IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (SS) No. 175 of 2006 Old No. 54897 of 1999 Pitamber Dut Thapaliyal …Petitioner Versus State of Uttarakhand and others …Respondents Mr. C.D. Bahuguna, learned counsel for the petitioner. Mr. Anil Bisht, learned Brief Holder for the State of Uttarakhand. None appears on behalf of the State of U.P. Hon’ble Nirmal Yadav, J. Heard learned counsel for the parties. By means of this petition, the petitioner has challenged impugned order dated 6th October 1999 passed by respondent no. 2 whereby his representation for giving him the benefit of past service with effect from 3rd July 1979 to the date when he joined service on 23rd April 1988 and to treat him in continuous service with effect from 11.07.1967 for the purpose of pensionary/consequential benefit, was rejected. Brief facts of the case are that the petitioner joined his service as Assistant Teacher in Primary School, Bagiyali, Pauri Garhwal with effect from 9th August 1967 and continuously worked as such up to 2nd July 1979. He remained on medical leave from 3rd July 1979 to 20th April 1980. He could not join his duties after 20th April 1980 because of his illness. He recovered from his illness only in the month of October 1985 and submitted application dated 25th October 1985 (Annexure-1) for allowing him to join his duties. 2 However, he was not allowed to join. He again submitted an application on 6th November 1985 to the District Basic Education Officer, Pauri Garhwal (Annexure-2). The District Basic Education Officer referred the matter to the U.P. Basic Education Board, Allahabad with the recommendation that petitioner should be allowed to join his duties. Thus the Secretary vide letter dated 4th January 1986 (Annexure-4) directed that if the age of the petitioner is between 18 to 45 years he could be re-appointed. In pursuance of the above letter, the petitioner submitted an application on 22nd February 1986 that he may be given the appointment at the earliest. Vide order dated 11th April 1988 (Annexure-6) the Deputy Secretary U.P. Government directed to provide appointment to the petitioner on the post of Assistant Teacher. Accordingly, District Basic Education Officer, Pauri Garhwal vide order dated 23rd April 1988 appointed the petitioner as Assistant Teacher and ultimately the petitioner joined the said post on 26th April 1988, thereafter he continuously worked as such till the date of his retirement. The petitioner approached the authorities vide letter dated 21st October 1993 & letter dated 16th May 1998 (Annexure-12 & Annexure-17) for granting him the benefit of continuity of service i.e. for the period he remained out of service. Thereafter petitioner filed a writ petition in this respect in Allahabad High Court in the year 1999 which was disposed of vide order dated 12th March 1999 directing Director of Education 3 (Basic) U.P. Allahabad to decide the petitioner’s representation dated 16th May 1998 within a period of two months. Pursuant to the direction of the Allahabad High Court, the Director of Education (Basic) U.P. rejected petitioner’s representation vide order dated 6th October 1999 holding that as per government letter dated 20th April 1991 services of the employee stand automatically terminated since he remained absent from duties for a period of more than five years. The petitioner has challenged the impugned order passed by the Director of Education (Basic) U.P. Learned counsel for the petitioner argued that the Government letter dated 20th April 1991 is not retrospective but would be prospective in nature. Moreover the said letter does not have any statutory force. He further argued that it is settled proposition of law that the matter relating to cessation of employment, can only be governed by the statute and not by a circular or an executive order. It is further argued that there is no law of automatic termination of service of a permanent employee without any notice or without giving an opportunity of hearing on the ground of absence from duties. It is argued that admittedly no chargesheet was framed and issued to the petitioner nor he was given any opportunity to show cause as required by Clause 2 of Article 311 of the Constitution of India. Learned counsel for the petitioner in support of his argument placed reliance upon the Constitution Bench decision of the Apex Court in the case of 4 Jai Shanker Vs. State of Rajasthan reported in [AIR 1966 SC 492] and Deokinandan Prasad Vs. State of Bihar and others reported in [AIR 1971 SC 1409]. The respondents have controverted the averments made in the writ petition. It is submitted on behalf of the respondents that the petitioner remained absent in an authorized manner without any information or submitting any application for leave from 21st April 1980 to 5th November 1985. He, of course applied for joining his service in the moth of November 1985 but he could not be allowed to join the service as per the government instructions, therefore, he was offered fresh appointment and was appointed as Assistant Teacher vide letter dated 11th April 1988 by relaxing the age. He thus joined on 23rd April 1988 by accepting the offer of fresh appointment. He remained out of service more than ten years, therefore, he cannot be given the benefit of continuity of service during the period he remained out of service. In the present case admittedly petitioner remained continuously absent from duty for more than five years. Undisputedly the respondents did not issue any chargesheet to the petitioner nor an inquiry was held nor any opportunity was given to the petitioner to show cause against the impugned order, as such, there is a clear violation of provision of Article 311 of the Constitution of India. Admittedly the petitioner approached the authorities in the month of November 5 1985 to join his duties after he had overcome his illness. It is not disputed that vide order dated 23rd November 1993 (Annexure-13) the period of absence from duty i.e. with effect from 21st April 1980 to 29th October 1985 has been allowed as medical leave meaning thereby the period of the alleged absence has been regularized by granting medical leave. Accordingly, it would mean that the petitioner was not unauthorizedly absent from duty. Since period of absence has been allowed as leave of its kind, therefore, this period has to be treated as period on duty. Thus, the petitioner continued to remain in employment during the said period. The argument of learned counsel for the respondents that the petitioner himself accepted the fresh appointment and therefore the earlier period cannot be treated as continuous service is misconceived. Admittedly the petitioner was out of service and for his survival, he had no option but to accept whatever was offered by the employer. The short question in the present case still remains that as to whether the petitioner was entitled to be afforded an opportunity to show cause against the proposed punishment as required under the provisions of Article 311 of the Constitution of India. The respondents have admitted that no chargesheet was issued nor any inquiry was held and there is no order for terminating the petitioner’s service. The respondents’ stand is that the petitioner’s service automatically came to an end when he remained absent unauthorizedly. The 6 argument of learned counsel for the respondents cannot be accepted as the continuous absence from duty for more that five years amounts to misconduct and in such a case an opportunity was required to be given to the petitioner to show cause against the proposed order. Moreover the authorities themselves have regularized the alleged period of absence by granting the same as medical leave. In view of the facts and circumstances of the case as the petitioner had approached the authorities in the month of November 1985 for joining his duties and the petitioner had always been ready and willing to join the same but was not allowed to do so, the impugned order dated 6th October 1999 passed by respondent no. 2 rejecting the petitioner’s representation (Annexure- 19) is set aside. The petitioner shall be entitled to be treated in continuous service for the period he remained out of service for the purpose of pensionary benefit. The writ petition is allowed in the above terms. No order as to costs (Nirmal Yadav, J.) VKG 03.12.2010