Delhi High Court
Surendra Kumar Tiwari vs Ntpc Ltd. & Ors. on 1 June, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.762 of 2011
Reserved on: 8th May, 2012.
% Pronounced on: 1st June, 2012.
SURENDRA KUMAR TIWARI . . . APPELLANT
through : In person.
VERSUS
NATIONAL THERMAL POWER
CORPORATION LTD. AND ORS. . . .RESPONDENTS
through: Mr. S.K. Taneja, Sr. Advocate with
Mr. Puneet Taneja and Mr. Amrit
Anand, Advocates for the
respondent No.1.
Mr. Sunil Kumar with Mr. Rajiv Ranjan
Mishra, Advocates for UOI.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI (Acting Chief Justice)
1. The petitioner, who appears in person was an employee of the
respondent No.1/National Thermal Power Corporation Ltd.
(hereinafter referred to as „NTPC‟). The petitioner was taken in the
employment with NTPC with effect from 29.12.1986. In the year,
2005, when he was working at Bharuch (Gujarat), he was
transferred to Uttarkashi (Uttarakhand) vide orders dated
08.10.2004. However, he sent a letter dated 30.10.2004
requesting to remain at Bharuch till 31.3.2005 as his daughters had
to give CBSE Board examination. This request was allowed. Vide
W.P.(C) No.762 of 2011 Page 1 of 18
Office Order No.50/2005 dated 01.4.2005, he was released from
Bharuch with effect from 01.4.2005. He did not join the transferred
place immediately and reported for joining on 31.5.2005. As per
the petitioner, he submitted that he requested for Transfer
Travelling Advance in the prescribed format at Bharuch office, but
the advance was not released. Instead, letter dated 02.5.2005 was
sent to the petitioner by the NTPC stating that since he was
released from Bharuch on 01.4.2005, his request for TTA was not
acceded to as per the Rule. The respondent, on the other hand,
treated the period from 01.4.2005 to 30.5.2005 (i.e., 59 days) as
unauthorized absence and it was not regularized against any kind of
leave.
2. The petitioner remained at Uttarkashi for about 7 days and applied
for leave with effect from 08.6.2005 for 8 days, but returned after
11 days. Overstay of three days was again treated as unauthorized
absence.
3. Incidentally, after initial joining on 31.5.2005, he applied for TTA on
06.6.2005 and a sum of `44,000/- was sanctioned and released to
him on 07.6.2005. The petitioner even thereafter did not work at
Uttarkashi continuously and kept on applying for leave on regular
intervals on different periods which are as under:
Period of Leave Period for Actual Period for
Leave Joining Unauthorized
Date Absence
12.7.2005 to 7 days 26.9.2005 19.7.2005 to
18.7.2005 24.9.2005 (68
days)
Note: Notice dated 05.9.2005 was sent to the petitioner stating
that he was aunauthorizedly absent from duty which it was
conveyed to him that he had not reported for duty after expiry of
W.P.(C) No.762 of 2011 Page 2 of 18
sanctioned leave.
10.2.2006- 7 days 17.2.2006 Did not report back
16.2.2006 on duty thereafter.
Note: During this period, certain correspondence was
exchanged, which is Chronically recorded as under:
18.2.2006: Communication from the petitioner stating that
his leave should be extended to 28.2.2006, but as
per the respondent, this extension of leave was
not sanctioned.
23.3.2006: Even after 28.2.2006, the petitioner did not join
the duties, the respondent sent notice to the
petitioner thereby calling upon him to immediately
join the duties or appropriate action as per Clause
24.9 of NTPC Service Rules shall be taken against
him.
24.3.2006: The petitioner vide communication stated that he
would be reporting the duty on 01.4.2006.
03.4.2006: The petitioner sent fact letter dated 03.4.2006
stating personal difficulties for his overstay, viz.,
renovation work of his house. He stated that he
will be reporting for duties only on 10.4.2006.
13.4.2006: The petitioner sent another application seeking
extension of leave till 25.4.2006.
17.4.2006: Instead joining the duty, the petitioner sent
another leave application stating that he will be
joining the site by 25.4.2006.
W.P.(C) No.762 of 2011 Page 3 of 18
22.4.2006: On the same ground, i.e., some work related to
house was still left, he would be joining the duties
at Project by 30.4.2006.
26.4.2006: The petitioner sent another leave application and
stated that he would be joining the duty back in
the first week of May, 2006.
20.5.2006: The petitioner sent another leave application.
25.5.2006: The respondent sent notice dated 25.5.2006
calling upon the petitioner to report the duty
immediately, otherwise action as per Clause 24.9
of the Rules shall be taken.
15.6.2006: Another application was faxed by the petitioner
stating that he would be joining the duty with
effect from 26.6.2006.
21.6.2006: Treating the entire period after 16.2.200, i.e.,
from 17.2.2006 to 21.6.2006 as unauthorized
absence which came to 125 days, the respondent
invoked Clause 24.9 of the Rules and informed the
petitioner that he had automatically lost his lien
on his post and was deemed to have voluntarily
abandoned and left the service of the
respondent/NTPC.
4. The petitioner thereafter came to Uttarkashi for joining the duties,
but he was not allowed to do so. He submitted the representation
dated 17.8.2006 questioning the termination order dated 21.6.2006
and requested to allow him to join the duties. However, vide letter
dated 14.6.2007, his request was rejected. Thereafter, he made
representation to the Chairman-cum-Managing Director on
22.12.2007 followed by reminder dated 01.2.2008, but reply was
W.P.(C) No.762 of 2011 Page 4 of 18
given. He sent another representation to General Manager, NTPC
on 02.5.2008. This request was also not acceded to. As per the
petitioner, he sought information under Right to Information Act,
2005 from the respondent and on 05.2.2009, Central Public
Information Office of the respondent replied to the petitioner
refusing to supply the copy of the recommendation of Mr. A.K.
Sharma Committee appointed under Rule 24.9 of NTPC Service
Rules. According to him, Three-Member Committee headed by Mr.
A.K. Sharma had examined his representation and keeping in view
his explanation for the unauthorized absence. The Committee
recommended to the management for regularizing his unauthorized
leave. However, copy of the report was not furnished to him. The
petitioner thereafter approached this Court by filing writ petition
with the prayer that Rule 24.09 of the NTPC Service Rules be
declared null and void as the same is not consonance of Article 311
of Constitution of India and in violation of Article 311 and 14 of the
Constitution of India. He also prayed for setting aside the order
dated 21.6.2006 as null and void and sought reinstatement with all
consequential benefits with effect from 21.6.2006.
5. The submission of the petitioner is that the petitioner remained
absent for valid reasons and therefore, he had been submitting
leave applications. However, the impugned order was passed
invoking Rule 24.09 in violation of principle of natural justice
without giving any reasonable opportunity of being heard to the
petitioner. It is also his submission that Rule 24.09 of the Rules is
bad in law, null and void as merely on overstay of leave for more
than 90 days, it cannot be presumed that the petitioner is
abandoning the service. He has also submitted that since a due
process of inquiry has been prescribed for dismissal or removal of a
civil servant, any rule providing for automatic termination of service
W.P.(C) No.762 of 2011 Page 5 of 18
on overstayal of leave (or for that matter, on happening of any
contingency) shall be violative of Article 311 and, hence, null and
void. In support of this submission, reliance has been placed upon
State Vs. Benedict, SLR 1969 Mysore 21.
6. The respondent in its counter affidavit has submitted that such a
clause has been upheld in various judgments. As per the
respondent, before invoking such a clause of automatic loss of lien,
the only requirement is to issue show cause notice. It is stated that
in the present case, none of the leave of the petitioner was not
sanctioned and in spite thereof, he remained absent for such a long
period. He did not join duty instead of notice dated
23.3.2006/25.5.2006 wherein it was specifically stated that on
failing to join duties, Rule 24.09 of the Rules shall be invoked. It is,
thus, submitted that it is sufficient compliance of the requirement
rules. It is argued by the respondent that after the transfer of the
petitioner from Bharuch to Uttarkashi he had no intention to join the
duties. For this reason, he did not even bring his family to the
place of transfer. Even his first time joining was after unauthorized
absence of 59 days. Thereafter, he worked only for two short spells
and under one excuse or the other kept on making request for leave
which was never granted. Though in all his applications, he gave a
particular date of joining, but never adhered to that. It is submitted
that it becomes apparent that he had no intention to join the duties
and thus, it is a case where loss of lien should be inferred.
7. Learned counsel for the respondent has relied upon the following
judgments:
(i) Hindustan Paper Corporation Vs. Purnendu
Chakrobarty & Ors. (1996) 11 SCC 404;
W.P.(C) No.762 of 2011 Page 6 of 18
(ii) U.P. State Bridge Corporation Ltd. & Ors. Vs. U.P.
Rajya Setu Nigam S. Karamchari Sangh (2004) 4
SCC 268;
(iii) V.R. Vellore Vs. The NTPC Ltd. & Anr. [W.P.(C)
No.26555/1997], High Court of Karnataka At Bangalore;
(iv) Sukhdev Singh Vs. Delhi Development Authority,
2012 LLR 178 (DB);
(v) U.P. Singh Vs. Punjab National Bank, 2011 LLR 708
(DB).
8. We have considered the aforesaid submissions. Before we deal with
these submissions, we reproduce the relevant provisions of the
NTPC Service Rules as well as NTPC Conduct, Discipline and Appeal
Rules:
"24.9. Termination on account of unauthorized absence:
An employee who remains unauthorizedly absent from duty or
place of work either without sanction of any leave or after expiry
of sanctioned leave, if any, and does not report for duty for any
reason whatsoever within 90 (ninety) consecutive days from the
date of his/her unauthorized absence, shall automatically lose
lien on his/her post and he/she shall be deemed to have
voluntarily abandoned and left the service of the corporation,
without notice.
Provided, however, if the employee subsequently substantiates
and accounts for his/her unauthorized absence from duty within
90(ninety) consecutive days from the date of the termination
order to the entire satisfaction of the Management, the
Management may regularize his/her period of unauthorized
absence on such terms and conditions as it may deem fit and
proper.
2 (s) "Unauthorized Absence" means absence by an employee
from his/her duty or place of work without authority either
without sanction of any leave or after expiry of sanctioned
leave, if any.
9. Pertinently, Rule 23 of the NTPC Conduct, Discipline and Appeal
Rules was also amended and after the insertion of the aforesaid
W.P.(C) No.762 of 2011 Page 7 of 18
amended Rule, this Rule is to the effect that termination on account
of unauthorized absence will not be deemed as a penalty. This Rule
reads as under:
"Rule 23.0
Rule 23 Penalties
..............................
.............................."
10. Explanation to Rule 23 of the Rules provides certain contingencies
as not penalties and Clause (vi)(e) thereof reads as under:
"(e) of an employee consequent upon abandonment of
employment due to overstaying his sanctioned leave beyond the
period originally granted/subsequently extended or absenting
unauthorizedly ab initio, for a period of more than 90
consecutive days."
11. From the conjoint reading of the aforesaid two Rules, viz., Rule 24.9
of the NTPC Service Rules and Rule 23(vi)(e) of the NTPC Conduct,
Discipline and Appeal Rules, it becomes clear that when an
employee remains unauthorizedly absent from the duty for 90
consecutive days either without sanction of leave or even when the
leave is sanctioned and the period of leave is expired after a period
of 90 days thereafter, he is deemed to have voluntarily abandoned
and left the service of the corporation. Such deemed abandonment
is not to be treated as penalty. The validity of similar provisions
has come up for consideration in various cases. Both the parties
have referred many case laws. It is not necessary to take note of
all such judgments, as these are taken note of and considered by
the Supreme Court in Hindustan Paper Corporation Vs.
Purnendu Chakrobarty & Ors., [(1996) 11 SCC 404] and U.P.
State Bridge Corporation Ltd. and Ors. Vs. U.P. Rajya Setu
Nigam S. Karamchari Sangh, [(2004) 4 SCC 268]. Therefore,
discussions of these two judgments would be sufficient as it would
provide the answer to the question posed.
12. In Hindustan Paper Corporation (supra), the concern even was
to Rule 23(vi)(E) of Hindustan Paper Corporation Conduct, Discipline
and Appeal Rules which is in identical terms as Rule 23 (vi) (e) of
the NTPC Conduct, Discipline and Appeal Rules. The Supreme Court
held the validity of this Rule making following observations:
"12. We consider that in view of this concession made by the
learned Counsel on behalf of the appellant-Corporation that the
said Rule must be read and given effect to, subject to the
compliance of the principles of natural justice, it cannot be said
that the Rule is arbitrary or unreasonable or ultra vires
Article 14 of the Constitution. In other words, before taking
action under the said clause, an opportunity should be given to
the employee to show cause against the action proposed and if
the cause shown by the employee is good and acceptable, it
follows that no action in terms of the said clause will be taken.
Understood in this sense, it cannot be said that the said clause
is either unreasonable or violative of Article 16 of the
Constitution."
13. In that case, counsel for the employee had referred to the
judgments in D.K. Yadav Vs. J.M.A. Industris Ltd., [(1993) 3
SCC 259], Hindustan Steel Ltd. Vs. Presiding Officer, Labour
Court [(1976) 4 SCC 222] and Delhi Transport Corpn. Vs. D.T.C.
Mazdoor Congress [1991 SCC (L & S) 1213] to contend that
before passing the impugned order against the employee, the
employee should have conducted a full-fledged inquiry and the
failure to do so vitiates the impugned order. This contention was,
however, negatived by the Court in the following manner:
"15. We have extracted Rule 23 in full. The explanation to the
Rule specifically states that certain items enumerated
thereunder shall not be treated as a penalty at all within the
meaning of Rule 23. For our case the relevant Sub-clause is
(vi)E which says that proceedings on leave without prior
sanction and remaining unauthorisedly absent for more than 8
consecutive days: and/or over-staying his sanctioned leave
beyond the period originally granted or subsequently extended
for more than 8 consecutive days would result in loss of lien of
the appointment of the employee. In this case we have seen
that the first respondent had proceeded on leave without prior
sanction and remained unauthorisedly absent for more than 6
months consecutively which obliged the appellant-Corporation to
issue communication to the first respondent calling upon him to
explain. Unfortunately, the first respondent, for reasons best
known to him, has not availed himself of the opportunity as
seen earlier but replied in a halfhearted way which resulted in
the impugned order. Therefore, under the circumstances, it
cannot be said that the principles of natural justice have not
been complied with or the circumstances require any enquiry as
contemplated under Rule 25. In the case cited by the learned
Counsel for the first respondent, this Court has held:
"that 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 on 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.
There can be no distinction between a quasi-
judicial function and an administrative function for
the purpose of principles of natural justice. The aim
of both administrative inquiry as well as the quasi
judicial inquiry as to arrive at a just decision and if
a rule of natural justice is calculated to secure
justice to put it negatively, to prevent miscarriage
of justice, it is difficult to see why it should be
applicable only to quasi-judicial inquiry and not to
administrative inquiry. It must logically apply to
both."
16. On a consideration of the entire facts, we are of the view
that the test laid down by this Court, as extracted above has
been satisfied by the appellant-Corporation and therefore when
viewed from the point of Rule 23(vi)(E), there was no good
reason for the High Court to interfere with the impugned order
of the appellant-Corporation dated 5.1.1989."
14. We would also like to record that on the facts of that case, the
Court found that there was sufficient compliance of principles of
natural justice as is clear from the following:
"In the light of the above Rule, in particular Rule 23(vi)(E) the
appellant-Corporation factually by communication dated 30-11-
1988 informed the first respondent that the leave applications
have not been supported by medical certificates; that period
must be treated as 'unauthorised absent' and if he has got
anything to say on that aspect he has to send the reply within
15 days from the date of receipt of that letter. His reply was
that he was suffering from chest pain for quite some time and
the medical certificates will be produced at the time of joining.
To say the least that should not be the attitude of an employee.
First of all, he was expected to take the leave ordinarily with
prior sanction and extend the same after the earlier one was
sanctioned by the appropriate authority. Right from the
beginning his applications were not only not in proper form but
were not supported by any medical certificates to justify the
claim of the first respondent. At least the first respondent should
have replied properly by enclosing the medical certificates or
should have come forward with a true case. He did neither. It is
in that context that the appellant Corporation invoked the said
Rule, namely, Rule 23(vi)E."
15. In U.P. State Bridge Corporation (supra) certified standing
orders of the Corporation provided for termination of service for
unauthorized absence. Certain persons had gone on strike which
was declared illegal and because of the said unauthorized absence
by the corporation, invoked the provisions of the standing orders,
the Corporation took the view that those workers had abandoned
their job. The Supreme Court held that the unauthorized absence
would include even absence due to illegal strike. The Court
explained the legal position as under:
"22. The fact of strike was also admitted in G.T. Lad (supra).
Here again there was no condition of service similar to CSO
L-2.12. The Management had issued a notice calling upon
the workmen to report within a specified period otherwise it
would be construed as an abandonment. The workmen failed
to report within the aforesaid period, The Management struck
out the names of the workers from the rolls on the ground
that the workmen were not interested in service and had
totally abandoned it. This Court held that the abandonment
was not a question of fact which was required to be proved.
Where the only evidence was absence because of strike,
there was no abandonment. It was also held,
following Express Newspaper (supra) that it was not open
to the company to introduce such changed terms and
conditions of service pending an industrial dispute.
23. D.K. Yadav (supra) is an authority for the proposition
that the principle of natural justice would have to be read in
the Standing Orders. That was a case where there was a
standing order similar to CSO L-2.12 except that 8 days'
margin was granted within which the workman was required
to return and satisfactorily explain the reasons for his
absence or inability to return after the expiry of leave. This
view was reiterated in the later decision of this Court
in Lakshmi Precision Screws Ltd. v. Ram Bhagat
(2002)IIILLJ516SC where it was held that the element of
natural justice was an in-built requirement of the Standing
Orders.
24. In this case, the appellant-Corporation had issued two
notices calling upon the workmen represented by the
respondent to return to duty. The workmen did not respond
to either of the notices. As we have noted it was not pleaded
that the advertisement did not sufficiently comply with the
principles of natural justice. The notice was issued giving an
opportunity to the respondent to show cause why the
presumption should not be drawn under CSO L-2.12. The
respondent did not show cause. In the circumstances, the
Management drew the presumption in terms of the CSO."
16. We may refer to the judgment of the Karnataka High Court (in Writ
Petition No.26555/1997, decided on 15.5.2000) in the case of V.R.
Vellore Vs. NTPC Limited. That case pertains to the same
employer and Rule 25 of the National Thermal Power Corporation
Rules relating to the voluntary abandoned of service and the validity
of Rules was challenged as violative under Article 14 of the
Constitution of India. The Court repelled the arguments that this
Rule was unconstitutional. It was specifically held that there was no
need to hold a departmental inquiry and once principles of natural
justice was followed by giving notices to the petitioner in the said
case to join the duties and the petitioner had not responded to the
call, it was open to the employer to invoke their powers under Rule
25 of the Rules deeming that the petitioner has voluntarily
abandoned service. This is clear from the following observations
made by the Karnataka High Court, as under:
"6. The question would be whether an enquiry should
have been held by the respondent authorities before
issuing the impugned communication. Rule 25 of the Rules
is as under:
"An employee who remains unauthorisedly
absent and does not report for duty within 15
days (8 days for workman) from the date of
expiry of leave granted to him shall lose lien on
his post and shall be deemed to have voluntarily
left the service of the Corporation, without
notice. However, if the employee is
subsequently able to account of his
unauthorized absence to the satisfaction of the
management the latter may regulrise the period
of absence in a manner deemed fit and covered
by the rules. "
17. One of us (Rajiv Sahai Endlaw, J.) in Syndicate Bank Vs. B.N.
Pandey [171 (2010) DLT 760], Anil Chuttani Vs. The Oil and
Natural Gas Corporation [2010 (117) DRJ 433] and Canara
Bank Vs. Union of India [2010 (118) DRJ 103] had occasion to
deal with the case law in this regard. This Bench also in Sukhdev
Singh Vs. Delhi Development Authority [184 (2011) DLT 164]
revisited the said question. The conclusion each time has been that
a permission of standing order of the employer providing for
dismissal from service for unexplained delay is valid, prescribed the
action taken under such a Rule/provision in fair, reasonable and in
compliance of principles of natural justice.
18. We, thus, are of the opinion that the issue is no more res integra
and the validity of such Rules has already been upheld.
19. The moot question that would fall for consideration is as to whether
there is sufficient compliance of the principles of natural justice in
the instant case.
20. Record shows that the petitioner was transferred to Uttarkashi vide
Office Order dated 8th October, 2004 with immediate effect. He had
requested for stay at Bharuch till March, 2005 in view of Board
Examination of his daughter. This request was acceded to vide
Office Memorandum dated 02.12.2004. Thereafter, Office Order
No.50/2005 dated 01.4.2005 was issued relieving the petitioner
from that date with instruction to join at Uttarkashi. He, however,
joined Uttarkashi only on 31.5.2005 (F.N.). He worked hardly there
for seven days whereafter applied for eight days leave with effect
from 08.6.2005 stating that there was need for him to go to
Bharuch. He, however, did not join back immediately thereafter,
but joined later on. Thereafter, again he applied for seven days
from 12.7.2005 to 18.7.2005 and stating that he would resume the
duty on 17.7.2005 and he remained unauthorizedly from the duty
till 05.9.2005 when notice regarding unauthorized absent from duty
was sent to him mentioning Rule 24.09 of the Rules as well. The
petitioner had applied for leave for the period 08.6.2005 to
18.6.2005 and 12.7.2005 to 18.7.2005. With regard to his earlier
leave from 08.6.2005 to 18.6.2005 and 12.7.2005 to 18.7.2005, it
was pointed out that he had not clearly specified the reason for the
leave which he had applied. In any case, the respondent stated
that after expiry of the sanctioned leave also, the petitioner
remained absent and in these circumstances, provisions of Rule
24.09 of the Rules would apply and he was asked to resume the
duties immediately.
21. The petitioner did not respond to the above. Instead, almost more
than five months thereafter, he sent application dated 09.2.2006 for
seven days earned leave on the ground that her wife had suffered
fracture in her right leg on 31.1.2006 at Bharuch. This was
followed by another application dated 18.2.2006 on the same
ground. Even thereafter he did not join the duties, another
communication dated 23.3.2006 was sent referring to Rule 24.9 of
the Rules asking him to join the duties. In this communication,
following para was also added:
"It is worth mentioning that earlier also you have processed on
leave without specifying the type of leave availed. In spite of
our repeated verbal requests, you have not regularized you
earlier period of absence from duty.
Your absence/absence after expiry of the sanctioned leave
attracts the above provisions and if the absence exceeds the
prescribed 90 days period, the same shall make you liable to
lose lien on the post held by you in NTPC."
22. It is clear from the above that even the earlier leave was not
sanctioned and he was told about that. Reason was that the
petitioner had not specified as to which type of leave he wanted to
avail.
23. Instead of joining the duties, the petitioner sent another application
dated 24.3.2006 for extending the leave upto 31.3.2006 on the
ground that his wife had fractured her leg and the Board
Examination and children were undergoing. He stated that he
would join the duties on 01.4.2006. However, on 03.4.2006, he
asked for further leave. The ground now given was that his house
was under renovation which was likely to be completed by
10.4.2006 and he stated that he would join thereafter. Still he did
not join and sent application dated 03.4.2006 for extension of leave
stating that there was delay in completion of the renovation of his
house. Leave was sough upto 25.4.2006, which was reiterated vide
communication dated 17.4.206. He did not join the duties even
after 25.4.2006 and vide application dated 22.4.2006 sought
extension till 30.4.2006. Now, reason stated was that he had to
complete certain formalities for the house lease. Even after
30.4.2006, he did not join and sent application dated 26.4.2006
stating that he would be joining the duty by first week of May, 2006
as certain essential formalities related to house lease like change of
electricity meter was still be to be completed. He did not join even
in the first week of May, 2006.
24. The respondent, in these circumstances, sent another Notice dated
25.5.2006 regarding unauthorized absent from the duty. In this,
the petitioner was categorically informed that there was no leave
balance which he could make use of and his absence from work
place after expiry of sanctioned leave on 17.2.2006 had already
crossed 90 days attracting Rule 24.09 of the Rules. There was
categorically communicated that in these circumstances, his case
was now processed for approval relating to loss of lien by him.
Following portion of this Notice needs to be quoted:
"As you very well know that there is no leave balance in
you account which you can make use of and in the past
also you have shown such irresponsible behavior of staying
away from project/station without getting your leaves
approved/regularized. The things have stretched so far
and are going out of order. Company has in the past also
warned you regarding such irregularities at workplace but
you have not taken any corrective measure. Not only this,
you have not clearly specified at any instance the type of
leave which you wish to avail.
Your total absence from workplace after expiry of
sanctioned leave on 17.02.2006 has already crossed 90
days.
As per clasue 24.9 of NTPC Service Rules "An employee
who remains unauthorized absent from duty or place of
work either without sanction of any leave or after expiry of
sanctioned leave, if any, and does not report for duty for
any reason whatsoever within 90 consecutive days from
the date of his/her unauthorized absence, shall
automatically lose lien on his/her post and he/she shall be
deemed to have voluntarily abandoned and left the service
of the corporation without notice.
Your absence/absence after expiry of the sanctioned leave
attracts the above provisions and the absence has
exceeded the prescribed 90 days period. We are now
processing you case for approval of CA which same shall
make you liable to lose on the post held by you in NTPC.
In view of the aforesaid, you are advised to report for
duties immediately and also regularize you earlier period of
absence failing which you will lose lien on the post held by
in NTPC."
25. Even this communication did not have any desired effect. Instead,
of joining immediately, the petitioner sent communication dated
15.6.2006 stating that he would be joining the duties with effect
from 26.6.2006 and submitted that "inordinate delay in joining my
duties was only on account of the dependents personal problems,
house registration & construction only." However, even on
26.6.2006, he did not join the duties. He sent another
communication dated 14.7.2006 for extension of leave and did not
join the duties thereafter. In these circumstances, communication
dated 21.8.2006 was issued pointing out that he had lost his lien.
26. The aforesaid facts demonstrate the following:
a) Various applications for leave submitted by the petitioner
were not sanctioned. He was duly communicated about
non-sanction. He was told time and again to state the type
of leave he wanted to avail, but he did not respond.
b) The petitioner kept on making applications for extension of
leave and never adhered to his assurance of joining his
duty by stipulated dates. This was so when he was
specifically communicated that no leave of any kind was
due to him.
c) Specific notices were given referring to Rule 24.09 of the
Rules and asking him to join the duties failing which
rigours of the said provisions would apply. That also did
not yield any response from the petitioner.
27. In these circumstances, we are of the view that the respondent has
complied with the principles of natural justice by giving adequate
liberty to the petitioner.
28. We, thus, do not find any infirmity in the impugned orders. This
writ petition is accordingly dismissed.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
JUNE 01, 2012
pmc
