DECISION ' This is an appeal against the order of the Labour Court dismissing the application made by the appellant under section 25-A, I. R.
0. For re-instatement.
2. The appellant was in the permanent employment of the respondent. He had proceeded on leave on medical grounds w. e. f. 11-4-1975. On expiry of the leave he did not join and, therefore, he was dismissed from service on 30th December, 1975. The appellant, however, appeared before the management on 2-1-1976 with a medical certificate issued by Dr. Iqbal Ahmad, but he was informed that he had already been removed from service w. e. f. 11-6-19 5. The appellant after service of grievance notice approached the Labour Court by making an application under section 25-A, I. R. O. He contended that on the expiry of first leave he had applied for the extension of the leave for one month which was duly sanctioned and, therefore, he could not join his duties on account of his prolonged illness and he had informed the management by a registered letter.
3. The application was resisted and it was pleaded that the appellant was in the habit of remaining absent without leave and he was previously warned in the years 1968 and 1970. Again he was warned five times during the years from 1970 to 1974. It was admitted that the leave was extended but no further intimation was received from the appellant and on account of continuous absence) the inquiry was dispensed with in view of Rule 6-B of K. P. T. Digest of Pay, Allowances and Leave Rules (Efficiency and Discipline) Rules, and was dismissed from service. a. Evidence was tendered by both the parties. On assessm ent of the evidence the learned Presiding Officer entertained the view that in view of the aforesaid rule relied upon by the Management, no inquiry was necessary and the dismissal could not be questioned. He, therefore, dismissed the application.
5. On perusal of the record and proceedings and hearing the arguments I am unable to support the impugned order. The Rule which was relied upon reads as under "6-B. Nothing in rule 6 or 6-A shall apply to a case :-
(a) Where the accused is dismissed or removed from service, or reduced in rank, on the ground of misconduct which has led to a sentence of fine or Imprisonment ; or
(b) where the authority competent to dismiss or remove a person from service, c to reduce a person in rank, is satisfied that, for reasons to be recorded in writing by the authority, it is not reasonably practicable to give the accused an opportunity of showing cause e. g. When the person charged has absconded."
6. In the present case the reliance was placed upon clause (b) to provide justification for dispensing with the inquiry. In my view this clause does not help the Management as one of the grounds for dispensing with the inquiry was that the person who was charged had absconded and this was the ground which was sought in aid. The evidence on record does not support the view that the appellant bad absconded. In fact, there Is not an iota of the evidence to that effect. When this was pointed out to the learned counsel, he urged that Management bad sent a notice to the appellant to resume his duties but he did not make any reply. That may be so, but that does not mean that he had absconded. On the contrary, it shows that he was available and was actually served with the notice. The person can be said to be absconded when he is untraceable, but that is not the case here. So the ground which was relied upon by the Management and accepted by the learned Presiding Officer was not available. In this view of the matter, inquiry could not be dispensed with and the action which was taken in the absence of charge-sheet and inquiry is not sustainable.
7. In result I allow the appeal and set aside the impugned order. It is open to the Management to charge-sheet the appellant and hold an inquiry and thereafter take such action as may be deemed fit in accordance with law. I would also wish to make it clear that since the appellant had remained absent without leave, be shall not be entitled to the salary for the past period as well as for the period till the conclusion of the inquiry.