ORDER
S.K. Gangele, J.
1. By this petition, petitioner has challenged quashing of the orders (Anncxure P-6, dated 9-2-97 and Annexure P-5, dated 6-4-87), an order of voluntary abandonment of services from the Bank and appellate order (Annexure P-16, dated 24-10-97), dismissing the appeal of the petitioner against an order dated 6-4-87, Annexure P-5.
2. The facts of the case arc that the petitioner was appointed as Clerk in the respondent Bank, Central Bank of India with effect from 31 -7-1973. He was also confirmed with effect from the date of joining. The petitioner was sick having some lever ailment so he submitted an application on 22-7-86 to 25-7- 86. Thereafter he further extended his leave from 26-7-86 to 1-8-86. Then the ailment of the petitioner was continued. He further submitted an application for medical leave from 2-8-86 to 31-10-86. Thereafter he applied for extension of his medical leave vide letter dated 2-11 -86.
3. As per the petitioner thereafter he went to join his duties but the then Branch Manager Mr. D. Chandwani did not permit him to join and told him that he had ceased to be in services of the Bank. As per the petitioner he did not receive any order upto 24-4-87. It is further submitted that he has a credit of total 236 days sick leave.
4. Then the petitioner inquired from his old residence 192, Jawahar Marg, Indore thereafter he got the letter dated 6-4- 87 received on 24-4-87. The letter is dated 6-4-87 impugned alongwith the said letter a copy of the notice was also received. The said letter was sent under postal certificate. It is mentioned in the letter (Annexure P-5) that petitioner ceased to be in the Bank’s employment with effect from 19-3-87 as he had voluntarily abandoned the bank service. Alongwith the letter a notice said to be sent to the petitioner was also enclosed. It is mentioned in the notice that vide letters dated 5-8-86, 18-8-86 and 13-10-86, petitioner was asked to attend duties immediately or submit his reasons within three days. It is further mentioned that vide letter dated 13-8-86 sent to his residence he had no intention for continuing in service of the Bank and he was again called upon to report for duties within thirty days of this letter and submit his explanation for unauthorized leave with effect from 2-8-86 to 31-10-86 and report for duties if he did not report it will be deemed that he has voluntarily retired from service after the expiry of the date.
5. After receiving the said letter on 28-4-87 the petitioner submitted a reply (Annexure P-7). It is mentioned in the reply that the petitioner was in service from 31-7-73 and is entitled for 236 days sick leave and he applied leave for various dates. Finally he extended the leave from 1-11-86 to 28-2-87 on medical ground. He further submitted that he had not received any notice from the Bank, thereafter a notice for demand of justice has also been sent to the Bank. Finally, vide order dated 11-3-88 which is in reply to notice dated 1-9-88 request for reinstatement was rejected by the Bank.
6. In the meanwhile, petitioner filed a petition before this Court as M.P. No. 586/88 against his deemed retirement. The petition was disposed of vide order dated 22-4-97 Annexure P-15 with a direction to decide the appeal of the petitioner. Thereafter, the Appellate Authority Dy. General Manager rejected the appeal of the petitioner and confirmed voluntary cessation of his employment from the Bank service. Then the petitioner filed present petition.
7. In the return, the respondent Bank has taken a preliminary objection that the services of the petitioner has been governed by awards, i.e., Shastri Award/Desai Award and Bipartite Settlements and petitioner has to exhaust all the remedies available under the Industrial Disputes Act, 1947. When the writ petition was admitted for hearing vide order dated 25-9-98, it was mentioned that, “the right of the Counsel for respondents to raise preliminary objection with regard to maintainability of the petition are kept intact”.
8. With regard to this objection about the maintainability of the writ petition having remedy under the I.D. Act, it is the fact that the petition is admitted in the year of 1998. The petitioner is out of employment since 9-3-87 over and above 17 years.
9. It is well settled principle of law that for a writ of certiorari alternative remedy is not a bar. The said rule of exhaustion of the alternative remedy in the writ of certiorari is of discretion and not one of compulsion. The Hon’ble Supreme Court in Harbanslal Sahnia and Anr. v. India Oil Corporation Ltd. and Ors., (2003) 2 SCC 107, has held as under :-
“The rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings arc wholly without jurisdiction or the vires of an Act is challenged.”
10. So relying on the aforesaid judgment of the Supreme Court, I reject the preliminary objection of the respondents with regard to objection of alternative remedy directing the petitioner to approach under the provisions of I.D. Act.
11. With regard to other submissions the respondents denied that the leave applications were submitted after 2-S-86 onwards by the petitioner. The fact has been disputed by the respondents. It is further submitted that the envelopes by which the letter dated 13-8-86 was sent by the respondent No. 3 to the petitioner on his residential address returned back with an endorsement of refused. The photocopy of the envelope has been filed but the receipt of registered post has not been filed. It is further submitted that petitioner was absent from duty with effect from 2-8-86 to 9-2-97 on which dates show-cause notice was issued. Hence petitioner did not report to duty neither submit any explanation for his absence. Hence as per the bipartite settlement it is deemed that he has abandoned his service. It is further submitted that he was also absent from the duty. The shifting of the residence has also been denied by the respondents. The specific provisions of voluntary cessation of the employee of the employer has been mentioned in settlement Clause No. 16 which reads as under :-
“Where an employee has not submitted any application for leave and absents himself from work for a period of 90 or more consecutive days without or beyond any leave to his credit or absents himself for 90 or more consecutive days beyond the period of leave originally sanctioned or subsequently extended or where there is satisfactory evidence that he has taken up employment in India or the management is satisfied that he has no present intention of joining duties, the management may at any time thereafter give a notice to the employees last known address calling upon the employee to report for duty within thirty days of the notice, stating inter alia the grounds for the management coming to the conclusion that the employee has no intention of joining duties and furnishing necessary evidence, where available. Unless the employee reports for duty within thirty days or unless he gives an explanation for his absence satisfying the management that he has not taken up another employment or avocation and that he has no intention of not joining duties, the employee will be deemed to have voluntarily retired from the Bank’s service on the expiry of the said notice. In the event of the employee submitting a satisfactory reply, he shall be permitted to report for duty thereafter within thirty days from the date of the expiry of the aforesaid notice without prejudice to the Bank’s right to take any action under the law or rules of services.”
Hence, petitioner himself abandoned his services and petition deserves to be dismissed.
12. The petitioner specifically filed Annexure P-4, dated 25-11-85 where he mentioned that he had obtained a loan for the construction of house and the house is constructed and requested that his correspondence residential address is 62, Vandana Nagar, Indore. This is dated 25-11-85 and pleadings to this effect has been mentioned in Para 5 of the petition. In reply to Para 5 the respondent has denied that they have received any information with regard to change of his residential address. The petitioner filed a rejoinder in reply to the return of the respondents and in that rejoinder it is mentioned that Bank had filed a money recovery suit No. 24-A/91 and in that suit the address of the petitioner was mentioned as 62, Vandana Nagar, Indore.
13. From the above facts it is clear that the notice of service on the petitioner can not be established beyond any doubt. There was a change of address. However, it was also obligatory on the part of the Bank to try personal service on the petitioner because he was residing at Indore. With regard to service of the notices provision has been made in Shastri Award as :-
“Issue of notices and orders.- Notices which arc required to be given shall be served individually on the employees affected and their acknowledgments taken, and shall also be exhibited on the notice boards of the Bank at the offices or establishments concerned. Such notices as are so exhibited shall be in English and also in the principal language of the district or locality in which each such office or establishment is situated. Any notice, order, charge-sheet, communication or intimation which is meant for an individual employee shall be in a language understood by the employee concerned. In the case of an absent employee notice shall be sent to him by registered post, with acknowledgment due.”
14. From the above factual position it is clear that there was a 236 days leave in the credit of the petitioner. It can not be infer safely that the notice was served to the petitioner and he was afforded an opportunity of hearing or submitting any explanation. It is further clear from the facts that the petitioner had explanation about his absence on account of his ailment, he had 236 days leave in his credit. In such circumstances, the rule of natural justice can not be bye passed. Hon’ble the Supreme Court in case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259 has discussed with regard to doctrine of natural justice and principles of Article 14 of the Constitution into certified standing orders with regard to termination of services for unauthorized absence.
“The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person.”
and thereafter in Paras 11 and 12 has held as under :-
“The law must, therefore, be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive.”
“Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. 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 animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness depriving opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitanan in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable.”
15. The aforesaid principle has also been held in Ritz v. Boldvin (supra), a landmark case on the subject of applicability of rule of natural justice 1964 AC 40 : (1963) 2 All DR 66 (HL). In that case, it was held that the breach of principles of natural justice was in itself treated as prejudice and that no other (de facto) prejudiced needed to be done. Then the rigor of the rule has been relaxed not in the English but also in India. This principle has been relaxed by the Apex Court in S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379, to the extent that for admitted or undisputed facts leading to one conclusion and the person affected had no explanation to over than the rule of natural justice can be curtailed down.
16. This view with regard to applicability of rule of natural justice in termination of service for unauthorized absence has further been discussed by Hon’ble the Supreme Court in Laxmi Precision Screws Ltd. v. Ram Bahagat, (2002) 6 SCC 552, and the Hon’ble Supreme Court has held in Para 16 as under :-
“Arbitrariness is an antithesis to rule of law, equity, fair play and justice – contract of employment there may be but it can not be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basis of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.”
17. From the above discussion, it is clear that the petitioner has in his credit 236 days leave. He further has an explanation to put forth before the management with regard to his ailment which was supported by the medical certificate. He has also submitted an application for his change of address 62, Vandana Nagar, Indore. Admittedly on this address the notice was not sent by the Bank. The Bank has not tried to serve the notice personally to the petitioner. In such circumstances, the rule of natural justice can not be ruled out and it can not be said and the decision of the Bank with regard to abandonment of service voluntarily has rightly been taken after compliance of the rule of natural justice.
18. On the basis of above discussion, the petition filed by the petitioner is allowed to the following extent :-
(A) The impugned order (Annexure P-5) dated 6-4-87 by which it is held that the petitioner ceased to be in Bank employment with effect from 9-3-87 and the appellate order (Annexure P-16), dated 24-10-97 arc hereby quashed.
(B) In consequence the petitioner be deemed to be in service with the Bank. It is further made clear that the respondent Bank is free to hold a departmental regular enquiry and pass appropriate orders if it wishes so. The petitioner will not be entitled for any backwages in the facts and circumstances of the case at present but will be entitled for continuity of service. However, the respondent is free to decide the question of backwages after the outcome of the departmental enquiry.
19. With the aforesaid directions the petition is partly allowed. No order as to costs.