Absent for Months and Notices Sent to an Old Address: Defences to Dismissal

Dismissed while you were away: what had to happen first

Article 311(2) of the Constitution protects you here as much as in a bribery case. Before a dismissal or removal, there has to be an inquiry, you must be informed of the charges, and you must get a fair hearing on them. Long absence is dealt with as serious misconduct, so the normal route is a Rule 14 inquiry under the CCS (CCA) Rules, 1965, with a memorandum of charges, an inquiry officer, a report and a chance to represent against it.

The DoPT's consolidated instructions of 28 March 2013 on unauthorised absence ask offices to act quickly: tell the employee the consequences, direct him to rejoin within a short period, often three days, and start disciplinary proceedings without waiting for the absence to grow longer. These instructions assume that the letters actually reach the employee. Many absence cases fall apart at exactly that point.

Two shortcuts exist in the rules, and departments use both. Rule 14(20) lets the inquiry officer proceed ex parte if you do not appear after being given notice. Rule 19(ii), which mirrors Article 311(2)(b), lets the disciplinary authority skip the inquiry altogether if it records in writing that holding one is not reasonably practicable. Each shortcut has conditions, and each can be tested when the notices never reached you.

How a dismissal for absence notice has to reach you

A dismissal for absence case usually involves five separate papers: a letter directing you to rejoin, the memorandum of charges, notices fixing inquiry dates, the inquiry report with an invitation to represent within 15 days, and the final order. Each one is a notice in the legal sense, and the first four exist so that you can respond. Rule 30 of the CCS (CCA) Rules says orders and notices under the rules are to be served on you in person or sent by registered post.

In Union of India v. Dinanath Shantaram Karekar (1998), a civilian employee of a naval armament depot in Bombay had been removed after an ex parte inquiry. His chargesheet had been sent once by registered post and came back marked 'not found'; the later show cause notice was published in newspapers. The Supreme Court upheld the tribunal's view that neither had been served. A single returned envelope, when the address was on record and no further attempt was made, did not start the proceedings, and a newspaper notice without real earlier efforts did not cure it.

The same judgment drew a line worth knowing. For a chargesheet or a show cause notice, the employee must actually receive it, because the whole point is to let him reply. For the final dismissal order, sending it out may be enough to make it effective. So the strongest service of notice argument is usually about the chargesheet and the inquiry notices, not about the final order.

What the remark on the returned envelope usually means

Which address is your last known address?

Your last known address is the most recent address the office had from you, not the one your service book showed when you joined. It can come from a leave application, a medical certificate sent from a hospital, a letter informing a change of residence, a reply to an earlier memo, or an updated e-HRMS profile. If any of these reached the office before it sent the chargesheet, the office should have used it.

Problems often begin with government accommodation. An employee goes on leave, the family vacates the quarter, the allotment is cancelled, and months later the chargesheet is posted to that same quarter. The office cannot sensibly claim it believed you still lived in a flat its own estate section had taken back. Ask for the estate records showing when the quarter was vacated; they can be the most useful paper in your file.

The opposite case is harder. If you left without telling anyone, gave no address, and did not answer the phone, an office that sent letters to the home address in your service book and to your quarter has done what it reasonably could. Tribunals are much less sympathetic where the employee simply vanished. That is why the first question is always what you told the office, when, and how you can prove it.

Messages on WhatsApp, e-mails and phone calls are not formal service under Rule 30. They still matter as evidence: an office that was exchanging messages with you could not claim you were untraceable, and an employee who received a photo of the chargesheet on his phone will find it hard to say he never knew.

Wilful absence, or absence you could not help

Being away without sanction and committing misconduct are two different things. Krushnakant B. Parmar v. Union of India (2012) is the Supreme Court case to cite: before treating absence as misconduct, the authority must find that you stayed away deliberately. A man laid up after a road accident, or a woman nursing a dying parent in another state, may have broken the leave rules, but a dismissal for absence notice built on that alone overlooks the question the court said must be answered first.

That means the reason for your absence is a defence on the merits, separate from the address problem. Hospital admission and discharge records, prescriptions over the period, a certificate from a government hospital, police records if you were detained, records of a relative's treatment if you were the carer: these are what turn a story into evidence. A single medical certificate covering eight months, written after the event by a private clinic, is weak. Several dated papers from the time are strong.

Months away because of depression, alcohol dependence or a breakdown are common in these files and are rarely explained well. If a doctor has treated you for such a condition, say so in the appeal, with the papers. The disability law adds a further point: under Section 20(4) of the 2016 Act on persons with disabilities, an establishment may not throw out or demote someone who becomes disabled while in service. Whether your illness reaches that threshold needs a medical opinion, but the point is lost if it is held back until the tribunal stage.

Deemed resignation: what the five-year rule allows

Deemed resignation for central employees comes from Rule 12 of the CCS (Leave) Rules, 1972, in the form given to it by a DoPT notification of 29 March 2012. The first part caps any spell of leave at five years. The second part, Rule 12(2), says that someone away from duty for longer than five years at a stretch, whether on leave or not, and not on foreign service, is treated as having resigned. Two safeguards are built in: the President can decide otherwise where the circumstances are exceptional, and you must first be allowed to explain why you were away.

So a letter that calls you deemed resigned after eight months or two years has no footing in Rule 12(2). It is, in substance, a removal from service without an inquiry, and it can be challenged on that basis. The Supreme Court has also held, in Uptron India Ltd. v. Shammi Bhan (1998), that a clause treating an employee as automatically out of service for overstaying leave cannot operate without giving the employee a hearing.

Even after five years, the opportunity to explain is not a formality. If the reasons you give are genuine and supported, the President's power to decide otherwise exists for that situation. And because resignation forfeits past service for pension, the label matters a great deal; our page on resignation treated as forfeiting pension explains that side.

When the department skipped the absence inquiry

Some offices dismiss for absence without holding any absence inquiry, relying on Rule 19(ii) and the note that the employee is 'not traceable'. The Constitution Bench in Union of India v. Tulsiram Patel (1985) allowed this route only where an inquiry is genuinely not reasonably practicable, and only on reasons recorded in writing at the time. Inconvenience is not enough, and neither is an untested assumption that the employee would not have responded.

Ask for the file noting that recorded those reasons. If it shows one returned envelope and nothing more, the dispensing order is open to challenge, particularly if the office had another address, a phone number or a relative's contact. If it shows repeated real attempts at addresses you had given, the challenge is weaker, and your appeal should focus on the reasons for your absence and on the severity of the penalty.

Where the inquiry was held but you never appeared, the issue becomes whether the notices of hearing reached you. Our guide on inquiries held ex parte because you did not attend covers what can still be done at that stage.

If you have just learnt of the dismissal

Do these in order. The first two can be done in a day; the rest take two to four weeks.

1. Get the order and fix the date

   Hearing about a dismissal from a colleague is not the same as receiving it. Write to the office for a certified copy, keep the stamped acknowledgement, and note the day the copy is actually put in your hand. Under Rule 25, the 45 days for an appeal run from the date a copy of the order is delivered to you.

2. Report in writing

   Give the office a letter saying you have reported, explaining in two or three lines why you were away, and giving your current address and phone number. Do not get into a shouting match at the counter.

3. Ask for the whole file

   Request copies of the chargesheet, the inquiry proceedings, the inquiry report, every returned envelope with its postal remark, the despatch register entries and any note dispensing with the inquiry. If the office stalls, an RTI application helps; our guide on getting inquiry files and other records under RTI explains what to ask for.

4. Prove where you were and why

   Collect hospital records, prescriptions, travel tickets, a letter from the village pradhan or ward councillor if useful, and any proof of letters you sent to the office. Arrange them by date.

5. Draft and file the appeal

   Explain the address problem, the reason for absence and, separately, why dismissal is too harsh even if some absence was unauthorised. Our guide on structuring a penalty appeal memo shows how to keep these points apart.

6. Track the appeal and the clock

   Diary the date six months after filing. A rejection, or silence past that date, is your signal to prepare the Original Application, and Section 21 then gives you a year from whichever came first.

Missed the 45 days? Still send the appeal, with a page on why it is late. Rule 25 has a proviso that allows a delayed appeal to be heard where the reason is good enough, and a dismissal for absence notice that never reached you is usually a reason worth stating.

Pay for the months away, and if you are taken back

Winning on service of notice does not bring salary for the months you were away. FR 17(1) has a proviso that denies pay and allowances for any period of absence without authority. FR 17-A goes further and counts such absence as an interruption in service, unless the competent authority directs otherwise. Rule 25 of the Leave Rules debits overstayed leave as half pay leave to the extent due and the rest as extraordinary leave.

The competent authority can regularise past absence by converting it into extraordinary leave under Rule 32(6) of the Leave Rules. That keeps your service continuous, which matters for pension, even though there is no pay for the months concerned. Ask for this in your appeal; it is often easier to grant than full exoneration.

Should you get your job back, FR 54 governs how the gap between the dismissal and your return is treated. A quashing on the narrow ground of unserved notices usually leaves the department free to restart the inquiry at the stage where things went wrong, so the money for that gap can stay undecided until the new inquiry ends. Set your expectations accordingly. Our page on seeking reinstatement after a dismissal or removal order deals with back wages in more detail.

Papers that make or break an absence case

Rough timeline and what each step costs

Where the case goes, and how the clock runs

Central government employees, including civilians in defence establishments and staff of notified bodies, take an absence dismissal to the Central Administrative Tribunal after the departmental appeal. The bench is the one covering your place of posting or the place where the order was made. For offices in Uttarakhand, that has been the Principal Bench in New Delhi since a central notification of July 2023; check the current position with the registry.

Section 21 of the Administrative Tribunals Act gives one year from the final order, usually the appellate order. If the order came to your knowledge late, say so clearly in the OA and attach the proof; where you are outside the year, an application under Section 21(3) asks the tribunal to condone the delay for sufficient cause. Our page on condoning a late filing under Section 21 and our guide on when the one-year clock starts explain how tribunals look at this.

Railway staff are governed by the Railway Servants (Discipline and Appeal) Rules, 1968, with major penalty inquiries under Rule 9 and appeals within 45 days; railway quarters and sick memos from railway doctors raise the same address and medical questions. Postal staff follow the CCS (CCA) Rules, while Gramin Dak Sevaks have their own engagement rules. Delhi Police personnel have separate rules but come to the Principal Bench.

Members of the CRPF, BSF, CISF, ITBP and SSB who overstay leave face proceedings under their own Acts, sometimes as desertion, and their cases go to the High Court, not the tribunal. Employees of public sector undertakings and banks also go to the High Court. State government employees go to their state tribunal where one exists, or to the High Court.

Mistakes that sink absence cases

• Staying away after learning of the chargesheet. Once you know, the address argument weakens with every week you do not respond.
• Sending leave requests by ordinary post without copies. If you cannot prove a letter left your hands, the office can say it never came.
• Relying on one late medical certificate. A single certificate written months later for the whole period invites suspicion; records made at the time carry weight.
• Arguing only about the address. Even if service fails, the department may hold a fresh inquiry. Your reason for absence and the harshness of dismissal must be argued too.
• Waiting for the office to call you back. It will not. File the appeal and keep the clock running in your favour.
• Taking another job and saying nothing. Working elsewhere during the absence, undisclosed, can turn a sympathetic case into a hopeless one.

Two tips from Advocate B.K. Singh

Advocate B.K. Singh starts every absence case with a one-page address timeline. Down one side go the dates and addresses you gave the office, with the document that proves each. Down the other go the dates of every letter the office sent and where it sent it. Most of the time the answer to the case is visible on that single page, and it is the first thing an appellate authority or a tribunal bench will want to see.

His second tip is to ask for the returned envelopes themselves, not a typed list of them. The postman's handwritten endorsement, the date stamps and the number of delivery attempts are often missing from the office's summary. An envelope marked 'not found' after a single attempt, posted to a quarter the estate section had already reallotted, tells its own story.

Start this week

Get a copy of the order and note the date you received it. Write to the office reporting your availability and giving your current address. Ask for the full disciplinary file, including the returned envelopes.

Gather your medical and travel papers, arrange them by date, and draw up the address timeline described above. If the dismissal is for absence of a few months and the address issue is clear, our page on defending an unauthorised absence charge covers the defence in more depth.

To have your papers checked before the appeal goes in, or for updates on the rules on absence and service of notices, contact Advocate B.K. Singh.