Rajni Gupta vs The Mother'S International ...
1987 Latest Caselaw 559 Del

JUDGMENT

P.K. Bahri, J.

(1) This is a writ petition for quashing the order dated March 3, 1979, passed by respondent No. 3 by which he gave a finding that the the petitioner is not entitled to be reinstated.

(2) The facts, in brief, are that the petitioner was appointed by respondents 1 & 2 as Librarian on October 18, 1972 and was also provided unfurnished accommodation in the Aurobindo Ashram. The petitioner proceeded on maternity leave on August 17, 1973. According to the petitioner, she reported back for duty but she was not assigned any work. On November 7, i975, the petitioner served , a notice on respondents 1 & 2 seeking the arrears of salary of the period of last two years. The petitioner was informed vide letter dated November 21, 1975, that the( petitioner had abandoned her job with the respondents with effect from December .1, 1973J and since then her name bad been removed from the rolls of the school. The petitioner file a an appeal under Section 8(3) of the Delhi School Education Act (hereinafter referred to as 'the Act') read with Rule 120(3) of the Delhi school Education Rules, 1973 (hereinafter referred to as 'the Rules') pleading that her removal from service on account of non-reporting for duty amounted to dismissal and she could not be dismissed without the respondents following the necessary procedure given in the Act and the Rules. Respondent No. 3 after recording evidence and hearing the arguments had given a firm finding that from the facts it is proved that the petitioner had abandoned her job and thus there was no question of petitioner being dismissed or removed from service by respondents 1 & 2. The Tribunal also gave a finding that in fact, the petitioner is not covered by the expression 'existing employee' as defined in Section 2(i) inasmuch as this particular Act came into force subsequently. This order has been challenged by the petitioner pleading that in fact, she had not abandoned her job and she had been reporting to join the duty but she was not allowed to join the duty and she had been removed from service by respondents 1 & 2 in violation of the provisions of the Act and the Rules. The petitioner has pleaded that she is covered by the definition of 'existing employee' given in the Act and thus the provisions of the Act are applicable to her.

(3) Affidavit was filed by Shri Ram Krishan Madan on behalf of the respondents opposing the writ. It was pleaded that the petitioner had abandoned the job and thus there was no question of her being dismissed or removal from service and hence the question of respondents 1 & 2 following 264 the procedure contained in the Rules did not arise. Counsel for the petitioner alone has advanced arguments because at the stage of final hearing no one appeared on behalf of the respondents. The question which needs decision in the present case is whether the order of the Tribunal is vitiated with any illegality with regard to its finding that the petitioner had abandoned the job The Court exercising its writ jurisdiction is not to appraise the evidence. The question of fact which goes to the jurisdiction of the Tribunal if determined by the Tribunal can, of course, be re-examined by this Court exercising writ jurisdiction but on other facts which go to the merits of the case the Court is not to sit in appeal while exercising writ jurisdiction and appraise the evidence to come to a different .finding. The finding of fact on merits could be challenged in a writ if the same is perverse in the manner that the same is based on no evidence to has been ignored any material evidence from consideration.

(4) In the present case the facts were clear that the petitioner did not perform any job with respondents 1 & 2 since December 1, 1973. She did not make any protest in writing as to why she was not being permitted to do her job. In case the petitioner had been reporting for duty with effect from December 1, 1973, as she has pleaded, she would not have remained inactive if she was being prevented by respondents 1 & 2 from-performing her job. The Tribunal has disbelieved the petitioner on this aspect of the matter and has given good reason for the same. He has mentioned that for about two years the petitioner remained completely silent and did not put forward any claim for salary and even during this period the job, which the petitioner was holding earlier, was advertised and the petitioner had applied for being appointed to that job. It is obvious that if the petitioner still thought herself to be in service of respondents 1 & 2 she would not have applied for being appointed to that job again in response to the advertisement issued by respondents 1 & 2. The Tribunal was right in disbelieving the petitioner that she applied for that job again on the assurance given by some person on behalf of respondents 1 & 2; rather the petitioner ought to have raised some objection in writing to the job being advertised if the petitioner was still considering herself to be in the employment of respondents 1 & 2.

(5) Counsel for the petitioner has vehemently argued that the mere fact that the petitioner did not apply for leave for the subsequent period does not mean that the petitioner has abandoned the job. It is true that a solitary fact of not making an application for leave may not by itself be sufficient to come to the conclusion that the petitioner had abandoned the job. The facts and the circumstances have to be examined in totality in order to determine whether the petitioner had abandoned the job or not. In the present case the Tribunal has noticed some material facts which do lead to an inference that the petitioner had abandoned the job. Counsel for the petitioner has cited G.T. Lad & Others v. Chemical & Fibres of India Ltd., . It has been observed in this judgment that to constitute abandonment of service, there must be total or complete giving up of duties so as to indicate an intention not to resume the same and the abandonment or relinquishment of service is always a question of intention and normally such an intention cannot be attributed to an employee without adequate evidence in that behalf and it is a question of fact to be determined in the light of the surrounding circumstances of each case. It was observed that temporary absence is not ordinarily sufficient to constitute an abandonment of office. 265 The facts of the present case examined in the light of the aforesaid observations of the highest Court, in my opinion, leave on room for doubt that in the present case the petitioner had abandoned the job. It was not a question of petitioner remaining absent for some short period or a temporary period. She had not reported for duty for about two years before serving a written notice on respondents 1 & 2 claiming the arrears of salary. For two years the petitioner did not take any action. She was not paid any salary admittedly for two years. She applied for being appointed to the same job when that job was advertised in 1974 and not raise any objection even at that stage. Mere fact that the petitioner was allowed to continue in an alternate accommodation provided to her does not mean that the petitioner was treated to be in service by respondents 1 & 2. An ex-employee can be allowed to continue in the accommodation on humanitarian grounds for some period even after the employee on longer remains in service.

(6) Counsel for the petitioner has then referred to L.Robert D' Souza v, Executive Engineer, Southern Railway & Another, . In the cited case the services of an employee were terminated on account of his unauthorised absence from duty for some period. It was held that such type of termination amounts to retrenchment. This was not a case where the employee had abandoned the service. In this very judgment it was held that if the name of workman is struck off from the rolls even then the same would amount to retrenchment. Here the only fact was not that the name of the petitioner had been struck off the rolls or record of respondents 1&2 but the petitioner herself had abandoned the service and thereafter her name had been struck off. So, in the present case it cannot be held that the petitioner had been removed from service by respondents 1 & 2. Hence, this judgment is not applicable to the case of the petitioner.

(7) Lastly, counsel for the petitioner has referred to H D. Singh v. Reserve Bank of India & Others, . In this case also it was held that striking off the names from the rolls by the employer amounts to retrenchment. Again this was not a case where there was any question raised as to whether the workman had abandoned the job or not. So, this judgment is also not applicable to the facts of the present case.

(8) I do not find any infirmity in the order of the Tribunal on this aspect of the matter. I, however, do hold that the petitioner was covered by the definition of 'existing employee'. 'Existing Employee' in Section 2(i) of the Act means employee of an existing school who was is employed in such school immediately before the commencement of the Act and includes an employee who was employed in such school for a period of not less than 12 months immediately preceding 2nd day of September 1972. The petitioner was employed on October 18, 1972 and thus, she is covered by the said definition. That does not in any manner have any effect on the result of this writ petition because Rule 120 of the Rules would have applied to the petitioner if she had been imposed any penalty as contemplated by Rule 117. The petitioner was neither removed nor dismissed from service. Hence, the provisions of Rule 120 which prescribe the procedure for imposing penalties did not apply to the petitioner who had abandoned the job.

(9) I do not find any merit in this writ petition which I, hereby, dismiss and I discharge the rule, but leave the parties to bear their own costs as no one has appeared on behalf of the respondents at the time of final hearing.