Long Absence From Service Without Proper Intimation Is Abandonment Of Service: Kerala HC

The court was considering a case in which the petitioner without any intimation had allegedly kept himself away from service for a long period of nearly 17 year.

Accordingly, a bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen observed, “The petitioner without any intimation has kept himself away from service for a long period of nearly 17 years. The claim of the petitioner that he was seeking extension of leave remains unsubstantiated. 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. We hold that long absence of nearly 17 years from service without any proper intimation or correspondence is nothing, but, abandonment of service. The petitioner is deemed to have abandoned his services with the respondents and is not entitled to get any benefits”.

Advocate C.S. Gopalakrishnan Nair appeared for the petitioner and Advocate K.S.Prenjith Kumar appeared for the respondent.

The original petition was filed before the Central Administrative Tribunal, Ernakulam Bench, challenging the order of the Tribunal. Pursuant to which the Tribunal, declined to interfere with the findings of the appellate authority and rejected the original application.

In the present matter, the petitioner/applicant was appointed as the driver in the Andaman Lakshadeep Harbour Works, on adhoc basis in 1984, and was later confirmed in 1990.

Now, as per the averments made the petitioner, he fell ill in 1994 due to Hepatitis and applied for leave, and after recovering from his illness, he reported for duty in 2011. However, he was not permitted to rejoin duty and was informed that his service has been terminated on account of long absence.

The respondents, however, argued that since the petitioner had not obtained leave and his absence was without intimation, therefore, it cannot be treated as unauthorized absence, on the other hand, it is abandonment of service.

Therefore, the question before the court to adjudicate upon was whether this is a case of “termination of service” as contended by the petitioner or a case of “voluntary abandonment of service” as contended by the respondents.

The bench relied on the judgment in Vijay S. Sathaye v. Indian Airlines Ltd. & Others (2013) 10 SCC 253, where the Supreme Court had held that where an employee does not join duty and remains absent for long, then such absence is required to be treated as misconduct and if such absence is for a very long period, then, it amounts to voluntary abandonment of service resulting in termination of service automatically without requiring any further order from the employer.

“He could not produce any document to substantiate the contention that he had requested for leave subsequently during the 17-years-period. It is after 16 years and 6 months, after giving request for rejoining duty in 2011, he produced the documents. No explanation is forthcoming from the side of the petitioner other than the contention that he was under ayurvedic treatment for paralysis”, the judgement read.

Accordingly, the original petition was dismissed.

Cause Title: B.Suresh v. Chief Engineer & Administrator [Neutral Citation: 2023/KER/78726]