# Rajendra Prasad Tripathi v. Hindustan Aeronautics Limited

- **Citation:** (2025) 5 ILRA 411
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-23
- **Case number:** Writ A No. 3653 of 2001
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-tripathi-v-hindustan-aeronautics-limited-54628
- **Pages:** 12

## Headnote

Constitution of India, Article 226 - Certified
Standing Orders of Hindustan Aeronautics
Limited, Clauses 3, 19(ii), 26, 27 - Termination
for Unauthorized Absence - Petitioner, a
permanent
workman
(Clerk-cum-Typist),
challenged
the
termination
order
dated
26/28.02.1991 for unauthorized absence from
01.10.1990, struck off under Clause 19(ii) of the
Standing Orders, and sought reinSt.ment.
Petitioner claimed illness, sent multiple letters
via Under Postal Certificate (not registered), and
argued that termination required disciplinary
enquiry under Clauses 26 and 27, not Clause
19(ii), which was inapplicable to permanent
workmen, citing Chandu Lal vs. Pan American
World Airways. Respondent countered that
412 INDIAN LAW REPORTS ALLAHABAD SERIES
Clause 19(ii) applied to all workmen, show
cause notices were issued and received, and the
writ petition, filed in 2001, was barred by
laches, per Scooters India vs. Vijai E.VS Eldred.
The court held that Clause 19(ii) applied to the
petitioner as a workman under Clause 3, and
the management followed due process by
issuing show cause notices, complying with
natural justice, per Buckingham and Carnatic
Company vs. Venkatiah. The petitioner's reliance
on
unregistered
postal
certificates
lacked
evidentiary value, per Shiv Kumar vs. St. of
Haryana. The 10-year delay in filing the writ
petition was unexplained, rendering it barred by
laches.
Termination
was
upheld
as
abandonment, not retrenchment, requiring no
disciplinary enquiry, per National Engineering
Industries vs. Hanuman. Writ petition dismissed.
(Paras 10-24)

Writ petition dismissed.

List of Cases cited:

## Text

_Characters 0–39,846 of 40,649. This is a partial read: ask again with offset=39846 for what follows._

5 All. Rajendra Prasad Tripathi Vs. Hindustan Aeronautics Limited
411
not
entitled
to
compassionate
appointment under these Rules. "

7. A muster roll employee in the
likeness of daily wager and workcharge
employee is not a government servant
"within the meaning of Rule 2 (a) of the
U.P.
Recruitment
of
Dependants
of
Government Servant (Dying in Harness)
Rules, 1974

8. The law laid down by the learned
Full Bench in Pavan Kumar Yadav
(supra) shall also be applicable to muster
roll employees. The petitioner being the
son of a muster roll employee is not
entitled for appointment on compassionate
grounds in the respondent-corporation.

9. The prayer made by the learned
counsel for the petitioner for grant of
appointment on compassionate ground is
declined.

10. After the order was dictated,
Shri Sudhanshu Pratap Singh, learned
counsel for the petitioner submits that some
of the dues and entitlements of the
petitioner's late father have not been
disbursed. The same may be released to the
petitioner and other legal heirs of the
deceased employee.

11. Shri J.N. Maurya, learned
counsel for the respondent-corporation
fairly submits that any such claim of the
petitioner is liable to be processed by the
respondents in a reasonable period of time.

12. In this wake, the writ petition is
disposed
of
with
the
following
directions:-

 i) The petitioner shall submit an
application for various dues to which he
and other legal heirs claims entitlements to
the respondent No. 3.

ii) The respondent No. 3 shall
decide the aforesaid representation of the
petitioner within a period of four months
from the date of receipt of a certified copy
of this order along with a fresh copy of the
representation.
----------
(2025) 5 ILRA 411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 3653 of 2001

Rajendra Prasad Tripathi ...Petitioner
Versus
Hindustan Aeronautics Limited
 ...Respondent

Counsel for the Petitioner:
Sampurnanand
Shukla,
Abhinav
Nath
Tripathi, Amrendra Nath Tripathi, Anurag
Tyagi,
D.K.
Srivastava,
S.K.
Tripathi,
Subodh Kumar Verma, Vishal Singh

Counsel for the Respondent:
P.K. Sinha

Constitution of India, Article 226 - Certified
Standing Orders of Hindustan Aeronautics
Limited, Clauses 3, 19(ii), 26, 27 - Termination
for Unauthorized Absence - Petitioner, a
permanent
workman
(Clerk-cum-Typist),
challenged
the
termination
order
dated
26/28.02.1991 for unauthorized absence from
01.10.1990, struck off under Clause 19(ii) of the
Standing Orders, and sought reinSt.ment.
Petitioner claimed illness, sent multiple letters
via Under Postal Certificate (not registered), and
argued that termination required disciplinary
enquiry under Clauses 26 and 27, not Clause
19(ii), which was inapplicable to permanent
workmen, citing Chandu Lal vs. Pan American
World Airways. Respondent countered that
412 INDIAN LAW REPORTS ALLAHABAD SERIES
Clause 19(ii) applied to all workmen, show
cause notices were issued and received, and the
writ petition, filed in 2001, was barred by
laches, per Scooters India vs. Vijai E.VS Eldred.
The court held that Clause 19(ii) applied to the
petitioner as a workman under Clause 3, and
the management followed due process by
issuing show cause notices, complying with
natural justice, per Buckingham and Carnatic
Company vs. Venkatiah. The petitioner's reliance
on
unregistered
postal
certificates
lacked
evidentiary value, per Shiv Kumar vs. St. of
Haryana. The 10-year delay in filing the writ
petition was unexplained, rendering it barred by
laches.
Termination
was
upheld
as
abandonment, not retrenchment, requiring no
disciplinary enquiry, per National Engineering
Industries vs. Hanuman. Writ petition dismissed.
(Paras 10-24)

Writ petition dismissed.

List of Cases cited:

1. Chandu Lal vs. Management of M/s Pan
American World Airways Inc., (1985) 2 SCC
727

2. Jai Shanker vs. St. of Rajasthan, AIR 1966 SC
492

3. Deokinandan Prasad vs. St. of Bihar and
Others, (1971) 2 SCC 30

4. The St. of Assam and Others vs. Akshaya
Kumar Deb, (1975) 4 SCC 339

5. St. of U.P. and Others vs. Yamuna Prasad
Rai, 2006 SCC OnLine All 18

6. National Engineering Industries Limited,
Jaipur vs. Hanuman, AIR 1968 SC 33

7. Buckingham and Carnatic Company Limited
vs. Venkatiah & anr., AIR 1964 SC 1272

8. Bharat Heavy Electrical Limited vs. Labour
Court, U.P. at Meerut and Others, (1999) 3
UPLBEC 2098

9.
Hindustan
Paper
Corporation
vs.
Purnendu Chakrobarty and Others, (1996)
11 SCC 404
10. Scooters India and Others vs. Vijai E.VS
Eldred, (1998) 6 SCC 549

11. D.K. Yadav vs. J.M.A. Industries Limited,
(1993) 3 SCC 259

12. Rajesh Kumar vs. Hindustan Aeronautics
Limited, 1993 SCC OnLine All 883

13. Shiv Kumar and Others vs. St. of Haryana
and Others, (1994) 4 SCC 445

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This writ petition has been filed
seeking following reliefs:-

"1.
Wherefore,
it
is
most
respectfully prayed that Lordship may
kindly be pleased to allow a writ in the
nature of Certiorari quashing the order
dated 26/28.02.1991 annexed as Annexure
No.12 to the writ petition.

2.
Wherefore,
it
is
most
respectfully prayed that our Lordship may
kindly be pleased to issue a writ in the
nature of mandamus commanding the
opposite parties to allow the petitioner to
join as Clerk-cum-Typist and further your
Lordship may kindly be pleased to issue
any other writ which this Hon'ble Court
may
deem
fit
an
proper
in
the
circumstances
of the cases."

2. The facts giving rise to the
present writ petition are that petitioner was
appointed on the post of Clerk-cum-Typist
on 06.07.1982 and thereafter his services
were
confirmed
on
26.05.1983.
The
petitioner fell ill in the month of October,
1990 and he sent several letters through
Under Postal Certificate (not registered) to
opposite party no.2 informing him that he
was suffering from illness, therefore, he
should be granted leave. It is said that
petitioner has sent several letters on
5 All. Rajendra Prasad Tripathi Vs. Hindustan Aeronautics Limited
413
10.12.1990,
16.06.1992,
26.04.1994,
28.01.1997, 02.01.1999 and 12.06.2001
through Under Postal Certificate (not
registered) for necessary information. The
petitioner remained absent as he was ill and
he also submitted the fitness certificate
dated 04.02.2000 issued by the Chief
Medical Officer, Kanpur and the same was
also sent through Under Postal Certificate
(not registered). It has further stated that
petitioner had given a representation for
joining his service on 12.06.2001. When
nothing was done, the petitioner filed the
present petition on 25.07.2001. Thereafter,
by
way
of
amendment,
impugned
termination order dated 26/28.02.1991 has
been challenged.

3.
Learned
counsel
for
the
petitioner has submitted that in view of
Clause-19(ii) read with Clause-26 of the
Certified Standing Orders of Hindustan
Aeronautics Limited (for short "Standing
Orders") the answering opposite party has
to follow the procedure and the penalty for
major punishment could have been passed
only after following the due procedure by
doing a detailed enquiry. He has further
submitted that in the present case, without
initiating regular proceedings, name of the
petitioner has been struck off from the roll
of the organisation in view of Clause-19(ii)
of the Sanding Orders. It has been
submitted that Clause-3 of the Standing
Orders indicates that workmen of the
companies are classified in six categories
and the petitioner is a permanent workman.
Clause-19(i)
of
the
Standing
Orders
indicates that service of a permanent
workman may be terminated by either party
giving to the other a notice of three months
in writing or paying equivalent wage/salary
in lieu of notice, whereas Clause-19(ii) of
the Standing Orders indicates that if a
workman remains absent unauthorisedly
for more than 10 days and absents himself
beyond a period of leave originally granted
or subsequently extended, he shall be
deemed to have lost his lien on his
appointment, unless he returns.

4.
Learned
counsel
for
the
petitioner
has
further
submitted
that
management has wrongly taken resort to
Clause-19(ii) of the Standing Orders in
respect of the petitioner as the said
provision
is
pertaining
to
workman,
whereas the petitioner is a permanent
workman, therefore, the aforesaid Clause
will not be applicable in the case of the
petitioner. In support of his contention,
learned counsel for the petitioner has relied
upon the following judgements:-

 1. Chandu Lal Vs. Management
of M/s Pan American World Airways Inc.,
(1985) 2 SCC 727;
 2. Jai Shanker Vs. State of
Rajasthan, (1966) 1 SCR 825:AIR 1966
SC 492;

3. Deokinandan Prasad Vs. State
of Bihar and others, (1971) 2 SCC 30;

4. The State of Assam and others
Vs. Akshaya Kumar Deb, (1975) 4 SCC
339; and

5. Special Appeal No.18 of 2006,
State of U.P. and others Vs. Yamuna
Prasad Rai, decided on 12.01.2006.

5. On the other hand, Sri P.K.
Sinha, learned counsel for the opposite
parties has taken a preliminary objection
that writ petition is highly barred by laches
because the impugned order was issued on
26/28.02.1991, whereas the writ petition
has been filed on 25.07.2001 i.e. after more
than ten years without any plausible
explanation. Whatever reasons have been
given by the petitioner are totally untenable
for the reason that petitioner has annexed
414 INDIAN LAW REPORTS ALLAHABAD SERIES
several receipts of Under Postal Certificate,
which are totally waste papers. The
petitioner has not stated anywhere in the
writ
petition
that
any
registered
representation/document was sent to the
answering opposite party or any application
was served through proper mode in the
office of the answering opposite party. The
proof of receipt of Under Postal Certificate
is a document which cannot be relied upon
for the reason that it has no evidentiary
value. It has further been submitted that the
sanctioned letter as has been annexed as
Annexure-3 to the writ petition is not
available on record of the department. It is
also not intangible as to for what purpose
the alleged sanctioned letter was dispatched
by Under Postal Certificate on 04.0.1990
by the petitioner. The said letter does not
indicate any signature of the competent
authority nor there is any signature of Sri
H.S. Narang and Sri K.L. Nagar, Manager
(Stores) where the petitioner was working.
It appears that petitioner fabricated the
proforma without any signature of the
competent authority. Sri K.L. Nagar,
Manager (Stores) has indicated vide Letter
No.C/417/COMML.Stores/90
dated
2.10.1990 that Sri R.P. Tripathi (petitioner)
is absent from 01.10.1990 and he has not
reported on duty till date nor any
information has been received by the
department. On the basis of the report of
Sri K.L. Nagar, Manager (Stores), Sri H.S.
Narang wrote letter to the Chief Manager
(P & A) on 22.10.1990 that petitioner is
absenting from duty since 01.10.1990
without any information, as such the
petitioner has lost his lien on the post and
action to terminate his services may be
taken immediately.

6. Learned counsel for the opposite
parties has further submitted that since the
petitioner was absent from duty, the matter
went to the level of the General Manager of the
Unit. The note sheet of the office of the General
Manager indicates that petitioner did not submit
any application nor any information was sent
for his absence w.e.f. 01.10.1990. The
petitioner did not give any application for leave
in any manner. The petitioner was informed by
the Manager (Personnel) vide telegram dated
25.10.1990 that he is absenting unauthorisedly
and his services will be terminated. Chief
Manager (P & A) sent notice on 03.11.1990 to
the petitioner to show cause within eight days
as to why he is absenting from duty and in case
his explanation is not being found satisfactory,
his name will be struck off from the roll of the
organization.
Again,
the
petitioner
was
communicated vide letter dated 21.11.1990
though Registered Post for necessary action and
calling explanation, which was received by the
petitioner and copy of the acknowledgment of
the petitioner has been filed as Annexure-6 to
the counter affidavit. In spite of receiving the
letter dated 21.11.1990, the petitioner never
submitted any explanation. Thereafter, the
petitioner was communicated vide letter dated
01.12.1990 through Registered Post that he has
lost his lien in view of his unauthorised absence
from
duty
w.e.f.
01.10.1990.
All
the
communications were sent on the official
residential address of the petitioner, which was
available at the establishment section of the
department.
The
petitioner
was
again
communicated vide letter dated 20.12.1990.
However, letter dated 01.12.1990 which was
communicated to the petitioner, was returned
with the endorsement that petitioner has left the
house and gone elsewhere. When the petitioner
did not respond, finally on 26/28.02.1991 name
of the petitioner has been struck off from the
roll of the organisation along with postal
endorsement.

7. Learned counsel for the opposite
parties has further submitted that the
answering opposite party has struck off the
5 All. Rajendra Prasad Tripathi Vs. Hindustan Aeronautics Limited
415
name of the petitioner from the roll of the
organisation by resorting the provisions of
Clause-19(ii) of the Standing Orders. He
has also submitted that in Clause-3 of the
Standing Orders, it is provided that there
are six categories of workmen and
admittedly the petitioner was a workman. It
has been submitted that provisions of
Clause-19(ii) of the Standing Orders have
been discussed and upheld by this Court in
various judgments and if a workman is
absent unauthorisedly for more than ten
days, then minimum requirement is to give
show cause notice, which was adhered by
the management in the present case and
after issuing show cause notice, name of
the petitioner was struck off form the
roll of the organisation. He has also
submitted that management had choice
of
two
procedures
i.e.
either
the
management could have issued charge
sheet
by
following
the
procedure
envisaged under Clauses-26 and 27 or
the procedure prescribed under Clause19(ii) of the Standings Orders. In the
present case, the petitioner was given a
show cause notice, to which he did not
turn up, therefore, by applying the
provisions
of
Clause-19(ii)
of
the
Standing orders, his name was struck off
from the roll of the organisation. In
support
of
his
contention,
learned
counsel for the opposite parties has
relied upon the following judgments:-

 1.
National
Engineering
Industries Limited, Jaipur Vs. Hanuman,
AIR 1968 SC 33;

2. Buckingham and Carnatic
Company Limited Vs. Venkatiah and
another, AIR 1964 SC 1272;

3.
Bharat
Heavy
Electrical
Limited Vs. Labour Court, U.P. at Meerut
and others, (1999) 3 UPLBEC 2098;

4. Hindustan Paper Corporation
Vs. Purnendu Chakrobarty and others,
(1996) 11 SCC 404; and
 5. Scooters India and others Vs.
Vijai E.V. Eldred, (1998) 6 SCC 549.

8. Heard Sri Amrendra Nath
Tripathi, learned counsel for the petitioner,
Sri P.K. Sinha, learned counsel appearing
for the Hindustan Aeronautics Limited and
perused the record.

9.
Learned
counsel
for
the
petitioner has submitted that management
has adopted the provisions of Clause-19(ii)
of the Standing Orders, which is not
applicable for the reason that petitioner is a
permanent workman, therefore, Clause-26
read with Clause-27 of the Standing Orders
could
have
been
resorted
and
the
punishment could have been awarded after
following the procedure mentioned therein.
For the sake of convenience, Clause-19 of
the Standing Orders is quoted below:-

 "19.
Termination
of
Employment:

(i)
Service
of
a
permanent
workman may be terminated by either party
giving to the other a notice of three months
in writing or paying equivalent wage/salary
in lieu of notice.

(ii) If a workman remains absent
unauthorisedly for more than 10 days and
absents himself beyond a period of leave
originally
granted
or
subsequently
extended, he shall be deemed to have lost
his lien on his appointment, unless he
returns;

 (a) within eight days from the
date of his losing lien and

(b) explains to the satisfaction of
the
Manager
the
reasons
for
his
unauthorised absence.
416 INDIAN LAW REPORTS ALLAHABAD SERIES

In case a workman loses his lien
on his appointment, he shall be entitled to
be kept on "Badli List".

(iii) If a workman leaves before
the expiry of the period of notice of
termination by the company he will be paid
only for the period he actually works. If a
workman does not report for work after
giving notice of his intention to resign, or
reports for duty for a few days and stays
away without serving the full notice period,
he will be treated as a workman leaving
without notice and an amount equivalent to
his salary/wages for the unexpired period
of notice shall be recovered from his final
dues.

(iv) If a workman gives notice of
his
intention
to
resign,
the
Manger/Management
may
accept
the
resignation and release him at once or at
any time before the date of expiry of the
notice period in which case he will be paid
only for the period he actually works.

(v) The services of probationary,
temporary. substitute and casual workmen
may be terminated without giving any
notice or payment of compensation in lieu
thereof, but the services of temporary and
probationary
workman
shall
not
be
terminated as al punishment unless he has
been given an opportunity of explaining the
charges levelled against him in the manner
prescribed in clause 29 of these Standing
Orders."

10. Clauses 26 and 27 of the
Standing Orders will not be applicable in the
present case for the reason that management
had resorted the provisions of Clause-19(ii)
of the Standing Orders as the said provision is
applicable to the workmen. The petitioner is a
workman as per Clause-3 of the Standing
Orders, which comprises six categories of the
workmen. Clause-19(ii) of the Standing
Orders does not indicate that it will be
applicable for workman pertaining to any
category out of the six categories of Clause-3.

11. Learned counsel for the petitioner
has relied upon the judgement rendered in the
case of Chandu Lal (supra) particularly on
paragraph-8 of the aforesaid judgement,
which is quoted below:-

 "8. It is difficult to agree with the
finding of the Labour Court that when service
is terminated on the basis of loss of
confidence the order does not amount to one
with stigma and does not warrant a
proceeding contemplated by law preceding
termination. Want of confidence in an
employee does point out to an adverse facet
in his character as the true meaning of the
allegation is that the employee has failed to
behave up to the expected standard of
conduct which has given rise to a situation
involving loss of confidence. In any view of
the matter this amounts to a dereliction on
the part of the workman and, therefore, the
stand taken by the management that
termination for loss of confidence does not
amount to a stigma has to be repelled. In
our opinion it is not necessary to support
our conclusion by reference to precedents
or textual opinion as a common-sense
assessment of the matter is sufficient to
dispose of this aspect. 'Retrenchment' is
defined in Section 2 (oo) of the Industrial
Disputes Act and excludes termination of
service by the employer as a punishment
inflicted by way of disciplinary action. If
the termination in the instant case is held
to be grounded upon conduct attaching
stigma to the appellant, disciplinary
proceedings were necessary as a condition
precedent to infliction of termination as a
measure of punishment. Admittedly this
has not been done. Therefore, the order of
termination is vitiated in law and cannot
be sustained."
5 All. Rajendra Prasad Tripathi Vs. Hindustan Aeronautics Limited
417
12. In the aforesaid judgement, the
subject matter is loss of confidence
regarding stigma attached to the workman
and the Hon'ble Supreme Court has held
that services were terminated on the basis
of loss of confidence and termination of
service by the employer was punishment
and it was found that attaching stigma to
the appellant was certainly to be enquired
by adopting the disciplinary proceedings.
The ratio of the aforesaid case is not
applicable to the present case for the reason
that
management
has
resorted
the
provisions of Clause-19(ii) of the Standing
Orders and minimum opportunity was
provided to the petitioner by issuing show
cause notice to him.

13.
Learned
counsel
for
the
petitioner
has
also
relied
upon
the
paragraphs 13, 17 and 20 of the judgement
of the Hon'ble Supreme Court rendered in
the case of Akshaya Kumar Deb (supra)
and has submitted that in view of Article
311 (2) of the Constitution of India, the
petitioner is entitled to be heard. In the said
case, the employee/workman reported for
duty and produced a medical certificate of
fitness issued by a Civil Surgeon, but he was
not assigned the duty. He continued to attend
the office till September 13, 1956 when he
was informed that operation of the order
dated August 28, 1956 of the Government
had been suspended. In the present case, it is
admitted on record that petitioner was absent
unauthorisedly and did not report to the
management. Therefore, the management
proceeded against him in view of Clause19(ii) of the Standing Orders, which is a
statutory requirement and after following due
procedure, name of the petitioner was struck
off from the roll of the organisation.

14.
Learned
counsel
for
the
petitioner has also relied upon paragraph24 of the judgement of the Hon'ble
Supreme Court rendered in the case of
Deokinandan Prasad (supra) and has
submitted that in view of Article 311 of the
Constitution of India, the petitioner is
entitled to be heard. Paragraph-24 itself
speaks that no show cause notice was given
to the employee, whereas in the present
case, show cause notice has been issued to
the
petitioner
and
thereafter
many
reminders have been issued and thereafter
the
management
by
following
the
procedure as envisaged under Clause-19(ii)
of the Standing Orders, struck off the name
of the petitioner from the roll of the
organisation.
Therefore,
the
aforesaid
judgement is also not applicable in the
present case.

15. Hon'ble the Supreme Court in
the
case
of
National
Engineering
Industries Limited, Jaipur (supra) has held
that out of the two procedures available to
the management, one can be resorted to by
it to take action against the employee.
Paragraph 13 of the aforesaid judgement is
extracted herein below:-

 "13. It is however urged that
some difference is made by the existence of
another provision in the Standing Orders.
In Appendix 'D' of the Standing Orders one
of the Major Misdemeanours is "absence
without
permission
exceeding
ten
consecutive days." That in our opinion is
an alternative provision and the appellant
in this case was free to resort to any one of
the provisions, unless it is shown that
resort to one particular provision was due
to mala. fide. This is not the case of the
respondent here. In the circumstances the
earlier standing order in Section G must be
held to have full force and effect and
Hanuman
respondent's
service
stood
automatically terminated when he did not
418 INDIAN LAW REPORTS ALLAHABAD SERIES
appear within 8 days of the expiry of his
leave which was on April 9, 1965."

16. Hon'ble the Supreme Court in
the case of Buckingham and Carnatic
Company Limited (supra) has held that
where parties agree upon the terms and
conditions of service and they are included
in certified standing orders, the doctrine of
common law or considerations of equity
would not be relevant. Paragraph-5 of the
aforesaid judgement is extracted herein
below:-
 "5. Mr. Sastri for the appellant
contends that the case of Venkatiah falls
squarely within the provisions of Standing
Order 8(ii) and the High Court was in
error in holding that the decision of the
appellant in refusing to condone the
absence of Venkatiah was either unfair or
improper, or that it contravened the
provisions of S. 73 of the Act. Let us first
examine Standing Order No. 8(ii) before
proceeding any further. The said Standing
Order reads thus:

"Absent
without
Leave:
Any
employee who absents himself for eight
consecutive working days without Leave
shall be deemed to have left the Company's
service without notice thereby terminating
his contract of service. If he gives an
explanation to the satisfaction of the
management,
the
absence
shall
be
converted into leave without pay or
dearness allowance. Any employee leaving
the Company's service in this manner shall
have no claim for re- employment in the
Mills.

But if the absence is proved to the
satisfaction of the Management to be one
due to sickness, then such absence shall be
converted into medical leave for such
period as the employee is eligible with the
permissible allowances."

This Standing Order is a part of
the certified Standing Orders which had
been revised by an arbitration award
between the parties in 1957. The relevant
clause clearly means that if an employee
falls within the mischief of its first part, it
follows that the defaulting employee has
terminated his contract of service. The first
provision in clause (ii) proceeds on the
basis that absence for eight consecutive
days without leave will lead to the
inference that the absentee workman
intended to terminate his contract of
service. The certified Standing Orders
represent the relevant terms and conditions
of service in a statutory form and they are
binding on the parties at least as much, if
not more, as private contracts embodying
similar terms and conditions of service. It
is true that under common law an inference
that an employee has abandoned or
relinquished service is not easily drawn
unless from the length of absence and from
other
surrounding
circumstances
an
inference to that effect can be legitimately
drawn and it can be assumed that the
employee intended to abandon service.
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. But where parties
agree upon the terms & conditions of
service and they are included in certified
Standing Orders, the doctrines of common
law or considerations of equity would not
be relevant. It is then a matter of
construing
the
relevant
term
itself.
Therefore, the, first part of Standing Order
8(ii) inevitably leads to the conclusion that
if an employee is absent for eight
consecutive days without leave, he is
deemed to have terminated his contract of
service and thus relinquished or abandoned
his employment."
5 All. Rajendra Prasad Tripathi Vs. Hindustan Aeronautics Limited
419
17. In the case of Bharat Heavy
Electrical Limited (supra), this Court has
held that the cases of 'abandonment' are
different from the cases of 'termination of
service' for the reason that in the matter of
abandonment it is the sweet will of
employee, whereas in case of termination,
it is the will of the employer which is
imposed on the employee. The present case
is fit in the terminology of "abandonment"
and the same cannot be treated as
termination. Paragraphs-10, 12 and 13 of
the aforesaid judgement are extracted
herein below:-

 "10. The Supreme Court dealt
with similar standing order for the first
time in the Buckingham case, where the
Court observed, the relevant clause clearly
means that if an employee falls within the
mischief of its first part, it follows that the
defaulting employee has terminated his
contract of service. The first provision in
clause (ii) proceeds on the basis that
absence for eight consecutive days without
leave will lead to the inference that the
absentee workman intended to terminate
his contract of service. It is true that under
common law an inference that an employee
has abandoned or relinquished service is
not
easily
drawn.
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. But
where parties agree upon the terms and
conditions of service and they are included in
certified Standing Orders, the doctrines of
common law or considerations of equity
would not be relevant. It is then a matter of
construing the relevant term itself. Therefore,
the first part of Standing Order 8 (ii)
inevitably leads to the conclusion that if an
employee is absent for eight consecutive days
without leave, he is deemed to have
terminated his contract of service and thus
relinquished or abandoned his employment.
 12.
What
is
the
effect
of
abandonment? What does it mean? Black's
Law dictionary defines abandonment to
mean; Voluntary relinquishment of all right,
title, claim and possession, with the intention
of not reclaiming it. It further says that
abandonment of a public office is a species of
resignation, but differs from resignation in
that resignation is a formal relinquishment,
while
abandonment
is
a
voluntary
relinquish/Rent
through
non-user.
The
abandonment is a kind of voluntary
retirement by an employee. It comes within
the exception of sub-clause (a) of Section 2
(oo) and is not a retrenchment. Another
single Judge of this Court has also taken
similar view.

No positive action is required from
the employer side

13. Let's look at it from different
angle. Retrenchment requires some positive
action on behalf of the employer. But if
nothing is to be done by the employer and the
services are automatically terminated in
pursuance of a standing order or the action is
deemed to be taken by the employee, then
there cannot be any retrenchment. The
Supreme Court in the Buckingham case,
while dealing whether there was any
violation of Section 73 of the Employees State
insurance Act held, where termination of the
employee's services follows automatically
either from a contract or from a standing
order by virtue of the employee's absence
without leave for the specified period, such
termination is not the result of any positive
act or order on the part of the employer, and
so, to such a termination the prohibition
contained in Section 73(1) would be
inapplicable."

18. Hon'ble Supreme Court in the
case of Hindustan Paper Corporation
420 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) in paragraph-12 of the judgment
has held that before taking action under the
said clause, opportunity should be given to
the employee to show cause against the
action proposed and if cause shown by the
employee is good and acceptable, it follows
that no action in terms of the said clause is
to be taken. Thus, the law has been settled
by the Hon'ble Supreme Court since 1964
from the case of Buckingham and
Carnatic
Company
Limited
(supra),
wherein it is provided that in case of loss of
lien, it has fossilised to the effect that
though
the
principles
of
equity
considerations are not applicable in the
case of specific Certified Standing Order
where
parties
have
agreed
to
the
terms/contract to the end point that
compliance of the principles of natural
justice is required to be followed. As such,
in view of the law laid down by the
Hon'b101le Supreme Court in the present
case, at least a notice has to be given to the
employee towards compliance of the
principles of natural justice though no
regular
disciplinary
enquiry
may
be
required even if the same is provided in the
service rules, which procedure has been
adopted and complied with in the present
case. Paragraphs-11 and 12 of the aforesaid
judgement are extracted herein below:-

"11.
Mr. P.P.
Rao,
Senior
Counsel appearing for the appellantCorporation fairly, in our view rightly,
conceded that the Rule, namely, Rule 23
(iv)(E) has to be construed by reading into
it
the
principles
of
natural
justice,
otherwise by reading it literally, it would
amount to arbitrary and unreasonable
vesting of authority and liable to be struck
down. According to the learned counsel, if
only the first respondent had properly
responded to the show-cause notice the
Corporation might not have taken the
extreme step of cutting off the lien of the
appointment of the first respondent with the
Corporation.

12. We consider that in view of
this concession made by the learned
counsel on behalf of the appellantCorporation 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 is either unreasonable or violative
of Article 16 of the Constitution."

19. Hon'ble Supreme Court while
laying down the law on the issue in
question,
has
also
considered
the
judgement rendered in the case of D.K.
Yadav Vs. J.M.A. Industries Limited,
(1993) 3 SCC 259 and other cases of
similar nature and has observed that
appellant-Corporation was right in passing
the order by taking the resort of giving
show cause and passing the order for
strucking off the name of an employee and
also observed that no disciplinary enquiry
was required for the same.

20. The issue of following the
minimum principles of natural justice was
considered by this Court in Writ Petition
No.883 (SS) of 1993, Rajesh Kumar Vs.
Hindustan Aeronautics Limited, decided on
06.04.1993, in which it was held that the
Standing Orders of Hindustan Aeronautics
Limited issued regarding loss of lien is
violative of principles of natural justice,
arbitrary and discriminatory and hit by
5 All. Rajendra Prasad Tripathi Vs. Hindustan Aeronautics Limited
421
Section 23 of the Indian Contract Act. The
said judgement of learned Single Judge was
challenged by way of Special Appeal
No.87 of 1993 and this Court allowed the
special appeal by observing that the
Standing Orders cannot be said to be bad in
the eyes of law and while making it
applicability, the principles of natural
justice have to be followed. Relevant
portion of the judgement passed in the
aforesaid special appeal is quoted below:-

"The aforesaid Standing Orders,
therefore, cannot be said to be bad in law
but while making its applicability, the
principles of natural justice have to be
followed.

The argument of the learned
counsel for the respondent is that the notice
was issued to the respondent does not flow
from the order itself, which simply quotes
the aforesaid Para and terminates the
services of the respondent. The finding
recorded in this regard by the learned
Single Judge does not call for any
interference.

On merits of the claim, we may
also put on record that the respondent, who
remained absent for less than one month
and had been serving in the industry since
1975 and has also been allowed to continue
by an interim order of this court is likely to
reach the age of superannuation and,
therefore, also we do not find any reason to
interfere with the order passed by the
learned Single Judge.

Subject to the aforesaid finding
with respect to Para 21(ii) of the Certified
Standing Orders, the rest of the judgment
passed by the learned Single Judge is
upheld. The special appeal has no force,
which is hereby dismissed."

21.
Learned
counsel
for
the
petitioner by placing reliance on various
case laws tried to justify that petitioner had
sent various representations on 10.12.1990,
16.06.1992,
26.04.1994,
28.01.1997,
02.01.1999 and 12.06.2001 through Under
Postal
Certificate
(not
registered)
to
espouse his cause to the competent
authority for his absence from duty. This
approach of the petitioner cannot be
appreciated as neither registered document
was sent to the answering opposite party
nor any application was served through
proper mode in the office of the answering
opposite party. The proof of receipt of
Under Postal Certificate is a document
which cannot be relied upon and no
reliance can be paced on such document as
it has no evidentiary value as has been held
by the Hon'be Supreme Court in the case
of Shiv Kumar and others Vs. State of
Haryana and others, (1994) 4 SCC 445.

22. Hon'ble Supreme Court in the
case of Shiv Kumar and others (supra) in
paragraph-6 of the judgement has clearly
disbelieved the postal certificate produced
before it and found that it is not difficult to
get such postal seals at any point of time.
As such the postal certificate is not a
reliable means of dispatching the medical
certificate particularly when none of them
have been received by the department.
Paragraph-6 of the aforesaid judgement is
extracted herein below:-

 "6. We have not felt safe to
decide the controversy at hand on the basis
of the certificates produced before us, as it
is not difficult to get such postal seals at
any point of time. To assure our mind that
the notices had really been sent out to the
concerned workmen, we perused the
application which had been filed by the
management seeking permission. We did so
because Rule 76A (2) requires that the
application shall be made in triplicate and
422 INDIAN LAW REPORTS ALLAHABAD SERIES
copies of the same shall be served by the
employer on the workmen concerned and
"proof to that effect shall also be submitted
by
the
employer
along
with
the
application." But the application (Annexure
A) has not mentioned anything about
"proof
of
service
to
the
workmen
concerned. The statement in the counteraffidavit that proof of service had been
submitted to the Specified Authority has not
satisfied our mind in this regard."

23. So far the question of laches in
filing the writ petition is concerned, it is the
admitted position that writ petition was
filed on 25.07.2001, whereas the impugned
termination
order
was
passed
on
26/28.02.1991, thus the writ petition is
highly belated and suffers from laches. No
plausible explanation has come forward
from the petitioner for such a long and
inordinate delay in filing the writ petition.
Hon'ble Supreme Court in the case of
Scooters India and others (supra) has
considered the issue of laches in filing the
writ petition and directly entertaining the
writ petition for adjudication of industrial
dispute involving the termination of service
passed on disputed question of facts. The
question of delay has been considered in
the aforesaid case and six years delay in
filing the writ petition has ben deprecated
by the Hon'ble Supreme Court. Paragraph2 of the aforesaid judgement is extracted
herein below:-

"2. The above facts alone are
sufficient to indicate that there was no
occasion for the High Court to entertain the
writ petition directly for adjudication of an
industrial dispute involving the termination of
disputed questions of fact for which remedy
under the industrial laws was available to the
workman. That apart, the writ petition was
filed more than 6 years after the date on
which the cause of action is said to have
arisen and there being no cogent explanation
for the delay, the writ petition should have
been dismissed on the ground of laches
alone. It is also extraordinary for the High
Court to have held Clause 9.3.12 of the
standing orders as invalid. Learned counsel
for the respondent rightly made no attempt to
support this part of the High Court's order. In
view of the fact that we are setting aside the
High Court's judgment, we need not deal with
this aspect in detail."

24.