IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4533 of 2008 Surya Mukhi Devi , wife of Late Amarnath Jha, resident of Arapatti, P.S. Mahishi, District- Saharsa, at present residing at Mahishi, P.S. Mahishi, District-Saharsa ----------- Petitioner Versus 1. The State Of Bihar 2. The Director, Animal Husbandry, Government of Bihar, Patna 3. The District Animal Husbandry Officer, Saharsa 4. The District Provident Fund Officer, Saharsa ------------------------- Respondents. ---------------------------------- 03 16-09-2011 Heard Sri Amresh Kumar Singh, learned counsel for the petitioner and learned counsel appearing on behalf of the Respondent/State. The present writ petition was filed in the year 2008 with a prayer to direct the Respondents to make payment of family pension and other death-cum- retiral dues of the husband of the petitioner, who died on 12.10.1986. As claimed by the petitioner, the husband of the petitioner was appointed as Veterinary Assistant in Kahara Block in the district of Saharsa on 24.07.1966. Despite death of her husband long back, till date neither death-cum- retiral dues has been paid nor has family pension been fixed. In this case, counter affidavits have been filed on behalf of Respondent no.4 / District Provident Fund Officer, Saharsa on 12th March, 2010 and Respondent no.3 on 7th September, 2011. It has been stated on oath that the husband of the petitioner had only worked till 31.05.1973 and thereafter he remained absent till date of his death. Regarding the claim of Group Insurance, it has been asserted that since the husband of the petitioner remained absent 2 from the month of June, 1973, he was not entitled to get any benefit under the said scheme since the said scheme was introduced in the year 1979. The Respondent no.4/ District Provident Fund Officer, Saharsa in its counter affidavit has stated that no deduction was made and, as such, there was no question for making payment of any amount under the head of G.P.F. However, it has been stated by the Respondent no.3 at paragraph-11 of the counter affidavit that payment regarding claim of leave salary, the concerned authority was being directed to make payment, if any amount towards leave encashment is due against the employee. Accordingly the Court is of the opinion that under the head of leave encashment, if there is any due, she is entitled to get the same. The Respondents have taken the stand that since from the year 1973, the husband of the petitioner remained absent till the date his death, under the provision of the Bihar Service Code, after his absence for five years he had automatically ceased to be a government servant. It was submitted by learned counsel for the petitioner that even in case of remaining unauthorized absent for more than five years, it has already been clarified by number of decisions that unless show cause notice is issued, one cannot be held to be ceased as Government servant. Learned counsel for the petitioner on this point has relied upon a Judgment of this Court reported in 1989 PLJR 485 (Smt. Prabhawati Sen Gupta Vs. The State of Bihar & Ors.). In view of law settled by this Court on this very point, the husband of the petitioner cannot be deemed to have ceased as a 3 Government Servant for remaining unauthorisedly absent. Nothing has been stated by the Respondent/State that any order for termination was issued on the ground of unauthorized absence or any notice was issued to the husband of the petitioner. The fact remains that the husband of the petitioner had continued in service from his date of appointment till 1.6.1973 and in absence of any order terminating the service of husband of the petitioner for the period during which he was on duty, he was entitled to get benefit and, as such, the Respondents are required to take decision regarding terminal benefit on this score and, thereafter, pass appropriate order for clearing the dues. The Respondents are directed to take decision in the matter within a period of four months from the date of receipt/production of a copy of this order. With above observation and direction, the writ petition stands disposed of. NKS/- ( Rakesh Kumar, J.)