IN THE HIGH COURT OF DELHI AT NEW DELHI

$~R-5 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: September 24, 2015 + W.P.(C) 6616/1998 VANDANA JHINGAN Through:... Petitioner Mr. J.P. Sengh, Senior Advocate, with Mr. A.P. Dhamija, Advocate versus UOI & ORS...Respondents Through: Mr. Roshan Lal Goel and Mr. Atul Bansal, Advocates Mr. Rajesh Kumar, Mr. Gaurav Kumar Singh and Mr. Rakesh Chaurasiya, Advocates for respondent No.2 CORAM: HON'BLE MR. JUSTICE SUNIL GAUR % JUDGMENT 1. Petitioner is the employee of respondent No.2 who, vide letter of 10 th October, 1995 (Annexure-P) had informed petitioner that she has lost her lien due to voluntary abandonment of service. The challenge in this writ petition is to the impugned letter of 10 th October, 1995. 2. Petitioner was Senior Marketing Assistant, Grade-I with respondent No.2 at the Delhi Office and she claims to have obtained No Objection Certificate to obtain Visa for visiting U.S.A. in December, W.P.(C) 6616/1998 Page 1 of 13

1994 and according to petitioner, the No Objection Certificate was granted to her on 7 th December, 1994 but a day prior thereto i.e. 6 th December, 1994, she was transferred to Goa office of respondent No.2 and was directed to join duty at Goa in the first week of January, 1995. Petitioner claims to have sprained her right ankle and was unable to join the duties and had applied for medical leave from 17 th April, 1995 to 1 st May, 1995 alongwith the medical certificate. Petitioner had represented against her transfer to Goa and had applied for 39 days of privilege leave from 1 st May, 1995 to 8 th June, 1995. Petitioner also claims to have been harassed by respondent No.3. On 26 th April, 1995, petitioner had filed a complaint to the Ministry of Defence against the harassment of petitioner by respondent No.3 and on 4 th May, 1995, petitioner had proceeded to U.S.A. and U.K. on the privilege leave. According to petitioner, she could not return back to India and had sought extension of her leave vide Fax Messages of 9 th June, 1995 and 21 st July, 1995, first upto 21 st July, 1995 and then upto 14 th September, 1995. 3. Respondent No.2 got issued Public Notice of 9 th September, 1995 about petitioner s absence without permission and vide aforesaid Notice, petitioner was directed to report for duty within ten days. Petitioner claims that upon her return to India on 10 th September, 1995, she had met with an accident and had applied for leave from 15 th September to 4 th October, 1995 but respondent No.2 did not respond. Upon recovery from illness, petitioner claims to have reported to respondent No.2 for joining her duties in Delhi but she was not allowed to do so. Vide letter of 10 th October, 1995 (Annexure-P), respondent No.2 had informed W.P.(C) 6616/1998 Page 2 of 13

petitioner that she had voluntarily abandoned the service w.e.f. 2 nd May, 1995 and had lost her lien. 4. Vide Notice of 20 th October, 1995 (Annexure-Q) petitioner was informed by respondent No.2 that the gratuity payable is being sent to her at her last known address. Petitioner claims to have learnt about the Public Notice of 9 th September, 1995 and the impugned letter (Annexure- P) on 13 th October, 1995 and had called upon respondent No.2 to withdraw the aforesaid Public Notice and petitioner had sent back the gratuity amount cheques to respondent No.2. Again on 26 th June, 1996 and 3 rd August, 1996, petitioner had called upon respondent No.2 to cancel the impugned order (Annexure-P) and to regularize her service and allow her to join her duties at Delhi, but to no avail and so, petitioner had filed this writ petition through her father. 5. The stand taken by respondent No.2-Employer in the counter filed is that in November, 1994, a need was felt to provide an Executive Assistant and one more staff in the office of Chairman and Managing Director of respondent No.2 and no spare personnel was found in the office of respondent No.2 at Goa and so, petitioner was transferred from Delhi to Goa. It is denied by respondent No.2 that petitioner applied for obtaining No Objection Certificate to get Visa for visiting USA and General Manager (T.S.) had no authority to issue No Objection Certificate as it has to be processed through the Personnel and Administration Department of respondent No.2. Upon transfer of petitioner to Goa, she had not joined her duties at Goa and vide letter of 23 rd February, 1995, petitioner was called upon to comply with the W.P.(C) 6616/1998 Page 3 of 13

transfer order. 6. It was maintained by respondent No.2 that Mr. S.C. Sharma, Manager in Delhi Office who had made endorsement of 7 th December, 1994, had improperly processed petitioner s application as it was not in the prescribed pro forma and since Mr. S.C. Sharma had colluded with petitioner, therefore, he was dismissed from service. Respondent No.2 maintained that petitioner had colluded with aforesaid Mr. S.C. Sharma and had fabricated some documents to avoid the transfer order and the sanction of leave to petitioner, which was purportedly approved, is also fabricated as above-said Mr. S.C. Sharma could not have sanctioned the leave to petitioner beyond 24 th May, 1995. According to respondent No.2, petitioner was absent from duty and there was no indication in the record that she was on leave. 7. Petitioner s stand of her obtaining the No Objection Certificate is categorically denied. However, it was admitted that fax messages were received from petitioner, but the address of petitioner was not available on these fax messages and so, correspondence with petitioner was made at the last known address of petitioner. According to respondent No.2, attempts to deliver the impugned letter at the house of petitioner proved futile as she was not found at the last known address and her brother- Sanjay Jhingan had refused to receive the letter and had not disclosed the whereabouts of petitioner. Dismissal of writ petition is sought by respondent No.2 by maintaining that petitioner had abandoned the service and she is in USA since long. 8. At the final hearing, it was submitted by learned Senior Counsel W.P.(C) 6616/1998 Page 4 of 13

for petitioner that the transfer order of petitioner issued in December, 1994 was motivated as petitioner had spurned the advances of respondent No.3. It was also submitted that petitioner had applied for No Objection Certificate to obtain Visa for visiting U.S.A. to attend the convocation programme of her brother and it was allowed on 15 th December, 1994. It was further submitted that petitioner had sought recall of the transfer order and the date of joining the place of posting was extended upto 24 th May, 1995 vide letter of 23 rd February, 1995. 9. Learned counsel for petitioner further submitted that petitioner was granted 39 days privilege leave from 1 st May till 8 th June, 1995 and prior thereto, petitioner had applied for sick leave from 12 th April to 1 st May, 1995 due to sprain in her right ankle and she was granted the sick leave. It was pointed out that petitioner had also filed a criminal complaint against respondent No.3 in which respondent No.3 has been summoned for various offences. It was further submitted that petitioner had proceeded to U.S.A. as per the sanctioned leave and had sent fax messages and had sought extension of her leave upto 14 th September, 1995. It is submitted in September, 1995, petitioner had learnt about the publication of Notice regarding her being absent without leave and on return from abroad, petitioner had met with an accident and had sought leave from 15 th September upto 4 th October, 1995 and upon, learning about the impugned letter (Annexure-P), petitioner had promptly applied for extension of leave and thus, it was vehemently refuted that she had abandoned the job voluntarily. 10. Reliance was placed by learned counsel for petitioner upon W.P.(C) 6616/1998 Page 5 of 13

decisions in G.T. Lad and Ors. v. Chemical and Fibres of India Ltd. 1979 (1) SCC 590 and M/s. Arun Industries v. Presiding Officer, Labour Court, Delhi and Ors. 113 (2004) DLT 742 to submit that since petitioner was seeking extension of her leave, therefore, it cannot be assumed that she had abandoned the job and so, there is no question of losing the lien on appointment. It was submitted that without holding an inquiry, petitioner cannot be thrown out of service in the manner respondent has done. 11. It was also submitted that Clause 30 (b) of Certified Standing Orders mandates that without an inquiry, the service of an employee cannot be dispensed with. In support of the above submission, reliance was placed upon decisions in Vijay S. Sathaye v. Indian Airlines Limited and Ors. (2013) 10 SCC 253; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. AIR 1991 SC 101; Uptron India Ltd. v. Shammi Bhan and Anr. AIR 1998 SC 1681; D.K. Yadav v. J.M.A. Industries Ltd. 1993 (3) SCC 259; Anil Chuttani v. Oil & Natural Gas Corporation 2010 (117) DRJ 433; Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr. AIR 2000 SC 2198; Aligarh Muslim University and Ors. v. Mansoor Ali Khan AIR 2000 SC 2783; V. C. Banaras Hindu University & Ors. v. Shrikant AIR 2006 SC 2304; Chief Engineer (Construction) v. Keshava Rao (2005) 11 SCC 229 and Regional Manager, Bank of Baroda v. Anita Nandrajog (2009) 9 SCC 462. 12. Learned counsel for respondent No.2 supported the impugned order and submitted that there was no challenge to transfer order of 6 th W.P.(C) 6616/1998 Page 6 of 13

December, 1994 whereby petitioner was transferred from Delhi to Goa and after more than three years of the impugned order, instant writ petition has been filed by petitioner through her father. It was submitted that neither petitioner s application seeking privilege leave of 39 days w.e.f. 1 st May to 8 th June, 1995 nor the letter of 4 th April, 1995 (Annexure-G) by Mr. S.C. Sharma, Manager of Delhi Office granting the privilege leave to petitioner is on record. It was pointed out that Mr. S.C. Sharma was not the Regional Manager at Delhi but was just a Manager in the Delhi Office and he had no authority to sanction any kind of leave or to recommend issuance of No Objection Certificate. It was maintained by learned counsel for respondent No.2 that the application (Annexure-F) and the sanction letter (Annexure-G) are fabricated and service of aforesaid Mr. S.C. Sharma was terminated. It was pointed out that the No Objection Certificate issued to petitioner for travelling abroad as recommended by aforesaid Mr. S.C. Sharma, Manager, Delhi Office and approved by the General Manager (Technical) on 5 th December, 1994 (Annexure-D) was not on prescribed pro forma and was not sanctioned by the Competent Authority i.e. the Company Secretary or the Manager (Personnel and Administration). 13. It was further pointed out that the stand taken by contesting respondent No.2 in the counter filed regarding the application for leave and its sanction being fabricated remains uncontroverted by petitioner as no rejoinder to the counter filed is on record. It was next submitted that though the leave sought by petitioner w.e.f. 9 th June to 21 st July, 1995 by way of Fax Message is not disputed, but in the fax message, no address W.P.(C) 6616/1998 Page 7 of 13

of petitioner was there and so, it could not be communicated to her that the said leave stands declined. However, it is admitted that the time for joining the place of posting was extended by contesting respondent No.2 till 24 th May, 1995 vide Communication of 23 rd February, 1995 (Annexure-E). It is pointed out that even after returning to India on 10 th September, 1995, petitioner had made no attempt to report for duty at the place of her posting and had made Representation on 13 th October, 1995 after passing of the impugned order. It was submitted that the Representations of 13 th October, 1995 (Annexure-O), 24 th October, 1995 (Annexure-R) and 22 nd November, 1995 (Annexure-S) are of no avail because petitioner had not expressed any intention of joining duty at the place of her posting. Reliance was placed upon decisions in Vijay S. Sathaye v. Indian Airlines Ltd. & Ors. 2013 (10) SCC 253; Syndicate Bank v. General Secretary Syndicate Bank Staff Association & Anr. 2000 (5) SCC 65 and Regional Manager Bank of Baroda v. Anita Nandrajog 2009 (9) SCC 462 to submit that no departmental inquiry was required to be held as petitioner had voluntarily abandoned her job and despite publication of Public Notice in the Hindustan Times (English Edition) on 9 th September, 1995, petitioner had not come forward to join the place of her posting. Lastly, it was submitted that the intention of petitioner was not to continue with the job as she was in U.S.A. since May, 1995 and had worked with Consulate General of India at Chicago as Market Assistant from 22 nd September, 1997 till 1 st May, 1999. 14. After having heard learned counsel for the parties at length and upon careful perusal of material on record and the decisions cited, this W.P.(C) 6616/1998 Page 8 of 13

Court finds that while dealing with the case of abandonment of service, it has to be gathered from the facts and circumstances of the case as to whether the employee had any intention of abandoning the job or not. Though petitioner had not challenged the transfer order of 6 th December, 1994 (Annexure-B), but she had made Representation on 20 th January, 1995 (Annexure-C) wherein she had categorically stated that her younger brother is settled in U.S.A. and she alongwith her parents is trying to join him but there are some visa hurdles which would be overcome within few months and if all goes well, then she will request to be relieved from service. In this Representation (Annexure-C), petitioner had also stated that she was prepared to submit her resignation if she is found redundant in Delhi Office or if she gives any chance to her superiors for any complaint. It is matter of record that petitioner s Representation was not accepted and vide Communication of 23 rd February, 1995 (Annexure-E) petitioner was granted time till 24 th May, 1995 to comply with the transfer order failing which suitable action would be initiated against her. Instead of joining the place of her posting, petitioner had sought privilege leave from 1 st May to 8 th June, 1995 for going abroad and the said leave was purportedly sanctioned by Mr. S.C. Sharma, Manager in Delhi Office of respondent whereas the Competent Authority to sanction such a leave was the Manager (Personnel and Administration). Not only the leave was sanctioned by the Local Manager (who was not authorized to sanction the leave) but even the application for privilege leave (Annexure-F) and the sanction letter (Annexure-G) are not on the record of respondent. This is a quite disturbing feature of this case. Apart from this, the No Objection Certificate issued to petitioner for travelling W.P.(C) 6616/1998 Page 9 of 13

abroad was also not issued by the Competent Authority. The application to obtain No Objection Certificate had to be on prescribed pro forma and was required to be sanctioned by the Company Secretary or the Manager (Personnel and Administration) whereas it has been sanctioned by the General Manager (Technical) on the recommendation of Mr. S. C. Sharma, Manager at the Delhi Office. 15. It is also a matter of record that without any proper sanction of leave, petitioner remained absent from duty from June, 1995 onwards while seeking extension of leave, which was not granted and since June, 1995, petitioner was in U.S.A. and was working there. Is it not a serious mis-conduct that while being on purported leave, petitioner was working in U.S.A. from about two years? The intention of petitioner to abandon her job is quite evident from her conduct, as noticed herein above. Vide Public Notice of 9 th September, 1995 published in newspaper Hindustan Times, petitioner was called upon to join the duty at the place of her posting and to explain her absence from duty failing which her lien on appointment shall stand terminated. Petitioner claims to have learnt about this Public Notice (Annexure-N) in the first week of October, 1995 and she had made a Representation (Annexure-O) on 13 th October, 1995 wherein she had threatened to initiate civil and criminal proceedings while alleging harassment but had not expressed any intention of reporting for duty at the place of her posting. Vide impugned Communication of 10 th October, 1995 (Annexure-P) petitioner was informed by the contesting respondent that she has remained absent without leave and so, her lien on her appointment stood terminated due W.P.(C) 6616/1998 Page 10 of 13

to voluntary abandonment of service. Even in the Representation of 24 th October, 1995 (Annexure-R), petitioner had not expressed any intention of resuming the duties at the place of her posting. 16. No doubt, petitioner had lodged a criminal complaint for the offences under Sections 354/500 of IPC etc. regarding her harassment but she had not pursued the said complaint and so, it was quashed. Adverse notice needs to be taken on the fact that petitioner had not challenged her transfer order alleging harassment at the hands of respondent No.3. Had petitioner been serious in continuing with her job, then instead of her proceeding on unauthorized leave and getting it extended from time to time, petitioner ought to have challenged her transfer order alleging harassment. In the absence of rejoinder to the counter filed by respondent, the version put forth by contesting respondent has to be accepted. It is evident from the stand taken by contesting respondent that petitioner was on unauthorized leave and in spite of extending the time of her joining the duty, petitioner had proceeded abroad and was infact working there. Vide Public Notice, petitioner was called upon to join the duties but instead of doing so, she continued to represent without any justification. 17. A recent decision of the Apex Court in Vijay S. Sathaye (supra), relied upon by petitioner, sums up the law on the subject. It stands reiterated by the Apex Court in Vijay S. Sathaye (supra) that absence from duty in the beginning may be a misconduct, but when absence is for a very long period, it may amount to voluntary abandonment of service and in that eventuality, the bonds of service come to an end W.P.(C) 6616/1998 Page 11 of 13

automatically without requiring any order to be passed by the employer. In the instant case, the sequence of events, as noticed above, make out a clear cut case of voluntary abandonment of service and so, undue reliance upon principles of justice is uncalled for as despite issuance of Public Notice, petitioner had not come forward to resume the duties although an opportunity to do so was provided by contesting respondent in September, 1995. The fact that the instant writ petition has been filed after more than three years of passing of the impugned order speaks volumes of the intention of petitioner to abandon her job. The irresistible conclusion, which can be reasonably drawn, is that petitioner had no intention of joining the duties from the very beginning. Petitioner had infact lost lien on appointment due to voluntary abandonment of service when she had started doing a job in U.S.A. while being on purported leave. 18. In the facts and circumstances of this case, this Court is of the considered view that holding of an ex parte inquiry would have been an empty formality. Such a view is being taken as Apex Court in Hindustan Paper Corporation (supra) has already clarified that in a case of loss of lien, an opportunity should be given to employee to show-cause against the action proposed and this would satisfy the requirement of the principles of natural justice. The Public Notice of 9 th September, 1995 (Annexure-N) issued to petitioner is a sufficient compliance of principles of natural justice in the instant case. It is thus held that impugned order terminating the lien of petitioner on appointment due to voluntary abandonment of service does not violate the principles of natural justice. W.P.(C) 6616/1998 Page 12 of 13

19. Consequentially, this petition deserves dismissal and it is accordingly dismissed while leaving the parties to bear their own costs. SEPTEMBER 24, 2015 s (SUNIL GAUR) JUDGE W.P.(C) 6616/1998 Page 13 of 13