# Vibhushit Singh v. N.T.P.C. Ltd. & Ors

- **Citation:** (2023) 11 ILRA 835
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 9538 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vibhushit-singh-v-n-t-p-c-ltd-ors-49423
- **Pages:** 12

## Headnote

A. Service Law - National Thermal Power
Corporation Service Rules - Rule 24.9 -
Conduct, Discipline and Appeal Rules,
1977 - Rule 26(2)(vi)(e) - Termination of
service by abandonment - Charge of
unauthorized absence - Study leave for
two
years
was
sanctioned
as
leave
without pay - Petitioner was unable to
complete the course successfully, though
he reported back to join before expiry of
leave - Effect - Instead of giving joining,
the respondent started to conduct enquiry
836 INDIAN LAW REPORTS ALLAHABAD SERIES
- Petitioner's name was struck off the roll
of NTPC - Validity challenged - Held, it is
not a case where the petitioner completed
the course of study and failed to earn his
degree. It is a case where he abandoned
the course - It would not constitute
unauthorized
absence
from
duty
or
overstaying the sanctioned leave within
the meaning of Rule 24.9 of the NTPC
Service Rules r/w Rule 26(2)(vi)(e) of the
CDA Rules. Therefore the decision by the
respondents to consider the petitioner's
services
as
abandoned
cannot
be
countenanced. (Para 28 )
Writ petition allowed. (E-1)
List of Cases cited:

## Text

_Characters 0–39,812 of 40,244. This is a partial read: ask again with offset=39812 for what follows._

11 All. Vibhushit Singh Vs. N.T.P.C. Ltd. & Ors.
835
rules applicable at the relevant point of
time to the employer's establishment.

24. The learned Counsel for the
petitioner has placed reliance on the
decision of a learned Singal Judge of this
Court in Smt. Neelam Singh and another
v. Union of India through Ministry of
Finance and others, 2020 (12) ADJ 227.
He has particularly drawn the Court's
attention to the following remarks in
Neelam Singh (supra):

"13. It is also pertinent to note
that 2005 Scheme provides only for
exgratia payment in lieu of compassionate
appointment, which stands superseded by
the Scheme of 2014 which has revived the
scheme
providing
for
compassionate
appointment. Thus, I find that after policy
decision dated 05.04.2014 taken by Bank
of India in respect of compassionate
appointment, the case of the petitioners can
be considered in light of the letter dated
05.04.2014 issued by Government of
India."

25. The report of the decision in Smt.
Neelam Singh does not at all show that it
was brought to the notice of the Court that
the
Scheme
for
Compassionate
Appointment in Public Sector Banks
proposed by the Government of India to be
adopted in each Bank was in fact a model
scheme and that in the State Bank of India,
it was accepted by the Board of Directors,
subject to modifications and adhering to the
system of two Schemes, one offering
compassionate appointment in exceptional
circumstances and the other ex gratia lump
sum payment, where otherwise a case for
compassionate appointment was made out.
The decision in Smt. Neelam Singh,
therefore, must be held sub silentio on the
issue in hand. It is, therefore, of no
assistance to the petitioner either. Since, it
is an admitted case that the petitioner's
father is not covered by the exceptional
circumstances envisaged under the 'SBI
Scheme for Compassionate Appointment in
Exceptional Circumstances', this Court
does not find any infirmity with the order
impugned.

26. In the result, this petition fails and
is dismissed.

27. There shall be no order as to costs.
----------
(2023) 11 ILRA 835
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 9538 of 2023

Vibhushit Singh ...Petitioner
Versus
N.T.P.C. Ltd. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Mohammad Atif, Sri
Ashok Khare (Sr. Adv.)

Counsel for the Respondents:
Sri Naresh Chandra Nishad, Sri Hanuman
Prasad Dube, Sri Ravi Kant (Sr. Adv.)

A. Service Law - National Thermal Power
Corporation Service Rules - Rule 24.9 -
Conduct, Discipline and Appeal Rules,
1977 - Rule 26(2)(vi)(e) - Termination of
service by abandonment - Charge of
unauthorized absence - Study leave for
two
years
was
sanctioned
as
leave
without pay - Petitioner was unable to
complete the course successfully, though
he reported back to join before expiry of
leave - Effect - Instead of giving joining,
the respondent started to conduct enquiry
836 INDIAN LAW REPORTS ALLAHABAD SERIES
- Petitioner's name was struck off the roll
of NTPC - Validity challenged - Held, it is
not a case where the petitioner completed
the course of study and failed to earn his
degree. It is a case where he abandoned
the course - It would not constitute
unauthorized
absence
from
duty
or
overstaying the sanctioned leave within
the meaning of Rule 24.9 of the NTPC
Service Rules r/w Rule 26(2)(vi)(e) of the
CDA Rules. Therefore the decision by the
respondents to consider the petitioner's
services
as
abandoned
cannot
be
countenanced. (Para 28 )
Writ petition allowed. (E-1)
List of Cases cited:
1. V.C., Banaras Hindu University & ors. Vs
Shrikant; (2006) 11 SCC 42
2. M.P. Joseph Vs U.O.I. & ors. ; 2013 Lab. I.C.
2790
3. Vijay S. Sathaye Vs Indian Airlines Ltd. & ors.
; (2013) 10 SCC 253
4. Buckingham and Carnatic Co. Ltd. Vs
Venkatiah & anr.; AIR 1964 SC 1272

(Delivered by Hon'ble J.J. Munir, J.)

Does
the
unreported
abandonment of a course of study by an
employee, who was sanctioned study leave
for a specified period of time, entitle the
employer to treat the period of sanctioned
leave unauthorized absence from duty,
leading to abandonment of service?

This question has arisen in the
context of Rule 24.9 of the National
Thermal Power Corporation Service Rules
read with Rule 26(2)(vi)(e) of the Conduct,
Discipline
and
Appeal
Rules,
1977
applicable to the National Thermal Power
Corporation1. How the above referred
question has arisen would shortly appear
from facts giving rise to this writ petition.

2. The NTPC is a public sector
undertaking of the Central Government. It
is incorporated as a
public
limited
company. According to the petitioner, it is
classified as a "Maharatna" central public
sector undertaking, possessing a certain
degree of financial freedom. One of the
projects of the NTPC is Rihand Super
Thermal Power Project, Rihand Nagar,
District Sonbhadra. The petitioner applied
for consideration of his candidature in the
recruitment of Executive Trainee (ET2012). He participated in the various stages
of selection and finally stood selected. In
consequence of the selection, an offer of
appointment dated 13.07.2012 was made
by the Manager, Human Resource Centre
of the NTPC. If accepted by the petitioner,
the offer required him to undergo the
formalities
specified.
The
petitioner
completed those formalities in response to
the offer of appointment dated 13.07.2012
on the 21st of August, 2012. The Manager,
Human Resource Centre issued a letter of
appointment dated 21st August, 2012,
saying that subject to the petitioner
successfully completing the training, he
would
be
posted
to
one
of
the
projects/stations of the NTPC, based on his
performance
during
training,
assessed
periodically. The petitioner, it goes without
saying, completed the training successfully
and was posted at the Rihand Super
Thermal Power Project, Rihand Nagar,
Sonbhadra.

3. After serving the NTPC for some
years, the petitioner secured admission to
the Master of Technology2 Course. He then
applied for sanction of study leave for a
period of two years in order to enable him
to pursue the full-time course of M.Tech. at
the Krishna Institute of Engineering and
Technology3, Ghaziabad. The petitioner's
application was considered and sanctioned
11 All. Vibhushit Singh Vs. N.T.P.C. Ltd. & Ors.
837
vide an order dated 17.06.2017, issued by
the Senior Manager, Human Resource. He
was
sanctioned
study
leave
from
19.06.2017 to 18.06.2019. The study leave
was sanctioned on condition that the
petitioner would not be entitled to any pay
or allowances during the period of leave.
The conditions carried in the order dated
17.06.2017, sanctioning study leave to the
petitioner, read :

• He shall execute a service
agreement bond to serve the Company for a
minimum period of three years after
completion of the study leave or to pay to
the company Rs. 50,000/- in case of
default.

• He will not be entitled to any
pay or allowances during the period of
study leave and he will not accept any
part/full time employment, scholarship,
honorarium or any other payment during
this period without prior approval of the
Competent Authority.

• He will be entitled to the
benefits of the continuity of service for
CPF and Gratuity and if he chooses to
contribute to his provident fund account
during study leave period. the Company
will make a matching contribution as per
rules framed from time to time.

• During the study leave period,
he shall not be considered for promotion.
However, the period will count for
eligibility for promotion only if he
successfully completes his study. He will
be considered for promotion as per the
Company policy after rejoining duties on
expiry of study leave. The duration of
Study Leave availed without completing
the study will not be reckoned for purpos of
eligibility for promotion or for earning
increments. He will also not be eligible for
grant of study leave again.

• The Study Leave period will not
be considered for the purpose of earning
any kind of leave.

• He shall vacate the company
accommodation provided to him within
stipulated time period, failing which market
rent will be charged.

• He shall also be covered by any
other rules in respect of study leave as
framed by NTPC from time to time.

4. The petitioner took admission at
the KIET, Ghaziabad in the M.Tech.,
Electrical & Electronics Course in the first
year of the Academic Session 2017-18. The
petitioner pursued his studies in the first
semester of the course. The petitioner says
that
on
account
of
his
"personal
circumstances" he could not appear in the
examination at the end of the first semester.
During this period of time, the petitioner
married on 18.04.2018. The parties are ad
idem that the petitioner was unable to
complete the course successfully, that
would have led to award of the degree of
M.Tech. On the 17th of June, 2019, that is
to say, well within time before expiry of
leave, the petitioner reported back to duty.
He submitted his joining report to the
respondents, but not permitted to join. The
petitioner stayed back at District Sonbhadra
for about a month. During this period of
time, the petitioner made abortive attempts
to join duties, but not permitted. He
returned to his hometown, awaiting further
orders
from
the
respondents.
The
respondents constituted a three-member
committee headed by the General Manager
(O & M) with an Assistant General
Manager,
Human
Resource
and
the
838 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant General Manager (MTP) as its
members, for the purpose of holding an
inquiry into the petitioner's 'unauthorized
absence'.
The
petitioner
was
finally
required to appear before the committee
last mentioned on 20th September, 2019,
which he did. It is the petitioner's case that
certain questions were put to him, which he
answered. His answers were recorded. The
Committee submitted a report to the
respondents, recommending that the period
of the petitioner's study leave be treated as
unauthorized absence under Rule 24.9 of
the
NTPC
Rules
read
with
Rule
26(2)(vi)(e) of the Conduct, Discipline and
Appeal Rules, 19774. Both these Rules
appear to have been amended by Corporate
Personnel Circular No. 415/99 dated
13.05.1999
issued
by
the
Corporate
Circular Personnel Division of the NTPC.
The petitioner says that a copy of the
inquiry report was not supplied to the
petitioner, when it was made. It was at a
subsequent stage that the said inquiry
report was supplied to the petitioner, upon
an application made for the purpose under
the Right to Information Act, 2005. The
report was supplied to the petitioner, under
the Act last mentioned, through a memo
dated 1st April, 2021.

5. Much before a copy of the inquiry
report was supplied to the petitioner, the
impugned order dated 31.03.2020 came to
be passed by the Senior Manager (HR-EB)
Rihand Super Thermal Power Project,
Sonbhadra, holding that based on the
recommendations of the committee and
approval of the competent authority, the
period of leave shall be treated as
unauthorized absence, and, in consequence,
the petitioner held to have abandoned
service. The petitioner's lien was declared
to be lost on the post held by him. The
aforesaid order was passed in the exercise
of powers under Rule 24.9 of the NTPC
Rules read with Rule 26(2)(vi)(e) of the
CDA Rules, directing that the petitioner's
name be struck off the rolls of NTPC with
effect from 17.09.2017, afternoon. The
period of unauthorized absence from
19.06.2017 to 17.06.2019 was directed to
be treated as dies non.

6. The petitioner preferred an appeal
under Rule 32(i) of the CDA Rules,
challenging the order dated 31.03.2020 to
the competent authority, but the appeal was
dismissed both as not maintainable and on
merits vide order dated 03.03.2023.

7. Aggrieved by the orders dated
31.03.2020 and 03.03.2023, the petitioner
has instituted this writ petition under
Article 226 of the Constitution.

8. In the writ petition, it is the
petitioner's case that unauthorized absence
has a specific connotation under Rule 24.9
of the NTPC Rules, which postulates
unauthorized absence from duty or work,
either without sanction of leave or after the
expiry of sanctioned leave. The absence
from duty for any reason, in either of the
two eventualities, is for a period of 90
consecutive days or more. It is only then
that the consequence of the employee
automatically losing lien on the post
attaches,
resulting
in
the
voluntary
abandonment of service. It is pleaded on
behalf of the petitioner that the petitioner
proceeded on duly sanctioned study leave,
and,
merely
because
he
could
not
successfully complete his course of study,
the consequences envisaged under Rule
24.9 of the NTPC Rules would not attach.
For the same reason, the consequences
envisaged under Rule 26(2)(vi)(e) of the
CDA Rules would also not be attracted.
The case of the petitioner pleaded is that
11 All. Vibhushit Singh Vs. N.T.P.C. Ltd. & Ors.
839
the consequences would be governed by
Paragraph No. 2.6 (iv) of the NTPC
Scheme of Facilities for Higher Studies,
which provides that in case the employee
fails to complete the course of study
satisfactorily, rejoining the services of the
company will require specific approval of
the Director, Human Resource.

9. A counter affidavit has been filed
on behalf of the NTPC, respondent No. 1
being the NTPC represented by its
Chairman and the other three respondents
being its officers of varied rank.

10. The stand taken by the NTPC in
the counter affidavit is that the petitioner
never intimated the management at any
stage that he did not appear in any of the
papers of the first semester examination of
the M.Tech. Course and had discontinued
his course of study. The petitioner had been
sanctioned study leave for the purpose of
enabling him to complete the course. The
stand of the respondents is that study leave
having been granted to the petitioner under
the leave rules for a particular purpose, the
purpose having been abandoned by the
petitioner, he would no longer be entitled to
the leave sanctioned. It was then incumbent
upon the petitioner to have intimated the
NTPC regarding discontinuance of his
course of study. It is the respondent's case
that the petitioner deliberately concealed
material facts regarding discontinuation of
his studies, nor did he post the NTPC with
developments in this regard up to the date
of reporting for duty, upon completion of
the study leave on 17.06.2019. The
management say that the petitioner has
played fraud on them.

11. In the rejoinder affidavit, the
aforesaid contention has been disputed by
the petitioner, with the material facts
pleaded in paragraph No. 6, that reads :

6. ....The fact that the petitioner
could not appear in all the papers of the
first semester examination is not disputed.
However it is incorrect to assert that
intimation of such fact had not been given
by the petitioner to the authority. It is
specifically stated that during the period the
petitioner was on leave the petitioner had
specifically intimated the authority on
telephone with regard to his existing
position on which the petitioner was
intimated that he should report for joining
after expiry of period of leave. The order
sanctioning the study leave itself also
specify the consequences of failure to
complete the study during the leave period.
There existed no indication of the petitioner
being treated during this period as being on
unauthorized absence. It is false to aver that
the petitioner made any concealment of fact
or played any fraud on the management.
Both
the
allegations
of
fraud
and
concealment are allegations of misconduct
requiring the same to be established during
the
course
of
regular
disciplinary
proceedings.

12. Heard Mr. Ashok Khare, learned
Senior
Advocate
assisted
by
Mr.
Mohammad Atif, learned Counsel for the
petitioner and Mr. Ravi Kant, learned
Senior Advocate assisted by Mr. Hanuman
Prasad Dube, learned Counsel on behalf of
the respondents.

13. This Court has keenly considered
the matter and perused the record as well as
the rules relevant to the issue. There is no
issue about the fact that the petitioner is a
permanent employee and his services can
be terminated in one or the other
eventualities, as they are called, provided
840 INDIAN LAW REPORTS ALLAHABAD SERIES
for by Clauses (a) to (h) of sub-Rule (1) of
Rule 24 of the NTPC Rules. Unauthorized
absence is one of the contemplated
contingencies,
which
may
lead
to
termination of an employee's services.
Unauthorized absence is a particular and
special eventuality, which entitles the
employer to treat the employee as having
abandoned service. It is not one of the usual
modes by which the employer may
dispense with the services of an employee.
Normally, unauthorized absence from duty
is a misconduct, upon which, disciplinary
action against the employee concerned may
follow. It is only in cases where for a
particularly long period of unauthorized
absence that rules provide for abandonment
can the employer, upon strict compliance
with the conditions of the rule, infer
abandonment. In those cases also, the
Courts insist on opportunity to be given to
the employee, whose services the employer
proposes to treat as abandoned. Therefore,
the
most
important
question
to
be
determined in this case is whether Rule
24.9 of the NTPC Rules can, at all, be
invoked to treat the petitioner as an
employee abandoning his services.

14. To the understanding of the Court,
the mode of termination of service by
abandonment being a special provision,
very different from the normal modes
where the services of an employee may be
terminated for misconduct, after following
the procedure prescribed, the rule can be
invoked only if the conditions thereof are
strictly satisfied. Said differently, the rule
has to be strictly construed in favour of
the employee with burden upon the
employer to show that the employee's
act, indeed, falls in the teeth of the rule
and the conditions of the rule to be
applied have been strictly followed by the
employer.

15. The foremost condition to attract
the rule, as evident from a bare reading of
Rule 24.9 of the NTPC Rules, is
'unauthorized absence from duty or place
of work, without sanction of any leave' or
'not reporting for duty after expiry of the
sanctioned
leave
for
any
reason
whatsoever'. The next condition is that the
absence in either contingency, whether it be
unauthorized absence without leave or
overstaying
leave,
should
be
for
a
consecutive period of 90 days. When both
these conditions are satisfied, the Rule
authorizes the employer to treat the
employee as having lost his lien on the post
and deemed to have voluntarily abandoned
service without notice. The employee's
rights are safeguarded by the proviso which
says that upon reporting for duty within 90
days from the date of the termination order,
if the employee explains the cause for his
absence to the entire satisfaction of the
management,
the
management
may
regularize the unauthorized absence on
terms and conditions considered fit.

16. This Court, in the facts of the
present case, does not intend to go into the
validity
of
the
rule
that
confines
opportunity to account for unauthorized
absence within 90 days of the termination
of service, because we think that the said
question does not, indeed, arise in this case.
Here, to the understanding of this Court,
either of the two fundamental conditions
for the invocation of the rule does not arise.
It is not a case where the petitioner has
unauthorizedly absented from duty, for
reason that admittedly, he proceeded on
study leave for two years, which was
granted under the rules as leave without
pay.

17. The second condition is not
fulfilled, because the petitioner did report
11 All. Vibhushit Singh Vs. N.T.P.C. Ltd. & Ors.
841
for duty on the expiry of two years, which
he says he did on 17.06.2019, but was not
allowed to join. His date of reporting for
duty is not in issue. Therefore, there is,
strictly speaking, no case of overstaying
leave either.

18. The issue, which the respondents
raise, is that leave was granted for a
particular purpose, that is to say, to
complete his M.Tech. Course, and the
petitioner having abandoned that purpose
even before he appeared for his end
semester examination of the first semester,
he forfeited his leave. The respondents say
that having abandoned the course before
the end semester examination of the first
semester, it was incumbent upon the
petitioner to have intimated the respondents
regarding the discontinuance of his studies.
The respondents, therefore, say that the
study leave of two years, that was validly
granted, turned into unauthorized absence
the moment the petitioner abandoned the
purpose for which leave was granted. The
respondents also say that it amounts to
playing fraud on the management, making
the sanctioned leave turn into unauthorized
absence, within the meaning of Rule 24(9)
of the NTPC Rules.

19. As already remarked, the rule as
to abandonment of employment under the
NTPC Rules, like any other similar rule,
has to be strictly construed. No doubt the
petitioner
did
act
unauthorizedly
in
abandoning his course of study while being
on study leave and not intimating the
management
about
it,
followed
by
reporting for duty at the end of the period
of leave. But, construing the rule strictly in
favour of the employee, it does not satisfy
the second condition where the rule may be
invoked i.e. not joining duty after expiry of
leave within the period of 90 consecutive
days. The first part of the Rule about
absence from duty without leave is not
involved here at all. The petitioner was
sanctioned study leave for a period of two
years and did join on schedule. The fact
that he did not pursue his course of study
for which the leave was sanctioned, which
was a special leave and without pay, may
have rendered the petitioner liable for
disciplinary action, but that is not the case
here. In the opinion of this Court, the
sweep of the rule cannot be expanded to
cover cases which may logically or through
process of reasoning be regarded as
unauthorized absence. The rule can be
invoked, where there is a case of actual
unauthorized absence for the specified
period of time without sanctioned leave or
overstaying leave beyond the sanctioned
time for the specified period.

20. The Authorities that were cited at
the Bar on both sides do not specifically
bear on the question that arises here,
though they generally are good guidance on
principles relating to abandonment of
employment, where rules provide for it.
The decision of the Supreme Court in V.C.,
Banaras Hindu University and others v.
Shrikant5 on which, much reliance has
been placed by Mr. Ashok Khare, was a
case where the employee, a Lecturer in
Ophthalmology at the Institute of Medical
Sciences,
Banaras
Hindu
University,
applied for different categories of leave
with effect from 01.03.2000 to 30.06.2000,
enabling him to accompany his wife to the
United Kingdom on a Commonwealth
Fellowship and also attend a Retina
Meeting from 07.04.2000 to 09.04.2000 at
Frankfurt, Germany as well as the Annual
Congress
of
Royal
College
of
Ophthalmology at Harrowgate, United
Kingdom from 23.05.2000 to 24.05.2000.
The leave was recommended by the Head
842 INDIAN LAW REPORTS ALLAHABAD SERIES
of Department, but not sanctioned by the
Vice Chancellor. The employee left for the
United Kingdom without sanction of leave
and
without
the
Vice
Chancellor's
permission. He was asked to join his duties
by
the
Registrar
vide
notice
dated
24.03.2000, with a further direction to
show cause why action be not taken against
him for misconduct. The employee said he
received the letter on or about 31.03.2000,
which he answered on 12.04.2000. The
University, by an order dated 18.04.2000,
asked the employee to submit his reply by
05.05.2000, failing which, he would be
deemed to have abandoned service with
effect from 01.03.2000. By another notice
dated 04.05.2000, the employee was asked
to join his duty by 17.05.2000 on ground
that his earlier reply has not been found
satisfactory. It was also mentioned in this
notice that he would be deemed to have
abandoned his service with effect from
01.03.2000 if he did not respond to the last
notice on ground that he had failed to
comply with the orders, requiring him to
report back. The services of the employee
were terminated by the Vice-Chancellor
with effect from 01.03.2000.

21. Apart from other issues on which
Shrikant (supra) is an authority, including
the Vice-Chancellor's jurisdiction to pass
that kind of an order, which was held to be
exclusively
the
Executive
Council's
province, the most relevant fact is that
Shrikant was, after all, a case where the
employee had left his duties, left the station
as also the Indian shores without sanction
of leave by the competent authority. Action
was taken in terms of the relevant
ordinance of the University, providing for
abandonment of employment in case of
unauthorized absence from duty. Therefore,
the authority in Shrikant is about a case
where an employee did go away from his
duty, without sanction of leave by the
competent authority and refused to join
back, when given a certain time to do so. It
is another matter that the determination of
employment on other premise was held bad
in that case, but, the authority does not, at
all, deal with the issue that arises here, that
we have noticed and dwelt upon in ample
measure hereinbefore.

22. Reliance on behalf of the
respondents is placed by Mr. Ravi Kant,
learned Senior Advocate on a decision of
the Kerala High Court in M.P. Joseph v.
Union of India and others6. This was a
case where the services of an officer of the
Indian Administrative Services were held
abandoned and a deemed resignation
inferred under Rule 7(2) of 21(f) of the All
India Services (Leave) Rules, 19557. In the
said case, the employee had been deputed
on foreign assignment to a project of the
International Labour Organization. After
the period of deputation was over, he
joined back for a day and then left post,
after
putting
in
an
application
for
extraordinary leave for four years. The
leave application was rejected and repeat
directions issued to the officer to join back
his duties. Besides these steps, disciplinary
proceedings were initiated for unauthorized
absence
to
take
up
remunerative
assignment and failing to report for duty.
He
unauthorizedly
absented
for
a
continuous period of five years. He was
given an opportunity to explain his
absence, as provided in the Note to Rule
7(2) of the Rules of 1955 and held deemed
to have resigned in accordance with the
Rules aforesaid. As the report of the
decision
would
show,
the
officer
challenged the order of his deemed
resignation as well as Rule 7(2) of the
Rules of 1955 as ultra vires before the
11 All. Vibhushit Singh Vs. N.T.P.C. Ltd. & Ors.
843
Central Administrative Tribunal. Failing
there, he petitioned the High Court.

23. It appears that disciplinary
proceedings were initiated, but noticing
that there was continuous absence of more
than five years, Rule 7(2) was invoked to
declare the officer's deemed resignation.
The decision of the Government under the
Rule was upheld as also the vires of Rule
7(2). This decision, too, hardly bears on the
point, because it was, on facts, a case of the
officer leaving his post unauthorizedly and
staying away for a period of five years,
without sanctioned leave. The point here is
very different, as already indicated.

24. In Vijay S. Sathaye v. Indian
Airlines Limited and others8, the issue
arose in the context of the Deputy Manager
(Operations)
of
the
erstwhile
Indian
Airlines, seeking voluntary retirement. The
employee, in the said case, submitted an
application
on
07.11.1994,
seeking
voluntary retirement with effect from
12.11.1994. The petitioner was informed
vide letter dated 11.11.1994 that he should
continue in service till such time a decision
is taken. However, the officer did not
attend duty on 12.11.1994. He joined a
certain Blue Dart Limited, and did not go
back to his employers to work on
12.11.1994. Since there was no response
from the Indian Airlines, he filed a writ
petition before the High Court for a
mandamus, directing the Airlines to accept
his application for voluntary retirement.
Pending the said petition, the employee was
informed that his application had been
rejected. The employee then challenged the
order rejecting his application for voluntary
retirement. Pending the said writ petition,
the
employee
attained
the
age
of
superannuation. The High Court dismissed
the petition. The employee petitioned the
Supreme Court seeking Special Leave to
Appeal. Upholding the High Court, an
inference of abandonment from service was
drawn. It was observed in Vijay S. Sathaye
(supra) :

11. Even otherwise, the petitioner
was asked to continue in service till the
decision is taken on his application.
However, he did not attend the office of
the respondents after 12-11-1994. In view
of the above, as the petitioner had
voluntarily abandoned the services of the
respondents, there was no requirement on
the part of the respondents to pass any
order whatsoever on his application and it
is
a
clear-cut
case
of
voluntary
abandonment of service and the petitions
are liable to be dismissed.

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."
844 INDIAN LAW REPORTS ALLAHABAD SERIES

(See also Shahoodul Haque v.
Registrar, Coop. Societies [(1975) 3 SCC
108].)

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. In Buckingham and Carnatic
Co. Ltd. v. Venkatiah [AIR 1964 SC 1272]
, while dealing with a similar case, this
Court observed : (AIR p. 1275, para 5)

"5.
...
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."

A
similar
view
has
been
reiterated in G.T. Lad v. Chemical and
Fibres of India Ltd. [(1979) 1 SCC 590 :
1979 SCC (L&S) 76 : AIR 1979 SC 582]

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].

25. The decision in Vijay S. Sathaye
turns on the principle that absence for a
very
long
period
may
amount
to
abandonment of service, and, in that
eventuality, the relationship of employer
and employee comes to a terminus
automatically, without an order by the
employer. Apparently, in Vijay S. Sathaye,
there was no order declaring the petitioner
to have abandoned the post. Therefore, the
general principle regarding abandonment
was stated without reference to any
provision governing abandonment. Long
absence from the employer's establishment
was held to give rise to an inference about
abandonment.

26. One of the Authorities noticed in
Vijay S. Sathaye is Buckingham and
Carnatic Co. Ltd. v. Venkatiah and
another9. The case before the Supreme
Court in Buckingham (supra) arose out of
an award of the Labour Court, where the
employer had refused to take back the
workman
in
service.
The
workman
proceeded on six days' leave starting from
10.01.1957,
which,
after
taking
into
consideration the intervening holidays,
expired on 18.01.1957. He did not report
for duty on 19.01.1957 according to the
employers, but remained absent without
leave
and
without
sending
any
communication seeking extension of leave.
He sent a letter on 11.03.1957, saying that
after reaching his village, he had suffered
from fever and dysentery and treated by the
Civil Assistant Surgeon. The letter was
11 All. Vibhushit Singh Vs. N.T.P.C. Ltd. & Ors.
845
accompanied with a certificate issued by a
government doctor. The medical certificate
said that the workman had suffered from
Chronic Malaria and Dysentery from
15.01.1957 to 17.03.1957. The workman
appeared before the Manager, but was
asked to report to the Senior Manager. The
Medical Officer was unable to ascertain if
he had been ill for a period of two months.
The employers refused to take back the
workman in service and informed him to
the above effect on 23.03.1957, treating it
to be a case of abandonment of service. His
case was treated as one falling under
Standing Order No. 8(ii) of the Standing
Orders
applicable
to
the
employer's
establishment. It was in the context of the
aforesaid facts that it was held by their
Lordships of the Supreme Court :

5. ...This Standing Order is a part
of the certified Standing Order with 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 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.

27. It, therefore, appears from the said
decision
that
while
essentially,
abandonment is a matter of intention on the
employee's part, if the issue is governed by
a rule, the abandonment would depend on
the terms of the rule.

28. What was said by their Lordships
in Buckingham was about a certified
standing order relying on a rule on the
subject of abandonment. In the present
case, this Court has, for the same reason,
looked into the terms of the rules and
concluded that the conditions spelt out
therein, that are an exception to the usual
mode of termination, have to be strictly
construed in favour of the employee, and
are not attracted here at all, for reasons
already indicated. It is urged on behalf of
the petitioner by the learned Senior
Advocate that the consequences of failure
to complete the course of study are dealt
with under Paragraph No. 2.6 (iv) of the
NTPC Scheme of Facilities for Higher
Studies. The petitioner's case may not be
846 INDIAN LAW REPORTS ALLAHABAD SERIES
open to be dealt with under para 2.6(iv) last
mentioned, because it is not a case where
the petitioner completed the course of study
and failed to earn his degree. It is a case
where he abandoned the course. As already
remarked, the petitioner ought to have
informed
the
respondents
about
his
decision to abandon or the circumstances
that led him to give up the course early into
the first semester, but, in whichever manner
the respondents may deal with the aforesaid
lapse on the petitioner's part, it would not
constitute unauthorized absence from duty
or overstaying the sanctioned leave within
the meaning of Rule 24.9 of the NTPC
Service Rules read with Rule 26(2)(vi)(e)
of the CDA Rules. Therefore, the decision
by the respondents to consider the
petitioner's services as abandoned cannot
be countenanced.

29. In the result, this writ petition
succeeds and shall stand allowed. The
impugned orders dated 31.03.2020 and
03.03.2023 passed by the Senior Manager
(HR-EB), Rihand Super Thermal Power
Project, Bijpur, Sonbhadra are hereby
quashed. A mandamus is issued to the
respondents to reinstate the petitioner
forthwith with seniority and continuity of
service, though no emoluments would be
payable for the period by the terms of the
leave.

30. It shall be open to the respondents
to take action against the petitioner in
abandoning the course of study for which
study leave was taken as permissible under
the rules.

31. There shall be no order as to costs.
----------
(2023) 11 ILRA 847
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023
BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10999 of 2023

Rajeev Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Nand Shukla, Sri Mani Shanker
Pandey

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Brajesh
Pratap Singh, Sri Ram Bahadur Singh

A. Service Law - Punishment - Dismissal
from service - Charge of embezzlement -
Disciplinary proceeding - Right of cross
examination
-
Charges
were serious
enough to lead to the possible imposition
of a major penalty - No date, time and
place was fixed for the inquiry - Effect -
Held, where slackness in performance of
duties etc. is the substance, it was
incumbent upon the establishment, in the
first instance, to examine witnesses and
prove the charges against the petitioner,
with opportunity to the petitioner to
cross-examine such witnesses. (Para 11
and 13)
B.