Telangana High Court

The Singereni Collieries Company ... vs G. Srinivas on 4 February, 2025

     THE HON'BLE THE ACTING CHIEF JUSTICE SUJOY PAUL

                                     AND

           THE HON'BLE SMT. JUSTICE RENUKA YARA

                    WRIT APPEAL No.280 of 2024

JUDGMENT:

(Per the Hon'ble the Acting Chief Justice Sujoy Paul)

Sri P.Sri Harsha Reddy, learned Standing Counsel for

Singareni Collieries Company Limited, for the appellants and

Sri Prabhakar Chikkudu, learned counsel for the respondent.

2. With the consent of the learned counsel for the parties, the

writ appeal is heard finally.

3. In this intra Court appeal, the challenge is mounted to the

order of the learned Single Judge passed in W.P.No.12932 of

2011, dated 08.01.2024.

4. Draped in brevity, the relevant facts are that the father of the

respondent herein died in harness on 18.01.1989. The

respondent, who is the writ petitioner, was given compassionate

appointment as Badli Filler on 11.09.1989. The respondent was

re-empanelled as Badli Filler on 14.12.1991. On 05.06.1992, an

order was issued transferring the respondent from Mandamari

Area to Ramakrishnapur Area. As per the stand of the employer,

the respondent did not report at the transferred place and

remained absent, despite the fact that the relieving order was

issued on 08.06.1992.

5. The stand of the respondent was that he was falsely

implicated in a criminal case and was arrested in furtherance

thereof. Learned counsel for the respondent submits that the

respondent was convicted by the trial Court, but succeeded in an

appeal in the year 1996. Thereafter, as per the respondent, he

had undergone prolonged medical treatment for mental illness

from 15.03.1996 to 30.04.1999. Subsequently, after recovery from

his illness, he reported for duty, but he was not permitted to

discharge his duties. The Workers' Union, by representation

dated 17.08.1999, requested the employer to review the case of

the respondent and permit him to join the duty.

6. Since the respondent was not permitted to join the duty,

W.P.No.12932 of 2011 was filed by him on 27.04.2011, which

came to be allowed by the impugned order dated 08.01.2024.

STAND OF THE APPELLANTS:

7. Learned counsel for the appellants submits that in the writ

petition, the respondent has nowhere mentioned about his date of

arrest. The respondent did not comply with the transfer order

dated 05.06.1992, despite his relieving on 08.06.1992. He did not

apprise the appellants/employer about his handicappedness for

not joining the duty. A representation was preferred by the

respondent only on 14.11.2009 (Ex.P14). As per the said

representation, the respondent was acquitted in the year 1994.

Along with the representation, no medical documents were

submitted to show that after acquittal, the respondent has

undergone any medical treatment.

8. Learned counsel for the appellants submits that the learned

Single Judge allowed the writ petition by applying the principles of

natural justice and by relying on the judgment of the Supreme

Court in Gammon India Limited v. Niranjan Das 1 and the

judgment of the Constitution Bench of the Supreme Court in

Delhi Transport Corporation v. D.T.C. Mazdoor Congress 2.

1 (1984) 1 SCC 509 2 1991 Supp (1) SCC 600

Learned counsel for the appellants further submits that both the

judgments and the principles mentioned therein cannot be

pressed into service in a case of this nature, because the

respondent did not comply with the transfer order and remained

absent from 05.06.1992 till 14.11.2009. The respondent

remained absent for decades. This amounts to voluntary

abandonment of service. By placing reliance on the judgment of

the Supreme Court in Vijay S. Sathaye v. Indian Airlines

Limited 3, learned counsel for the appellants submits that in view

of the said judgment, the principles of natural justice cannot be

pressed into service. It is a case of voluntary cessation of service

and in this situation, the principles of natural justice has no role

to play. In addition, learned counsel for the appellants placed

reliance on a Full Bench decision of the High Court of Andhra

Pradesh in P.V.Narayana v. APSRTC, Hyderabad 4 and submits

that although no statutory/constitutional limitation is prescribed

for filing the writ petition, the said writ petition can be entertained

if it is filed within a reasonable time. In the instant case, the

respondent remained absent from the year 1992 and filed the writ

3 (2013) 10 SCC 253 4 2013 SCC OnLine AP 729

petition in the year 2011, much after his acquittal in the year

1994 (as mentioned in the representation). Thus, there is an

enormous delay in approaching the Court. On this score alone,

the writ petition should have been dismissed. The direction of the

learned Single Judge to grant all consequential benefits was

criticized by contending that the said relief was not at all due to

the respondent, more so, when there is an inordinate delay in

approaching the Court.

STAND OF THE RESPONDENT:

9. Sounding a contra note, learned counsel for the respondent

supported the order of the learned Single Judge. He submits that

the fundamental rights flowing from Articles 14 and 21 of the

Constitution of India mandate that an employee cannot be

terminated without following the principles of natural justice.

Thus, the learned Single Judge has rightly followed the judgment

of the Supreme Court in Gammon India Limited (supra) and the

judgment of the Constitution Bench of the Supreme Court in

Delhi Transport Corporation (supra).

10. No other point is raised by the learned counsel for the

parties.

11. We have heard the learned counsel for the parties at length

and perused the record.

FINDINGS:

12. The facts are not in dispute in the instant case. Admittedly,

the respondent had not performed his duties after 05.06.1992.

The parties have taken a diametrically opposite stand before us

whether the respondent was permitted to join at the transferred

place or not. The learned counsel for the respondent submits that

the respondent was not permitted to implement the transfer order,

whereas the learned counsel for the appellants/employer, by

placing reliance on the counter filed in the writ petition, stated

that the respondent did not report for duty at Ramakrishnapur

Area pursuant to the transfer order dated 05.06.1992 and the

relieving order dated 08.06.1992. There is no documentary

evidence available on record to show that the respondent

submitted his joining report at the transferred place. If the

respondent was not permitted to join the duty in June, 1992, he

should have preferred a representation about his grievance and

thereafter could have approached the Court with quite

promptitude. The respondent, admittedly, did not avail any such

remedy. He was acquitted in the year 1996, but did not promptly

make any effort to join the duty and the delay is explained by

making a bald statement that he was taking treatment for his

mental illness. No documentary evidence for this purpose is also

filed to show that he was undergoing any such mental ailment.

The order of the learned Single Judge shows that the interference

was made because of the alleged violation of principles of natural

justice. The specific case of the appellants before the writ Court

was that of "voluntary abandonment of service" by the

respondent/employee. The learned Single Judge has not

considered this argument/stand of the appellants/employer in the

analysis portion of the impugned order. The concept of voluntary

abandonment of service is not unknown to service jurisprudence.

The Supreme Court in Vijay S. Sathaye (supra), considered the

previous judgment and poignantly recorded as under:

"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the

duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.

13. In Jeewanlal (1929) Ltd. v. Workmen [AIR 1961 SC 1567] this Court held as under : (AIR p. 1570, para 6) "6. ... there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee."

(See also Shahoodul Haque v. Registrar, Coop. Societies [(1975) 3 SCC 108 : 1974 SCC (L&S) 498 : AIR 1974 SC 1896] .)

14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as "retrenchment" from service. (See State of Haryana v. Om Parkash [(1998) 8 SCC 733 : 1999 SCC (L&S) 262] .)

15. xxx

16. In Syndicate Bank v. Staff Assn. [(2000) 5 SCC 65 : 2000 SCC (L&S) 601] and Aligarh Muslim University v. Mansoor Ali Khan [(2000) 7 SCC 529 : 2002 SCC (L&S) 965 : AIR 2000 SC 2783] this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A

similar view has been reiterated in Banaras Hindu University v. Shrikant [(2006) 11 SCC 42 : (2007) 1 SCC (L&S) 327], Chief Engineer (Construction) v. Keshava Rao [(2005) 11 SCC 229: 2005 SCC (L&S) 872] and Bank of Baroda v. Anita Nandrajog [(2009) 9 SCC 462 : (2009) 2 SCC (L&S) 689]."

[Emphasis supplied]

13. A plain reading of the relevant portion of the aforesaid

judgments of the Supreme Court reproduced in paragraph 16

shows that in the case of voluntary abandonment of service, there

is no need to hold an enquiry or to give any notice, in view of

useless formality theory. Thus, the doctrine of useless formality

was pressed into service in the case of voluntary abandonment of

service. We find substantial force in the argument of the learned

counsel for the appellants that the respondent's conduct of

remaining absent from the year 1992 to 2009 shows his voluntary

abandonment of service. In that case, doctrine of useless

formality can be applied and the principles of natural justice