State of u.P.and others vs Gurmukh Singh and another

J. K. Mathur, J.—By this petition an order passed by the U. P. Public Services Tribunal on 14489 has been challenged.

The opposite party No. 1 was working in the department of Animal Husbandry. He applied for leave and was on leave till 671968. According to the petitioners, he did not apply for leave subsequently and unauthorisedly absented himself till he reported on 20111985. The petitioners claim that the notice was sent to the opposite party on 1661980 at his address in Uganda and then again in 1984. He did not show cause. He ceased to be in employment by virtue of Rule 18 of the Fundamental Rules. The opposite party, however approached the Tribunal by claim petition. The tribunal concluded that the services could not be terminated without notice allowing an opportunity to the petitiorer to show cause and that the notices have not been served. It was, therefore, found that the petitioner continued to be in service and that his services did not stand terminated by the order dated 1661980. He was found to be entitled to all the benefits including that of salary and allowances till the date of superannuation.

I have heard learned Counsel for the parties who have exchanged affidavits.

In the course of arguments, the fact that the petitioner absented him�self till 20111985, was not disputed. It was on that date that the opposite party no 1 moved an application for joining. There is nothing to suggest that the opposite party no. 1 was on duly sanctioned leave during the period between 621968 and 201185.

Rule 18 does provide that the Government Servant who remains absent continuously from his duty for five years, ceases to be in Govern�ment employment. However, it has been held in a number of cases relied upon by the Tribunal that such a cessation amounts to removal from service and can be effective only when a person has an opportunity to show cause.

In the present case, therefore, mere absence cannot be taken to be a reason for cessation of the employment of the opposite party. (State of Assam v. Akslay Kumar Deb, AIR 1976SC 37 and Jai Shankar v. State of Rajasthan, AIR 1966 SC 429). This part of the order of the Tribunal, therefore, correctly examines the matter.

It has also been found after considering the material placed before it that showcause notices were not served. It will not be appropriate to enter into the question and reappraise the evidence in this regard.

I, therefore, do not find any reason to interfere with the findings arrived at by the tribunal. In any case no material was placed to show service of notice.

It was lastly urged that the opposite party has also asked for the salary during the period of his absence to which he is not entitled. In this regard, the order passed by the Tribunal clearly states that the petitioner would be entitled to salary and the allowance permissible under the rules. If the opposite party was absent without any leave, he may not be entitled to the salary for that period under the rules themselves. This matter shall be decided by the execution case.

In view of the above, I do not find any force in this petition which is dismissed as such.

(Petition dismissed)