Delhi High Court
Radhey Shyam Mishra vs University Of Delhi & Ors on 21 May, 2026
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 21st May, 2026
+ W.P.(C) 2713/2024
RADHEY SHYAM MISHRA .....Petitioner
Through: Mr. Imran Ali, Ms. Aanchal Bumb,
Mr. M.Z Khan, Advocates.
versus
UNIVERSITY OF DELHI & ORS. .....Respondents
Through: Mr. A.P.S. Ahluwalia, Senior
Advocate with Mr. S.S. Ahluwalia,
Ms. Saniya Zehra, Advocates for R-3
& 4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J. (Oral):
1. The Petitioner, Radhey Shyam Mishra, has approached this Court
under Article 226 of the Constitution seeking setting aside of the order dated
3rd July, 2002, whereby his services in Mata Sundri College for Women
were brought to an end. He also assails the subsequent rejection of his
representation dated 29th November, 2022, which was submitted pursuant to
the order dated 16th November, 2022 passed by this Court in W.P.(C)
19812/2004. Since the Petitioner has admittedly crossed the age of
superannuation, the relief of reinstatement survives only in a notional sense.
The real contest now concerns continuity of service, back wages and
consequential retiral benefits.
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2. The case turns on a decisive distinction: absence from duty is not, by
itself, abandonment of service. The College invokes the rule which treats an
employee as having absconded where he remains absent without prior
permission for a continuous period of 90 days. The Petitioner answers that
he had not walked away from service. His case is that he was suffering from
mental illness, that his wife had kept the College informed of his condition,
and that the College itself corresponded with her on that basis. The
submission, therefore, is that the College could have scrutinized the
explanation, rejected it if it was found wanting, and even proceeded
departmentally for unauthorised absence. It could not, however, treat a
subsisting employer-employee relationship as extinguished by a legal fiction
without first addressing whether the absence was truly abandonment.
Facts
3. The Petitioner entered service in Mata Sundri College on 11th
October, 1983. By communication dated 5th December, 1984, he was
confirmed in his post with effect from 11th October, 1983. He was promoted
from Peon to Library Attendant with effect from 1 st February, 1990. By
office order dated 24th November, 1999, he was transferred from the library
to the administrative section with immediate effect.
4. The events which gave rise to the present dispute began in December,
2001. On 8th January, 2002, the College recorded that the Petitioner was
unauthorisedly absent from duty with effect from 14th December, 2001 and
directed stoppage of his salary till further orders. The next day, the Principal
addressed a detailed communication to the Petitioner. It stated that he had
not reported for duty since 14th December, 2001 and had given no oral or
written intimation, nor any leave application. The letter also referred to his
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attendance from August, 2001 onwards, stating that he had worked only for
30 days in the preceding six months. After referring to earlier warnings,
reprimands and late coming, the Petitioner was directed to report for duty
immediately and to show cause why his services should not be terminated
after three months’ notice.
5. Four days later, on 13th January, 2002, the Petitioner’s wife, Mrs.
Meena Mishra, wrote to the Principal stating that the Petitioner had been
under treatment from 14th December, 2001, was unable to join duty, and that
she was anxious both about his illness and about his employment. She
requested that medical leave be granted till his recovery. The College does
not contest receipt of this letter. Its objection is that the communication was
inadequate: it did not disclose the nature of illness, the likely duration of
absence, the name of the hospital or doctor, and it carried no medical
certificate.
6. The College thereafter corresponded with Mrs. Meena Mishra. By a
letter dated 4th February, 2002, issued in continuation of an earlier office
letter dated 16th January, 2002, she was asked to inform the College of the
hospital from which the Petitioner was receiving treatment and the expected
or tentative date on which he would resume duty. The correspondence
shows that the matter was not being treated, at that stage, as one of
unexplained disappearance, but as one where illness was being asserted as
the reason for absence and further particulars were being sought.
7. The Petitioner relies upon a further letter dated 10th June, 2002 said to
have been sent by his wife. In that letter, she referred to the College letter
dated 29th May, 2002 and stated that she had already sent a letter dated 15 th
February, 2002 explaining the illness, domestic financial problems and the
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likely date of joining duty of her husband. She requested that some more
time be granted, approximately up to August, 2002, and that an ex parte
decision be not taken. The College disputes receipt and genuineness of this
letter as well as of the alleged letter dated 15th February, 2002.
8. In the meanwhile, the College issued a notice dated 29 th May, 2002,
calling upon the Petitioner to report for duty within fifteen days and to face
the charges framed against him, failing which an ex parte decision would be
taken in accordance with rules. The precise language of this communication
assumes significance because the Petitioner submits that the College itself
treated the matter as one involving charges and misconduct, not as a case of
severance by abandonment.
9. On 3rd July, 2002, the Petitioner’s services were terminated. The
Petitioner thereafter addressed a representation dated 23rd August, 2002
seeking revocation of the termination and restoration of service. In that
representation, he asserted that he had been under mental depression and
treatment and that he could not attend duty from 14 th December, 2001 to 5th
August, 2002. He stated that his wife had represented his case in his
absence, and that his services had been terminated without due process and
without considering his mental illness. The Respondents’ case is that the
medical certificate produced by the Petitioner was post-termination, was
inadequate, and was unsupported by contemporaneous OPD slips,
prescriptions, treatment papers or other medical record.
10. The Petitioner then pursued further representations. The record
includes subsequent requests seeking permission to join duty. In one such
representation dated 9th September, 2002, the Petitioner stated that he had
been orally informed that, in the absence of a Governing Body, he could not
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be permitted to join duty. There are also communications addressed by the
employees’ union requesting sympathetic reconsideration. On 28 th October,
2002, the College informed the Union that the Petitioner’s services had been
terminated with the approval of the College Governing Body and that the
matter regarding reconsideration lay in the hands of the Governing Body.
The letter further stated that there was then no Governing Body and that, as
soon as the Governing Body was formed, the case would be processed
according to its merits and demerits.
11. The Petitioner thereafter instituted W.P.(C) 19812/2004, seeking
setting aside of the termination and reinstatement with full back wages. On
16th November, 2022, this Court disposed of the writ petition. The order
records that, after some arguments, counsel for the Petitioner, without
pressing the matter on merits, sought a limited direction to the concerned
authority to consider the Petitioner’s case. The Court noticed that the
University had Petitioner’s request be reconsidered once the Governing
Body was formed. The order further records that the Petitioner had crossed
the age of superannuation.
12. The operative portion of the order dated 16th November, 2022 directed
the Petitioner to file a fresh detailed representation before the Principal,
Mata Sundri College for Women, within two weeks. Upon receipt, the
Principal was directed to place the representation before the Governing
Body of the College for consideration. The Governing Body was required to
take a “reasoned decision on merits” on the very first day of convening the
meeting, in accordance with law. The Court also recorded the expectation
that the Governing Body would consider the matter sympathetically, as
assured by senior counsel for the College.
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13. Pursuant to the said order, the Petitioner submitted a representation
dated 29th November, 2022 for sympathetic consideration and grant of back
wages. He referred to his earlier representations and stated that his absence
was on account of serious mental illness and that his wife had
communicated with the College during that period.
14. The Petitioner thereafter issued a legal notice dated 5th April 2023,
alleging non-compliance with the order dated 16th November 2022. In
response, the College, by reply dated 26th April 2023, stated that the
Governing Body, in its first meeting convened on 12 th April 2023, had
unanimously rejected the Petitioner’s representation dated 29th November
2022. The Petitioner’s grievance, however, is that neither a copy of the
resolution nor any reasoned order was furnished to him. Constrained
thereby, he issued a further legal notice dated 13 th July 2023 specifically
seeking disclosure of the Governing Body’s decision. According to the
Petitioner, even thereafter, no speaking or reasoned order was
communicated to him.
15. The Petitioner also moved CM APPL. No. 35069/2023 in W.P.(C)
19812/2004 seeking restoration of the earlier writ petition and consideration
of the case on merits. On 13th July, 2023, the application was withdrawn
with liberty to seek redressal in accordance with law before the appropriate
forum. The present writ petition followed.
Submissions on behalf of the Petitioner
16. Mr. Imran Ali, Counsel for the Petitioner, first meets the objection to
maintainability. He submits that the order dated 16th November, 2022 cannot
be read as a rejection of the Petitioner’s challenge to the termination dated
3rd July, 2002. The Petitioner did not abandon the challenge on merits. The
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Court accepted a limited course because the Petitioner’s representation had
not been considered by the Governing Body, although the College had
earlier indicated that reconsideration would lie before that body. It is urged
that the direction issued on 16th November, 2022 for a “reasoned decision on
merits” would make little sense if the challenge on merits had already been
foreclosed. The order dated 13th July, 2023, by which the Petitioner was
permitted to withdraw the restoration application with liberty to seek
redressal in accordance with law, is relied upon to submit that the present
petition is neither barred by res judicata nor by any principle akin to
constructive res judicata.
17. On the merits, Mr. Ali submits that the Petitioner’s absence cannot be
treated as abandonment. The Petitioner was suffering from mental illness
from December, 2001 and was not in a position to attend duty. His wife
informed the College of the illness by letter dated 13 th January, 2002. The
College acknowledged that communication and corresponded with her. The
letter dated 4th February, 2002, addressed by the College to the Petitioner’s
wife, asked her to disclose the hospital from which the Petitioner was taking
treatment and the tentative date of joining duty. This correspondence, it is
emphasised, is incompatible with an inference that the Petitioner had
disappeared or intended to give up his employment.
18. Mr. Ali then refers to the notice dated 29th May, 2002 which directed
the Petitioner to report for duty and face the charges framed against him.
According to him, this notice reveals that the College treated the absence as
conduct requiring an explanation and as a matter involving charges.
Therefore, the College was required to disclose the charges, serve the
imputations, grant a fair opportunity of defence and hold an inquiry before
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imposing a consequence as grave as termination. The College could not
allege misconduct while issuing the notice, and then avoid the safeguards of
a disciplinary process by describing the final order as “deemed termination”.
19. Reliance is placed upon Rule 49(2)(v) of the of the University Non-
Teaching Employees (Terms & Conditions of Service) Rules, 1971. It is
submitted that the opening words of the rule control the deeming
consequence which follows. Absence beyond 90 days does not
automatically result in termination where a valid reason or unforeseen
contingency is asserted. Mental illness, once brought to the College’s notice,
required consideration. The College could have called for proof and rejected
the explanation if found inadequate, but could not mechanically invoke the
deeming fiction without first addressing the explanation offered.
20. Reliance is placed upon Krushnakant B. Parmar v. Union of India,1
to submit that unauthorised absence does not ipso facto amount to wilful
absence or misconduct. Where absence is explained by compelling
circumstances such as illness, accident or hospitalisation, the employer must
examine whether the absence was wilful. Reliance is also placed upon L.
Robert D’Souza v. Executive Engineer, Southern Railway2 and D.K. Yadav
v. J.M.A. Industries Ltd.,3 to submit that automatic termination or striking
off from service for absence, without minimum natural justice, cannot be
sustained where civil consequences follow.
21. Mr. Ali further submits that the subsequent rejection by the
Governing Body does not cure the defect in the termination. The order dated
16th November, 2022 required a reasoned decision on merits. No such
1
(2012) 3 SCC 178
2
(1982) 1 SCC 645
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decision was ever communicated. The College has not shown any speaking
order which deals with the Petitioner’s explanation, the wife’s
contemporaneous correspondence, the plea of mental illness, the opening
words of Rule 49(2)(v), or the legal distinction between unauthorised
absence and abandonment. A communication stating that the Governing
Body had unanimously rejected the representation is not a compliance of the
Court’s direction.
22. As to relief, counsel accepts that the Petitioner has crossed the age of
superannuation and that actual reinstatement is no longer possible. The
prayer is therefore limited to notional continuity up to the date of
superannuation, consequential fixation of pay, back wages and all retiral
benefits flowing from such continuity.
Submissions on behalf of the College
23. Mr. A.P.S. Ahluwalia, Senior counsel for Respondents No. 3 and 4,
raises a threshold objection to the maintainability of the petition. He submits
that W.P.(C) 19812/2004 was itself directed against the termination dated 3 rd
July, 2002 and sought reinstatement with full back wages. The present
petition, in substance, seeks the same relief. According to him, the earlier
writ petition was argued at length and, at that stage, counsel for the
Petitioner chose not to press the challenge on merits but sought only a
limited direction for consideration of a fresh representation. The Petitioner,
having elected that course, cannot now revive the original challenge by
filing a second writ petition.
24. Mr. Ahluwalia, further submits that the order dated 16th November,
2022 only required the College to consider the Petitioner’s representation. It
3
(1993) 3 SCC 259
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did not recognise any right in the Petitioner to have the representation
accepted, nor did it reopen the termination for a fresh judicial review. The
Governing Body considered the matter in its first meeting and rejected the
representation after examining the Petitioner’s service record. The rejection
of that representation cannot be used as a device to create a fresh cause of
action against an order of termination passed in 2002.
25. The College further explains the consideration of the representation
after the order dated 16th November, 2022. It is submitted that no Governing
Body existed when the representation dated 29th November, 2022 was
received. After the Governing Body was constituted on 5th April, 2023 and
approval obtained from the Vice Chancellor on 12 th April, 2023, the
representation was placed before its first meeting held on the same day. It
considered the Petitioner’s service record, including allegations of
misconduct, indiscipline, insubordination, non-performance of duties and
wilful unauthorised absence, and unanimously rejected the representation.
26. On merits, Mr. Ahluwalia submits that the Petitioner cannot claim the
equities of a diligent employee wrongly removed from service. The record
of the earlier writ petition contains several warnings, complaints and
communications concerning late coming, unauthorised absence,
disobedience and poor conduct. Complaints were also received from
members of the staff and students. The Petitioner was shifted from the
library to the administrative section because his conduct had affected the
functioning of the library. It is submitted that the Governing Body was
entitled to consider this history while deciding whether the case called for
sympathetic indulgence.
27. Mr. Ahluwalia further submits that the decisive fact remains the
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Petitioner’s absence from 14th December, 2001 onwards. The College issued
notices, yet the Petitioner did not report for duty. The letter dated 13th
January, 2002 sent by his wife, even if received, did not mention the nature
of illness, the period for which leave was required, the hospital, the treating
doctor, or any medical certificate. The College sought particulars, but no
satisfactory response was furnished. The later letters dated 15 th February,
2002 and 10th June, 2002, now relied upon by the Petitioner, were never
received by the College and their genuineness is specifically disputed.
28. The medical certificate relied upon by the Petitioner does not advance
his case. It was produced only after the termination, along with the
representation dated 23rd August, 2002. According to the Respondents, the
certificate is dated 5th August, 2002, contains no adequate particulars, and is
unsupported by OPD slips, prescriptions, treatment papers or any
contemporaneous record which could establish treatment for nearly eight
months. The Petitioner did not take treatment from a panel doctor or any
University medical facility. The plea of mental depression remains vague
and unproved.
29. It is also urged that the Petitioner never personally replied to the
notices issued by the College. The communications relied upon were sent by
his wife. Even if those communications are taken into account, the Petitioner
did not establish that he was so incapacitated that he could not respond
himself. The College cannot be expected to keep employment open
indefinitely on the basis of vague letters unsupported by medical proof.
30. On this foundation, the College submits that Rule 49(2)(v) squarely
applies. The Petitioner remained absent without prior permission for a
continuous period far beyond 90 days. No valid reason or unforeseen
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contingency was established by reliable material. He was therefore rightly
treated as having absconded from duty and his services were deemed to have
terminated. It is argued that no full disciplinary inquiry was necessary,
because the case was not one of punitive dismissal for misconduct but one of
deemed cessation under the applicable service rule.
31. The Respondents also raise the plea of delay and laches. The
Petitioner was terminated on 3rd July, 2002. He sought revocation only on
23rd August, 2002 and filed W.P.(C) 19812/2004 in 2004. The present writ
petition, filed after rejection of the representation, is an attempt to revive
claims which are stale and which were the subject of the earlier writ
proceedings.
32. Additionally, it is submitted that the Petitioner ought to have
approached the Executive Council or sought review before the competent
authority and, having failed to do so, cannot invoke Article 226.
33. Reliance is placed on Meena v. T.R. Patil Vidyalaya,4 to submit that
where a statutory or rule-based deeming provision operates on prolonged
absence, a regular disciplinary inquiry is not necessary. Reliance is also
placed on Ex Sepoy Madan Prasad v. Union of India,5 to contend that
habitual unauthorised absence and indiscipline may justify severe
disciplinary consequences. PHR Invent Educational Society v. UCO Bank,6
is cited on the limits of writ jurisdiction, particularly where alternative
remedies exist or concluded matters are sought to be reopened. DB Corp.
Ltd. v. Registrar of Newspapers,7 is relied upon for the proposition that a
4
2014 SCC OnLine Bom 1541
5
(2023) 9 SCC 100
6
(2024) 6 SCC 579
7
2010 SCC OnLine Del 3026
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disposed proceeding cannot be indirectly reopened through subsequent
applications or collateral proceedings.
Points for determination
34. On the pleadings and submissions, the following questions arise for
consideration:
(i) Whether the present writ petition is barred by principles of res
judicata, constructive res judicata, waiver, or finality arising from the order
dated 16th November, 2022 passed in W.P.(C) 19812/2004.
(ii) Whether the subsequent order dated 13th July, 2023, granting liberty
to the Petitioner to seek redressal in accordance with law, preserves the
Petitioner’s right to challenge the rejection of his representation and, to the
necessary extent, the foundational termination.
(iii) Whether the Petitioner’s absence from duty from 14th December, 2001
could lawfully be treated as abandonment or absconding under Rule
49(2)(v), in the face of the wife’s contemporaneous correspondence and the
College’s own response seeking medical particulars and the tentative date of
joining.
(iv) Whether the termination dated 3rd July, 2002 was, in substance, a
punitive action founded on alleged misconduct, unauthorised absence and
past conduct, thereby requiring observance of natural justice and
disciplinary procedure.
(v) Whether the Governing Body’s rejection of the representation dated
29th November, 2022 satisfies the requirement of a reasoned decision on
merits as directed by this Court on 16th November, 2022.
(vi) If the impugned action is found unsustainable, what relief should be
granted, particularly when the Petitioner has already crossed the age ofSignature Not Verified
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superannuation.
Discussion and reasons
Maintainability and finality
35. The College’s preliminary objection may be dealt with first. The order
dated 16th November, 2022 cannot be read as an adjudication sustaining the
termination dated 3rd July, 2002. The order records that counsel for the
Petitioner, without pressing the matter on merits at that stage, sought a
limited direction. It also records that the College opposed the matter on
merits. However, the Court did not decide the validity of the termination. It
did not reject the Petitioner’s challenge founded on want of inquiry or
breach of natural justice. Nor did it decide whether Rule 49(2)(v) had been
lawfully invoked.
36. The Petitioner relied upon the College’s communication dated 28 th
October, 2002, in which it had been stated that reconsideration of his case
would lie before the Governing Body and that, once the Governing Body
was constituted, the matter would be processed on its “merits and demerits”.
It was in that setting that this Court directed the Petitioner to file a fresh
representation and required the Principal to place it before the Governing
Body.
37. The College’s present submission, if accepted, would make the
direction dated 16th November, 2022 self-defeating. The Governing Body
was directed to take a “reasoned decision on merits”. If the merits of the
Petitioner’s challenge had already stood concluded against him, there was
nothing left for the Governing Body to decide on merits. The words
“without pressing the matter on merits” must therefore be read in their
setting. They mean that the Court was not invited to decide the merits then,
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because the Petitioner accepted the intermediate course of consideration by
the Governing Body. They cannot be converted into abandonment of the
challenge to termination.
38. The order dated 13th July, 2023 reinforces this conclusion. While
permitting withdrawal of the restoration application, this Court granted
liberty to the Petitioner to seek redressal in accordance with law. Had the
challenge already stood foreclosed, such liberty would have carried little
meaning. The objection founded on res judicata or constructive res judicata
is accordingly rejected.
39. At the same time, the procedural history cannot be ignored. Since the
rejection of the Petitioner’s representation turns on the validity of the
termination dated 3rd July, 2002, this Court must examine the legality of that
action to the limited extent necessary for deciding the present challenge.
Validity of the termination dated 3rd July, 2002
40. The next question is whether the Petitioner’s absence could lawfully
be treated as abandonment. It is necessary to begin with the applicable rule.
Rule 49(2)(v), as relied upon by the Respondents, reads:
“Except for valid reasons and/or unforeseen contingencies, no employee
shall be absent from duty without prior permission. Where an employee
absents himself from duty without prior permission for a continuous period
of 90 days, he shall be treated as absconding from duty and his service be
deemed as ‘terminated’.”
41. The College reads the latter part of Rule 49(2)(v) as if the completion
of 90 days’ absence, by itself, brings the employment to an end. That
reading gives insufficient weight to the opening words of the rule. The rule
does not say that every absence beyond 90 days, whatever its cause, must
result in deemed termination. It begins with the words “Except for valid
reasons and/or unforeseen contingencies”. The provision, therefore, requires
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the authority to ask whether the absence was truly without justification.
Where illness is placed before the employer as the cause of absence, the
employer may test that explanation, call for proof, and reject it if the
material is found wanting. It cannot bypass that enquiry altogether and allow
the deeming consequence to operate as a mechanical end of service.
42. The record does not bear out a case of silent desertion. By January,
2002, the College knew that illness was being put forward as the reason for
the Petitioner’s absence. Mrs. Meena Mishra’s letter dated 13th January,
2002 stated that the Petitioner was under treatment from 14th December,
2001 and sought medical leave till his recovery. The College thereafter
wrote to her and asked for particulars of the hospital and the expected date
of joining. The explanation may have been incomplete and required proof,
but it was not non-existent. Once the College chose to engage with that
explanation, it could not later treat the case as if the Petitioner had
disappeared without contact, communication or cause.
43. The College is, however, justified in contending that the Petitioner’s
medical material is not entirely satisfactory. The letter dated 13th January,
2002 neither enclosed a medical certificate nor disclosed the nature of the
illness. The alleged letters dated 15th February, 2002 and 10th June, 2002 are
disputed. The medical certificate relied upon by the Petitioner was produced
only after the termination. OPD slips, prescriptions, review records and
treatment papers have not been placed on record. These omissions weaken
the Petitioner’s explanation and must weigh while moulding relief.
44. That said, insufficiency of medical proof is not the same as
abandonment of service. Abandonment is a matter of intention. Absence
may, in a proper case, supply evidence of that intention. Long and wholly
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unexplained absence may justify an inference that the employee has chosen
not to return. But where the employer has contemporaneous notice that
illness is being asserted, and where the employer itself asks for medical
particulars and the expected date of joining, the inference cannot be drawn
without first examining the explanation. The correspondence may not have
conclusively proved illness, but it warranted consideration of the
explanation rather than automatic termination.
45. The notice dated 29th May, 2002 also assumes significance. It called
upon the Petitioner to report for duty and face the “charges framed” against
him. This suggests that the College was treating the matter as one involving
allegations of misconduct rather than a mere operation of a deeming clause.
If charges had been framed, they required disclosure. If the proposed action
was founded on unauthorised absence, past indiscipline, misbehaviour or
poor service record, the College had to proceed through the disciplinary
route. The College could have proceeded against the Petitioner for
unauthorised absence, tested the medical explanation and considered his past
record in accordance with law. It could not, however, rely upon allegations
of misconduct while dispensing with the procedural safeguards such action
attracts.
46. The Respondents’ own pleadings reinforce this conclusion. The
College states that the Governing Body considered the Petitioner’s acts of
misconduct and misbehaviour, indiscipline, disobedience, insubordination,
non-performance of duties, and wilful and deliberate absence. This indicates
an assessment of conduct and not a neutral application of a deeming rule.
Once such material is used to sustain the termination of service, the action
assumes a punitive colour. The employer cannot rely on allegations of
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misconduct while avoiding the fair procedure such action requires by
describing it as a deemed termination.
47. The legal distinction between unauthorised absence and abandonment
is settled. In Krushnakant B., the Supreme Court held that absence from
duty, though unauthorised, does not by itself establish wilfulness. The
authority must examine whether the absence was deliberate or whether it
arose from compelling circumstances. Illness, accident and hospitalisation
were specifically noticed as circumstances which may prevent an employee
from reporting for duty and which, if established, would take the case
outside wilful absence.
48. D.K. Yadav lends support to the requirement of minimum procedural
fairness where a deeming provision results in cessation of service carrying
civil consequences. Rule 49(2)(v) expressly carves out an exception for
“valid reasons and/or unforeseen contingencies”. Once illness was asserted
as the explanation for absence, and particulars were sought by the College
on that footing, the deeming consequence could not be invoked without
meaningful consideration of whether the asserted explanation brought the
case within the exception. To hold otherwise would render the qualifying
words in the rule otiose.
49. These authorities do not leave the employer powerless. An employee
who remains absent without justification may be proceeded against, a
medical explanation may be analysed and rejected if not found credible, and
the past service record may be considered where the rules so permit.
However, before bringing service to an end on the footing of wilful
abandonment, the employer must apply its mind to whether the explanation
offered displaces such an inference and whether the case is one of
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misconduct requiring disciplinary action. This exercise was not undertaken
before the Petitioner’s service was brought to an end.
50. T.R. Patil Vidyalaya is distinguishable as it turned on a materially
different rule and factual setting. In that case, the deeming fiction of
abandonment operated only after a continuous absence exceeding three
years and the total failure of the employee to respond to repeated notices.
Conversely, Rule 49(2)(v) expressly preserves cases involving “valid
reasons and/or unforeseen contingencies”. The Petitioner
contemporaneously asserted a serious mental illness, a fact the College
acknowledged by seeking medical particulars, yet the College proceeded to
terminate him without considering that explanation. Furthermore, the notice
dated 29th May, 2002, explicitly referred to “charges framed,” contradicting
the Respondents’ current reliance on an automatic deeming fiction.
51. Ex Sepoy Madan Prasad v. Union of India also does not carry the
Respondents far. That case arose in the context of the Armed Forces, where
disciplinary standards are especially stringent. The employee had a history
of punishments, no acceptable medical record, and had pleaded guilty before
the Summary Court Martial. The present case concerns a non-teaching
employee of a college. The proposition that habitual unauthorised absence
may invite serious consequences is unexceptionable. The present case,
however, turns on the distinct question, i.e., whether Rule 49(2)(v) was
lawfully invoked in the facts at hand.
52. PHR Invent Educational Society is relied upon to contend that the
Petitioner ought to have availed the statutory remedy of appeal/review
before the competent authority. That objection does not merit acceptance in
the facts of the present case, particularly when the earlier writ petition was
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entertained and disposed of with a direction for reconsideration by the
Governing Body, followed by liberty to seek redressal in accordance with
law after rejection of the representation. DB Corp. Ltd., relied upon to
contend that concluded proceedings cannot be reopened through collateral
means, is equally inapposite. The earlier writ petition was not dismissed on
merits. The present petition arises from the subsequent rejection of the
Petitioner’s representation and does not amount to reopening a concluded
adjudication.
53. There is a further difficulty with the decision said to have been taken
pursuant to the order dated 16th November, 2022. This Court had required a
“reasoned decision on merits”. The College asserts that such a decision was
taken. What has, however, been communicated to the Petitioner and placed
before this Court substantially comprises the reply dated 26 th April, 2023
issued through counsel for the College, together with the justification set out
in the counter-affidavit. A reasoned decision cannot ordinarily be
reconstructed through later pleadings; it must substantially emerge from the
decision-making process itself. During the course of hearing, Mr. Ahluwalia
clarifies that a formal decision of the Governing Body exists in the College
records. The Petitioner maintains that no copy thereof was ever furnished to
him and certainly, no such decision has been placed on record.
54. Be that as it may, the controversy before the Governing Body
necessarily involved material questions, including the applicability of Rule
49(2)(v) in light of the explanation of illness, the effect of the
contemporaneous correspondence from the Petitioner’s wife, and the
relevance of the Petitioner’s service record to the action ultimately taken.
Thus, even proceeding on the assumption that the reply dated 26 th April,
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2023 and the justification in the counter-affidavit substantially reflect the
basis of that decision, the material placed before this Court does not
adequately disclose engagement with the issues arising from the Petitioner’s
representation or the basis on which the competing contentions came to be
resolved. Judged on that standard, the Court’s direction dated 16th
November, 2022 was not complied with in substance.
55. Ordinarily, this conclusion may have led to a remand to the
Governing Body. The Court does not consider that course either necessary
or just in the present case. The termination is of 2002. The earlier writ
petition was filed in 2004. The Petitioner has crossed the age of
superannuation. The Governing Body was given an opportunity to consider
the matter after the order dated 16th November, 2022. A further remand
would only extend a dispute which has already outlived the Petitioner’s
tenure in service. The record is sufficient for this Court to decide whether
the termination can stand. In the opinion of the Court, it cannot.
56. The termination dated 3rd July, 2002 is therefore unsustainable. The
infirmity is threefold. First, Rule 49(2)(v) could not operate mechanically,
for the rule itself makes room for valid reasons and unforeseen
contingencies. Secondly, the correspondence on record made it unsafe to
infer that the Petitioner intended to abandon service. Thirdly, the College’s
reliance on past misconduct, indiscipline and the Petitioner’s service record
gave the action a punitive character in substance. Fair procedure could not,
therefore, be avoided by describing the result as deemed termination.
57. The remaining question is relief. The Petitioner presses for full back
wages. That relief does not follow automatically merely because the
termination is found unsustainable. The Court must have regard to the nature
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of the illegality, the length of time that has passed, the fact that the employee
did not actually work, the extent to which the employer was at fault, the
conduct of the employee, and the overall balance of equities. The relief
flowing from an illegal termination is not automatic and must be fashioned
having regard to the facts and equities of the particular case. Monetary
consequences, including back wages, depend upon a contextual assessment
rather than a rigid rule.8
58. The Petitioner did not work after 2002. He had remained absent from
14th December, 2001 onwards. His medical documents, as noticed above, are
not satisfactory in all respects. It would therefore be unjust to direct the
College to pay full wages for the entire remaining period of service as if the
Petitioner had actually discharged duties. Equally, the College cannot be
permitted to retain the advantage of a legally unsustainable termination
which deprived the Petitioner of a fair determination of his explanation and,
in consequence, of continuity and retiral benefits. The relief must therefore
lie between these two positions.
59. The period from 14th December, 2001 till 23rd August, 2002 must be
treated separately. That is the period during which the Petitioner claims to
have been under treatment and unable to attend duty. Since he did not work
during that period, it would be appropriate to direct that the said period be
adjusted against leave of the kind due. If no leave is available, the period
shall be treated as extraordinary leave without pay.
60. A different consideration applies after 23rd August, 2002. On that
date, the Petitioner sought revocation of the termination and restoration to
service. He asserted that he was fit to resume duty. The College did not
8
U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479
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permit him to rejoin. The consequences of the unlawful termination must
therefore begin from that point. Yet, having regard to the facts that the
Petitioner did not actually render service thereafter, the medical explanation
is not free from doubt, and the past record projected by the College cannot
be wholly ignored while moulding relief, full back wages would be
excessive. In the facts of the case, award of 25% back wages from 23 rd
August, 2002 till the actual date on which the Petitioner would have
superannuated would meet the ends of justice.
61. There is some discrepancy in the record on the date of
superannuation. The order dated 16th November, 2022 records the same as
January, 2022, whereas the present writ petition and the Petitioner’s
representation state that he superannuated in January, 2020. It is unnecessary
to resolve that discrepancy in this judgment. The benefits shall be computed
up to the actual date on which the Petitioner would have superannuated in
accordance with his service record.
Relief
62. For the reasons stated above, the writ petition is allowed in the
following terms:
(i) The termination order dated 3rd July, 2002 is set aside.
(ii) The rejection of the Petitioner’s representation dated 29th November,
2022, as communicated through the reply dated 26 th April, 2023 and
defended in these proceedings, is also set aside.
(iii) The Petitioner shall be treated as having continued in service
notionally from the date of termination till the actual date on which he
would have superannuated in accordance with his service record.
(iv) The period from 14th December, 2001 till 23rd August, 2002 shall be
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adjusted against leave of the kind due. If no leave is available, the said
period shall be treated as extraordinary leave without pay.
(v) For the period from 23rd August, 2002 till the date of superannuation,
the Petitioner shall be entitled to 25% back wages, to be computed after
notional fixation of pay.
(vi) The Petitioner shall be entitled to notional continuity for the limited
purpose of fixation of pay, qualifying service, pensionary benefits, gratuity
and all other retiral or terminal benefits admissible under the applicable
rules.
(vii) The Respondents shall compute and release the monetary and retiral
benefits flowing from this judgment within twelve weeks.
(viii) If the amounts are not released within the said period, the unpaid
amount shall carry simple interest at 6% per annum from the expiry of
twelve weeks till the date of payment.
63. It is clarified that the Petitioner shall not be entitled to actual
reinstatement, having crossed the age of superannuation. It is also clarified
that, except to the extent of 25% back wages directed above, the Petitioner
shall not be entitled to salary for the period during which he did not actually
work.
64. The writ petition is disposed of in the above terms. Pending
applications, if any, stand disposed of.
SANJEEV NARULA, J
MAY 21, 2026/ab
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