Inder Dev Yadav vs National Thermal Power ...
2002 Latest Caselaw 110 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule

With the consent of the parties the petition is taken up for final disposal.

2. The petitioner by this petition is seeking quashing of the order dated 3.1.2002 in terms whereof the petitioner was deemed to have voluntarily abandoned the services of the Corporation resulting in loss of lien on the post held by him and the period of absence was directed to be treated as dies-non. The petitioner was transferred on 14.7.2001 and was released from NTPC, Unchahar with direction for joining at Badarpur Thermal Power Station which he failed to do and absented unauthorisedly w.e.f. 16.7.2001. The petitioner approached the Allahabad High Court, Lucknow Bench against his transfer. It is an admitted position that pending consideration before Allahabad High Court, Lucknow Bench in C.W. No. 3883/ 2001 transfer orders were not stayed. This petition was finally dismissed on 21.11.2001 after recording dismissal of the writ petition on merits. Learned Judge observed as under:

"At this stage, learned Counsel for the petitioner submitted that the petitioner's three daughters are studying at Unchahar and one of them is in class Xth in this academic session, therefore, the transfer order may be stayed till the end of the academic session. Petitioner may approach for the same to the departmental authorities as this Court rarely interferes with the transfer orders on such grounds."

3. The petitioners thereafter made representation on 3.12.2001 in view of the order of the Allahabad High Court. This representation dated 3.12.2001 was responded to by the respondents vide Annexure P-5. It is stated to have been received by the petitioner on 16.12.2001. In this communication it is stated that though reason for the petitioner seeking cancellation of the transfer was the fact that his three daughters were studying in the School located in the Campus of NTPC, Unchahar but no details of the same have been made available to the respondents. Another communication available on record by the respondent is dated 20.12.2001 (Annexure P-9) where it is stated that when names, classes and admission details of the three daughters were sought by the officer of the respondents from the petitioner, the same were not informed and in fact NTPC, Unchahar school informed the office of the petitioner that at present none of the children is studying in the School situated in NTPC, Unchahar campus.

4. Learned Counsel for the petitioner contends that thought the names of these children were not on record due to some dispute over fee with the School, they were in fact studying in the school. Learned Counsel for the petitioner has further relied on the judgment of the Supreme Court in D.K. Yadav v. J.M.A. Industries Limited, , to further contend that even if the petitioner absented from duty he cannot be taken to have abandoned his services and enquiry must take place before an action is taken against him. Learned Counsel further referred to the Constitution Bench judgment of the Supreme Court in DTC v. DTC Mazdoor Congress and Ors, 1991 (Supp) 1 SCC 600, to support her said submissions.

5. Mr. Taneja, learned Senior Counsel for the respondent, on the other hand contends that the petitioner has not joined duty despite opportunities and the judgment in D.K. Yadav's case (supra), was considered subsequently by Supreme Court in Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr., . The Supreme Court in this case while considering the requirements of principles of natural justice held that an action in such a case where a delinquent officer absents himself from duty is not contrary to law. The Supreme Court observed as under:

"16. It is no point laying stress on the principles of natural justice without understanding their scope or real meaning. There are two essential elements of natural justice which are: (a) no man shall be Judge in his own cause; and

(b) no man shall be condemned, either civil or criminally, without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements these two principles of natural justice have been expanded e.g. a party must have due notice when the Tribunal will proceed; Tribunal should not act on irrelevant evidence or shut out relevant evidence; if the Tribunal consists of several members they all must sit together at all time; Tribunal should act independently and should not be biased against any party; its action should be based on good faith and order and should act in just, fair and reasonable manner. These in fact at the extensions or refinements of the main principles of natural justice stated above.

17. Bank has followed the requirements of Clause 16 of the Bipartite Settlement. It rightly held that Dayananda has voluntarily retired from the service of the Bank. under these circumstances it was not necessary for the Bank to hold any inquiry before passing the order. An inquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the bank or contended that he did report for duty but was not allowed to join by the bank. Nothing of the like has happened here. Assuming for moment that inquiry was necessitated evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation of his absence from duty and did not report for duty within 30 days of the notice as required in Clause 16 of the Bipartite Settlement.

18. This undue reliance on the principles of natural justice by the Tribunal and even by the High Court has certainly led to miscarriage of justice as far as bank is concerned. Conduct of Dayananda as an employee of the bank has been astounding. it was not a case where the Tribunal should have given any relief to Dayananda and yet the bank was directed to reinstate him with continuity of service and mercifully the latter part of the relief High Court struck down. There was no occasion for the Tribunal to direct that Dayananda be reinstated in service or for the High Court not to have exercised its jurisdiction under Article 226 of the Constitution to set aside the Award."

6. I have considered the reval contentions advanced on behalf of the parties. It is disputed position that the petitioner was transferred as far back as on 14.7.2001 and was required to join duty on 16.7.2001. The petitioner chose to stay away from joining and continued to send medical certificates. The petition approached the Allahabad High Court and no interim orders were granted to the petitioner. The petition was finally dismissed on 21.11.2001 on merits but the High Court only observed that in case the petitioner so desires it is open for him to approach the respondent authorities. The petitioner thereafter approached the respondent authority and wished to supply the details of the school of his children. In fact it is recorded that on the information being sought from the school it was found that the children of the petitioner were not on the rolls of the school. The Constitution Bench judgment of the Supreme Court was concerned with the case where there is termination of service by giving 1 month's notice or pay in lieu thereof. Thus it would have no application. The judgment of the Supreme Court in D.K. Yadav's case (supra) has been considered by the Supreme Court in Syndicate Bank's case (supra), where it has been held that where the officer fails to respondent he can be treated as having voluntarily retired from the services of the Bank. It is not open for the employee to decide the place where he wants to work and choose the time he wants to join. The petitioner failed to join over a period of 5 months and even failed to respondent to the notice issued to him. The petitioner's name was thus truck off the rolls of the respondent Corporation with immediate effect.

7. I see no infirmity in the office order and no ground to interfere under Article 226 of the Constitution of India.

Dismissed.

8. W.P. dismissed.