IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15201 of 2004 RAMJI TIWARY, S/O LATE RAMLAKHAN TIWARY, R/O VILLAGE-MAKHDUMPUR, P.S.-BIHTA, DISTRICT-PATNA. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY, DEPARTMENT OF PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 3. THE DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 4. THE DISTRICT MAGISTRATE, PATNA. 5. THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA. 6. THE BLOCK EDUCATION EXTENSION OFFICER, NAUBATPUR, DISTRICT-PATNA. …………………RESPONDENTS. For the petitioner : Sri Ganesh Prasad Singh, Sr. Adv. and Mr. Sunil Kumar Dubey, Adv. For the State : Mayank Rukhiyar, A.C. to G.A.-V. 4 09.10.2009 Heard learned senior counsel for the petitioner and learned counsel for the State. Petitioner in this writ application has sought for a direction for quashing of order dated 29.6.2004, issued by the office of the District Superintendent of Education, Patna, as contained in Annexure-5, by which the petitioner has been dismissed from service as Headmaster, Primary School, Raghunathpur, Bheluin, Naubatpur, District Patna with effect from 1.12.1985 on the ground of his unauthorized absence from school since December, 1985 and further direction has been sought for fixing pension of the petitioner and other retiral benefits due from 30.6.2004. - 2 - The case of the petitioner is that he was appointed as Assistant Teacher in Primary School and joined his duty on 4.1.1973. In 1975 he was promoted as Headmaster and was transferred at the school mentioned earlier. It is stated that he worked there till 1986. Petitioner states that his salary was stopped from April, 1985 to February, 1986. However, as his wife fell ill he took earned leave for three months and thereafter he joined service on 16.9.1986, but his joining was neither rejected nor any order of posting was passed. It is claimed that petitioner again approached the authorities for acceptance of his joining but no orders were passed on the same. Petitioner filed an application in 2003 again, but nothing was done on the same. Accordingly, petitioner filed C.W.J.C. No. 7086 of 2004 for a direction to the respondents to accept his joining which now stands disposed of by order dated 18.7.2005. It is stated that after filing of the said writ application, respondents issued a show cause notice to the petitioner vide letter dated 4.6.2004 annexed as Annexure-1 to this writ application. Petitioner filed a reply to the same on 14.6.2004 annexed as Annexure-2. Thereafter, again a show cause notice was issued to him on 15.6.2004 to which petitioner replied on 29.6.2004. The two documents are annexed as Anneuxres-3 and 4 to the writ application. Ultimately, an order of termination was issued on 29.6.2004 on the basis of a decision of the District Education Establishment Committee - 3 - dated 23.6.2004. The order of termination is annexed as Annexure-5 to the writ application and impugned in this case. It is contended that petitioner has been terminated on the ground of unauthorized absence since 1.12.1985. However, no suspension order was issued or any action was taken against him and inspite of his approach to the authorities for acceptance of his joining no orders were passed on the same before issuing termination order of the petitioner. It is submitted that the said termination order was proposed to be issued under Rule 76 of the Bihar Service Code which has been held ultra vires by this Court and, therefore, exercise of power by the respondents under the said Rule is also ultra vires. Learned counsel for the petitioner submits that there can not be any automatic termination of service of the petitioner inasmuch as he had worked under the respondents for 12 years and his services have been confirmed. Therefore, he submits that, without taking recourse to Rule 55 of the Civil Services (Classification, Control and Appeal) Rules the services of the petitioner can not be terminated. In support of his said submission, learned senior counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Chief Post Master General, Bihar Vs. Nirbhay Kumar (reported in 2008 (3) PLJR 344 and has contended that, even on the ground of long absence, services of incumbents can not be terminated without holding a departmental proceeding since the Rule 76 of - 4 - the said Code already stands held ultra vires by this Court. He has further relied upon a single Bench judgment of this Court in the case of Satyadeo Mehta Versus State of Bihar and others reported in 1998 (3) PLJR 344 in support of the same proposition. Although no counter affidavit has been filed in the case, but learned counsel for the respondents has submitted that the case of the petitioner was not covered by the said proposition laid down by the Division Bench of this Court and the Bench of learned single Judge. He submits that the circumstances of this case show that the petitioner had abandoned his service as he had no explanation at all for the same. As such no formal proceeding was required to be held in the matter before terminating his service. In support of the said proposition, Mr. Rukhiyar, appearing for the State has also referred to a judgment of the Apex Court in the case of Chief Engineer (Construction) Versus Keshava Rao (Dead) By LRS. reported in 2005 (11) SCC 229. Mr. Rukhiyar also submitted that the surrounding circumstances of the case clearly shows and establishes the intention of the petitioner of having abandoned or relinquishment his service as such no formality of any enquiry was required. He submits that, had the petitioner furnished even a vague explanation for his absence for more than 18 years in his any of the applications before any of the authorities, the - 5 - authorities were legally bound to hold an enquiry and give an opportunity to the petitioner to substantiate and establish the circumstances, by evidence and documents, to convince them to condone his absence from duty not otherwise. Abandonment of service is not an unknown proposition in service jurisprudence. The same has been considered by the Apex Court in number of decisions. It has been well discussed in the case of G. T. Lad and others Versus Chemical and Fibres of India Ltd. reported in 1979 (1) SCC 590. The observations of the Apex Court may be usefully reproduced here for easy reference. “From the connotations reproduced above it clearly follows that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. In Buckingham & Carnatic Co. V. Venkatiah (AIR 1964 SC1272), it was observed by this Court 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 a employee without adequate evidence in that behalf. Thus, whether there has been a voluntary abandonment of service or not is a question of fact which has to be determined in the light of the surrounding circumstances of each case.” As per the observations of the Apex Court, - 6 - abandonment or relinquishment of service is an intention of employee which has to be gathered from the surrounding circumstances and has to be held as a question of fact. If the surrounding circumstances emerging from the facts of the case lead only to one and only one conclusion that the employee for all intent and purposes has abandoned the service then the employer can not be bound by technicalities of law to dispense with his service after holding a formal enquiry. From the order passed by this Court in the earlier writ application of the petitioner, it appears that only when the petitioner approached his date of superannuation, he for the first time contacted the authorities for accepting his joining mainly for the purpose of getting the monetary benefits of his superannuation. Learned senior counsel for the petitioner has produced an earlier application of the petitioner submitted before the Collector in December, 2003 for acceptance of his joining. This application shows that the petitioner did not give any explanation at all with regard to his non-performance of duties for long period of almost 19 years. This Court finds that there is absolutely no explanation furnished by the petitioner and no reasons claimed by him for his long absence. In annexure-2, he has only stated that he had submitted applications on 3.12.2003, 6.12.2003 and 10.12.2003 for acceptance of his joining. In his applications before authorities there is no whisper - 7 - of any ground on which the petitioner remained absence for long period of more than 18 years. The petitioner has not even made a preposterous claim that all through he was ill and confined to bed. This shows that petitioner had furnished no explanation at all before the authorities for his long absence to necessitate any enquiry in the same and any opportunity to the petitioner to produce circumstances before the authorities to satisfy them for condonation of his absence for more than 18 years. Even in reply to the show cause notice filed by the petitioner as Annexure-4 there is absolutely no reason, at all, furnished by him for non- joining of his service for such a long period. From the impugned order (Annexure-5), it appears that reply to the show cause, filed by the petitioner, as contained in Annexure-4, was considered by the authorities and the same was not found satisfactory. The order also shows that it was not passed in exercise of the powers under Rule 76 of the Bihar Service Code. On the other hand, the orders specifically mentions that the same is being passed in exercise of powers contained in the disciplinary Rules 2002 and in terms of Rule 18 Sub-rule (1) and (3) and Rule 21 Sub-rule (2) (Kha) thereof. Learned senior counsel for the petitioner submits that these rules also contemplate an enquiry and, therefore, a proper enquiry ought to have been held before terminating his service. Compliance of Principles of Natural Justice inheres in any provision of disciplinary enquiry in any rule. For fair play in - 8 - Governmental action the same is necessitated as a Government servant is entitled to furnish explanation for the alleged misconduct by him and produce materials and evidence for consideration of the authorities and to hold that, in fact, he had not misconducted himself. If the circumstances of the case does not show that there is any material available on record or the delinquent Government servant had any explanation available to him at all at any stage to explain about his misconduct a formal and technical enquiry will only be a futile exercise of power just to linger the process of final orders passed against the delinquent which remains a certainty from day one. In this case, it is amply clear that the petitioner at no stage had furnished any explanation, whatsoever, for his absence or took any ground in his any of the applications, however, preposterous it may have been, for explaining his absence for such long period. Therefore, considering the peculiar facts and circumstances of this case, this Court finds that the judgments, relied upon by leaned senior counsel for the petitioner, is not in any way helpful to the petitioner. The petitioner later filed his applications, Annexures-2 and 4, as he was twice given opportunity to explain his long absence. But there also, did not disclose any circumstance, whatsoever, to necessitate any enquiry by the authorities. In the circumstances, for reasons discussed hereinabove, I do not find any fault in the impugned order - 9 - terminating the services of the petitioner and, therefore, I do not find any merit in the writ application and the same is dismissed. However, admittedly petitioner was in regular service for 12 years prior to 1985. Therefore, on the basis of these 12 years of his service, whatever becomes due to the petitioner in law must be paid to him by the respondents within a period of three months from the date of receipt/production of a copy of this order. Arvind/ (J.N. Singh, J.)