IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4162 of 1996 BRAHMA SINGH Son of Late Kamta Singh, Resident of Village and P.O. Agya, P.S. Goreakkothi Via mustafabad, District Siwan. Versus 1.STATE OF BIHAR 2.The Commissioner, Saran Division at Chapra. 3.The Collector, Chapra. 4.The Block Development Officer, Sadar Prakhand, Chapra. ----------- 6 24/6/2010 Heard Mr. Bipin Bihari Singh, learned counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That the present writ application has been preferred for issuance of an appropriate writ or writs quashing the order of the Commissioner Saran dated 21.10.95 as contained in Annexure-8 by which the order of the Respondent No.3, the Collector Chapra dated 23.11.93 as contained in Annexure has been confirmed and the petitioner has been dismissed from his service as Krishi Pramarshi with retrospective effect from 18.7.1973 and also for issuance of writ calling upon the respondents to reinstate the petitioner on his post and further for a direction to pay the arrears of salary and other consequential benefits.” Mr. Singh in support of the aforementioned prayer submits that the impugned order cannot be sustained under Rule 76 of the Bihar Service Code which has already been declared as ultra-vires. He has further assailed the order of punishment on the ground that the petitioner could not have been dismissed from service with retrospective effect, i.e. w.e.f. 18.7.1973 when the impugned order came to be passed only on 23.11.1993. He has also submitted that there is complete non consideration of the 2 show cause reply filed by the petitioner either by the Enquiry Officer or by the Disciplinary Authority. Counsel for the State, on the other hand, has submitted that it is an admitted position that the petitioner had remained absconding from his duty from 17.7.1973 to 18.7.1992, i.e, exactly for a period of 19 years and therefore if the authority after conducting the departmental proceeding has taken a decision for dismissal of the petitioner no error can be said to have been committed by him. He has also submitted that though the Disciplinary Authority had not considered this aspect in detail, but the Appellate Authority had gone into those aspect at length by looking into defence of the petitioner while recording that the plea of illness of the petitioner of 19 years was not acceptable, inasmuch as, he had never given any intimation of such illness nor his alleged mental illness was supported by any contemporaneous medical paper. In the opinion of this Court, the Disciplinary Authority has totally misunderstood the concept of the departmental proceeding. Once the Disciplinary Authority had framed charge and appointed an Enquiry Officer he had to go by the norms of the departmental enquiry. In this case the petitioner‟s explanation whatever it may be as with regard to his mental illness, the Enquiry Officer was required to go into the same especially when the petitioner had never claimed to have sent any application seeking leave on the ground of his illness. Apparently leave is not 3 a matter of right and if an employee does not inform the authority about such unauthorized absence that itself can be a ground for dismissal, but such charge has to be proved in the departmental proceeding. The Disciplinary Authority, in fact, alike the Enquiry Officer had only proceeded on the basis of Rule 76 of the Bihar Service Code which, as noted above, has been held to be ultra- vires in the case of „Shobhna Das Gupta Vs. State of Bihar & Ors’ reported in 1973 B.B.C. 220. The Division Bench, in fact, had gone to hold that the said rule was an old rule was ultravires because there can be no automatic termination of service without following the procedure as required under the Bihar Civil Service Classification Control and Appeal Rules, inasmuch as, charge of unauthorized absence from duty has to be proved before being made the basis for inflicting punishment including dismissal from service. As the Enquiry Officer and the Disciplinary Authority have based their conclusion only on the basis of Rule 76 of the Bihar Service Code for holding charge against the petitioner of remaining unauthorized absent from duty to be proved, this Court will have no option but to quash the order of punishment. The petitioner was appointed in the year 1966 and in normal circumstances he must have attained the age of retirement, but then if charges against him are not established it would be deemed that the petitioner was continuing in service and as such 4 the same would make him entitled for grant of pensionary benefits. The petitioner definitely had continued in service from 1966 to 1973 and that will be taken into consideration for completion of qualifying service. The petitioner again had submitted his joining in the month of July, 1992 before being dismissed from service on 23.11.1993. Therefore, if the charge against the petitioner is proved the petitioner would be not entitled for any pensionary benbefit, inasmuch as, he will not have by that period completed ten years of qualifying service, but then if charge against the petitioner is not proved and he can satisfy the Enquiry Officer as also the Disciplinary Authority that he was not in a position to report on duty on account of illness, even after taking entire period of his absence as an extraordinary leave, he will be entitled to count his service from the date of his joining on 18.7.1992 till the date of his superannuation. In that event, if the petitioner will complete ten years of service he would become entitled for payment of retirement benefit for the period he had been actually in service or his continuance of service from the date of submission of his joining till the date of retirement. Thus, this aspect of the matter has to be gone into by the authorities who, in fact, will first be required to hold a fresh departmental proceeding for finding out as to whether charge against the petitioner of remaining unauthorized absent from duty from 18.7.1972 to 18.7.1992 was established against him or not. Such enquiry as per the judgment of Full Bench of this Court in 5 the case of „Shambhu Saran Vs. The State of Bihar & Ors.‟ Reported in 2000 (1) PLJR 665 will be deemed to be a continuing enquiry in terms of Rule 43 B of the Bihar Pension Rules and the result of such enquiry will lead to further decision regarding the benefits to which the petitioner may be found entitled towards the retirement benefits. It is however made clear that the petitioner will not be entitled for payment of any salary for the period of unauthorized absence, inasmuch as, the petitioner has admittedly not worked for a single day after 18.7.1973 before being dismissed from service on 23.11.1973. As the petitioner has already attained the age of superannuation, this Court would direct the Collector of Saran district to ensure that the departmental proceeding afresh against the petitioner for the purposes of Rule 43 of Bihar Pension Rules is conducted and completed expeditiously preferably within a period of nine months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this application is, accordingly, disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)