JUDGMENT By the Court.—Basic Shiksha Parishad and two others are before this Court with a request to quash the judgment and order dated 16 January 1987 passed by the U.P. State Public Services Tribunal No. 1 at Lucknow in Claim Petition No. 497 (F) (I) of 1982 wherein claim petition has been allowed, the order passed by the authorities concerned has been set-aside and directives have been issued to treat Ram Kishore, opposite party No. 1, to be in continuous service with all consequential benefits including the salary. 2. Brief background of the case as is emanating from the pleadings, as set out by the parties, is that claimant opposite party No. 1 Ram Kishore s/o Late Sri Balai was appointed on the post of Assistant Teacher on 15 November 1967 and had been performing and discharging his duties at primary school Asena, Vikas Khand Banikodar, Barabanki, run and managed by Zila Parishad, and claimant opposite party No. 1 continued to function in the capacity of a teacher and, thereafter, after U.P. Basic Education Act, 1972 was enforced, the services of claimant opposite party No. 1 were transferred under Section 9 of the Basic Education Act under the Basic Shiksha Parishad U.P. at Allahabad w.e.f. 25 July 2012 and, accordingly, claimant opposite party No. 1 became the employee of the Basic Shiksha Parishad. 3. Claimant opposite party No. 1 submits that he has been the victim of circumstances and in spite of the fact that he has no concern with the crime in question his complicity was shown in a case under Section 302 of IPC at police station Ram Sanehi Ghat eventually wherein he has been acquitted with the passage of time after facing the trial. Claimant opposite party No. 1 submits that on account of the said complicity he was disturbed and, accordingly, he could not attend the institution in question and he had to remain in jail w.e.f. 24 January 1973 to 18 May 1973 in connection with the said crime. Claimant opposite party No. 1 submits that on account of the said complicity he was disturbed and, accordingly, he could not attend the institution in question and he had to remain in jail w.e.f. 24 January 1973 to 18 May 1973 in connection with the said crime. Claimant opposite party No. 1 submits that on account of the circumstances that were not under his control he remained absent and the Headmaster of the institution concerned informed the Deputy District Inspector of Schools about claimant opposite party No. 1 being absent without any information and a show-cause notice was issued to the claimant opposite party No. 1 on 29 January 1975 wherein claimant opposite party No. 1 was informed that his services will be terminated, if explanation is not given. Claimant opposite party No. 1 on 14 February 1975 proceeded to submit his reply and, thereafter, on 18 November 1975 District Basic Education Officer has passed an order terminating the services of claimant opposite party No. 1 and based on the same Deputy District Inspector of Schools has communicated the order dated 20 November 1975. 4. On 27 May 1976 aggrieved claimant opposite party No. 1 preferred appeal before the Secretary of Basic Shiksha Parishad U.P. at Allahabad and the same has been rejected on 11 November 1982 and thus impelling the claimant opposite party No. 1 to file claim petition before the U.P. State Public Services Tribunal No. 1 at Lucknow. The said claim petition in question has been allowed and now the Basic Shiksha Parishad U.P. at Allahabad is before this Court. 5. Shri Rahul Shukla, learned counsel for the petitioner, submitted with vehemence that in the present case U.P. State Public Services Tribunal has not at all appreciated the matter in its correct perspective and on totally wrong premises claim petition has been allowed, wherein facts and circumstances of the case clearly reflected and demonstrated that claimant opposite party No. 1 has deliberately and willfully absented himself from the institution and there was no other option left but to dispense with the services of claimant opposite party No. 1, as providing of opportunity in no way would have improved the case of claimant opposite party No. 1, in view of this, the order passed by the U.P. State Public Services Tribunal be set-aside by this Court as in mechanical manner all consequential benefits have been accorded. 6. 6. The said submission in question has been countered by Shri Hari Govind Upadhyaya, Advocate by submitting that the entire action, that has been so taken, is in utter breach of principle of natural justice as at no point of time after reply has been submitted by the claimant opposite party No. 1 on 14 February 1975 any notice or opportunity of hearing has been provided to him and straight away services were terminated whereas in case there has been deliberate absenteeism on the part of claimant opposite party No. 1 from duty, then it amounted to misconduct and for the same enquiry ought to have been conducted and admittedly same has not at all been done and, as such, no interference be made by this Court and rightly in the facts of case all consequential benefits have been accorded. 7. After respective arguments have been advanced the factual situation, that is so emerging in the present case, is that on 29 January 1975 notice was given to the claimant opposite party No. 1 informing him that he is unauthorisedly absent w.e.f. 22 January 1973 and his services will be terminated, if explanation is not given within fifteen days and to the said notice claimant petitioner has submitted his reply on 14 February 1975 giving the full details and reasons for his absence. Thereafter on 18 November 1975 District Basic Education Officer has proceeded to terminate the services of claimant opposite party No. 1. In the order impugned, it has been mentioned that claimant opposite party No. 1 has not furnished any proof that after he was released from jail he had gone to the office of District Basic Education Officer and, accordingly, he is forced to reach to the conclusion that the teacher has voluntarily unauthorisedly absented himself from the institution w.e.f. 22 January 1973 and he has no care for his responsibilities and services and, accordingly, for being absent from duties unauthorisedly w.e.f. 22 January 1973 his services are being dispensed with and there is no occasion for his suspension and re-engagement. 8. 8. With such facts in hand we are proceeding to consider the stand of appellants that on admitted or undisputed position, in the facts of present case, opportunity of hearing was not at all required, as on admitted and undisputed fact only one view was possible and that is that without any lawful or justifiable reason claimant opposite party No. 1 has absented himself and behaviour of claimant opposite party No. 1 of remaining absent without leave for such long period was clearly regrettable and unfortunate and, in such a situation, rightful decision has been taken, and no interference was required by the Tribunal as according of relief by the Tribunal virtually amounts to giving premium for absenteeism. 9. The service condition of claimant opposite party No. 1 was governed by U.P. Basic Education (Staff) Service Rules 1973 framed in exercise of powers conferred by Sub-section (1) of Section 19 of U.P. Basic Education Act, 1972. As per the said Rules in question, Rule 2 deals with appointing authority, declaring appointing authority of posts mentioned in Column 2 of the schedule. Rule 3 authorizes appointing authority to impose penalties provided for, for good and sufficient reason. Penalties provided therein are as follows: (i) Censure; (ii) withholding of the increments including stoppage at an efficiency bar; (iii) reduction to a lower post on time-scale, or to a lower stage in a time scale; (iv) recovery from pay of the whole or part of any pecuniary loss caused to the Board by negligence or breach of orders; (v) removal from the service of the Board which does not disqualify him from future employment; (vi) dismissal from the service of the Board which ordinarily disqualifies him from future employment. 10. Rule 4 authorize appointing authority to place under suspension, such person against whose conduct an enquiry is contemplated or is proceeding, pending conclusion of enquiry, and such person is entitled for suspension allowance during his suspension period at the rate applicable to Government servant. Rule 5 provides for forum of appeal against the order of appointing authority. 11. Six categories of penalties have been specified in Rule 3, out of which three penalties specified in Rule 5 (1) could be the subject-matter of an appeal. The remaining penalties could be challenged under Rule 5 (2) by means of a statutory representation to the Director or the officer specified by him. 11. Six categories of penalties have been specified in Rule 3, out of which three penalties specified in Rule 5 (1) could be the subject-matter of an appeal. The remaining penalties could be challenged under Rule 5 (2) by means of a statutory representation to the Director or the officer specified by him. Rule 5 (2) empowers the employees to file a representation against those punishments which are not specified in Rule 5 (1). Rule 5 (3) clearly provides that procedure laid down in CCS Rules, as applicable to the servants of U.P. Government shall as far as possible, be followed in disciplinary proceedings, appeals and representation under these Rules. 12. Once such are the statutory provisions holding the field in the matter of punishment to be awarded by appointing authority, for good and sufficient reason, after following the procedure laid down in CCS Rules, as applicable to the servants of Uttar Pradesh Government, and admittedly said procedure has not been adhered to, rather the route that has been taken for dispensing with the services of claimant opposite party No. 1 is that on account of absence from duty his service stands terminated, can the said action taken be justified in the facts of the present case. 13. There cannot be any doubt to this proposition that absence from duty/unauthorized absence/absenteeism constitutes misconduct in itself as same clearly tantamounts to failure of devotion to duty or behaviour unbecoming of Government servant and, accordingly, on such misconduct being substantiated on the basis of evidence adduced, for good and sufficient reason, appropriate punishment commensurate to the charge can always be awarded. The authority at the point of time when it proceeds to take decision in such matter has to keep in mind as to whether absence has been willful or same has been because of compelling circumstances. Apex Court in the case of Krushnakant B. Parmar v. Union of India, 2012 (3) SCC 178 , while dealing with the matter of absence from duty has held as follows: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant. 18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct. 19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.” 14. Apex Court in the case of Vijay S. Sathaye v. Indian Airlines Limited and others, 2013 (10) SCC 253 , while considering the issue of termination of service vis.a.vis. abandonment of service, stated that termination entails positive action on the part of employer, while abandonment is unilateral action of employee and in the said context, has held as follows: “12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 13. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 13. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1567 , this Court held as under: “......there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.” (See also: Shahoodul Haque v. The Registrar, Co-operative Societies, Bihar and another, AIR 1974 SC 1896 ). 14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as ‘’retrenchment’ from service. (See: State of Haryana v. Om Prakash and another, (1998) 8 SCC 733 ). 15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah and another, AIR 1964 SC 1272 , while dealing with a similar case, this Court observed : “5. .........Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.” A similar view has been reiterated in G.T. Lad and others v. Chemicals and Fibres India Ltd., AIR 1979 SC 582 . 16. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another, AIR 2000 SC 2198 ; and Aligarh Muslim University and others v. Mansoor Ali Khan, AIR 2000 SC 2783 , this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in V.C. Banaras Hindu University and others v. Shrikant, AIR 2006 SC 2304 ; Chief Engineer (Construction) v. Keshava Rao (dead) by Lrs., (2005) 11 SCC 229 ; and Regional Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462 .” 15. A similar view has been reiterated in V.C. Banaras Hindu University and others v. Shrikant, AIR 2006 SC 2304 ; Chief Engineer (Construction) v. Keshava Rao (dead) by Lrs., (2005) 11 SCC 229 ; and Regional Manager, Bank of Baroda v. Anita Nandrajog, (2009) 9 SCC 462 .” 15. Abandonment or relinquishment of service is always a question of intention, and such an intention can be attributed to employee when there is adequate evidence in that behalf. Absence from duty is a misconduct and if the authority chooses to initiate action for according punishment for the said misconduct then he would have to adhere to the provisions of CCS Rules as applicable in the State of U.P. by holding regular departmental enquiry and only in cases where an incumbent is absent beyond the prescribed period for which leave of any kind be granted, then he has to be accepted as having abandoned his service, and in such a situation there is no need to hold enquiry or to give any notice. 16. In the State of U.P. the Government servants in various matters such as abandonment of service and leave etc. are governed by Financial Handbook i.e. U.P. Fundamental Rules, and same set of Rules are applicable to the employees of Board also. Fundamental Rule 18 runs as follows: “18. Unless the Government in view of the special circumstances of the case, shall otherwise determine, after five years’ continuous absence from duty elsewhere then on foreign service in India whether with or without leave, a Government servant ceases to be in Government employee” 17. The aforementioned Fundamental Rule provides for abandonment of service/cessation of service after five years continuous absence from duty, whether with or without leave. Once five year continuous absence from duty is there, then leave or no leave will not make any difference, the abandonment of service/cessation of employment has to be accepted and prior to expiry of period of five years, if there is absence from duty, the same has to be accepted as misconduct and for the same disciplinary proceedings will have to be initiated by holding regular departmental enquiry. Here the shortcut method that has been adhered to cannot at all be subscribed by law. 18. Here the shortcut method that has been adhered to cannot at all be subscribed by law. 18. Claimant opposite party No. 1 never indicated in his reply so filed that he has any intention of relinquishing his job as a teacher, rather as he has been in jail for more than 48 hours, on the premises that he has to be accepted as under deemed suspension and his subsistence allowance is liable to be paid he came forward with such a request. Claimant opposite party No. 1 from his reply never indicated to abandon his service and once such was the factual situation and adverse opinion was being formed in the said direction, then regular departmental enquiry was demand of the moment. Once there has been absence from duty without any leave same clearly on its face value amounted to misconduct and in such a situation enquiry was required in the facts of case and specially when claimant petitioner has been issued notice and he has submitted his reply clearly mentioning therein that he was to be treated under suspension and subsistence allowance be paid to him, in view of this, once such is the factual situation then punitive action taken against the claimant opposite party No. 1 without taking any enquiry, in the facts of case, cannot be subscribed. Claimant opposite party No. 1 gave his reply on 14 February 1975 and orders have been passed on 18 November 1975 i.e. after more than 7 months and nothing prevented the District Basic Education Officer to take disciplinary action during all this period. Accordingly, the order passed by the U.P. State Public Services Tribunal on the said score is not at all being interfered with. 19. Now the next issue is as to what relief should be accorded to the claimant opposite party No. 1, in the facts of the case, and specially when he has not at all functioned. 20. Counsel for the claimant opposite party No. 1 states that petitioners are responsible for such a situation and, as such, full benefits be extended as a course whereas same has been resisted by petitioners that Tribunal could not have given such a relief, ipso facto. 21. The services of claimant opposite party No. 1 have been terminated on 18 November 1975. The appeal has been preferred by him on 27 May 1976. 21. The services of claimant opposite party No. 1 have been terminated on 18 November 1975. The appeal has been preferred by him on 27 May 1976. Secretary, Basic Shiksha Parishad U.P. at Allahabad has proceeded to decide the same on 11November 1982, the claim petition in question has been filed in the year 1982 and the same has been allowed in the year 1987 and on the presentation of the present writ petition there has been an interim order and net effect of the same is that Ram Kishore could not perform and discharge his duties and had already attained his age of superannuation and is currently of 80 years of age. 22. Consequently, in the facts of the case, once action in question has been non-suited on the ground that principle of natural justice has not been complied with, then, in normal course of business, still it was open to employer to conduct an enquiry and in the present case even the said liberty has not been there but we cannot put the clock back and as on date the said exercise in question would be an exercise in futility, as such, this Court in the ends of justice, following the dictum of Apex Court in the case of Krushnakant B. Parmar (Supra) wherein also there was charge of absence from duty and proceedings were not remitted to disciplinary authority 50% of back wages have been awarded, accordingly, following the same set of reasoning, we proceed to pass an order directing that claimant petitioner should be paid arrears of salary to the extent of 50% treating him to be continuous in service till the date of his superannuation and apart from this all other consequential benefits should be provided to him within four months from the date of receipt of certified copy of this order. 23. With these observations and directions, writ petition stands disposed of and order passed by U.P. State Public Services Tribunal stands modified, accordingly. —————