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2004 DIGILAW 162 (PAT)

Raj Nath Rai v. State Of Bihar

2004-02-09

NARAYAN ROY

body2004
Judgment 1. Heard counsel for the parties. 2. This writ application is directed against the order, as contained in Annexure 1, issued vide memo no. 2316 dated 5.10.1998, whereby and whereunder the petitioner has been dismissed from services on account of his absence from service in exercise of powers under Rule 76 of the Bihar Service Code (hereinafter to be referred to as "Code"). 3. It is submitted by learned counsel for the petitioner that the petitioner remained absent from service from 6.1.1989 to 15.6.1997 on account of his wifes protracted illness and after recovery of the petitioners wife from the ailment, the petitioner joined on 16.6.1997 and applied for sanction of leave for the period of absence, as referred to above, and the authorities concerned allowed the petitioner to function in anticipation of final approval of the apex body and, ultimately, by the impugned order dated 19.8.1998, he was dismissed from services. 4. The order impugned is being assailed only on the ground that the power, as envisaged under Rule 76(b) of Code has not properly been exercised, inasmuch as that there was no proceeding, whatsoever, in terms of the provisions under the Civil Services (Classification, Control and Appeal) Rules (hereinafter to be referred to as "Rules") and the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules. 5. Learned counsel for the petitioner has drawn my attention to Rule 76(b) of the Code. Rule 76 (b) of the Code reads as under:- "Rule 76(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 services 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 Services (Classification, Control and Appeal) Rules and Bihar and Orissa Sub-ordinate Services (Discipline and Appeal) Rules, 1935." 6. On plain reading of sub-rule (b) of Rule 76 of the Code, it appears that a Government servant on account of his absence for continuous period of five years would be removed from services after following the procedures, as laid down in the Rule aforesaid. 7. On plain reading of sub-rule (b) of Rule 76 of the Code, it appears that a Government servant on account of his absence for continuous period of five years would be removed from services after following the procedures, as laid down in the Rule aforesaid. 7. From the pleadings of the parties, it is admitted fact that no proceeding, whatsoever, was initiated against the petitioner in terms of the provisions of the Rules and in most summary way, he has been dismissed from service by the order impugned. 8. Learned counsel for the petitioner in support of his proposition has placed reliance in the case of Smt. Pravabati Sengupta vs. The State of Bihar and ors. (1989 Patna Law Journal Reports, 485). A Bench of this Court in case of Smt. Pravabati Sengupta (supra) has held that the order of removal from services without initiation of a proceeding under the provisions of the Rules would be wholly without jurisdiction and the petitioner, thus, would be deemed to be throughout in continuous service under the Government and will be entitled for all retrial benefits. 9. Admittedly, in this case no proceeding, whatsoever, was initiated in terms of the provisions of the Rules and the order of dismissal, therefore, must be held to be contrary to the provisions of law and as such, the same is not sustainable in law. 10. Accordingly, this application is allowed and the order impugned, as contained in Annexure 1, is set aside and the petitioner will be deemed to be in service althrough and will be entitled to all retiral dues.