 113 may at this stage be quoted as under:
“After five years continuous absence on leave, an officer is considered to be out of State employ.”
8. As indicated above, it is not the stand of the Advocate General that absence from duty results in automatic termination of service of the person concerned. According to him, the scope of enquiry would be limited to finding out only the period of absence. If the period of absence is five years or more, he would be treated to have abandoned the job by virtue of Regulation 113 of the CSR. The submission proceeds on the assumption that in all cases of unauthorized absence from duty, the person concerned has no defence to offer. Such a presumption is not sustainable in law. The notion that the employee has no defence in the facts and circumstances of a particular case was disapproved by the supreme court in Board of High School and Intermediate Education v. Kumari Chitra Srivastava, U.P., 1970(1) SCC 121. In that case, the respondent was denied admission to the examination on the ground of deficiency of attendance. The fact that she was short in attendance was not in dispute. The principal of the institution, however, had recommended her case stating that she could not attend the requisite of classes as the concerned teacher was on leave. The High Court upheld the case of the respondent holding that by cancelling the examination the Board “inflicted a penalty” and if opportunity had been given to the petitioner to present her case, she might have persuaded the Board not to cancel the examination. In appeal before the Supreme Court it was submitted on behalf of the Board that as the facts were not in dispute no useful purpose would have been served if the Board had served a show cause notice on the petitioner. The Supreme Court rejected the contention observing:
“..Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority’s satisfaction that the person to be penalized has no defence but on the nature of the order proposed to be passed.”
9. A similar view was expressed, though in a somewhat different context, earlier in State of Mysore v. K. Manche Gowda, AIR 1964 SC 506. Dealing with the question as to whether in awarding the particular punishment, the past record of the employee (of which he apparently must be aware) could be taken into consideration, without informing him and giving opportunity to explain the same, the Supreme Court observed thus:
“It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of the fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of ‘presumptive knowledge’ or that of ‘purposeless enquiry’, as their acceptance will be subversive of the principle of ‘reasonable opportunity’.”
10. Learned Advocate General submitted that where a person remains absent for a long period, he would be deemed to have abandoned the job and in such a case he cannot insist on opportunity of hearing and a full-fledged enquiry; a mere notice calling upon him to report for duty and failure of the person to do so should be considered enough to treat him as having abandoned the service. He placed reliance on Dharmaratkmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal, (1999) 7 SCC 332 and Syndicate Bank v. General Secy., Syndicate bank Staff Assn., (2000) 5 SCC 65.
11. These cases were decided on their own facts. In the former case, the delinquent did not dispute the facts nor offered any plausible explanation when opportunity was given to her to do so. In such situation, the plea that enquiry ought to have been conducted as provided under the statutory rules was rejected by the Supreme Court observing that giving opportunity is a check and balance concept so that no one’s right is taken away without giving opportunity or without enquiry where statute so requires, but this is not necessary where charges are admitted and no plausible defence is placed before the authority concerned. In the latter case, the employee was unauthorisedly absent beyond the permissible limit of ninety days. In terms of the relevant clause of the Bipartite Settlement, notice was given to him to join the work within the prescribed period of thirty days, informing him that otherwise he would be deemed to have retired in terms of the Bipartite Settlement. Notice was refused by the person. In these facts, the Supreme Court held that the Bank rightly treated the employee to have voluntarily retired from service. Such voluntary retirement/termination without holding enquiry was not violative of the principles of natural justice.
12. As is often said, rules of natural justice are not strait-jacket formulae to be applied uniformly in all cases. Its application varies from case to case depending upon the facts and circumstances of the particular case. In other words, what shall be the extent of requirement of rules of natural justice would depend on the facts of a particular case. While in one case mere opportunity of hearing may satisfy the requirement of the rules, in another case a full-fledged enquiry may have to be held depending on the rules, if any. It would also depend, among other things, on the response of the delinquent – the nature of defence, if any, taken by him and the nature of action proposed. No hard and fast rule can be laid down. What is of essence is that he should be given a reasonable opportunity to offer defence. The requirements of rules of natural justice are: firstly, that the employee should know the nature of charge or accusation against him; secondly, that opportunity should be given to him to state his case; and thirdly, that the employer should act in good faith, that is to say, the action of the employer should be fair and reasonable. Proceeding on the assumption that on account of absence from duty beyond the prescribed period, he would be deemed to have abandoned his job and, accordingly, treated as out of employment would amount to acting on a presumption that he has no defence to offer. There may be genuine cases in which the person remained away from duty for good reasons, such as, law and order situation; illness or incarceration. Unless an opportunity is given to him to state his case, he cannot explain his absence. In the cases cited by learned Advocate General, as seen above, opportunity was given to the delinquent. They either did not respond to the notice or did not offer any plausible defence.
13. In the above premises, we are of the view that absence from duty, howsoever long, cannot result in automatic cessation of employment. In all such cases the person concerned has to be given an opportunity of hearing and, depending on the nature of defence taken by him, further action should be taken.
14. Whether a full-fledged enquiry as per Rule 33 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956 should be held or not will depend upon the facts of the case and be left to the discretion of the authority, subject to scrutiny and judicial review in future if such an occasion would arise.
15. Coming to the instant case, it is true that the appellant in his joining application himself stated that his absence was unauthorized from 1992, but the circumstances under which he remained absent have to be seen and for this an opportunity of hearing has to be given to the appellant. He cannot be treated to have abandoned the job or treated out of employment under Regulation 113 of the CSR. The respondents are, therefore, directed to consider the appellant’s case in light of the findings and observations made hereinabove.
16. This appeal as well as the writ petition stand disposed of accordingly.