IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3518 of 2004 1. Dr.Prayag Dutta Tripathi, son of Late Pandit Parash Nath Tripathi 2. Smt.Bimla Tripathi, wife of Dr.Prayag Dutta Tripathi Both resident of 83 M.I.G., Lohiyanagar, Kankarbagh, P.S.- Kankarbagh, District- Patna- 800020 ……… Petitioners Versus 1. Patna University through Ex-Registrar, having office at Ashok Rajpath, Patna 2. The Vice Chancellor, Patna University, Ashok Rajpath, Patna 3. The Registrar, Patna university, Ashok Rajpath, Patna ……… Respondents ----------- For the Petitioners : Mr.A.B.Ojha, Sr.Adv. with Mr.Sriniwas Jha,Adv. For the University : Mr.Ajay Kumar Sinha,Adv. ---------- P R E S E N T HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: This writ application has been filed by the petitioners for quashing of order contained in memo no.G/989 dated 13.8.1996 issued by the Registrar of the University, as contained in Annexure-1, by which petitioner no.1 has been terminated from service with effect from 30.9.1985. A further prayer has been made by the petitioners for quashing of order contained in memo no.AC/1356 dated 11.8.2001 also issued under the signature of the Registrar, as contained in Annexure-2, by which prayer of petitioner no.1 for grant of pension and gratuity has been rejected in terms of the provisions of Patna University Retirement Benefit Statute Amendment No.50-14(VII). Petitioners have also prayed for a direction to the respondent University - 2 - to pay retiral dues including pension, gratuity, leave encashment and arrears of pay of petitioner no.1. 2. It is stated that petitioner no.1 is suffering from Senile Dementia, also known as Alzheimer’s Dementia and therefore petitioner no.2, who is his wife, has been joined in this writ application and has been empowered to prosecute the writ. 3. Case of petitioner no.1 is that he was appointed as Lecturer in English in Patna university on 14.9.1954 and his services were confirmed on 8.3.1960 vide Annexure-5. He went abroad for research work on 19.11.1963 and remained there till 20.1.1968. After return from abroad, he was made Head of English Department in Patna Science College on 22.1.1968 and was promoted as Reader with effect from 1.3.1974. He again left for abroad on extra ordinary leave without pay from 1.1.1976. While he was abroad, he was promoted as University Professor with effect from 17.2.1984, vide notification no.16/R dated 23.1.1985 (Annexure-6). He returned to Patna and joined Science College on 3.8.1985, vide notification dated 5.8.1985 (Annexure-7). Within a short span of time, petitioner no.1 again went abroad on extra ordinary leave but during his stay outside India, he continued as University Professor since 17.2.1984 and a certificate to that effect was also issued by the Deputy Registrar of the University on 16.5.1988 (Annexure-8). He - 3 - superannuated from service of Patna University on 30.9.1993 on attaining age of 62 years. 4. It is stated that petitioner no.1 suffered from Alzheimer’s Dementia in 1995. Petitioner no.2 applied for pension of petitioner no.1 in the University and then she was handed over order (Annexure-1) showing that petitioner no.1 was terminated from service with effect from 30.9.1985. It is said that since petitioner no.1 superannuated in 1993 itself, order of termination was passed retrospectively in 1996. 5. A counter affidavit has been filed on behalf of respondents Vice Chancellor and Registrar of the University. In the counter affidavit, it is stated that petitioner no.1 left the University for the purpose of foreign assignment without handing over charge. A show cause notice, vide letter no.G/2640 dated 30.4.1994, was sent to petitioner no.1 at his U.S.A. address to show cause as to why his services should not be terminated with effect from 30.9.1985 on the ground that he left the University without prior approval of the University and remained absent for a long time. It is further stated that again letter no.G/2328 dated 31.10.1995 was sent to petitioner no.1 stating that since he was continuously absent without permission from 30.9.1985, University was going to terminate his services with effect from the said date, but petitioner no.1 neither replied to the said letter nor resumed his duty in the University. Hence, - 4 - matter of termination of his services was placed before the Syndicate which approved the same and petitioner no.1 was also informed about that by letter no.G/989 dated 13.8.1996. It is further stated in the counter affidavit that since petitioner no.1 has been terminated from service, he was not entitled for retiral benefits. 6. A supplementary affidavit was filed by petitioner no.2, wife of petitioner no.1 on 11.5.2009 stating that petitioner no.1 had come to Patna in September, 1985 and had filed an application for special leave before the Vice Chancellor of the University, who received his application directly and granted him special leave. It is further stated that petitioner no.1 had handed over the charge, before going abroad, to one Dr.Pramod Ban Bihari Sinha. It is contended that since petitioner no.1 superannuated on 30.9.1993 itself, question of taking any disciplinary action against him with retrospective date, i.e. 30.8.1996, does not arise. 7. A supplementary counter affidavit was filed on behalf of the respondent University on 21.7.2009. In the said supplementary counter affidavit respondents have reiterated the same stand which they have taken in the counter affidavit filed earlier. With the supplementary counter affidavit, respondents have annexed a number of documents to show that petitioner no.1 never intended to return and serve the University. The documents also show - 5 - that the study leave or extra ordinary leave of petitioner no.1 was never extended after 1985. After petitioner no.1 left again for his foreign assignment in 1985, he never returned to the University. Thus, in the supplementary counter affidavit, respondents have demonstrated from the conduct of petitioner no.1, that in view of his prolonged unauthorized absence, his services stood terminated by the impugned order with effect from 30.9.1985, the day he left the University without any grant of leave. 8. During the course of hearing, learned counsel for the petitioners has challenged the impugned order on many counts. He has submitted that termination with retrospective effect is not permissible in law. He has also submitted that after superannuation relationship of master and servant does not subsist; hence no order of termination of service could be passed against petitioner no.1 after he crossed the date of his superannuation. He also submitted that as petitioner no.1 was a permanent employee of the University, his services could not be terminated without following the procedure prescribed in the statute and by complying with the principles of natural justice. He also submitted that Clause 9(c) of Statute No.1 (General Conditions of Service of Employee of the Patna, Bihar, Ranchi, Bhagalpur, Magadh, L.N.Mithila & K.S.D. Sanskrit Universities), which has been referred to in the impugned order, cannot be applied - 6 - in the case of petitioner as the said provision has been inserted in the Statute much after his superannuation. He submitted that the said provision in any case is ultra vires Articles 14 and 16 of the Constitution of India as the same provides for automatic termination on the ground of continuous absence for more than five years, in violation of Principles of Natural Justice. He submitted that identical provision in Bihar Service Code, namely, Rule 76 has been held ultra vires by this Court long back and on the same analogy this newly inserted provision in the Statute should also be struck down. He finally submitted that as the order of termination of petitioner no.1 is bad in law, he has to be deemed to have superannuated from the services of the University and thus to be held to be entitled for post retiral benefits as per his entitlement in terms of University Retirement Benefit Statute. 9. Learned counsel for the respondent University did not dispute the proposition that in law there can not be retrospective termination. He also accepted the proposition that after severance of service and after superannuation, relationship of master and servant ends and therefore there cannot be a question of termination of service of an employee after his superannuation. However, he submitted that the impugned orders although did use the word “terminated” but in effect it was an acknowledgement by the University of abandonment of his service by petitioner no.1. He submitted that in - 7 - his entire service career, petitioner no.1 was never interested in serving the University. He remained in the University for a very short period and as soon as he got an opening abroad, he left the University. Initially, the University had granted some leave to petitioner no.1 under an impression that the higher studies of petitioner no.1 abroad will benefit the University. However, later on it was clear to the University that petitioner no.1 was only interested in his own academic and financial gains and he had no intention to serve the University. He submitted that for all practical purposes petitioner abandoned the service of the University once for all in 1985 and never turned up to join his service. Thus, for all practical purposes, petitioner no.1 left the service in 1985 and in the circumstances, Annexure-1 was issued treating his service terminated with effect from the date he left the University for ever. It is submitted by learned counsel for the respondent University that the case of petitioner no.1 is a case of abandonment of service, therefore, submissions of learned counsel for the petitioners are not relevant at all in the present case. He submitted that concept of abandonment of service is a well recognized concept by the Apex Court which is evident from the judgments of the Apex Court in the cases of G.T.Lad & Ors. Vs. Chemical & Fibres of India Ltd.: (1979)1 S.C.C.590, Buckingham & Carnatic Co. Vs. Venkatiah : AIR 1964 S.C.1272 and D.K.Yadav Vs. J.M.A.Industries Ltd. : (1993)3 S.C.C.259. - 8 - 10. In a normal case, submissions of learned counsel for the petitioners would have held good as the same are based on well established principles of service jurisprudence. However, learned counsel for the University has advanced the proposition of `abandonment of service’ by petitioner no.1. If this proposition is found established in the present case, the legal infirmities pointed out by learned counsel for the petitioners in the impugned orders shall become irrelevant. 11. The concept of `abandonment of service’ which has been introduced in service jurisprudence by the judicial pronouncements of the Apex Court has been elaborately explained by it in the case of G.T.Lad & Ors.(Supra) in paragraph 6 in the following manner : “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 SC 1272), 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.” - 9 - 12. It is clear that abandonment of service is, in effect, resignation by conduct and a matter of inference. It is a matter of intention of an employee appearing from the circumstances surrounding his prolonged absence. In such a case, severance of relationship with master is unconditional, total and with no further claims with respect to the services rendered earlier and no intention or attempt to rejoin service any time in future. This is a serious matter as this inference ends the active life of the employee, his source of livelihood, his security towards maintenance of his family and upbringing of his children. Hence, plea of abandonment of service, if raised by the employer, has to be considered very strictly and with circumspection. It is only when facts appearing from the records of the case do not provide for any explanation whatsoever for the prolonged absence and also do not provide for any possibility for any explanation for the same, then only it is permissible to a Court to conclude in favour of such plea of abandonment of service. Even remotest possibility for an employee to furnish some explanation much less an explanation itself (however frivolous it may be) for his prolonged absence is sufficient to prevent a court of law from entertaining such a plea of abandonment of service. 13. Coming to the facts of the present case, it appears that after his appointment in Patna University, and confirmation in 1960, petitioner - 10 - no.1 left for abroad for higher studies. Since he had intended to pursue higher studies, he was granted leave. He returned to the University in 1968, continued there for some time but again left the country on foreign assignment in 1976. He again came back only for a few months in 1985 and left the country again to continue with his foreign assignments and thereafter he never returned. It is true that no action was taken by the respondent University against petitioner no.1 before he crossed the date of his superannuation on 30.9.1993. But there is no denial of the fact by the petitioner also that, except for the initial grant of study leave, he was never granted any further leave or there was no extension of the same by the University at any point of time. It is pleaded in reply to the counter affidavit that petitioner had directly submitted some application for leave to the Vice Chancellor in September, 1985. But there is no proof of the same. Leave was not granted is an admitted fact. Still, petitioner continued abroad till he crossed the date of his superannuation. There is absolutely no explanation or plea by the petitioners, either in the pleadings or in any of the documents, which could even remotely indicate that petitioner no.1 ever intended to serve the University and benefit the students of the University with his higher studies and knowledge acquired during his study abroad. Materials on record clearly establish beyond any iota of doubt - 11 - that petitioner never intended to serve the University from the very beginning and he left the service of the University for good only in pursuit of his personal gains. 14. Impugned Annexure-1 was issued in 1996 and representation of petitioner no.1 for pension and gratuity was rejected in 2001. It is pleaded in the representation that petitioner no.1 is now suffering from Senile Dementia, also known as Alzheimer’s Dementia, and now petitioners are in need of money. Staying abroad with serious ailments is a costly affair and, that too, without substantial source of livelihood. Therefore, petitioner no.1 and his wife petitioner no.2 decided to make an attempt to make some pecuniary gains from the University on account of legal infirmities in issue of Annexure-1. That is why, this writ application has been filed almost after eight years of petitioner no.1 having crossed the date of his superannuation. 15. It is, thus, clear that petitioner no.1 has been acting only in personal interest for his personal gains, throughout his employment continued in the University, and has filed this writ application with eight years of delay also for personal gains raising technical and legal pleas against the validity of Annexure-1. Facts of the case show that, sans Annexure-1, petitioner no.1 had, by conduct, abandoned his service. This conduct of petitioner no.1, which is amply established from - 12 - the materials on record, beyond any explanation, clearly makes petitioner no.1 disentitled to any benefits of his service with the University. Hence, in the facts and circumstances of the case, it is not at all necessary for this Court to go into the legality and validity of Annexures-1 and 2, since the conduct of petitioner no.1 clearly debars him from raising any claim against the University on account of his technical continuance in the University, till his date of superannuation, in absence of any order passed by the University earlier to the said date of superannuation. 16. In the circumstances, this Court does not find any merit in this writ application and the same is accordingly dismissed. 17. However, in view of the ailment of petitioner no.1, the Vice Chancellor of the respondent University is directed to check up from its records with regard to any amount of gratuity or any amount under any other head, which may become payable to petitioner no.1, on account of sanction of study leave to him at the initial stage and/or his actual period of service rendered in the University, and pay the same within three months from the date of receipt/production of a copy of this order. Patna High Court, The 9th November,2009 A.F.R./ Pradeep/ (Jayanandan Singh, J.)