IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.12554 OF 2007 KUMUDNI DEVI, W/O LATE BANSHIDHAR JHA, R/O VILLAGE HARIRAHI, P.S BARHARAKOTHI IN THE DISTRICT OF PURNEA. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.SECRETARY, DEPARTMENT OF EDUCATION, GOVT. OF BIHAR, PATNA. 3.DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 4. THE DISTRICT SUPERINTENDENT OF EDUCATION, PURNEA. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION CUM DIVISIONAL EDUCATION OFFICER, ARARIA. 6.BLOCK EDUCATION EXTENSION OFFICER, ARARIA. ………………………RESPONDENTS. ----------- 02/ 11.11.2011 Heard counsel for the parties. The widow of late Bansidhar Jha, an Assistant Teacher in Primary School, Chararni, Araria, is the petitioner before this Court seeking relief of quashing of order dated 06.07.2007, whereby and whereunder, the services of her husband, late Banshidhar Jha was sought to be terminated w.e.f., the date from which he became absent from duty i.e. 01.02.1985. The petitioner has also prayed for other reliefs which in the facts and circumstances of the case may now not be relevant. It is not in doubt that the husband 2 of the petitioner was appointed as Assistant Teacher in the year 1974 by specific Office Order No. 10424-87 issued by the District Superintendent of Education, Purnea on 05.08.1974. There is also no dispute that the husband of the petitioner having joined his service since 05.08.1974, had remained present on duty till 01.02.1985, which could have given him the qualifying service of 10 years for the purposes of earning his pension. The dispute, however, is that the husband of the petitioner is said to have become absent from duty from 01.02.1985 onwards and though it is claimed by his wife, the petitioner of this case that he had reported back on duty in the year 1987 but then there is nothing to support this aspect especially when an issue in this regard has been raised for the first time before this Court only in the year 2007. True it is that the husband of the petitioner had a cause of action to move any appropriate Court of law, if his joining was not being accepted in the year 1987 or thereafter but then the very fact 3 that an effort was made by him only in the year 2000, that too after bifurcation of Purnea district and his School falling in Araria district, the same would go to show that the claim of the petitioner that her husband reported on duty in the year 1987 after recovering from illness cannot be substantiated by any documentary evidence. As a matter of fact, any Government servant returning from leave would be required to produce a fitness certificate but there is nothing on record to show that the husband of the petitioner had ever intended to produce even that fitness certificate. In such circumstances, this Court would accept the stand of the respondents in the counter affidavit that the husband of the petitioner was absent from duty from 01.02.1985 till 20.09.2000, when an application of the husband of the petitioner was received by the District Superintendent Of Education, Araria for allowing him to rejoin on the same post. It is here from 29.02.2000 that the respondents would find it difficult to explain their case. The respondents could 4 have immediately initiated departmental proceeding against the husband of the petitioner on the ground of his remaining unauthorizedly absent without leave for a period of 15 years but that was never done. In this background if the stand taken in the counter affidavit is to be believed, the District Superintendent of Education, Araria despite a clear direction from the Director of Primary Education issued in the year 2000, itself for taking appropriate action had taken no further action except working like a Post Office by placing the matter relating to the husband of the petitioner in the meeting of the District Education Establishment Committee headed by the Collector of the district. The very fact that in the counter affidavit it has been admitted that the District Education Establishment Committee also did not take any action between year 2002-2004 would be reflective of the fact that everyone in the Office of the District Superintendent Of Education, Araria was totally negligent to the duty to be 5 performed in respect of either accepting or refusing the joining of the husband of the petitioner. This Court is not at all impressed with the submission of learned counsel for the State that some communications were made by the District Superintendent Of Education, Araria seeking certain information from the Office of the District Superintendent Of Education, Purnea or that two reports were only received on 13.03.2007 and 06.05.2007, showing that the husband of the petitioner was unauthorizedly absent and as such was ineligible for being taken back on duty. In fact, the District Superintendent Of Education, Araria in the year 2000 itself was already aware of the fact that the husband of the petitioner was absent from duty in the last 15 years from the representation of the husband of the petitioner that he had received on 29.02.2000 and therefore, there was no need to start making a roving inquiry as has been claimed in the counter affidavit. This Court is also not aware as to whether it was totally apathetic or 6 negligent attitude of the respondents which led to the unduly death of the husband of the petitioner 23.10.2006, by which time no decision for acceptance of joining of the husband of the petitioner had been taken, but then it becomes clear that the impugned order was passed after the death of the husband of the petitioner, inasmuch as, such a decision for terminating the services of the husband of the petitioner was taken on 06.07.2007 in view of the two reports of the concerned Authorities dated 13.03.2007 and 06.05.2007 as enclosed vide Annexure-B and Annexure-C to the counter affidavit. An order passed against the dead person is nullity in the eye of law and as such this Court will have no difficulty in holding that the impugned order of termination of the service of the husband of the petitioner after his death are bad and unsustainable in the eye of law. In fact, Mr. Ashutosh Kumar, learned counsel for the petitioner is also correct in submitting that such an order of automatic termination of service with retrospective effect is impermissible in 7 the eye of law and to that extent he has also rightly assailed the stand taken by the respondents in their counter affidavit as with regard to reliance placed by them on Rule 76 of Bihar Service Code providing automatic termination of service which was held ultra vires by this Court in the case of Sohana Das Gupta vs The State of Bihar and Ors, reported in 1974 PLJR 382. As a matter of fact, after the judgment of this Court in the case of Sohana Das Gupta(supra) an amendment was brought in Rule 76 to the following effect:- “Rule 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 periods of 5 years, he shall unless 8 the State Government otherwise determine be removed from service after following the procedure laid down in the Civil Service (Classification, Control & Appeal) Rules and the Bihar & Orissa Subordinate Service (Discipline & Appeal) Rules, 1935.] From the reading of the aforementioned Rule, it becomes clear that even in respect of a person absent from duty for a period of over five years there has to be a full fledged departmental proceeding. Admittedly, in the case of the petitioner no such procedure was followed as is clear from the wording of the impugned order which reads as follows:- ^^ftyk f'k{kk v/kh{kd&lg&vuqeaMy f'k{kk inkf/kdkjh] vjfj;k dk;kZy; vkns'k Jh oa'kh/kj >k] HkwriwoZ f'k{kd izkFkfed fo|ky;] pjkjuh ¼vjfj;k½ ds fnukad 01-2-85 ls fcuk lwpuk ds vuqifLFkr jgus ,oa muds }kjk yEch vof/k rd dk;kZy; dks xyr rF; izLrqr djus ds vkjksi dh iqf"V iz[kaM f'k{kk izlkj inkf/kdkjh] vjfj;k ds i=kad 370 fnukad 06-05-2007 ,oa ftyk f'k{kk v/kh{kd] iwf.kZ;ka ds i=kad 493 fnukad 13-03-2007 ds }kjk gksus ds mijkar Jh >k dks vuqifLFkr frfFk ls dk;Z eqDr fd;k tkrk gSA g0@& ftyk f'k{kk v/kh{kd&lg&vuqeaMy f'k{kk inkf/kdkjh vjfj;k Kkikad 1376 vjfj;k fnukad 6-7-2007 izfrfyfi%& dks"kkxkj inkf/kdkjh] vjfj;k@iz[kaM f'k{kk izlkj inkf/kdkjh vjfj;k@lEcn~/k e/; fo|ky; ds iz/kkuk/;kid ,oa Jh >k] HkwriwoZ f'k{kd iRuh elks- dqeqfnuh nsoh] xzke iksLV gfjjkgh] Hkk;k&cMgkjk dksBh] ftyk iwf.kZ;ka dks lwpukFkZ ,oa vko';d dk;kZFkZ izsf"krA g0@& vLi"V ftyk f'k{kk v/kh{kd&lg&vuqeaMy f'k{kk inkf/kdkjh vjfj;k** Consequently this Court will have no difficulty in holding that the impugned 9 order even otherwise is not sustainable especially when it was passed against the dead person. The question, however, would arise as to what consequential relief, the wife of the deceased employee will be entitled in law. There would be no question of restoring the husband of the petitioner back in service inasmuch as, he has already died. Admittedly, the husband of the petitioner did not perform his duty from 01.02.1985 till the period of his death and the fact that he also did not move any Court of law for claiming such right would go a long way to show that he was negligent towards his right of being restored back in service by allowing him to retain his post even from 2000 onwards. In that view of the matter, this Court cannot issue a direction to the respondents to make payment of salary of the husband of the petitioner for the period he had not worked. The outcome of the quashing of the order of termination therefore would be confined only to the extent that the husband of the petitioner would be deemed 10 to be continued in service till the date of his death and as such he would be also entitled for counting the entire length of service for all other purposes except payment of salary. In that view of the matter, this Court would direct the respondents to finalize the retirement benefits payable to the petitioner by virtue of being the widow of late Bansidhar Jha, by computing his total length of service for the period from 05.08.1974 till the date of his death being 23.10.2006. All such retirements must be paid to the wife of the petitioner within a period of six months with statement of calculation of the amount paid so that she can represent for any higher amount to which she may be entitled in law. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)