RAJIV SAHAI ENDLAW, J. - (1.) The petitioner by this writ petition impugns the office order dated 5th November, 1996 of the respondent ONGC, deeming the petitioner to have resigned from the services of the respondent ONGC with effect from 25th November, 1995 and striking off the name of the petitioner from the rolls of respondent ONGC with effect from the said date, for the reason of unauthorized absence from duty with effect from 28th August, 1995. The petitioner, prior to instituting this petition, made a representation to the respondent ONGC but to no avail. Notice of this petition was issued on 29th April, 1999 and accepted by the counsel for the respondent ONGC who appeared on advance notice. Rule was issued on 24th March, 2000. The respondent ONGC in its counter affidavit, filed to the writ petition, has pleaded that the office order dated 5th November, 1996 (supra) impugned in this petition was issued in accordance with regulation 14(5) of the ONGC Leave Regulations, 1995. The said Regulation 14(5) is as under:- Where an employee fails to resume duty on the expiry of the period of extraordinary leave if the leave granted to him is the maximum that can be granted or where an employee is granted a lesser amount of extraordinary leave than the maximum admissible under this Rule, remains absent from duty for any period which, together with extraordinary leave so granted, exceeds the limit upto which he could have been granted leave under this Rule, he shall be deemed to have resigned his appointment and shall accordingly cease to be in the employment of the Company, unless the Company may determine otherwise, in view of the exceptional circumstances of the case.
(2.) The counsel for the petitioner has referred to: (i) Delhi Transport Corporation Vs. Delhi Administration MANU/DE/0910/2000 where a Single Judge of this Court in relation to a similar provision in the regulations of DTC held that unauthorized absence by an employee could only be treated as misconduct and it is incumbent upon DTC to hold an appropriate enquiry after serving charge-sheet upon the workman. Reliance was placed on D.K. Yadav Vs. J.M.A. Industries Ltd. (1993) 3 SCC 259 & Uptron India Ltd. Vs. Shammi Bhan (1998) 6 SCC 538. Regulation 14(10)(c) of the DTC which was same as the Regulation 14(5) (supra) of respondent ONGC, was held to be not valid. (ii) Ram Phal Vs. Union of India MANU/DE/0918/2008 where another Single Judge of this Court similarly dealt with Regulation 14(10)(c) of DTC.
(3.) The counsel for the respondent ONGC has opposed the writ petition. It is contended that the petitioner was an Executive Engineer with ONGC, posted at an off-shore rig, work whereon goes on round the clock. It is contended that the petitioner remained on unauthorized leave for 387 days of which he gave reasons for only 182 days of absence and did not give any reasons for the balance 205 days of absence. It is contended that telegram filed as Annexure-R1 calling upon the petitioner to join duty and further informing him that upon his said failure, appropriate action shall be initiated, was sent to the petitioner. It is further contended that upon receipt of the telegram (Annexure-R2) from the petitioner for extension of leave, memorandum dated 18th November, 1995 (Annexure-R3) was issued to the petitioner to show cause as to why action in accordance with the Regulations should not be taken against him. It is further contended that though in response to the aforesaid memorandum another response was received from the petitioner but another memorandum dated 8th March, 1996 also was issued to the petitioner to show cause as to why he should not be deemed to have resigned in accordance with Regulation 14(5) supra. It is argued that on 13th August, 1996 public notice was issued in the newspaper in this regard and only thereafter the office order dated 5th November, 1996 deeming the petitioner to have resigned was made. The counsel for the respondent ONGC thus contended that it is not as if no opportunity of being heard was given to the petitioner before passing the office order impugned in this petition.;