Remained Absent For Nearly 17 Yrs Without Prior Intimation Or Permission, Amounts To Abandonment Of Service: Kerala High Court

The Division Bench comprising Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen did not interfere with the order of the Tribunal that terminated his service due to long absence.

“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,” it held.

The petitioner was a driver in Andaman Lakshadweep Harbour Works (ALHW) and his appointment was confirmed in August 1990. He remained absent for almost 16 months and reported for duty in February 2011.

He was not permitted to rejoin duty and was informed that his service had been terminated due to long absence. The appellate authority and Tribunal also upheld this order and the aggrieved petitioner has approached the High Court.

The Counsel for the petitioner submitted that he was terminated without following the procedure of law. It was argued that a termination order was not issued, and he does not know when his service was terminated.

It was also contended that he was on leave due to medical illness and he became medically fit only in 2011. The petitioner submitted that he was undergoing medical treatment and had submitted a medical certificate back in 1994 as well as in 2011 when he went to rejoin duty.

The Counsel for the respondents submitted that the petitioner did not attend office for 16 years and 6 months which was not an unauthorized absence but an abandonment of service. It was submitted that the petitioner did not submit a medical certificate in 1994, but he only submitted a representation when a transfer order was issued against him.

It was argued that he did not submit medical certificates, nor did he have prior permission to take leave. It was also argued that he was served with a memo for rejoining duty, and he did not reply to it nor sought an extension for leave by submitting medical certificates.

The Court found that the medical certificate produced by the petitioner in 2011 stating that he was under medical treatment from 1994 to 2011 was a false claim. It found that the Doctor issued the medical certificate for treatment only in the year 2011 and not for undergoing treatment in 1994 as claimed by the petitioner.

Further, the Court noted that the petitioner admittedly reported for duty only in February 2011 and observed thus:

“For the past nearly 17 years, there was no correspondence to substantiate the contention that the petitioner had requested the respondents for extension of leave, informing that he was undergoing treatment.”

It noted that as per Standing Order No.11 vide clause No.(h) of Work charged Establishment of ALHW, a workman who remains absent without prior permission for more than 10 consecutive days will be deemed to have left employment and his service will be terminated.

It thus noted that since the petitioner did not obtain leave and was absent for a long period without prior intimation, the respondent employers treated it as an abandonment of service and not as an unauthorized service.

Further, the Court noted that the petitioner was not able to prove that he submitted any medical evidence in 1994 for seeking leave for around 17 years. It noted that he only produced some documents in 2011 when he came to rejoin duty.

Relying upon the Apex Court decision in Vijay S. Sathaye v. Indian Airlines Ltd. & Others (2013), the Court noted that when an employee remains absent for a long time, it would amount to voluntary abandonment of service and service would get terminated automatically without any further order from the employer.

The Court observed that the petitioner remained absent for a long period of almost 17 years without any intimation and this would amount to abandonment of service.

Accordingly, the Court dismissed the petition.

Counsel for the petitioner: Advocate C S Gopalakrishnan Nair

Counsel for the respondents: Advocate K S Prenjith Kumar

Citation: 2023 LiveLaw (Ker) 729

Case title: B Suresh v Chief Engineer & Administrator

Case number: OP (CAT) NO. 54 OF 2023

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