Patna High Court
Smt. Pravabati Sengupta vs The State Of Bihar And Ors. on 20 January, 1989
Equivalent citations: 1989(37)BLJR544
Author: N.P. Singh
Bench: N.P. Singh
JUDGMENT
N.P. Singh and N. Pandey, JJ.
1. This writ writ application has been filed on behalf of the petitioner for a writ of mandamus directing the respondents to fix her pension and other retirement benefits after the petitioner retired from the service of the State Government on 31st of August, 1988. A prayer has also been made to quash an order dated 18-7-88 issued from the Directorate of Industries, rejecting the representation of the petitioner in terms of Rule 76 of the Bihar Service Code (hereinafter referred to as 'the Code').
2. According to the petitioner she was appointed as Lady Skilled Artisan as early as in the year 1956 and thereafter she continued in the service of the State Government. Sometime in the year 1968 due to mental disorder the petitioner stopped coming to office. Initially, she was granted leave but later she absented herself from duty without any leave. This situation continued upto the year 1978 when the petitioner is said to have become normal and wanted to join her service but she was not allowed to join because she had remained absent without leave for such a long period. The petitioner kept on pursuing the matter, but she ultimately retired from the service of the State Government, as already mentioned above. Before her retirement the impugned order dated 18-7-88 mentioned above was issued in purported exercise of the powers under Rule 76 of the Code. At the stage of admission itself counter affidavit has been filed on behalf of the respondents.
3. There is not much dispute so far the facts are concerned because on her own saying the petitioner absented from duty for about 10 years and, according to the petitioner, after ten years she was not allowed to join. So the question which falls for consideration is as to whether in the circumstances mentioned above it shall be deemed that the services of the petitioner stood terminated automatically under Rule 76 of the Code. This aspect of the matter has been examined by a Bench of this Court presided over by Hon'ble Mr. Justice N. L. Untwalia (as he then was) and Hon'ble Mr. Justice S. Sarwar Ali in the case of Sobhana Das Gupta v. The State of Bihar and Ors. 1974 PLJR 382. In that case also the petitioner had remained absent without leave for a pretty long time and the stand of the State was that her services stood terminated. The Bench referred to Article 311 of the Constitution and pointed out that the service of a Government servant can be terminated in the back ground of Article 311 of the Constitution and any rule containing provisions of automatic termination of the service of a regular employee of the State Government must pass the test of Article 311 of the Constitution. In that connection in respect of this very Rule 76 of the Code it was observed as follows :-
In my view, in order to determine whether the impugned rule is invalid, the proper test would be to see whether the rule, either expressly or by necessary implication, excludes the applicability of Article 311 of the Constitution. If it does, the rule must be held to be invalid. On the other hand if the impugned Service Rule does not have this effect, the rule itself may not be invalid, but the order without complying with provision of Article 311 would be invalid and incapable of being given effect to. Thus it is only when the rule is to be read in conjunction with or supplemental to Article 311 of the Constitution that it can be held to be valid. Testing it from this point of view, that part of Rule 76 which is under consideration in this case has to be struck down as invalid. The rule lays down that absence from duty, without leave, for a period of five years results in the employment of a Government servant coming to an end. The rule does not envisage of any order. The cessation of the service is automatic, and is a consequence of the applicability of the rule. Any Government order that is or may be passed is only for the purpose of deciding whether the rule applies to a particular Government servant in the facts and circumstances of given case. Clearly, therefore, the applicability of Article 311 of the Constitution is excluded by necessary implication by the very language and wordings of the rule. Under the rules nothing more is required, nothing more is to be done, once the conditions laid down in the rules are fulfilled. The fulfilment of these conditions cause automatic cessation of Government employment. I am, therefore, clearly of the view that Rule 76, in so far as it lays down that a Government servant ceases to be in Government employ if he is absent from duty for five years without leave, is invalid and must be struck down. It is further manifest that the Government order contained in Annexure-2 is also invalid and cannot be given effect to.
4. It appears that, paragraphs, after the judgment aforesaid Rule 76 of the Code was amended and Clauses (a) and (b) were added to that Rule 76. Now Rule 76 is as follows :
76. Unless the State Government, in view of the special circumstances of the case, shall otherwise determine a Government servant, after five years continuous absences from duty, elsewhere than a foreign service in India, whether with or without leave ceases to be in Government employ.
(a) No Government servant shall be granted leave of any kind for a continuous period exceeding five years.
(b) Where a government servant does not resume duty after remaining on leave for a continuous period of 5 years, or where a Government Servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds a continuous period of 5 years, he, shall) unless the State Government otherwise determine be removed from service after following the procedure laid down in the Civil Service (Classification, Control and Appeal) Rules and the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935.
5. Now, after five years of continuous absence from duty the State Government has to determine whether a Government servant without leave has ceased to be a Government employee. But Clause (b) of that Rule 76 says that if a Government servant, after the expiry of his leave, absents from duty other than on foreign service or on account of suspension, for any period, which together with the period of leave granted to him exceeds a continuous period of five years, he shall, unless the State Government otherwise determine, be removed from the service after following the procedure laid down in the Civil Service (Classification, Control and Appeal) Rules and the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. There is no statement in the counter affidavit that at any stage any proceeding in accordance with Civil Service (Classification, Control and Appeal) Rules and Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 was initiated against the petitioner for her removal from the service of the State Government, The effect will be that it shall be deemed that she has continued in the service of the State Government.
6. Under the circumstances mentioned above, we are left with no option but to quash the order dated 18th July, 1988, issued by the Joint Director of Industries saying that the representation of the petitioner was being rejected in accordance with Rule 76 aforesaid. We further direct that the pension and other retirement benefits be fixed in accordance with law so far the petitioner is concerned, preferably within four months from the date of production of this order.
7. We make it clear that as the petitioner has not worked for all these years it will be open to the State Government to examine the question as to what salary or other emoluments the petitioner would have last drawn on the eve of her retirement for the purpose of fixing her retirement benefits.
8. This writ application is allowed to the extent above.