STATE OF KERALA v. SMT. S.PREMALATHA

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as per Annexure -A1 and again for a further period of 5 years from 21-05-1998 to 20-05-2003 as per Annexure-A2. Petitioner then made an application on 11-10-2002 for three more years to continue employment abroad. The said application was rejected by order dated 1-11-2004 directing the applicant to join service in 15 days. By a letter dated 2-11-2004, the applicant requested for granting her joining time till April 2005, as she contented that her contract was up to April 2005, and, therefore, her passport is withheld till then. The petitioner alleges that on 30-4-2005, she reported for joining duty but was not permitted, allegedly for the reason that no decision was taken on her application dated 2-11-2004. The further contention of the applicant is that on 30-4-2006, she approached the employer again but was not permitted to re-join. She continued to do so every year until 2011, and finally the applicant returned permanently and submitted a representation to rejoin duty on 14-5-2012. Claiming that no orders were passed on her representation and that the period from 12-5-2002 to 30-6-2007 must be reckoned as qualifying service for pension, as she superannuated on 30-06-2017, the Original application was filed.

4. The respondents in the Original Application contended that the third application preferred by the applicant for leave without allowance for three years with effect from 21-5-2003 to 20-5-2006 was rejected by order dated 20-3-2004, Annexure - A4, and the same was duly communicated to her. The said order was not challenged by her and the Government also denied having received any representation on 14-5-2012, or the one dated 3-1-2013 as alleged by the applicant. It is contended that the application

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before the Tribunal was time barred and that the petitioner was unauthorisedly absent from 21-5-2003 and her claim for considering the period from 21-5-2003 to 30-6-2007 as qualifying service for pensionary benefits cannot be allowed, and prayed for dismissal of the Original Application.

5. The Tribunal, after consideration of the matter directed the first respondent in the application, to issue orders reckoning the period from 12-5-2012 to 30-6-2017 as qualifying service and to grant pensionary benefits to the applicant. There was a further direction to the applicant to prefer a petition supplementing Annexure A-10 for reckoning the above period as qualifying service. It is aggrieved by the said order that the Original Applications are preferred.

6. Heard learned counsel Sri. M.K.Chandramohan Das for the applicant in OP KAT 433 of 2017 and Sri. Bijoy Chandran, Senior Government Pleader in OP KAT 210/2018.

7. The fact that the applicant had applied for leave for the third time from 21-5-2003 to 20-5-2006, and that it was rejected by the Government as per Annexure-A4 order directing the applicant to rejoin duty within 15 days is not disputed. As a matter of fact, the applicant requested for extending the joining time till April 2005. Annexure-A4 order was not challenged till the year 2017. The applicant alleges that she had approached her employer with a request to permit her to rejoin duty and had also preferred Annexures-A8

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and A9 requests on 14-5-2012 and 3-1-2013 respectively. This Court by order dated,12-7-2021 directed the Director of Health Services and the District Medical Officer, Kollam to ascertain from their files and records and to submit as to whether the above said representations were received by them. Pursuant to the said order, an affidavit has been filed on behalf of the official respondents on 16-7-2022, categorically stating that the said representations have not been received by them and that the contentions of the applicant in that regard is baseless.

8. In the absence of any material to disprove the same, the contention of the applicant that she had preferred the representations cannot be accepted at all. The time limit prescribed for approaching the Tribunal by Section 21 (1) (a) of the Administrative Tribunals Act, 1985, is one year from the date of Annexure-A4. The applicant had not challenged Annexure-A4 dated 20-3-2004 issued by the first respondent within the period of limitation and on the short ground that the Tribunal could not have entertained the application or granted the relief it did. Likewise, Annexure- A5 is also an order dated 27-09-2004 issued by the third respondent. It was also not challenged till the year 2017.

9. Despite the above admitted facts, we are surprised to note the finding entered by the Tribunal that the applicant had represented herself for re-joining service on 12-5-2012 and had represented on 14-5-2012 and that it was not acted upon till the applicant attained superannuation on

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30-6-2017. There is no material at all to arrive at a such a finding. The Tribunal also proceeded on the basis that as no disciplinary action was taken against the applicant for the unauthorised absence from 21-5-2003, the applicant is entitled to reckon the service awaiting rejoining/posting, and therefore, she is entitled to the pensionary benefits. We are completely at a loss to understand as to how the Tribunal could have entered these findings in the instant case. The absence of any orders enabling the applicant to take leave and on the admitted position that the applicant did not rejoin duty at all after 21-5-2003, the applicant was clearly disentitled to any relief in a time barred original application.

10. On the admitted facts of the case, the case on hand is the case of an employee voluntarily abandoning her service. Such an irresistable inference is drawn from the length of the absence and the other surrounding circumstances mentioned above. As we have held earlier, there were no orders enabling the applicant to remain out of service. There was no challenge to the orders refusing to grant the leave made at the appropriate time. The applicant had clearly given up the duties and exhibited an intention not to resume the same in spite of Government rejecting her third application for leave and directing her to rejoin duty. In such situation, we declare that the case on hand is one to be treated as a voluntary abandonment of service. Absence from the duty initially may be a misconduct but when absence is for a very long period, it amounts to voluntarily abandonment of service and no further orders are required to be passed by

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the employer as the bonds of service come to an end automatically. The argument of the applicant that no disciplinary action is taken against the employer till her superannuation has to be rejected. The service jurisprudence, including the judicial precedents, recognises the doctrine of abandonment when an employee voluntarily gives up the service by continued absence from duty.

11. The Supreme Court has held in Syndicate Bank v. General Secretary, Syndicate Bank Staff Association (AIR 2000 SC 2198) and in Aligarh Muslim University v. Mansoor Ali Khan (AIR 2000 SC 2783)

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 a useless formality. So is the proposition in V.C. Banaras Hindu University v. Shrikant (AIR 2006 SC 2304), Chief Engineer (Construction) v. Keshava Rao (Dead) By Lrs. . [(2005) 11 SCC 229] and Regional Manager, Bank of Baroda v. Anita Nandrajog [2009 (4) KLT Suppl. 411 (SC) = [(2009) 9

SCC 462].

12. In that view of the matter, we find that the applicant was not entitled to any relief from the Tribunal and the Original Application ought to have been dismissed for the reasons given above. The applicant had no plausible reasons to offer for the absence from 2003 till superannuation.

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13. The applicant has also ventured to file OP KAT 433 of 2017 stating that she was kept out of service as mentioned above for no fault of hers and, therefore, she is entitled to get salary for the said period, in addition to the pensionary benefits ordered by the Tribunal. The applicant could not have aspired for getting the salary for a period she admittedly did not work. We straightaway reject the claim made in the above OP KAT by the applicant, for the reasons mentioned above.

In the result, OP KAT 210 of 2018 preferred by the State and its officials is allowed by dimissing OA (Ekm) 307 of 2017 filed before the Kerala Administrative Tribunal, Ernakulam. OP KAT 433 of 2017 is dismissed.

SD/-A.K.JAYASANKARAN NAMBIAR,

JUDGE

SD/- MOHAMMED NIAS C.P.,

JUDGE

ani/ /TRUE COPY/