JUDGMENT Dharam Raj Yadav, an Assistant Teacher in the Panchayat Inter College, Gaura Mehnagar, Azamgarh instituted a writ proceeding questioning the legality of the order dated 19/23 November 2009 passed by the first appellant rejecting his claim for grant of pension and other retiral benefits. A further writ of mandamus was sought for the release of the entire outstanding amounts towards retiral benefits and pension along with interest. During the pendency of the said writ petition, Dharam Raj Yadav died and the appellant – his wife, was substituted as his legal heir. 2. The learned Single Judge by his judgment rendered on 19 January 2015 has allowed the writ petition and directed the release of all post retiral benefits such as arrears of pension for the period 1 July 2002 to 7 April 2013. A direction has further been issued for the release of family pension with effect from 8 September 2013 and other retiral dues within a period of three months along with interest @ 9 %. A failure on the part of the appellants to release the payments in terms of the directions referred to above, as the learned Single Judge has provided, would visit the appellant with liability to pay interest @18% on all dues with effect from 1 July 2002. Aggrieved by the said judgment and order of the learned Single Judge, the State is in appeal. 3. The original petitioner was appointed as an Assistant Teacher in the institution on 14 September 1964. The Committee of Management terminated his services on 1 March 1984 and the papers for approval of the same were duly forwarded to the U.P. Secondary Education Service Commission. The Commission on 31 July 1992 disapproved the proposal of the management to terminate the services of the original petitioner. This decision of the Commission stood embodied in its communication dated 7 August 1992. Upon the Commission disapproving the proposal of the Management, the original petitioner is stated to have been reinstated in the institution on 1 September 1992. As per the case set forth in the writ petition he was paid salary regularly upto 31 December 1992 and again for the period from 1 July 1993 to 31 August 1993. The original petitioner retired from service on 30 June 2002. As per the case set forth in the writ petition he was paid salary regularly upto 31 December 1992 and again for the period from 1 July 1993 to 31 August 1993. The original petitioner retired from service on 30 June 2002. In the writ petition, it was averred that all requisite papers for the release of postal retiral benefits were submitted by the management in the office of the District Inspector of Schools on 10 July 2003. However, no pension or other benefits were released in his favour, thus compelling him to file a writ petition (1) before this Court which was disposed of with a direction calling upon the appellants to decide the claim of the original petitioner. The claim was rejected by the order of the first appellant dated 19/23 November 2009 and it is this order which formed the subject matter of challenge in the writ petition. (1) Writ Petition No. 36083 of 2008 disposed of on 31 July 2008. 4. The order of the first appellant impugned in the writ petition records that the so called proposal for voluntary retirement was never submitted by the original petitioner and that he remained absent right from 1 January 1993 to 30 June 2002 (the date when he attained the age of superannuation). The appellant took into consideration the reports submitted by the District Inspector of Schools, the service book and attendance record to conclude that the original petitioner had remained unauthorisedly absent for the entire period beginning from 1 January 1993 till he attained the age of superannuation. The order further recorded the oral statement of the son of the original petitioner to the effect hat his father did not attend to his teaching job in the institution on account of his inability. The learned Single Judge has proceeded to allow the writ petition and has directed the release of all retiral benefits and family pension by holding that there was no provision under the Intermediate Education Act 1921 or the Regulations framed thereunder which may have embodied the concept of an automatic termination on abandonment of services. The learned Single Judge holds that during the entire service tenure, the services of the original petitioner were never dispensed with nor were any disciplinary proceedings initiated on a charge of unauthorized absence. The learned Single Judge holds that during the entire service tenure, the services of the original petitioner were never dispensed with nor were any disciplinary proceedings initiated on a charge of unauthorized absence. On the above basis, the learned Single Judge has held that the original petitioner would be deemed to have fulfilled the qualifying years of service required for the grant of pension and other benefits. The writ petition has been consequently allowed. 5. It is not disputed by the parties that the original petitioner did not attend the institution or discharge his duties during the period 1 January 1993 to 30 June 2002. The writ petition, it becomes relevant to note, does not carry any explanation, much less a plausible explanation, for the continued absence of the original petitioner for a period of almost nine years. This absence of almost nine years, in the submission of the appellant, is liable to be treated as abandonment of service and therefore disentitles the original petitioner from the grant of any post retiral benefits including family pension. Reliance has also been placed upon of the provisions of Fundamental Rule 18 to submit that consequent to the continuous absence of the original petitioner for a period in excess of five years he would be deemed to have ceased to be in employment and therefore the issue of payment of retiral benefits and family pension does not arise. Reliance in this connection has also been placed upon a judgment rendered by a Division Bench of this Court in Basic Shiksha Parishad v. Ram Kishore Sharma and another 2014 (10) ADJ 153 (DB) (LB). 6. The undisputed facts as they appear from the records placed before the learned Single Judge are that the services of the original petitioner were terminated by the Management on 1 March 1984. This proposal of termination however was not approved by the Commission as is evident from its communication dated 7 August 1992. Consequent to the Commission disapproving the proposal of termination, the original petitioner was reinstated. The fact however remains that he admittedly remained absent during the period 1 January 1993 to 30 June 2002. The order of the appellant which was impugned in the writ petition primarily dealt with the issuance of so called application of voluntary retirement said to have been made by the original petitioner. The fact however remains that he admittedly remained absent during the period 1 January 1993 to 30 June 2002. The order of the appellant which was impugned in the writ petition primarily dealt with the issuance of so called application of voluntary retirement said to have been made by the original petitioner. The first appellant found that no such application was available on the record nor did any such application appear to have been submitted. These findings have neither been questioned nor do they appear to have been taken into consideration by the learned Single Judge. 7. As we read the judgment of the learned Single Judge, it appears that much emphasis was laid on a so called absence of the provisions of automatic termination or abandonment of service in the Intermediate Education Act or Regulations framed thereunder. The learned Single Judge also appears to have rested his decision on the fact that no disciplinary proceedings were initiated against the original petitioner for unauthorized absence. What has however has been lost sight of is that abandonment of service is primarily a question of intention. The Supreme Court in Vijay S Sathaye v. Indian Airlines Ltd. 2013 (1) SCC 2233 held that in the case of abandonment, the employee ceases to be in service and is liable to be relinquished from his post. Fundamental Rule 18 in fact indicates that the services of a Government servant would come to an end in case of continuous absence of five years. Noticing the said provision, the Division Bench in Basic Shiksha Parishad held: - 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. 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" 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." 8. As the above extracts from the judgment would indicate the Division Bench has proceeded to hold that if the absence is continuous and for five years or more abandonment of service and consequent cessation of employment has to be accepted. The rule clearly seems to indicate that in case of absence of five years or more, the cessation of employment is automatic and the presumption of abandonment is immediately attracted. At this stage, as the Division Bench has held, the holding of an enquiry is not necessary. Fundamental Rule 18, in the submission of the learned counsel for the appellant, would clearly be attracted to the services of the original petitioner. If the appellant be correct in this submission then and in that case the requirement of a separate provision in the service rules for automatic termination would not arise. These aspects do not appear to have been considered or taken into account by the learned Single Judge while allowing the writ petition. 9. The last submission which is urged on behalf of the State also merits consideration. It was submitted that the original petitioner remained absent without justifiable cause right from January 1993 to June 2002. These aspects do not appear to have been considered or taken into account by the learned Single Judge while allowing the writ petition. 9. The last submission which is urged on behalf of the State also merits consideration. It was submitted that the original petitioner remained absent without justifiable cause right from January 1993 to June 2002. The claim for post retiral benefits was made only in 2008. Despite the above, the learned Single Judge has proceeded to direct the release of retiral benefits from July 2002 along with interest. 10. In our opinion, the State could not have been saddled with this liability without consideration of this aspect or at least upon the respondent being called upon to explain the delay in raising the claim. As we read the writ petition, we find that it did not carry any explanation as to the absence of the original petitioner for a period of almost 10 years nor did it carry any explanation for raising the claim only in 2008. This assumes significance when viewed whether from the date when the original petitioner absented himself from 1993 or from the date of his superannuation in 2002. 11. In light of what we have found above, we find that the judgment of the learned Single Judge is clearly unsustainable and would warrant a fresh determination. 12. During the course of submissions before us it was pointed out that in compliance of the judgment of the learned Single Judge the post retiral benefits of the original petitioner had already been released. Since we propose to remit the matter to the learned Single Judge, we provide that any payment made or disbursed pursuant to the judgment of the learned Single Judge shall abide by the result of the writ petition which is being remitted for fresh consideration to the learned Single Judge. While this order shall not be treated as a direction for refund or repayment of any sums already drawn or released to the respondent pursuant to the judgment of the learned Single Judge, we further provide that family pension, if any, shall henceforth also not be paid or released to the respondent till the claim is decided by the learned Single Judge upon remand. 13. The Special Appeal is accordingly allowed. The judgment and order of the learned Single Judge is set aside. 13. The Special Appeal is accordingly allowed. The judgment and order of the learned Single Judge is set aside. The writ petition shall stand remitted to the board of the learned Single Judge for decision afresh subject to the directions and observations made herein above. Appeal allowed.