MUNNA SINGH SON OF LATE RAJESHWARI SINGH v. The State of Bihar

Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 3 mi; ZqDr fo"k; ds laca/k esa dguk gS fd vkids }kjk fnukad 20@01@2011 dks ;ksxnku gsrq vkosnu i= bl dk; kZy; dks lefiZr fd;k x;k gSA lefiZr vkosnu i= esa vkius n’kkZ;k gS fd dk; Zikyd vfHk;ark ds i=kad 1558 fnukad 19@11@97 ds }kjk vkids ;ksxnku dks fnukad 18@09@97 ls Lohd‘r dj bl dk; kZy; dks lEcksf/kr fd;k x;k gS vkSj lkFk gh lkFk vkius bl dk; kZy; esa ;ksxnku Hkh fd;k gS] ijUrq bl dk; kZy; ds vfHkys[k ls irk pyrk gS fd vkius bl dk; kZy; esa fnukad 18@09@97 ;k mlds ckn dHkh Hkh ;ksxnku fn;k gh ugha gSA vr% vkidk ;ksxnku vLohd‘r fd;k tkrk gSA g0@& voj izeaMy inkf/kdkjh dadM+ckx iFk voj izeaMy i0fu0fo0] iVukA Kkikad%& 08 fnukad 20@01@2011 izfrfyfi dk; Zikyd vfHk;ark i0 fu0 fo0] iVuk flVh iFk izeaMy] xqytkjckx iVuk&7 dks lwpukFkZ ,oa vko’;d dkjZokbZ gsrq lefiZrA g0@& voj izeaMy inkf/kdkjh] i0fu0fo0 dadM+ckx iFk voj izeaMy] iVukA

#3. It is actually this order which has been reiterated in the impugned order dated

24.08.2011 as contained in Annexure-6 to this writ application, wherein it was recorded that:- i=kad 1117 vuq fnukad 25-6-11 izs"kd] dk; Zikyd vfHk;ark iVuk flVh iFk izeaMy i0 fu0 fo0 xqytkjckx iVuk&7 lsok esa] Jh eqUuk flag vuqlsod xzke&fQjkstiqj iks0&Bksjykgh dSFkyk ftyk&lkj.kA fo"k;& ;ksxnku Lohd‘r djus ds laca/k esA Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 4 egk’k;] mijksDr fo"k; voj lfpo i0 fu0fo0 fcgkj iVuk ds i=kad 4838 ,l fnukad 20-4-11 }kjk izkIr vkosnu ds vkyksd esa lwfpr djuk gS fd fnukad 18-09-97 ls vki yxkrkj vuqifLFkr jgs gSA vkius ekufld vlarqyu laca/kh izfronsu …fpfdRlk izek.k i= l{ke inkf/kdkjh }kjk fuxZr‰ Hkh lefiZr ugha fd;k gS] rFkk vkius vius ;ksxnku izfronsu tks fnukad 14-02-2011 dks iFk voj izeaMy dk; kZy; dadM+ckx dks }kjk fn;k x;k gS] eSa Hkh Recovery/Fitness Certificate layXu ugha gSA fQj Hkh vkids }kjk lefiZr ;ksxnku ij mPp vf/kdkfj; ksa ls earO; dh ekax dh x;h gS tks vHkh rd izkIr ugha gks ik;k gSA vr% vkidks funsZ’k fn;k tkrk gS fd fuEufyf[kr dkxtkr ’kh?kz lefiZr djsa rkfd vkxs dh dk; Zokgh dh tk ldsA 1- ekufld larqyu dk izek.k i= …l{ke fpfdRlk inkf/kdkjh }kjk fuxZr‰ 2- fnukad 18-09-97 ls fnukad 14-02-11 rd fcuk lwpuk ds vkids }kjk fcrk;h xbZ vof/k dk iw.kZ C;ksjk izek.k i= ds lkFkA 3- Recovery/Fitness Certificate d‘i;k ;g Hkh Li"V djsa fd bruh yEch vo/kh esa vuqifLFkr jgus ds ckotwn vkids ifjokj ;k vkids }kjk dk; kZy; dks D;ksa ugha voxr djk;k x;kA vkids vxzsrj dkjZokbZ gsrq izi=&3 Hkh layXu dh tk jgh gSA d‘i;k okafNr lwpuk,a ’kh?kz lefiZr djsaA vuq0& ;FkksDr fo’oklHkktu g0@& 25@6@11 dk; Zikyd vfHk;ark iVuk flVh iFk izeaMy i0 fu0 fo0 xqytkjckx] iVuk&7**

#4. As a matter of fact thereafter was referred by the Executive Engineer to the Superintending Engineer and in the light of the decision he had refused to accept the joining Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 5 of the petitioner on account of his absence from duty beyond a period of five years vide his order dated 5.6.2012 which also for the sake of clarity and convenience is quoted hereinbelow:- ^^i=kad 1021 fnukad 5-6-12 izs"kd] dk; Zikyd vfHk;ark iVuk flVh iFk izeaMy] i0 fu0 fo0 xqytkjckx] iVuk&7 lsok esa] Jh eqUuk flag vuqlsod xzke&fQjkstiqj] iks0&Bksjykgh dFkSyk] ftyk&lkj.kA fo"k;& ;ksxnku ds laca/k esA izlax&v/kh{k.k vfHk;ark] dsUnzh; vapy i0fu0fo0 iVuk ds i=kad 837@fnukad 27-3-12 tki] mijksDr fo"k;d ,oa izklkafxd i= ds lanHkZ esa lwfpr fd;k tkrk gS fd v/kh{k.k vfHk;ark] dsUnzh; vapy] i0fu0fo0 iVuk ds }kjk mDr izklkafxd i= ds dafZMdk&2 esa mYys[k fd;k x;k gS fd ;g ekeyk 13…rsjg‰ o"kksZa ds ckn ;ksxnku Lohd‘r dk gSA fcgkj yksd lafgrk ds fu;e 76 ds vuqlkj tc rd fdlh ekeys dh [kkl ifjfLFkfr; ksa dks ns[krs gq, jkT; ljdkj vU;Fkk fu/kkZfjr u djs ljdkjh lsod Hkkjr esa ckg~ lsok dks NksM+dj vU; NqV~Vh ds lkFk ;k fcuk NqV~Vh ds dRrZO; ls 5 …ikap‰ o"kksZa rd yxkrkj vuqifLFkfr ds ckn ljdkjh fu; kstu esa ugha jg tkrk gSA lwpukFkZ izsfZ"krA g0@& 5@6@12 dk; Zikyd vfHk;ark iVuk flVh iFk izeaMy i0 fu0 fo0 xqytkjckx] iVuk&7** Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 6

#5. This Court does not find the aforesaid order rejecting the joining report of the petitioner inasmuch as no government servant after remaining absent from duty for a period of more than 13 years can claim his acceptance of joining report as a matter of right. Infact the petitioner had disobeyed his order of transfer before being unauthorisedly absent from duty and therefore there was no question of acceptance of his joining in the office from which he had already been relieved.

#6. There is however merit in the challenge of the petitioner to the order dated

27.09.2012 by which his service itself was terminated without following the prescribed procedure. Such order dated 27.9.2012 reads as follows:- ^^i=kad 2786 fnukad 27-9-12 izs"kd] bZ0 gjsjke flag] v/kh{k.k vfHk;Urk] dsUnzh; vapy] i0fu0fo0] iVukA lsok esa] dk; Zikyd vfHk;Urk iVuk flVh iFk ize.My iFk fuekZ.k foHkkx] xqytkjckx] iVukA fo"k;& Jh eqUuk flag] vuqlsod dk ;ksxnku Lohd‘r djus ds laca/k esaA izlax& vkidk i=kad 1329 vuq0 fnukad 25-07-2012 egk’k;] mi; qZDr izklkafxd i= }kjk dh x;h vuq’kalk ds vkyksd esa Jh eqUUkk Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 7 flag] vuqlsod dks fnukad 18-09-97 ls fcuk lwpuk ds yxkrkj vuqifLFkr jgus ds dkj.k fcgkj lsok lafgrk ds fu;e 76 ds rgr buds ;ksxnku dks vLohd‘r fd;k tkrk gSA 5 o"kksZa ls vf/kd vof/k rd vuqifLFkr jgus ds dkj.k ;g ljdkjh fu; kstu esa fu; ksftr ugha le>s tk; saxsA d‘I;k bldh lwpuk mDr dehZ dks ns nh tk;A fo’okHkktu g0@& …gjsjke flag‰ v/kh{k.k vfHk;Urk] dsUnzh; vapy] i0 fu0 fo0] iVuk i=kad 1988 fnukad 17-10-12 izfrfyfi jh eqUuk flag] vuqlsod xzke&fQjkstiqj iks0&Bksjykgh dFkSyk] ftyk lkj.k …fiu dksM&841301‰ dks lwpukFkZ izsf"krA g0@& dk;Z0 vfHk0 iVuk flVh iFk izeaMy iVukA**

#7. Learned counsel for the State however in the light of the explanation furnished in the counter affidavit has submitted that the petitioner being absent for more than five years, his services were deemed to have been terminated in terms of Rule-76 of Bihar Service Code and in support of the same he has referred to the order of the Superintending Engineer

27.09.2012 (Annexure-B).

#8. Counsel for the petitioner in fact having been served with the counter affidavit with the aforementioned stand including the passing of the order of deemed termination as Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 8 contained in Annexure-B dated 27.09.2012 has filed an interlocutory application being I.A NO. 569 of 2013 assailing the correctness of the aforementioned order. In this connection he has also referred to the provisions of Rule-76 of Bihar Service Code and has submitted that the provision of automatic termination of service on account of remaining absent from duty for a period of five years or more has been held to be ultra vires and therefore, no one can be removed even without conducting the departmental proceeding. In this regard, he has referred to the judgment of this Court in the case of Smt. Pravabati Sengupta vs The State of Bihar and others, reported in 1989 PLJR 485.

#9. Counsel for the State also does not controvert the aforesaid settled position in law that the concept of deemed termination of service on account of absence of a government service from duty for a period of five years or more is no longer in existence but he would submit that person like the petitioner who had remained absent after defying his transfer order for a period of more than 13 years would not be entitled for any relief.

#10. In the considered opinion of this Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 9 Court, the petitioner having entered in service in the year 1981 and working as a permanent employee cannot be removed from service without following provisions Bihar Government Servant (Classification Control and Appeal) Rules 2005. The removal from service of a government servant is a major punishment and therefore, even if the employee would become absent from duty, he would still be required to holding departmental proceeding. In fact to that extent Rule-76 of Bihar Service Code which also had provided for automatic termination of service on account of absence for a period of five years or more having been held ultra vires in the case of Sabhna Das Gupta vs State of Bihar, 1974 PLJR 382 and had led to an amendment in Rule-76 of Bihar Service Code. Such amended provisions reads as follows:- “Rule 76: Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a Government servant, 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 Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 10 resume remaining 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 periods of 5 years, State unless Government otherwise determine be removed following the procedure laid down Service (Classification, Control & Appeal) Rules and the Bihar & Orissa Subordinate Service (Discipline & Appeal) Rules, 1935.] service Civil

#11. From perusal of the aforementioned Rules, it would be clear that the Government servant on account of absence from duty for a period exceeding five years will have to be proceeded in terms of the relevant service rules. Such relevant service Rules is Bihar Government Servant (Classification Control and Appeal) Rules-2005. To extent reliance placed by the learned counsel for the petitioner on the judgment of this Court in the case of Smt. Prabhavati Gupta (supra) appropriate.

#12. In that view of the matter, this Court would set aside the impugned order contained in Annexure-B to the counter affidavit which has also been separately Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 11 assailed by the petitioner in the interlocutory application and direct the Superintending Engineer, the author of Annexure-B to initiate a departmental proceeding against petitioner forthwith for the unauthorized absence of the petitioner from duty for the period from 19.09.1997 to 19.01.2011 i.e. 13 years 4 months approximately.

#13. The memo of charge to the petitioner must be served on the petitioner within a period of one month from the date of receipt/production of a copy of this order, whereafter the petitioner will file his written statement of absence and if the petitioner denies the charge an inquiry in terms of Bihar Government Servant (Classification Control and Appeal) Rules 2005 would be conducted. Such inquiry by the Enquiry Officer however must be concluded within a period of four months from the date of filing of the written statement of defence by the petitioner. Upon submission of the inquiry report, a copy thereof must be supplied to the petitioner for eliciting his comments/reaction to the enquiry and thereafter a final order would be passed by the competent disciplinary authority within a period of two Patna High Court CWJC No.15689 of 2012 (2) dt.07-03-2013 12 months from the date of filing of the comment/reaction inquiry report furnished to the petitioner. The departmental proceeding as a whole therefore, must be concluded as early as possible preferably within eight months from the date of receipt/production of a copy of this order.

#14. The issue relating to payment of salary for the period from 20.01.2011 shall also abide by the result of the departmental proceeding, inasmuch as, if it is found that the petitioner’s unauthorized absence was well explained, he would be entitled for payment of salary from 20.01.2011 but on the contrary if it is found that the petitioner’s unauthorized absence was wholly unexplained he would not be entitled for payment of salary from 20.01.2011.

#15. With aforementioned observations and direction, this application is