Patna High Court
Shamim Ahmad Khan vs State Of Bihar And Ors. on 5 October, 2004
Equivalent citations: [2005(1)JCR490(PAT)]
Author: Aftab Alam
Bench: Aftab Alam
ORDER Aftab Alam, J.
1. Resting his case entirely on the negligence and default by the Government, the petitioner stands before this Court claiming his pension and other retiral dues. The facts giving rise to the petitioner's claim are very brief and can be put in no more than a few sentences. The petitioner, along with many others was appointed as temporary Assistant Engineer in Bihar Engineering Service Class II in Public Works Department by notification dated 8.6.1960. After working for a few years he applied for leave to go abroad for higher study. He was granted leave by Government order No. 4334, dated 10.3.1969 but that order has not been produced before the Court either by the petitioner or by the respondent authorities and therefore, the period of leave and the exact terms and conditions on which leave was allowed remains unknown.
2. He proceeded on 'Ex-India leave' from 1.7.1970 to 7.7.1972 on being relieved on 1.7.1990 vide memo No. 13901, dated 2.7.1970 issued by the Under Secretary to the Government (Annexure 4).
3. After the petitioner went abroad on leave for higher study his leave salary was received by his wife till May, 1971 and that was the last contact of any kind between the Government and the petitioner. He never came back to resume his duty.
4. On 5.1.1993 he became 58 years old and thus reached the age of superannuation in Government service. About nine years later on 24.11.2001 he made a representation before the Secretary-cum-Commissioner, Road Construction Department, Govt. of Bihar claiming pension, gratuity and other retiral benefits. Failing. to get any response to his representation he filed this writ petition seeking a direction to the respondent authorities for payment of pension and other retiral benefits to him.
5. The relief claimed by the petitioner is based on the assumption that the relationship of employer and employee between him and the State Government remained unbroken and subsisting notwithstanding his long absence.
6. In support of the petitioner's claim, Mr. Raghib Ahsan, appearing on his behalf, laid great emphasis on two facts; in denial of the claim the State counsel tried to high-light another circumstance. Mr. Ahsan submitted that before going on leave the petitioner had completed ten years in service, that is, the qualifying period for grant of pension in terms of Rule 145 of the Bihar Pension Rules.
7. Mr. G.P.I pointed out that the petitioner was hopelessly trying to re-establish relationship with the State Govt. for the purpose of claiming retiral benefits after a gap of more than thirty years. After proceeding on leave in 1970 he severed all contacts with the State Govt. and for all intent and purposes relinquished his job. He was now a stranger to State Govt. it was quite extra-ordinary on his part even to raise the claim for retiral benefits.
8. Mr. Ahsan contended that the petitioner's long absence, being harped on by the State counsel, would not change the legal position. He submitted that the employee's absence howsoever long would not terminate the contract of employment on its own unless the State Govt. removed him from service, holding a proceeding in terms of Rule 76 (b) of the Bihar Service Code. He further stated and laid great emphasis on the fact, that in the case of petitioner no proceeding was ever held for his removal from service as provided under the rules and according to him, therefore, the contract of service between the petitioner and the State Govt. remained unbroken and subsisting for all these years and hence, the petitioner was entitled to the retiral benefits, in accordance with the rules.
9. In support of his submission Mr. Ahsan relied upon four division bench decisions of this Court in (i) S.D. Gupta v. State, AIR 1973 Patna 431, (ii) Smt. Pravabati Sen Gupta v. State of Bihar and Ors., 1989 PLJR 485, (iii) Sidhnath Upadhyaya v. State of Bihar and Ors., 1991 (1) PLJR 148, and (iv) Ramanand Singh v. State of Bihar and Ors., 1991 (2) PLJR 198.
10. These decisions indeed support Mr. Ansan's contention, and there lies the difficulty.
11. I am fully conscious that each of the four decisions being rendered by division bench is completely binding on me sitting singly. Apart from this, each of the four decisions were delivered by benches that consisted of or were presided over by Judges who are highly celebrated and are held in great esteem. I am second to no one in my respect for the Hon'ble Judges constituting the four division benches. Nevertheless, I venture to put in my caveat because I strongly feel that there is a need to take a second look at the matter of a long-lost Government employee suddenly turning-up to claim resumption of employment and/or retiral benefits. Thirty year ago in the case of S.D. Gupta the provision of Rule 76 of the Bihar Service Code, as it stood at that time was presented before this Court in a certain way that led to its being held and declared ultra vires Article 311 of the Constitution. The decision in that case had far-reaching consequences. It led to an amendment in one of the important provisions of the Bihar Service Code and the later decisions based on the amended provisions and guided by the earlier decision in S.D. Gutpa have led to establishing a legal position that tends to support claims, like the present one, that to the common sense appear quite extraordinary, if not wholly out-rageous.
12. Rule 76 of the Bihar Service Code as it stood at the time the case of S.D. Gupta came to this Court is as follows:
"Unless the State Government, in view of special circumstances of the case, shall otherwise determine a Government servant, after five year's continuous absence from duty, elsewhere than a foreign service in India, whether with or without leave ceases to be in Government employ."
13. To me it appears that the rule simply recognised abandonment of employment by the employee as one of the modes of termination of the contract of employment. A contract of service, like any other contract, can be terminated by either of the contracting parties. The contract may be terminated at the instance of the employer, the Government by removing the employee from service either by way of dismissal or compulsory retirement as a measure of punishment or due to abolition of post etc. on the other hand, the contract may be terminated by the employee by resigning or seeking voluntary retirement. The employee may also simply abandon the job and that would also lead to the termination of the contract in due course. The rule, therefore, provided that in the absence of any special circumstance, continuous absence from duty for five years would be deemed as abandonment of service by the employee and it would justify the Government to treat the absentee employee as being no longer in employment. Fixing the period of five years to give rise to the presumption of abandonment in case of continuous absence from duty, in the absence of any special circumstance, cannot be said to be unreasonable by any means. It is, therefore, important to bear in mind that under Rule 76 there was no removal of the employee from service by the Govt. or at the instance of the Govt. Rule 76 merely recognised a position resulting from the action of the employee in remaining continuously absent from duty for five years and the breaking-up of the contract of service was, therefore, at the instance of the employee.
14. It may be recalled here that the question of abandonment of service in case of industrial workers came up for consideration before the Supreme Court in the case of Buckhingham and Carnatic Company v. Venkatiah, AIR 1964 SC 1272. Standing Order 8 (ii) of the Company provided that an employee who absented himself for either consecutive working days without leave would be deemed to have left the company's service without notice, thereby terminating his contract of service; this was subject to the condition that if the absence was proved, to the satisfaction of the management, to be one due to sickness, then the absence would be converted into medical leave. Section 73 of the Employees State Insurance Act prohibits an employer from dismissing or punishing an employee during the period of sickness. On a consideration of the two statutory provisions the Supreme Court found and held that the prohibition of Section 73 of the ESI Act would not apply to a case falling under Standing Order 8 (ii) that was based on the principle of abandonment. It is true that in the case of an industrial worker there is no application of Article 311 of the Constitution but from the judgment of the Supreme Court it is clear that the principle of abandonment may not be completely ruled out even under common law. In para 5 of the decision there are observations to the following effect.
"It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
15. Further, in that judgment the Supreme Court elucidated the difference between abandonment, that is, at instance of the employee and removal from service, that is, by employee in the following way:
"There is another aspect of this question to which it is necessary to refer. Section 73 (1) prohibits the employer from dismissing, discharging, reducing or otherwise punishing an employee. This seems to suggest that what is prohibited is some positive act on the part of the employer, such as an order passed by him either dismissing, discharging or reducing or punishing the employee. Where termination of the employee's services follows automatically either from a contract or from a Standing order by virtue of the employee's absence without leave for the specified period, such termination is. not the result of any positive act or order on the part of the employer, and so, to such a termination the prohibition contained in Section 73 (1) would be inapplicable."
16. In the case of Buckingaham and Carnatic Company (supra) there was Standing Order 8 (ii) laying down that absence of eight consecutive working days without leave would be deemed as relinquishment of employment and there was the prohibition of Section 73 of the ESI Act. The Supreme Court held that the prohibition of Section 73 would not apply to cases covered by Standing Order 8 (ii) of the company. In the case of Government employees in Bihar there was Rule 76 of the Bihar Service Code and the bar of Article 311 of the Constitution. If Rule 76 were to be seen as incorporating the principle of abandonment of employment then the bar of Article 311 would not apply to cases falling under Rule 76 on the ratio of the Supreme Court decision in Buchkhingham and Carnatic Company.
17. In the case of S.D. Gupta (supra) this Court viewed the rule differently and proceeded on the premise that the rule empowered the Government to remove the employee from service for being continuously absent from duty for five years without giving him a notice as required under Article 311 of the Constitution.
18. The case of S.D. Gupta (supra) was very different on facts from the case in hand or the cases in the three later decisions. S.D. Gupta was the lady Principal on one of the Women's Training institutes. She was transferred to Sasaram. She was reluctant to there 90. She took earned leave for there weeks on the ground that her mother was seriously ill. It appears that she wanted a posting in or nearby Patna. She sent several applications for extension of leave, at the same time making representations for being posted at Patna or a place nearby. Her applications for extension of leave were rejected and she was directed to resume her duty at Gopalganj, failing which she would be liable for the disciplinary action. She did not go to Gopalganj either. Consequently, a disciplinary proceeding was drawn up in which an order of reduction in rank was passed against her and she was reverted to Subordinate Education Service. She was then posted as Assistant Mistress, Women's Training Institute, Gobindpur. She persisted with her application for further leave and her requests for being posted at Patna or a nearly place. Her requests both for extension of leave and for being posted at Patna were rejected and she was again asked to join at Gobindpur with a warning that in case of failure to do so within a week, departmental action would be taken against her. She did not join at Gobindpur. At this stage while further disciplinary action against her was under contemplation, it was realised that the period of her absence on duty had become more than five years. The concerned authorities then decided to invoke Rule 76 of the Service Code and an order was issued by which she was intimated that the Government no longer treated her to be in employment.
19. In the facts and circumstances of S.D. Gupta's case, it was, therefore possible to hold that Rule 76 was a perfectly good and valid provision for application in a case of abandonment of service by the employee. But the application of the rule as a substitute for disciplinary action against the employee for his misconduct of unauthorised, long absence would render it bad, illegal and ultra vires Article 311 of the Constitution. In the latter case it would be the action under the rule that would be bad for mis-applying the rule but not the rule itself.
20. The case of S.D. Gupta clearly fell in the later category. For, notwithstanding her absence for more than five years, it could not be said that she had abandoned the service. She had not disappeared but was constantly pestering the superior authorities with her requests for posting at Patna and applications for extension of leave to avoid going to her places of posting far away from Patna. During the period of five years, she had already faced one disciplinary proceeding. She could, therefore, be charged with gross insubordination for refusing to follow the posting orders and not joining her duties even after rejection of her applications for leave. But certainly she had not quit or thrown away the job on her own. Therefore, it would have been quite correct and logical to hold that the impugned order declaring that the Government no longer treated her to be in employment was bad and illegal being based on a misapplication of Rule 76 of the Service Code. But since an altogether different construction was put on the rule, the Court came to the conclusion that the rule itself was bad being ultra vires Article 311 of the Constitution.
21. For examining the constitutional validity of the rule, the Court framed two questions, the first/question was as follows :
'The first question for consideration, therefore, is :
"Does it amount to removal of a Government servant from service within the meaning of Article 311 of the Constitution, where a Government servant is continuously absent from duty for 5 years, and as a consequence thereof is treated no longer to be under Government employment."
22. The Court then proceeded to consider two decisions of the Supreme Court, one in Jai Shankar v. State of Rajasthan, AIR 1996 SC 492 in which Regulation 13 of Jodhpur Service Regulations came to up for consideration and the other in Deokinandan Prasad v. State, AIR 1971 SC 1409 in which the Court considered the import of the earlier decision in Jai Shankar's case. On a consideration for the Supreme Court decisions in Jai Shankar and in Deokinandan Prasad this Court came to hold "that treating an employee to have ceased to be in Government employ amounts to removal from services" and further that removal from service without giving an opportunity of being heard was to go against Article 311 Constitution,
23. As noted, in Jai Shankar's case the Supreme Court examined Regulation 13 of Jodhapur Service Regulations which was as follows:
"An individual who absents himself without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority."
24. In my humble view absence of one month and continuous absence for five years makes a world of difference. Overstaying the leave by one month may be a misconduct but it can hardly give rise to the presumption of abandonment of service. Whereas continuous absence for over five years would certainly give rise to a reasonable presumption of abandonment of job by the employee. The provision in the Jodhpur Service Regulations and the one under Rule 76 of the Bihar Service Code were, therefore, materially different and in no way comparable.
25. In Deokinandan Prasad (supra) thought the Supreme Court decision negative the plea of automatic operation of the regulation, that was again in the context of Regulation 13 of Jodhpur Service Regulations and Rule 76 of the Bihar Service Code was expressly held to have no application in the facts of the case.
26. In S.D. Gupta this Court framed the second question as follows:
'The next important question, as to whether Rule 76, in so far it treats a person who has been continuously absent from duty for 5 years to have ceased to be in Government employment is valid?"
27. The Court considered the question in the light of Supreme Court decision in Moti Ram Deka v. G.M.E., N.F. Railway, AIR 1964 SC 600 and came to hold that Rule 76, in so far it laid down that a Government servant ceased to be in Government employment in case of his absence from duty for five years without leave was invalid and must be struck down.
28. The decision in Moti Ram Deka (supra) examined Rules 148 (3) and 149 (3) of the Railway Establishment Code that permitted the termination of service of a railway employee by notice on either side, the period of notice being different in different circumstances. It is humbly pointed out that the railways rules in question had got nothing to do with abandonment of job by the concerned employee and, therefore, the decision in Moti Ram Deka did not serve as a true guide in considering the validity of Rule 76 of the Bihar Service Code which merely recognised that abandonment of job by the employee was one of the modes of termination of the contract of employment at the instance of the employee himself.
29. As stated earlier in S.D. Gupta the Court construed Rule 76 in a certain manner and read that provision as a source of power to the Government to remove an employee from service for being continuously absent from duty for a period of five years. The responsibility to deal with the situation resulting from the action of the employee was laid at the doors of the employer; the Government and, thus, Artcle 311 of the Constitution got fully attracted.
30. If Rule 76 was seen in the light as morted above, it would have been possible to arrive at the same decision (that the order declaring that the Government no longer treated S.D. Gupta to be in employment) was bad due to misapplication of Rule 76 without interfering with the rule itself.
31. The decision in S.D. Gupta has led to far reaching consequences. Following the decision the Government was compelled to amend Rule 76 and the amended rule reads 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 absence from duty, elsewhere than on 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 Govt. 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 Services (Classification, Control, and Appeal) Rules and Bihar and Orissa Subordinate Service (Discipline and Appeal) Rules, 1935."
32. After the amendment in the rule the case of Smt. Pravabati Sen Gupta (supra) came to this Court. In that case the petitioner Paravabati Sen Gupta who was a lady Skilled Artisan had remained absent from duty for ten years from 1968 to 1978, as stated by her, due to mental disorder, in 1978 when she wanted to rejoin the service, she was not allowed to do so. She kept on pursuing the matter but she finally reached the age of superannuation without being allowed to resume her duty. Shortly before her retirement from service an order was issued rejecting her representation for being allowed to resume the duties in terms of Rule 76 of the Service Code. In that case this Court referred to the earlier decision in S.D. Gupta and examined the amendment introduced in the rule in the wake of that decision. The decision in Smt. Pravabati Sen Gupta finally came to hold and direct as follows:
"5......There is no statement in the counter affidavit that at any stage any proceeding in accordance with Civil Services (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.
"Thus 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 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 4, months from the date of production of this order."
33. The decision left it open to the Government to fix her retiral benefits on the basis of the salary and other emoluments that she would have last drawn on the eve of her retirement.
34. Smt. Pravabati Sen Gupta had remained absent for ten years. Next came the case of Sidhnath Upadhyaya (supra) who remained absent for about nineteen years before the finally came to rejoin the service on 12.1.1987. In that case this Court similarly held that since he was not removed from service after holding a departmental proceeding, he was entitled to salary from 12.1.1987 till the date of the Court's judgment and further until an order removing him from service was not passed on the basis of a disciplinary proceeding. The Court, however, left it open to the concerned authorities to initiate a disciplinary proceeding against him for his removal from service as provided under the amended Rule 76.
35. Next came the fourth decision in the case of Ramanand Singh (supra) in which the petitioner had remained absent for fifteen years, in the case of Ramanand Singh too this Court took the same view observing as follows:
"In view of the aforesaid bench decision of this Court (in S.D. Gupta's case) there is no escape from conclusion that there is no question of automatic dismissal or removal of the petitioner, from the service of the State Government. As the order passed by the District Magistrate, East Champaran, is in purported exercise of the powers under Rule 76 of the Code aforesaid, which has been held to be invalid, we are left with no option but to quash that order."
36. It is interesting to note that in Ramanand Singh apparently this Court was not entirely comfortable with the way the matter was taking shape and, therefore, the decision moulded the relief and gave the following directions:
"6. It has been stated on behalf of the petitioner that he was actually allowed to join on 23.10.1980 but later, on 26.12.1980 an order was passed that his joining was not legal. Thereafter, the matter remained pending and ultimately by the impugned order dated 4.7.1988 the District Magistrate has held that the petitioner shall be deemed to have been removed from the service of the State Government under Rule 76 of the Code. Normally, the petitioner would have been entitled for arrests of salary for the period between 23.10.1980 till he again joins, but taking all facts and circumstances into consideration including the conduct of the petitioner himself for remaining absent from the duty of the State Government for 15 years and in view of the fact that this petition succeeds on a technical ground and in view of the fact that the petitioner has moved this Court after 8 years of accrual of the cause of action, we direct that the petitioner should be allowed to join within 15 days from the date of production of this order but he shall not be paid arrears of salary for four years commencing from 23.10.1980 upto 22.10.1984. He shall be paid arrears of salary for the period commencing from 23rd of October, 1984."
37. It is thus to be seen that the decision in S.D. Gupta, the amendment in the rule on the basis of that decision and the three post amendment decisions have given rise to the legal position where there is no thing as abandonment of service by the employee and in all such cases the Government is held legally obliged to hold a disciplinary proceeding, treating the long absence as misconduct and to terminate the service of the vanished employee on that basis. The Government with its slothful ways almost invariably fails to do so. The result is that a Government employee may go abroad, engage himself there profitably and still come back after thirty years and claim resumption of employment/or benefits under the employment. What is highly anomalous is that the Court finds itself doling out reliefs to such highly undeserving claimants. I know several cases in which, following the four decisions discussed hereinabove brief orders were passed by the Court in favour of employees remaining absent for about a decade and half because the Government had failed to bring about their removal from service after holding a proceeding as provided under the amended Rule 76 of the Service Code.
38. In have taken this opportunity to examine in detail the decision in S.D. Gupta and to put on record the alternate way in which the matter may be viewed because I feel that decision, the consequent amendment in the rule and the later decisions have created a situation that is quite contrary to the common sense and is being exploited by employees who from a pure common sense view are not entitled to any benefit or relief from this Court. To my mind, therefore, there is the need to reconsider the whole matter from the point of view of abandonment of job by an employee who remains continuously absent from duty for long years.
39. But until the legal position changes I am completely bound by the division bench decisions that have laid down in no uncertain terms that under Rule 76, as it stands after the amendment "there is no escape form conclusion that there is no question of automatic dismissal or removal of an employee from the service of the State Government." And that in the absence of any proceeding in accordance with CS (CC and A) Rules against the petitioner, he would be deemed to have continued in the service of the State Government. The relief claimed by the petitioner, therefore, has to be allowed even thought it might not appeal to the common sense.
40. The concerned authorities in the State Government are accordingly directed to pay to the petitioner all the retiral benefits. The petitioner's retiral dues shall be determined by fixing his pay and other emoluments that he would have drawn on the eve of his retirement on the basis of the last pay drawn by him in the year, 1971. The payment should be made to the petitioner expeditiously and preferably within three months from the date of receipt/production of a copy of this order before the Secretary, Department of Road Construction, Govt. of Bihar, Patna.
41. In the result, this writ petition is subject to the observations and directions made above.