Case Note & Summary
The petitioner, Mustakimkhan Yawar Khan, was employed as a Peon at Maulana Abdul Kalam Azad Urdu High School, run by respondent no.1 Azad Education Association and Social Welfare Sanstha. On 02-02-2005, he applied for leave on medical grounds. On 26-03-2005, the Headmaster asked him to submit a medical certificate, which he did on 29-09-2005, certifying that he suffered from GERD with Anemia and Asthmatic Bronchitis with Anemia. Thereafter, the petitioner did not report to duty or communicate with the school for over nine years. On 28-11-2014, the Headmaster issued a show-cause notice asking the petitioner to explain why he should not be deemed to have voluntarily abandoned service under Rule 16(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981. The petitioner replied on 10-12-2014, stating he was still suffering from the same ailments and had been taking treatment, but he did not provide any medical certificate or evidence of treatment. The Headmaster, by order dated 24-07-2015, held that the petitioner had voluntarily abandoned service. The petitioner appealed to the School Tribunal, Amravati, which dismissed the appeal on 16-07-2016. The petitioner then filed a writ petition in the Bombay High Court. The High Court noted that the petitioner's absence was continuous from 02-02-2005, and his reply to the show-cause notice was vague and unsupported by any medical evidence. The court held that the petitioner had failed to show sufficient cause for his absence or any intention to resume duty. The court also observed that the School Tribunal had correctly applied the law and that no interference was warranted. The writ petition was dismissed.
Headnote
A) Service Law - Voluntary Abandonment of Service - Rule 16(3) of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 - Deemed Abandonment - Continuous Absence - The petitioner, a peon, remained absent from 02-02-2005 without any communication except a medical certificate submitted on 29-09-2005. Despite a show-cause notice dated 28-11-2014, the petitioner's reply dated 10-12-2014 did not provide a sufficient explanation for the prolonged absence. The School Tribunal and the High Court held that the management's order treating the petitioner as having voluntarily abandoned service was justified, as the petitioner failed to demonstrate any intention to resume duty. (Paras 2-6)
Issue of Consideration
Whether the School Tribunal was justified in upholding the order of the Headmaster declaring that the petitioner had voluntarily abandoned service under Rule 16(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981, due to continuous absence from 02-02-2005 without sufficient explanation.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Headmaster dated 24-07-2015 and the judgment of the School Tribunal dated 16-07-2016, holding that the petitioner had voluntarily abandoned service under Rule 16(3) of the MEPS Rules, 1981.
Law Points
- Voluntary abandonment of service
- Continuous absence
- Rule 16(3) of MEPS Rules
- 1981
- Deemed abandonment
- Sufficient cause
- Burden of proof on employee
Case Details
2018 LawText (BOM) (12) 140
Writ Petition No.1376 of 2017
Mr. Sk. Sibghatullah Jagirdar for petitioner, Mr. Anjan De for respondent nos.1 and 2
Azad Education Association and Social Welfare Sanstha through its President, The Head Master, Maulana Abdul Kalam Azad Urdu High School, Education Officer (Secondary), Zilla Parishad, Akola
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Nature of Litigation
Writ petition challenging the order of the School Tribunal upholding the management's order of deemed abandonment of service.
Remedy Sought
Petitioner sought to quash the order dated 24-07-2015 of the Headmaster and the judgment dated 16-07-2016 of the School Tribunal, and to be reinstated in service with continuity and back wages.
Filing Reason
Petitioner was declared to have voluntarily abandoned service under Rule 16(3) of the MEPS Rules, 1981 due to continuous absence from 02-02-2005 without sufficient cause.
Previous Decisions
The School Tribunal, Amravati, by judgment dated 16-07-2016, dismissed the petitioner's appeal and upheld the order of the Headmaster dated 24-07-2015.
Issues
Whether the petitioner's absence from 02-02-2005 to 24-07-2015 constituted voluntary abandonment of service under Rule 16(3) of the MEPS Rules, 1981.
Whether the School Tribunal erred in upholding the order of deemed abandonment.
Submissions/Arguments
Petitioner argued that he was ill and had submitted a medical certificate, and that his absence was not voluntary but due to medical reasons.
Respondents argued that the petitioner remained absent for over nine years without any communication or sufficient explanation, and that the medical certificate was only for a short period and did not justify the prolonged absence.
Ratio Decidendi
Continuous absence from duty for a prolonged period without sufficient cause or any communication indicating an intention to resume duty amounts to voluntary abandonment of service under Rule 16(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981. The burden is on the employee to show that the absence was not voluntary and that there was a reasonable cause.
Judgment Excerpts
By this Writ Petition, the petitioner has challenged judgment and order dated 16-07-2016, passed by the School Tribunal, Amravati, whereby the appeal filed by petitioner challenging order dated 24-07-2015, issued by respondent no.2, has not been interferred with.
In the medical certificate, it was certified that the petitioner was suffering from GERD with Anemia and Asthmatic Bronchitis with Anemia.
Thereafter, the petitioner did not care to report to the school or to send any communication to the Headmaster or the Management of the school.
It was stated in this letter that since the petitioner had been continuously absent since 02-02-2005, he was required to submit explanation within a period of three days why it was not to be deemed that he had voluntarily abandoned service under Rule 16(3) of the aforesaid Rules.
In response to the said letter, the petitioner sent a letter dated 10-12-2014 to the respondent no.2-Headmaster stating that he had been suffering from the same ailments and that he was taking treatment, but no medical certificate was enclosed.
Procedural History
The petitioner applied for leave on 02-02-2005. On 26-03-2005, the Headmaster asked for a medical certificate, which was submitted on 29-09-2005. The petitioner remained absent without communication. On 28-11-2014, the Headmaster issued a show-cause notice. The petitioner replied on 10-12-2014. On 24-07-2015, the Headmaster passed an order declaring deemed abandonment. The petitioner appealed to the School Tribunal, Amravati, which dismissed the appeal on 16-07-2016. The petitioner then filed the present writ petition on 17-03-2017, which was dismissed on 03-12-2018.
Acts & Sections
- Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981: Rule 16(3)
