IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.280 of 2006 1. Mostt.Geeeta Devi w/o late Ramesh Kumar Singh 2. Aniket Kumar (son) 3. Binit Kumar (son) 4. Mamta Kumari (daughter) 5. Kamini (daughter) 6. Nitu Singh (daughter) All resident of village- Jakhaa, P.S. –Hayaghat, District- Darbhanga. …..Petitioners Versus 1. THE STATE OF BIHAR . 2. The Director, Secondary Education, Bihar, Patna. 3. The Deputy Director, Secondary Education, Bihar, Patna. 4.The District Education Officer, District- Madhubani. 5. The Headmaster V.S.M., High School, Narar, District- Madhubani. ….Respondents. ----------- For the Petitioner : Mr.Jagannath Singh. For the State : Mr. Alok Kumar,A.C. to G.A.1 11 5.4.2011 The original petitioner had filed this writ application for a direction to the respondents to accept his joining as an Assistant Teacher. The writ application was filed in the year 2006. During the pendency of this writ petition, the authorities appear to have woken up the reality. On 29.1.2007 (Annexure 9 to the supplementary affidavit of the petitioner) a notice was issued to the petitioner informing him of earlier notices issued in 2006 itself to show cause as to why, because of his long unauthorized absence, his services be not terminated. In response to the aforesaid, petitioner on 13.2.07 filed his show cause. The plea taken by the petitioner was that he was appointed as an Assistant Teacher in 1983. In 1985 he became seriously ill and had to be treated for neurosis (mental illness). He thereafter tried to join but was not permitted. He remained ill thereafter and allegedly kept representing - 2 - to be permitted to join. Ultimately, after twelve years , in 1997 he filed a writ application before this Court but this Court refused to entertain the same directing the petitioner to approach the departmental authorities. Again nothing came out and again in 2006, the present writ application was filed. The petitioner died on 6.5.2007 and it is thereafter when an affidavit was filed by the State, it was brought on record prior to his death , the State through Director (Secondary Education) rejected the petitioner’s application for joining by his order dated 2.5.2007. In the meantime application of surviving heirs was allowed and they were substituted. They are wife and the children of the original petitioner .They have amended the writ petition with a prayer to quash this order and for a direction for payment of statutory dues payable. On the other hand, learned counsel for the State submits that the petitioner had hardly worked for two years and then absconded. He could not , therefore, be given any salary or continuity of service or any other benefits. Unauthorized absence for more than five years, in terms of Rule 76 of the Bihar Service Code, he would be deemed to be dismissed from service. With the consent of the parties this application has been heard for final disposal at this stage itself. Having considered the matter, in my view, the present substituted heirs are entitled to the relief, as sought for. The reasons are as follows- It is not in dispute that the original writ petitioner has joined and worked as a permanent Assistant Teacher in government - 3 - service. Thereafter, because of his illness, he remained absent without authorization. Rule 76 of the Bihar Service Code came into operation but the said Rule has a significance part therein that before an order terminating service can be passed on ground of unauthorized absence, the party must be issued notice and heard in the matter. In the present case there are two things. First ,the only notice that was issued to the petitioner is Annexure 9, which is issued on 29.1.2007. When the petitioner is said to have been missing or absent unauthorized since 1985 then even though the show cause mentioned why the petitioner should not be dismissed. By the final order passed ,which is Annexure 11 being order dated 2.5.2007, the petitioner is not dismissed. He is merely denied the rightful joining his service. From this fact it is clear that the master and servant relationship continued and was not lawfully terminated. The original petitioner died on 6.5.2007 that resulted in termination of relationship and as such now he cannot take any action. Thus, the fact remains that at the time of petitioner’s death he was a permanent employee of the government, whose services have not been terminated. He would thus be deemed to have died in harness. The heir and the dependent would be entitled to all payments in this regard though this Court cannot direct for payment to the petitioner for the period for which he had not worked. Thus, the authorities are directed to ensure full payment to the heirs of the original petitioner on his premature death in harness. It would be the duty of the Director (Secondary Education), Bihar, Patna to comply with the order of this Court within a period of three months from the date of production of a - 4 - copy of this order before him. The writ petition is accordingly disposed of. singh (Navaniti Prasad Singh,J)