Hon'ble Vedpal,J.
1. Petitioner, who was appointed in the Subordinate Agriculture Service Group-II vide order dated 31.1.1973 on adhoc basis, has approached this Court under Article 226 of the Constitution of India feeling aggrieved with the order of dismissal of petition passed by the U.P. Public Services Tribunal.
2. According to petitioner's counsel petitioner was appointed on 22.3.1973 against Group II post and in consequence thereof he had resumed duty and worked from 22.3.1973 to 3.8.1973 and from 3.8.1973 to 30.8.1973 petitioner was on leave. He moved an application for Earned Leave on account of illness of his wife. After submitting an application he has gone to his house and thereafter on 14.9.1973 petitioner has submitted his conditional resignation from the Group II post and never turned up to resume duty. It is stated by the petitioner in his conditional resignation that a month leave may be sanctioned and in case, it is not permissible then his resignation may be accepted.
3. According to petitioner's counsel he was never communicated with regard to acceptance of resignation. However, admittedly the petitioner remained outside job and being absented from duty after submitting the aforesaid resignation, after lapse of almost seven years he moved an application dated 17.7.1983 requesting that in case resignation has not been accepted he may be permitted to resume duty.
4. The letter dated 17.7.1983 has not been denied by the respondents before the Tribunal. Again by letter dated 20.8.1983 followed by 31.3.1983 and 16.7.1987 request was made for restoration of service. However, when respondents not responded the petitioner had approached the Tribunal with the prayer that he may be permitted to resume duty.
5. Since, petitioner had not turned up for about ten years, the Tribunal recorded a finding that after submitting resignation petitioner has got no right to claim restoration of service. While assailing the impugned order Shri P.N.Singh learned counsel for the petitioner submits that there can not be automatic cessation of service more so when no order was communicated with regard to acceptance of resignation.
6. Learned counsel for the petitioner has relied upon a judgement reported in AIR 1966 SC 492 (V 53 C 101), Jai Shanker Vs. State of Rajasthan. In the case of Jai Shanker (supra) it has been held by Hon'ble Supreme Court that on account of overstaying leave services cannot be deemed to be automatically terminated.
7. One another judgment reported in 1982 Uttar Pradesh Services Cases 121, Prem Shankar Gupta Vs. State of U.P. and others where judgement of Jai Shanker was followed by Hon'ble Judge of this Court. There appears to be no dispute with the proposition of law that in case an employee overstay the leave there can not be automatic termination of service but the present case seems to be based on different facts and circumstances. In the present case petitioner had moved an application for one month leave with request that in case leave is not sanctioned his application shall be treated as resignation.
8. Nothing has been brought on record by petitioner's counsel to indicate that leave was sanctioned by the respondents. In case, leave was not sanctioned then it is not a case of overstaying of leave rather seems to be a case of abandonment of service. Petitioner had not turned up for more than 7 or 10 days after moving the application. Under Section 108 of the Evidence Act person who is not known for more than seven years shall deem to be not survived and heir of deceased had got right to claim pensionary benefit. In the present case petitioner kept himself out of job without any communication for more than seven years.
9. In Blacks Law Dictionary Ninth Edition Bryan A. Garner the word abandonment has been defined as under:-
"abandonment,n.(1809) 1. The relinqushing of a right or interest with the intention of never reclaiming it. In the context of contracts for the sale of land, courts sometimes use the term abandonment as if it were synonymous with rescission, but the two should be distinguished., An abandonment is merely one party's acceptance of the situation that a nonperforming party has caused. But a rescission due to a materila breach is a termination or discharge of the contract for all purpose. 2. Property. The relinquishing of or departing from a homestead, etc., with the present, definite, and permanent intention of never returning or regaining possession. 3. Family law. The act of leaving a spouse or child willfully and without an intent to return. Child abandonment is grounds for termination of parental rights. Spousal abandonment is grounds for divorce."
10. Their Lordship of Hon'ble Supreme Court in the cases reported in In M/s. Jeewan Lal (1929) Ltd., Calcutta Vs. Its Workmen, AIR 1961 SC 1567, the Apex Court held as under:-
".......if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cast a break in continuity of service..... We would like to make it clear that...... 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."
11. Similarly, in Shahoodul Haque Vs. the Registrar, Co-operative Societies, Bihar & Anr., AIR 1974 SC 1896, the Apex Court observed as under:-
"The undenied and undeniable fact that the appellant had actually abandoned his post or duty for an exceedingly long period, without sufficient ground for his absence, is so glaring that giving him further opportunity to dis-prove what he practically admits, could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. It would prolong his agony. On the view we have adopted on the facts of this case, it is not necessary to consider the further question whether any notice for termination of service was necessary or duly given on the assumption that he was not punished. We do not think that there is any question involved in this case which could justify an interference by us......"
12. In Syndicate Bank Vs. General Secretary, Syndicate Bank Staff Association & Anr., AIR 2000 SC 2198; and Aligarh Muslim University & ors. Vs. Mansoor Ali Khan, AIR 2000 SC 2783, the Hon'ble Supreme 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 ceased 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.
13. In view of above, the present case seems to be case of wilful abandonment of service and not the case of overstaying of leave. In case no decision is communicated, the aggrieved employee should approach for judicial review within the reasonable period. Resignation is of the year 1973. It has been denied by the respondents counsel that the resignation is of the year 1980. Claim petition was filed in the year 1987 i.e. after lapse of almost 14 years. Petitioner had not approached the court for judicial review or for appropriate order or direction within reasonable period. It appears that petitioner had voluntary abandoned the services for one or other grounds or for some unforeseen reason he tried to test his luck by framing a case before the tribunal with regard to continuity of service.
14. Ordinarily a person who is not conscious for his right and keep sleeping for almost a decade without knocking appropriate door or forum, may not be permitted to knock the door of court after inordinate delay.
15. In view of above, we are of the view that it is a case of voluntary abandonment of services and tribunal had rightly dismissed the claim petition. No case for interference is made out under Article 226 of the Constitution of India.
Writ petition is dismissed accordingly.
Order Date :- 16.9.2010 Madhu