WP/3847/1999 of Mohd. Abdul Nabee, Vs The General Manager (D AND PB), on 23 December 2005

ORDER:

Heard Sri G.Gopala Rao, the learned counsel appearing for the petitioner and SriK.Srinivasa Murthy, the learned Standing Counsel for the respondents.

The petitioner, who has been working as an employee in the capacity as a clerk withthe respondent-bank filed this Writ Petition, inter alia, seeking to assail the initialorders of the termination dated 05.12.1994 as confirmed in the appeal by the ordersdated 26.12.1998, as bad, illegal and void.

The facts in brief are that the petitioner had joined duty as a clerk on 29.12.1987.However, according to him, he fell ill from 01.06.1992 to 08.05.1995 and was undermedical treatment during the above period. Thereafter, having regard to thepetitioner’s absence, the respondents have taken his case to terminate his serviceas per the orders dated 05.12.1994 mainly on the ground of voluntary abandonmentof service.

As against the said orders, the petitioner had filed a regular appealcontending inter alia various grounds to the effect that in fact he had send various

applications along with medical certificates and in spite of the same, the matterremained unconsidered and therefore, the respondents have treated his absence asunauthorized and also abandonment of service. In the meanwhile, the petitioner alsofiled a Writ Petition No.28941 of 1998, which was disposed of on 20.10.1998,directing the respondents to dispose of the proceedings at the earliest. Now, thecase of the petitioner is that, in the appeal, the first respondent issued a telegram on23.12.1998 to the petitioner’s counsel fixing the date of hearing on 26.12.1998 andasking upon him to produce the petitioner in person at the time of the said hearing,whereupon, the petitioner’s counsel intimated the first respondent to the fact that inview of the very short time granted, it is very difficult to contact the party and makehim appear on the said date of hearing. In spite of the same, without giving properopportunity to the petitioner’s counsel and in his absence, the appeal was dismissedon 26.12.1998, without going into the reasons or finding the merits but proceedingon the basis that in spite of the service of notice through telegram, there is no properpresence of the petitioner. Subsequently, the petitioner himself presented before thefirst respondent on 29.12.1998 pointing out various difficulties, but his request wasrejected as per the orders dated 04.01.1999 and reconfirmed the orders passed on26.12.1998.

Sri G.Gopala Rao, the learned counsel appearing for the petitioner submitsthat having regard to the fact that the petitioner was suffering from illness and he wasbeing under medical treatment, which is supported by various medical certificatesproduced before the respondents herein, it cannot be said that there is anyintentional absence or any voluntary abandonment of service on the part of the petitioner. Though the petitioner sent applications and medical certificates, theywere not given any credence. Further, it was also pointed out that in view of theenmity of the petitioner with the local postman, there was no proper and due serviceof the papers from both ends, which has resulted possibly to the impugnedproceedings. Therefore, the petitioner cannot be blamed and the very main groundof termination of service without appropriate notice and without conducting anyenquiry into the allegations as made against him is totally vitiated and liable to beset aside.

Sri S.Krishna Murthy, the learned Standing Counsel appearing on behalf ofthe respondents sought to sustain the impugned action on the ground that they werenot present at the time of hearing of the appeal. Further, even on merits, thepetitioner continued being absent from 01.06.1992 to 08.05.1995, which is not onlytoo long but is wholly unauthorized and unexplained. Further, the petitioner has notcome out with any valid reasons in support of his contention. Therefore, there are nomerits in the claim and the same is liable to be rejected.

Considering the submissions from both sides and also on perusal of thematerial, the question which falls for consideration is as to whether the action of therespondents herein in terminating the petitioner from service on the ground ofvoluntary abandonment of service is justified and also as to whether the disposal ofthe appeal in the absence of the petitioner without going through the merits issustainable?

There is no dispute to the fact that the petitioner has been in service of therespondents herein and he was admittedly absent for the aforesaid period namely

from 01.06.1992 to 08.05.1995 which has resulted, as submitted by the standingcounsel for the respondents herein, into the orders of termination on 05.12.1994treating such absence as a voluntary abandonment of service. The case of thepetitioner is that he was not well and fell sick and he was being treated by thedoctors and accordingly, he had submitted the medical certificates along with theapplications repeatedly at various intervals. In spite of the same, they were notconsidered. Therefore, it is his case that the petitioner has a justifiable cause for hisabsence and therefore, it cannot be said that there is any abandonment of service,much less, a voluntary one. Further, it is also pointed out that in the appeal, therewas no proper opportunity given and no reasons were also given while dismissingthe same.

Before going into the first question as aforesaid, it is relevant to take note ofthe second question at this juncture. There is no dispute to the fact that it is onlysubsequent to the orders passed by this Court in W.P.No.28941 of 1998 as per theorders dated 20.10.1998, the respondents have taken up steps to dispose of theappeal and instead of giving notice in the normal course, the respondents havechosen to give notice by way of a telegram on 23.12.1998, fixing the date of hearingas on 26.12.1998. Apparently, such intimation is wholly unjustified especially inview of the short gap in between the date of the telegram and the date of hearing.Further, there is also no justification as to why the said telegram should be givenonly to the petitioner’s counsel asking him to produce the petitioner, in person, at thetime of hearing the appeal. In fact the counsel’s representation is only in the capacityof an agent but not in person. Necessarily and under the normal circumstances, notice ought to have been given to the petitioner in person directly for his presence,if at all any such presence is required. Further, even on a reading of the impugnedorder, it clearly shows that the appellate authority has not gone into merits at allexcept reiterating the factum of issuance of notice and absence of the petitioner fromhis service. Even, there is also no discussion in regard to the various objections andthe grounds as raised by the petitioner in the grounds of appeal.

Apart from the fact that the order is laconic, it also does not give any reasonas against each of the grounds or pleas as raised by the petitioner nor there is anysay in regard to the reason with which the petitioner has come out explaining hisabsence i.e., the illness as supported by the medical certificates. There is also nofinding as to whether the petitioner’s application and the medical certificates asalleged to have been sent by him were received or not and if so received, theconsequential action taken there of, are the matters which require freshconsideration on merits in detail, with all the reasons in support of the appeal as theappeal is only a continuation of original proceedings and all the facts have to bereconsidered afresh in relation to the findings or reasons as given by the appellateauthority. Even the subsequent order passed by the first respondent when thepetitioner himself appeared, also does not give any valid reasons, much less, inregard to the various pleas as raised by the petitioner in the appeal. Absolutely thereis no justification on the part of the appellate authority in not providing properopportunity to the petitioner herein and also non-consideration of the case in detailon merits with further reasons in support of their action in terminating the petitionerfrom his service. In view of the same, the matter requires to be reconsidered at the stage of appeal. In view of the finding given in the second question, it is notnecessary to go into the first question since the same will be the subject matter of theappeal.

Therefore, in view of the above, the Writ Petition is allowed. The impugnedorders dated 26.12.1998 and 04.01.1999 passed by the respondents herein are setaside and the matter is remitted to the appellate authority for fresh disposal onmerits, in accordance with law, after giving due notice and opportunity of hearing tothe petitioner as well as his counsel. The appellate authority shall dispose of theappeal within a period of two months from the date of receipt of a copy of this order.

_________________(B.PRAKASH RAO, J)

2[nd] February 2005RRB

Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Wednesday, thesecond day of February 2005.

ASSISTANT REGISTRAR

//True Copy//

SECTION OFFICER

Copy To:

1. The General Manager (D & PB), State Bank of India, Local Head Office,Hyderabad – 500 095.Hyderabad – 500 095.

2. The Assistant General Manager, State Bank of India, Central Office,Hyderabad.Hyderabad.

3. Two CD copies.