1 S.B. Civil Writ Petition No.2778/2005. (Mahaveer Prasad Vs. State of Rajasthan & Others) 03.09.2008 HON'BLE MR. GOPAL KRISHAN VYAS, J. __________________________________ Mrs Deepika for petitioner. Mr. B.L. Bhati, Counsel for the State. Heard learned counsel for the petitioner. In this case, grievance of the petitioner is that he was substantively working on the post of Helper and he was made semi-permanent also. He was initially appointed on 03.08.1984 and the petitioner continued on the said post but due to illness he remained absent from duty. Thereafter, he was not taken on duty, therefore, this writ petition has been filed. On 23.04.2008, an order was passed by this Court directing the respondents if the services of the petitioner have not been terminated so far, then, he will be taken on duty forthwith. Learned counsel for the petitioner submits that admittedly the services of the petitioner were not terminated and this fact is not controverted by the respondents in the reply. The only assertion is made by the respondents in the reply that the petitioner remained absent from duty for long time and due to bifurcation of 2 the Division where the petitioner was working it is not possible to ascertain the correct position. The controversy involved in this case is squarely covered by the judgment rendered by the learned Single Judge of this Court in the case of Ashok Kriplani Vs. State of Rajasthan & Others, reported in WLR 1992 (S) Raj 359, wherein, following the judgment of the apex Court in Jaishanker Vs. State of Rajasthan, AIR 1966 SC 492, it is held that after advent of Constitution removal from service must confirm to the conditions of Art.311 and in the absence of a proper order passed as a result of inquiry, the relationship of master and servant does not come to an end. A person is entitled to continue in service until his service is terminated in accordance with law and employee can rejoin anytime as his service continues till such termination order and is entitled to all consequential benefits including the benefit to emoluments as a result of joining his duty. Para 5 and 6 of the said judgment run as under : “Thus, it is apparent that even where Regulations provide for automatic cassation of employment, their Lordships were of the view that after advent of Constitution, removal must conform to the conditions of Article 311 and in the absence of a proper order passed as a result of inquiry, the relationship of master and servant does not come to an end. It was specifically observed by the Apex Court that over-staying one's leave may be one circumstance deserving 3 removal but a person is entitled to continue in service if he wants, until his service is terminated in accordance with law. Therefore, unless the petitioner's services are terminated in accordance with law, he is entitled to continue in service as long as he wishes to continue. The petitioner by joining the duty only expressed his intention to continue in service. The joining to the petitioner cannot be denied for want of an order from competent officer to permit him to join, because that would amount to refusing permission to join without passing an order of removal; which will amount to removing petitioner from service, violating the provisions of Art.311 of the constitution. Some is not permissible. In this view of the matter, the respondents are not entitled to refuse the petitioner from joining duty when the presents himself on duty. No doubt they can take recourse to all provision of the rules under which inquiry against him can be conducted and pass necessary orders in aid of that inquiry from time to time but until that is done, the petitioner is entitled to continue in service and to all consequential benefits including the benefit to emoluments as a result of joining his duty. The petition is, therefore, allowed. The respondent are directed to permit the petitioner to join duty and grant him all consequential emoluments with effect from the date of his joining duty until final outcome of the inquiry which is pending against him. However, there is no impediment to the respondents from passing appropriate orders under the C.C.A. Rules while inquiry is pending against the petitioner. Since the fact about petitioner's actual date of joining in the month of April is disputed, the petitioner will be entitled to relief relating to arrears of emoluments with effect from the date of filing or the writ petition.” In this view of the matter, the respondents 4 are free to hold inquiry against the petitioner under Rule 16 of the CCA Rules, 1958 for willful absence from duty. But, at the same time, till the decision of the inquiry, the petitioner shall not be disturbed from the post upon which he was taken back on duty as per orders of this Court and the petitioner will be entitled for arrears of emoluments with effect from the date of filing the writ petition. With the aforesaid direction, the writ petition is disposed of. (Gopal Krishan Vyas) J. Ojha, a.