Chittya Ranjan Paira v. State of West Bengal — 1998 DIGILAW 159 (CAL)

Judgment Sinha, J. This appeal is directed against a judgment and order dated 16th December, 1976 passed by a learned Single Judge of this Court in C.R. No. 5855(W) of 1970 whereby and whereunder the writ application filed by the writ petitioner was dismissed. 2. The fact of the matter lies in a very narrow compass. 3. The petitioner was appointed as copyist on 22nd July, 1954. The petitioner contends that he was subsequently made permanent in the post of Senior Junch, Mohorrer in the Settlement Department. Owing to his ill health he went on leave on 27th July, 1964 which was sanctioned. He got his leave extended from time to time. The petitioner allegedly could not join the office owing to advance stage of pragnency of his wife. In the meantime, the petitioner was arrested in connection with a murder case for which also the petitioner could not join his duties. According to the petitioner, a proclamation was also issued against him in the aforementioned criminal case and he surrendered in the Court of the learned Magistrate on 15.2.65. In the meantime, his service was terminated with effect from 22.1.65 purported to be in terms of sub-rule (3) of Rule 34 of the West Bengal Service Rule, Part-I due to his long absence in duty. 4. According to the petitioner, he did not receive the aforementioned communication and the purported communication was made to him by letter dated 28.5.68 which is in the following terms:- "It appears from the office records that your service was terminated with effect from 22.1.65 in terms of sub-rule (3) of Rule 34 of the W.B.S.R., Part-I under this office order No. 5929/B dated 6.3.65 due to your long absence in duty and that was intimated to you. So the question of allowing you to join in the service again does not arise." 5. The petitioner was acquitted on 10.4.1968. According to the petitioner, in terms of Rule 34 of the West Bengal Service Rule, Part-I, he was entitled to leave at least for a continuous period of 5 years. So the question of allowing you to join in the service again does not arise." 5. The petitioner was acquitted on 10.4.1968. According to the petitioner, in terms of Rule 34 of the West Bengal Service Rule, Part-I, he was entitled to leave at least for a continuous period of 5 years. In the aforementioned situation, the petitioner filed the said writ application praying, inter alia, for the following relief’s:- "(a) To issue a Rule NISI upon the opposite parties to show cause why a writ or writs in the nature of mandamus should not issue upon the opposite parties directing them to withdraw and/or to cancel and/or to set aside and/or not to give effect to and/or to forbear from giving further effect to the impugned orders dated 29.5.68 and 14.3.70 contained in Annexures "F" & "G" hereto and any other orders in connection therewith not yet disclosed to the petitioner and direct them to show cause why the said order terminating the services of the petitioner should not be set aside and/or cancelled and/or quashed and/or direct them to show cause why the petitioner should not be reinstated in his post of service under the opposite party no. 3 aforesaid; (b) To issue Rule NISI upon the opposite parties to show cause why a writ in the nature of Certiorari should not be issued upon the opposite directing them to certify and to produce and to bring before the Hon'ble High Court, Calcutta, within such time as may be fixed, all records correspondences notice or notices, applications, resolutions, orders in connection with the orders of termination of service of the petitioner and/or decisions of the opposite parties with reference to the Annexures "F" & "G" dated 29th May, 1986 and 14th March, 1970 respectively contained and direct them to show cause why the said orders/decision of the opposite parties herein complained of should not be set aside and/or withdrawn and/or cancelled and/or quashed and further direct them to show cause why the further direct them to show cause why the petitioner should not be reinstated in his post of service under the O.P. No. 3." 6. The learned trial Judge relied on Rule 34(3) of the W.B.S.R. Part I and inter alia held that as the petitioner was a temporary employee he would be deemed to have resigned from the post and on that ground, the writ petitioner was dismissed. 7. Mr. Roy, learned Counsel appearing on behalf of the appellant submits that the learned trial Judge went wrong in passing the impugned order. The learned Counsel submits that a similar provision contained in Rule 76 of the Bihar Service Code has been declared ultra vires in the case reported in (1) AIR 1973 Patna 431: 1974(1) SLR 317, Sobhana Dasgupta v. State of Bihar. The learned Council submits that keeping in view the fact that the petitioner's service has been terminated; he was at least entitled to an opportunity of being heard. The learned Counsel in support of the aforementioned contention relied upon a decided or the Supreme Court in the case of (2) Parshottam Lal Dhingra v. Union of India reported in AIR 1958 SC 36 . 8. Rule 34 of the Service Laws of Government Employees of West Bengal reads thus:- "Maximum Period of Continuous Absence from Duty:- (1) Unless the Governor, in view of the exceptional circumstances of the case, otherwise determines, no Government employee shall be granted leave of any kind for a continuous period exceeding five years. (2) Unless the authority competent to grant leave extends the leave, a Government employee who remains absent even after the expiry of leave previously granted is not entitled to any leave salary for the period of such absence and that period shall be debited against his leave account as though it were half-pay leave to the extent such leave is due, the period in excess of such half-pay leave due being treated as extraordinary leave. (3) Wilful absence from duty after expiry or the leave readers a Government employee liable to disciplinary action. Rule 76 of the Bihar Service Code as it originally stood reads thus:- “Unless the State Government in view of the special circumstances of the case shall otherwise determine a Government servant, after five years' continuous absence from duty, elsewhere than a foreign service in India, whether with or without leave ceases to be in Government employ." 9. Rule 76 of the Bihar Service Code as it originally stood reads thus:- “Unless the State Government in view of the special circumstances of the case shall otherwise determine a Government servant, after five years' continuous absence from duty, elsewhere than a foreign service in India, whether with or without leave ceases to be in Government employ." 9. A Division Bench of the Patna High Court in the case of Smt. Sobhana Dasgupta v. State of Bihar reported in AIR 1973 Patna 431, held the said rule to be ultra vires of Article 311 of the Constitution of India. It appears that the said rule was thereafter amended to the following effect:- "76. 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 employ. (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." 10. The Division Bench in the case of (3) Prabhabati Sengupta v. State of Bihar reported in 1989 PLJR 495, relying on or on the basis of the decision in the case of Smt. Sobhana Dasgupta v. State of Bihar reported in 1974 PLJR 382 , inter alia held that keeping in view the fact that no opportunity of hearing was give to the petitioner thereof before the purported termination of service only on the ground of absence for a continuous period of 5 years was bad in law. 11. Mr. 11. Mr. Roy, learned Counsel, has pointed out before us that the Leave Rules as contained in Rule 163 of the West Bengal Service Rules, Part-I has been given retrospective effect and retrospective operation with effect from 1st August, 1960 and in that view of the matter, the said Leave Rules would apply also in this case as the impugned order of termination was passed in the year 1966. The learned Counsel appears to be correct. 12. A bare comparison of Rule 76 of the Bihar Service Code and Rule 34 of the West Bengal Service Rules would clearly show that they intend to achieve the same purpose. It is axiomatic to note that the validity of Rule 76 of the Bihar Service Code came up for consideration before the Apex Court also in (4) Deokinandan Prasad v. State of Bihar & Ors. reported in 1971 (2) SCC 330 . In that case by an order dated 5.8.66 service of the writ petitioner therein was terminated on the ground of his not having been on his duty for more than 5 years since March 1, 1960, in terms of Rule 76 of the Bihar Service Code. The Apex Court on fact held that the said decision on fact is also incorrect. It further held:- “A contention has been taken by the petitioner that the order dated August 5, 1966, is an order removing him from service and it has been passed in violation of Article 311 of the Constitution. According to the respondents there is no violation of Article 311 on the other hand, there is an automatic termination of the petitioner's employment under Rule 76 of the Service Code. It may not be necessary, to investigate this aspect further because on facts we have found that Rule 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a period of five years, Article 311 applies to such cases as is laid down by this Court in Jai Shanker v. State of Rajasthan. In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations, which is as follows:- “13. In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations, which is as follows:- “13. All individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority.” It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the Officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held to give no opportunity is to go against Article 311 and this is what has happened here. In the case before us even according to the respondents a continuous absence from duty for over five years, apart from resulting in the forfeiture of the office also amounts to misconduct under Rule 46 of the Pension Rules disentitling the said Officer to receiver pension. It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. Hence there is a clear violation of Article 311. Therefore, it follows even on this ground the order has to be quashed.” 13. In that view of the matter, there cannot be any doubt whatsoever that Rule 34 must be held to be ultra vires Article 311 of the Constitution of India. It is further well known that the word a service must be construed liberally in view of wide connotation of the word livelihood. Livelihood is now encompassed within Article 21 of the Constitution of India, See (5) D.K. Yadav v. J.M. Industries reported in 1993 (3) SCC 259 . In that view of the matter, there cannot be any doubt that the service of the petitioner could not have been terminated by taking recourse to Rule 34 aforementioned. We are further of the opinion that the learned trial Judge committed a serious error in dismissing the petitioner's writ application only on the ground that he was a temporary employee. In that view of the matter, there cannot be any doubt that the service of the petitioner could not have been terminated by taking recourse to Rule 34 aforementioned. We are further of the opinion that the learned trial Judge committed a serious error in dismissing the petitioner's writ application only on the ground that he was a temporary employee. A person, if remains absent for a long time, commits a misconduct. His service, therefore, could not have been terminated without giving him an opportunity of hearing. In any event, Rule 34 itself confers discretion upon the appropriate authority, inasmuch as, Government can make it an exceptional circumstance for determining the case of an individual employee otherwise. In this view of the matter, we need not go into the other questions raised by Mr. Roy appearing on behalf of the appellant. 14. For the reasons aforementioned, this appeal is allowed. The judgment and order passed by the learned trial Judge is set aside and the writ petition is also allowed. However, the petitioner would be entitled to the arrear salary only upon taking into consideration the extent Leave Rules. The question as to whether the petitioner, in the facts and circumstances of the case, would be entitled to arrear salary or not, be considered by the Director of Land Record, Government of West Bengal, who would pass an appropriate order in terms of the aforementioned rules or any other rule for the time being in force and applicable in the case of the petitioner. Such an order should be passed at an early date and not later than 6 weeks from the date of communication or this order. Urgent xerox certified copy, if applied for, be supplied on priority basis. Dutta, J. : I agree.