The petitioner was initially appointed as an Electrician and has been subsequently promoted as Technical Assistant. The petitioner sought voluntary retirement and moved an application for the voluntary retirement w.e.f. 1.5.1995. The said application is Annexure-1 to the writ petition.
It appears that after moving the application for voluntary retirement, the petitioner was absent from his duties w.e.f. 1.5.1995. In the impugned order, it is stated that the application for voluntary retirement has been turned down by the office letter no. 2638 dated 12.7.1995. It appears that the petitioner was remained absent for a long period, therefore, vide order dated 4.10.1997, the Assistant Registrar (Administration) has passed the impugned order stating that he shall be deemed to have vacated his post and ceased to be in the service w.e.f. 1.5.1995.
Sri Shashank Shekhar Singh, learned counsel for the University submitted that the relevant Rule is Revised Leave Rules, 1969.
Rule 5 (8) of the Revised Leave Rules, 1969 reads as follows:
Rule 5 (8) Overstayal of Leave :
* (i) If an employee absent himself from duty without having previously obtained leave or fails to return to his duties on the expiry of leave without having previously obtained further leave, the Head of the Department/Office concerned in cases, where he is the appointing authority, after waiting for seven days, shall communicate with the person concerned asking for an explanation and shall consider the same.
In cases where the Head of the Department/Office is not the Appointing Authority, he shall, after waiting for seven days from the date of unauthorized absence without leave or extension of leave, inform the Registrar/Finance Officer, and the Registrar (Finance Officer in the case of staff borne on the Accounts Cadre) shall communicate with the person concerned asking for an explanation which shall be submitted to the Vice-Chancellor/Executive Council.
*Unless the Appointing Authority regards the explanation satisfactory the employee concerned shall be deemed to be on leave without pay up to one month (in addition to his normal entitlement of leave). If an employee absents himself from duty for more than one month, he shall be deemed to have vacated his post without notice, from the date of absence without leave and the matter be placed before the Executive Council for decision, in accordance with Statute 40.
*(ii) An Officer or other employee who absents himself without leave or remains absent without leave after the expiry of leave granted to him, shall if he is permitted to rejoin duty, be given leave due to him and in case there is no leave due to him, the period of such absence and such period will be debited against his leave account as leave without pay unless his leave due to him is extended by the authority empowered to grant the leave, willful absence from duty for one month after the expiry of leave may be treated as misconduct in accordance with the provisions as contained in Statute 40 of the Statutes of the University as provided under Clause 13 of Chapter-IV of the Executive Ordinances of the A.M.U. and para 10 of Chapter IX of Regulations of the Executive Council.
The above Rule provides that if an employee absent himself from duty for more than one month,he shall be deemed to have vacated his post without notice, from the date of absence without leave and the matter be placed before the Executive Council for decision in accordance with Statute 40. From the pleadings of either of the parties, it is not clear that whether the matter has been placed before the Executive Council for decision or not.
Learned counsel for the University is directed to file supplementary affidavit within two weeks stating that whether the matter has been placed before the Executive Council for decision or not and if placed, what decision has been taken by the Executive Council.
List this case on 4.10.2012 for further hearing.
Order Date :- 13.9.2012 OP