Unauthorised absence justifies termination without formal inquiry if natural justice is afforded.

The applicant, Ravi Kumar Sharma, was appointed as an Accounts Assistant in 2002 and was promoted to Accountant in 2010.

He was further promoted as I/C Assistant Accounts Officer in 2014 and posted to PMGSY Division II, Thathri Doda.

He was relieved from the office of Chief Accounts Officer (Migrant Cell), Jammu on July 8, 2016, and joined the office of Executive Engineer PMGSY, Doda on July 9, 2016.

The applicant then allegedly left the station unauthorizedly without permission on September 11, 2016, and remained absent for over five years.

The respondents issued several notices to the applicant to resume duties, including one on November 3, 2016, two on December 31, 2021, and February 10, 2022 (published in State Times Newspaper), and a final notice on April 8, 2022 (published in Daily Excelsior).

The final notice sought an explanation for his unauthorized absence and cautioned about action under Article 128 of J&K CSR Volume 1, 1956.

The applicant responded to the final notice, seeking 15 days to rejoin due to his mother's serious ailment.

The respondents found his reply unsatisfactory due to his continuous unauthorized absence for over five years and terminated his services effective September 11, 2016, through GO No. 171-F of 2022 dated June 30, 2022, per Articles 113 and 128 of J&K CSR Volume 1, 1956.

Whether the termination order issued without a formal inquiry and an opportunity of being heard violates the principles of natural justice?

Whether the applicant's continuous unauthorized absence for over five years, despite receiving notices, justifies his termination from service without a full-fledged inquiry?

The court primarily applied Articles 113 and 128 of J&K Civil Services Regulations Vol.-I, 1956, stating that five years of continuous absence on leave leads to an officer being considered out of state employ and that absence without leave involves loss of appointment.

It also relied on the principles of natural justice and procedural fairness, as interpreted by the Hon’ble High Court of Jammu and Kashmir and Ladakh in Kh. Mushtaq Ahmad Vs. State of J&K and others (2004), which held that absence, however long, cannot result in automatic cessation of employment without providing an opportunity for hearing and defense.

This precedent emphasized that the employer must conduct an inquiry, allow the employee to explain their absence, and comply with constitutional safeguards and natural justice, including knowing the charges, stating their case, and ensuring good faith in the employer’s action.

The court also referred to the Supreme Court judgments in M/s Jeevanlal (1929) Ltd., Calcutta Vs. Its Workmen, AIR 1961 SC1567, Shahoodul Haque Vs. Registrar Cooperative Societies Bihar and another, AIR 1974 SC 1896, and Aligarh Muslim University and others Vs. Mansoor Ali Khan, AIR 2000 SC 2783, which suggest that prolonged unauthorized absence can lead to an inference of abandonment of service, and an inquiry may not be necessary if a person remains absent beyond the period for which leave could be granted.

The court analyzed the applicant's case based on the principles of natural justice and the specific provisions of the J&K CSR.

It distinguished the present case from Kh. Mushtaq Ahmad (supra) by noting that in the current instance, the applicant was given multiple opportunities to explain his absence through various notices, including a final one published in newspapers.

Unlike Kh. Mushtaq Ahmad, where no opportunity of hearing was granted to the employee, the current respondents actively communicated the alleged violation and sought an explanation.

The court found the applicant's explanation of "deteriorating circumstances and outbreak of Corona Pandemic" for his prolonged absence from September 11, 2016, to April 2022 unsatisfactory and not plausible, especially since the COVID-19 pandemic began much later, in March 2020.

The medical certificate for his mother's illness in April 2022 did not rationally justify his absence since 2016.

The court also noted the applicant failed to prove that his initial five-day leave was sanctioned or that he had continuously informed the department about his status, as claimed.

Consequently, the court concluded that the three requirements of natural justice outlined in Kh. Mushtaq Ahmad - intimation of charges, opportunity of hearing and defense, and fair conduct by the employer - were met in this case, making a formal inquiry unnecessary for the unsatisfactory explanation provided by the applicant.

It held that the requirements of natural justice were fulfilled, as the applicant was given ample opportunity to explain his unauthorized absence, but his defense was not plausible.

Therefore, the Tribunal found no grounds to interfere with the legality of the termination order dated June 30, 2022.