- (1.) The respondent joined the services of the appellant Corporation sometime in August, 1971 as a Trainee Craftsman. He was subsequently, promoted to the post of Operator Grade, in the month of January, 1979. The respondent allegedly was laid down with acute dry Pleurisy and other ailments and remained continued in his house from 11th of March 1984 to the 10th Of September, 1987. He sent information to the appellant by several letters from 20th November, 1984 to 12th February, 1987 under Certificate of Posting intimating his inability to resume his duties. On recovery from illness he approached the appellant for grant of leave during the period of absence and permission to resume his duties. His letter in this behalf dated 14th of September, 1987 was accompanied with a Medical certificate. The respondent sent another letter dated 4th February, 1988. By a letter dated 24th of May, 1988, the appellant informed the respondent that his requests for reappointment after a lapse of 3 years and a half was examined and his prayer could not be acceded to. The respondent alleges that the question of reappointment does not arise since his service was not terminated. The respondent thereafter had tiled a writ application being Civil Rule No. 8153(W) of 1988 for redressal of his grievances. The learned Judge of this court quashed the impugned order of the appellant and directed the management to consider the representation of the respondent and to decide the matter afresh on the basis of an order passed in the case of R. C. Chowdhury by the appellant. Further direction was given to afford an opportunity of hearing to the respondent. The respondent in his application cited the case of one R. C. Chowdhury whose absence from duty for a longer period was condoned by the Management and he was allowed to resume his duties. Pursuant to the order of this court the respondent submitted a representation which was rejected by the Management. Aggrieved thereby the respondent filed another writ petition which was allowed by a learned Judge of this court on 23.9.88 principally on the ground that the respondent was not given a personal gearing before rejection of his representation. Pursuant thereto the respondent was given a personal hearing but this time also the appellant rejected his representation. So the respondent filed the third writ application being Civil Order No. 13213(W) of 1988. The learned Single Judge by his order dated 25th January, 1989 ordered that the respondent might be allowed to join his duties within 7 days from the date of the order. The Management was further directed to consider the case of the respondent with respect to payment of salary commensurate with the facts and circumstances of the case and the hardship suffered by the respondent during the period of absence. The Management felt aggrieved by the said order and preferred this appeal.
(2.) There is no controversy that the respondent was in the service of the appellant. It is also not disputed that the respondent was absent from duty from 11th March, 1984 to 10th September, 1987. The respondent claims that he sent several letters intimating the Management as to his illness under Certificate of Posting. The annexures put in by the respondent of course indicates that several letters were sent, under Certificate of Posting by the respondent. But the appellant denies the receipt of any of the said letters. As a matter of fact, no document has been produced to show that either of the said letters had ever reached the Management or as a matter of that the respondent ever made a serious effort to contact the Management while he did not receive any reply to his letters. The Management sent letters dated 7.2.1985 and 17.12.1984 by registered post to the address furnished by the respondent in his letters said to have been sent under Certificate of Posting. Those registered letters came back without service. By the letter dated 17.12.1984, the Management asked the respondent to appear before the Chief Medical Officer forthwith. Since the letter could not be served by registered post at the address furnished by the respondent himself, the Management preferred to issue another letter dated 7.2.1985. That letter also came back "unserved". In the circumstances, the Management considered the absence for three years and a half to be an unauthorised absence and preferred to fall back upon para 6 of the Leave Rules of 1970. The Leave Rules have the sanction of Certified Standing Orders of Hindusthan Fertilizer Corporation Ltd. Rule 17 of the Standing Orders provides that the leave facilities would be allowed in accordance with the leave facilities provided 'under the Fertilizer Corporation of India Leave Rules, 1970. Paragraph 6 of the Leave Rules provides that an absence without permission for more than 10 days will be treated as voluntary abandonment of employment, and the name of the employee will be struck off the rolls without any notice to the employee. Similar provision has been provided for in the Certified Standing Orders. Rule 23 catalogues different acts of misconduct. The last item of the said catalogue provides that a continued absence without permission from work for more than 10 days will amount to mis-conduct.
(3.) The Management did not prefer to treat the absence as an act of misconduct which would warrant an enquiry before the award of any punishment. On the contrary the Management has relied upon the provision contained in the Leave Rules, while the former requires an enquiry for termination of service in the latter case the termination is automatic. The respondent has relied upon a large number of decisions to contend that termination of service without a reasonable opportunity can by no means be supported. L. N. M. Institute v. State of Bihar, 1988(2) SLR 210 (SC) is relied upon by the respondent. In that case by an ordinance Institute was taken over and the service of the Registrar was terminated. It was held that it involved civil consequence and natural justice demanded that the opportunity to show cause must be given. In R. R. Singh & Ors. v. Union of India, AIR 1990 SC l-similar view was entertained. In that case service was terminated on account of strike. The court held that opportunity of hearing should be given. In Delhi Transport Corporation v. D. T. S. Mazdoor Congress, AIR 1991 SC 101 service of some permanent employee was terminated without enquiry in terms of regulations 9(b) of Conditions of Appointment of Service Regulation. The said provision provided the termination with reasonable notice or pay in lieu thereof without holding an enquiry, Supreme Court held that the provision was arbitrary since it does not lay down any guideline as to the circumstances when termination can be effected. In M. D., U.P. Warehousing Corporation v. Vijoy Narayan, AIR 1980 SC 840 charges were framed, but no enquiry was held nor the delinquent was allowed to cross-examine. It was a public employment. The court held that Statutory bodies had to hold due enquiry in accordance with Statutory Regulations and in their absence according to Rules of natural justice. In an earlier decision in Deokinandan Prasad v. State of Bihar, 1971(1) SLR 175 the court opined that despite provision for automatic termination of service Article 3 11 of the Constitution would be attracted. Article 3 11 of the constitution will be Violated if no opportunity to show cause is given. In Mafatlal v. D. Rathod AIR 1966 SC 1364 service was terminated without giving au opportunity. Clause 4(b) of the Regulations provides for reasonable opportunity to show cause.;