Rohit Mukhi vs State of Jharkhand and Others

P.P. Bhatt, J.—Heard the learned counsel for the petitioner as well as learned counsel for the State. Perused the papers.

The petitioner by way of the present petition, under Article 226 of the Constitution of India, has prayed for issuance of an appropriate writ/order/direction in the nature of mandamus commanding upon the respondents to pay forthwith legally payable dues, such as G.P.F., Gratuity. Insurance etc. with interest to the petitioner or in the alternatively, the respondents be directed to allow the petitioner to join his services and pay all consequential relief''s to the petitioner including continuity in service, arrear of pay, increments etc. and aforesaid consequential relief''s be granted to the petitioner with interest @ 18 per cent per annum.

The main questions, which arises for consideration before this Court are as follows:

(i) Whether the respondents are duty bound to pay the legally payable dues to the petitioner or alternatively allow the petitioner to join his service?

(ii) Whether the petitioner continues to be in service in spite of his long absence from duty particularly in view of the fact that no departmental proceeding whatsoever was ever initiated against the petitioner for termination of his service under Rule 76 of the Bihar Service Code?

(iii) Whether the petitioner had sufficient reason for not joining his duty after submitting his resignation letter on 6.2.1993 under bona fide belief and assumption that his resignation must have been accepted by the competent authority?

(iv) Whether the respondents ought to have allowed the petitioner to join duty at least on 16.7.2004 when admittedly there was no communication or acceptance of resignation of the petitioner from the Director, ESI Scheme, Bihar, Patna?

(v) Whether the petitioner is entitled for all consequential relief''s including continuity in service, arrear of salary, increments etc. at least from 16.7.2004 when the petitioner admittedly has given his joining and requested the authorities to allow him to join the services but the respondents did not allow him to join?

Upon hearing the learned counsel for the parties and on perusal of the material on record, it appears that the present petitioner was appointed as Sweeper under the respondent No. 3 vide office order No. 187 dated 30th December. 1978. It also appears that the petitioner has continuously served under the respondent No. 3 till 06.02.1993, i.e. more than 14 years. It further appears that the petitioner tendered his resignation on account of family circumstances on 06.02.1993 to the In-charge, E.S.I. Dispensary, Mango, Jamshedpur, who in turn, sent his resignation letter (in original) to the Director, E.S.I. Scheme, Bihar at Patna through its letter No. 17, dated 09.02.2003. These are the admitted facts, as it reveals from the counter-affidavit as well as supplementary counter-affidavit, filed by the respondents-State of Jharkhand as well as State of Bihar. Thus, it appears that the resignation letter submitted by the petitioner was forwarded to the higher authority after lapse of about 10 years. Since the petitioner did not receive information nor any payment of admissible dues, he made an enquiry with the respondents-authorities and also submitted one letter dated 16.07.2004, addressed to the Director, E.S.I. Scheme. Ranchi to know the fate of his resignation and also demanded the amount of G.P. fund and Group Insurance etc. It appears that upon receipt of this letter, the Director, E.S.I. Scheme, Ranchi again sent a reminder letter to the Director, Bihar through its letter No. 408, dated 09.08.2004. It also appears from the counter-affidavit filed on behalf of the respondent Nos. 2 and 3 that even second and third reminders were also sent to the Director, Bihar on different dates and the Special Messenger was also sent to the Director, E.S.I. Scheme, Bihar at Patna through letter Nos. 157 and 178 dated 04.04.2008 and 17.04.2008 respectively but there was no response from the Patna office of the Director, of E.S.I. Scheme, Bihar. It appears that in the counter-affidavit filed by the respondent-State of Jharkhand, it has been stated that since the petitioner has tendered his resignation on 06.02.1993, i.e., prior to bifurcation of the erstwhile State of Bihar and therefore, they are not having any record and it is the duty of the erstwhile State of Bihar to process the matter and make payment of dues of the petitioner.whereas, the State of Bihar has taken a stand in their counter-affidavit that so far as the payment of admitted dues to the petitioner under the heading Pension, Gratuity, Leave Salary, Group Insurance and G.P.F. is concerned, the State Headquarter (Directorate) of Bihar has not been approached either by the petitioner or by his Head of the Office, i.e. Medical Officer, In-charge, E.S.I. Dispensary, Mango, Jamshedpur and under Rule 204 of the Bihar Pension Rules, the Head of the Office is the competent authority to collect the pension paper (form iv) of the non-gazetted employees and sent it to A.G. for payment of pension and gratuity. Similarly for the payment of Group Insurance and Leave Salary, the Head of the Office is the competent authority to calculate the claim and make payment under the provisions of Group Insurance Rules and Bihar Service Code. Likewise, so far as the claim regarding final payment of G.P.F. amount deposited in the account of employee is concerned, it is submitted that an application is to be obtained by the Head of the Office and get it processed and sent it to the Directorate of Provident Fund or District Accounts Officer for issuance of authority to draw and disburse the amount of the due with the fund. So according to this respondent, the Medical Officer, In-charge, E.S.I. Dispensary, Mango, Jamshedpur is required to be directed suitably to dispose the claims of the petitioner as per rules and instructions. So far as acceptance of resignation is concerned, the State of Bihar has taken a stand that the petitioner submitted his leave application to the Medical Officer, In-charge of the dispensary from 16.06.1992 to 05.02.1993 and remained absent. Later on, he preferred to resign and submitted his resignation letter, addressed to the Director, Medical services. Government of Bihar to and through the Medical Officer, In-charge, Mango dispensary on 06.02.1993. The said letter is said to be sent to the Director by the Medical Officer by Post, which is now not in the records of the Directorate of Medical Services, Bihar. Thus, it appears that both the respondent-States have tried to shirk from their responsibility because it is the duty of the respondents-authorities prior to bifurcation of the State in the year 1993 to process the letter of resignation and take a decision and the said decision was also required to be communicated to the petitioner but unfortunately, it appears that there is a communication gap amongst the different levels of officer/authorities of the respondent-erstwhile State of Bihar. It appears that the petitioner has repeatedly approached the respondent-authorities to know the fate of his resignation but since, there was no response, ultimately the petitioner had written a letter to the Director, E.S.I. Scheme, Ranchi vide its letter dated 16.07.2004 to know about the status of his resignation and also demanded the arrears of G.P. Fund and Group Insurance. It appears that after receipt of the said letter, the Director, E.S.I. Scheme, Ranchi again sent a reminder letter to the Director, Bihar, dated 09.08.2004. Subsequent thereto, second and third reminders were also sent but there was no response from the Director, E.S.I. Scheme, Bihar at Patna in this regard. On the other hand, the petitioner was not allowed to join the duty and therefore, the petitioner constrained to approach this Court by way of filing the present writ application. I found substance in the arguments advanced by the learned counsel for the petitioner that the payment of legally payable dues to the petitioner is not bounty and is not depends upon the sweet will of the respondents. The respondents-authorities are responsible for the purpose of processing the matter with regard to payment of legally payable dues to the petitioner but in the instant case, it appears that no steps have been taken by the erstwhile State of Bihar, even after repeated reminders sent to the authorities in this regard. It appears that the respondent-State of Bihar has taken a stand at para 6 of the counter-affidavit that the petitioner was appointed vide order No. 3719, dated 30.12.1978 by the Administrative Medical Officer and he joined in Mango Dispensary, Jamshedpur, where he served upto 15.06.1992 and submitted his leave application to the Medical Officer, In-charge of the Dispensary from 16.06.1992 to 05.02.1993 and became absent and later on, he preferred to resign and submitted his resignation letter, addressed to the Director, Medical Services, Government of Bihar to and through the Medical Officer In-charge, Mango Dispensary on 06.02.1993. Thus, this respondent has taken a stand that the petitioner remained absent unauthorizedly for a long period, and therefore, by virtue of provision of Rule 76 of the Bihar Service Code, an employee ceases to be in Government service, if he remains continuous absent from his duty for five years. Therefore, according to this respondent, the petitioner ceases to be in Government service since 15.06.1997, the date of his continuous absence for five years.

The learned counsel for the respondent-State in support of his arguments relied upon the Judgment delivered by the Hon''ble Supreme Court of India in the case of Rajasthan State Electricity Board and Others Vs. Brij Mohan Parihar, and referred to Paragraphs 3 and 4, which reads as under:

The respondent was an employee of the Rajasthan State Electricity Board. He submitted his letter of resignation on 10.10.1983 in which it was mentioned that the resignation will be effective from 25.11.1983. The learned single Judge and the Division Bench, both have recorded a finding 30 that the respondent offered himself for duty on 22.8.1987 through his letter of even date. It was then that the Board made an order dated 24.8.1987 accepting the letter of resignation with effect from 25.11.1983 and treating the respondent as relieved from the forenoon of 25.11.1983. The learned single Judge and the Division Bench of the High Court have further held that a formal letter accepting the resignation should have been issued and since it was not done, the respondent 35 shall be deemed to have continued in service till 22.8.1987 when he reported to resume his duties.

We are not inclined to subscribe to this view. The respondent tendered his resignation'' vide his letter dated 10.8.1983 in which it was mentioned clearly that the resignation would be effective from 25.11.1983. He absented himself from duty for four years, from that date and reported only on 22.8.1987. This conduct itself on the part of the respondent is sufficient to indicate that he treated himself to have resigned from the post which he was holding, with effect from 25.11.1983, particularly when he himself thereafter demanded payment of gratuity and other post-retirement benefits.

On perusal of the aforesaid judgment, it appears that it was mentioned clearly in the resignation letter that it would be effective from 25.11.1983 but in the present case, neither original letter tendering resignation nor copy of the said letter has been produced on record by the respondents. From the material on record. It appears that the original resignation letter was forwarded almost after 10 years to the higher authorities and thereafter, despite several reminders and follow up action were taken by the authority, who forwarded the letter to the Directorate at Patna, but no reply has been given by any of the authority and therefore, the petitioner gave the joining report on 6.7.2004 and requested the authorities concerned to permit him to join the duty, as he has not received any reply or confirmation with regard to acceptance of his resignation. It is pertinent to note that the post, in question, was also vacant at that time, and this fact also suggests that the resignation forwarded by the petitioner was not accepted and no other appointment was made on this post during the intervening period. Moreover, in the case before the Hon''ble Supreme Court, the employee after tendering resignation demanded payment of gratuity and other post retirement benefits. In the instant case, the petitioner requested the authorities concerned to pay the legally permissible dues but the respondents-authorities have not acted upon it and thereby made any payment of the permissible dues to the petitioner and therefore, the petitioner gave application to the respondents, requesting them to allow him to join his duties as he has not heard anything from the authority about the acceptance of his resignation. Therefore, the judgments cited by the learned counsel for the respondent-State is of no help to the respondent, looking to the facts and circumstances of the present case.

On the other hand, I found substance in the arguments advanced by the learned counsel for the petitioner about the applicability of Rule 76 of the Bihar Service Code as it appears from the material on record that no proceeding whatsoever ever initiated against the petitioner for absence from duty In terms of Rule 76 of the Bihar Service Code. I have also perused the Judgment referred to and relied upon by the learned counsel for the petitioner in the case of Smt. Pravabati Sengupta v. State of Bihar and others, reported in 1989 P.L.J.R. 485 as well as the judgment in the case of Sidhnath Upadhya v. State of Bihar and others, reported in 1991 (2) P.L.J.R. 148. In both the judgments, reliance was placed on the judgment in the case of Sobhana Das Gupta v. State of Bihar and others, reported in 1974 PLJR 382, wherein, while declaring Rule 76 of the Bihar Service Code to be invalid, the Court held that "Government servant can be dismissed from service after following the procedure prescribed for remaining absent from duty without leave. But in the case in hand, no procedure has been followed before passing the order of dismissal. Accordingly, in view of the aforesaid facts, we are of the view that the impugned orders cannot be maintained".

The facts in the case of Sidhnath Upadhya (supra) reveals that it was a case of termination of service of a Government servant, who submitted his Joining report after remaining absent for 19 years and the concerned authority did not allow him to join and dismissed him from service. Such dismissal without contemplating any departmental proceeding was held to be not valid. Rule 76 of the Bihar Service Code, which empowers the authority to dismiss a Government servant who remained absent for more than five years without following any departmental proceeding, is not valid to that extent. In that case, direction was given to initiate departmental proceeding for his absence and for payment of salary to him from the date, he submitted his joining report till disposal of the departmental proceeding, whereas, in the case of Smt. Pravabati Sengupta (supra), while considering the provision of Rule 76-B of the Bihar Service Code, 1952 and the provisions of Article 311 of the Constitution of India, it has been observed as under :

There is not much dispute so far the facts are concerned because on her own saying the petitioner absented from duty for about 10 years and, according to the petitioner, after ten years she was not allowed to join. So the question which falls for consideration is as to whether in the circumstances mentioned above it shall be deemed that the services of the petitioner stood terminated automatically under Rule 76 of the Code. This aspect of the matter has been examined by a Bench of this Court presided over by Hon''ble Mr. Justice N.L. Untwalia (as he then was) and Hon''ble Mr. Justice S. Sarwar Ali in the case of Sobhana Das Gupta v. State of Bihar and others, 1974 PLJR 382. In that case also the petitioner had remained absent without leave for a pretty long time and the stand of the State was that her services stood terminated. The Bench referred to Article 311 of the Constitution and pointed out that the service of a Government servant can be terminated in the back ground of Article 311 of the Constitution and any rule containing provisions of automatic termination of the service of a regular employee of the State Government must pass the test of Article 311 of the Constitution. In that connection in respect of this very Rule 76 of the Code It was observed as follows :

In my view, in order to determine whether the impugned rule is invalid, the proper test would be to see whether the rule, either expressly or by necessary implication, excludes the applicability of Article 311 of the Constitution. If it does, the rule must be held to be invalid. On the other hand if the impugned Service Rule does not have this effect, the rule itself may not be invalid, but the order without complying with provision of Article 311 would be invalid and incapable of being given effect to. Thus it is only when the rule is to be read in conjunction with or supplemental to Article 311 of the Constitution that it can be held to be valid. Testing it from this point of view, that part of Rule 76 which is under consideration in this case has to be struck down as invalid. The rule lays down that absence from duty, without leave, for a period of five years results in the employment of a Government servant coming to an end. The rule does not envisage of any order. The cessation of the service is automatic, and is a consequence of the applicability of the rule. Any Government order that is or may be passed is only for the purpose of deciding whether the rule applies to a particular Government servant in the facts and circumstances of given case. Clearly, therefore, the applicability of Article 311 of the Constitution is excluded by necessary implication by the very language and wordings of the rule. Under the rules nothing more is required, nothing more is to be done, once the conditions laid down in the rules are fulfilled. The fulfillment of these conditions cause automatic cessation of Government employment. I am, therefore, clearly of the view that Rule 76, in so far as it lays down that a Government servant ceases to be in Government employee if he is absent from duty for five years without leave, is invalid and must be struck down. It is further manifest that the Government order contained in Annexure 2 is also invalid and cannot be given effect to.

It appears that, paragraphs, after the judgment aforesaid Rule 76 of the Code was amended and Clauses (a) and (b) were added to that Rule 76. Now Rule 76 is as follows :

Unless the State Government, in view of the special circumstances of the case, shall otherwise determine a Government servant, after five years continuous absences from duty, elsewhere than a foreign service in India, whether with or without leave ceases to be in Government employee :

(a) No Government servant shall be granted leave of any kind for a continuous period exceeding five years.

(b) Where a Government servant does not resume duty after remaining on leave for a continuous period of 5 years, or where a Government Servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds a continuous period of 5 years, he, shall unless the State Government otherwise determine be removed from service after following the procedure laid down in the Civil Service (Classification, Control & Appeal) Rules and the Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935.''''

Now, after five years of continuous absence from duty the State Government has to determine whether a Government servant without leave has ceased to be a Government employee. But Clause (b) of that Rule 76 says that if a Government servant, after the expiry of his leave, absents from duty other than on foreign service or on account of suspension, for any period, which together with the period of leave granted to him exceeds a continuous period of five years, he shall, unless the State Government otherwise determine, be removed from the service after following the procedure laid down in the Civil Service (Classification, Control and Appeal) Rules and the Bihar & Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. There is no statement in the counter-affidavit that at any stage any proceeding in accordance with Civil Service (Classification, Control and Appeal) Rules and Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 was initiated against the petitioner for her removal from the service of the State Government. The effect will be that it shall be deemed that she has continued in the service of the State Government.

Under the circumstances mentioned above, we are left with no option but to quash the order dated 18th July, 1988, issued by the Joint Director of Industries saying that the representation of the petitioner was being rejected in accordance with Rule 76 aforesaid. We further direct that the pension and other retirement benefits be fixed in accordance with law so far the petitioner is concerned, preferably within four months from the date of production of this order.

In the light of the facts and circumstances discussed hereinabove and in the light of the judgment cited by the learned counsel for the petitioner, referred hereinabove, it becomes clear that no proceeding whatsoever was ever initiated against the petitioner for absence from duty in terms of Rule 76 of the Bihar Service Code and therefore, the judgments cited by the learned counsel for the petitioner in the cases of Sidhnath Upadhya (supra) and Smt. Pravabati Sengupta (supra) are applicable in the instant case and the stand taken by the respondents with regard to provisions of Rule 76 of the Bihar Service Code in respect of the present petitioner cannot be accepted. The respondents-authorities are directed to allow the petitioner to Join the services. So far as the payment of arrears of salary during intervening period is concerned, the same cannot be paid to the petitioner on the basis of ''No work no pay'' principle. Since the petitioner has not performed duty during intervening period, he is not entitled to get the back wages. The petitioner is entitled to have the benefits nationally, therefore, he be given the permissible benefits nationally by treating intervening period as continuity of service for all other purposes. This writ petition is allowed accordingly.