BISHUN DEO SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Jitendra Kumar Rai for the petitioner, learned JC to GP IV, and Mr. Chakradhari Sharan Singh learned Addl Standing Counsel for respondent No. 5 (the Accountant General, Bihar, Patna. This writ petition has been preferred with the prayer for an appropriate direction to the respondent authorities to give the retirement benefits to the petitioner who claims to have superannuated from the post of Panchayat Sevak, on completion of 58 years of age on 28.2.1996.

(2.) ACCORDING to the writ petition, the petitioner had joined the services of the Bihar Government on 21.12.1956 as a Panchayat Sevak and was confirmed in service with effect from 12.12.1972. ACCORDING to the further statements made in paragraph 7 of the writ petition, he was transferred from Madhepur Block to Madhwapur Block in 1979 which the petitioner did not join. The details with respect to the transfer are not stated in the writ petition, left alone annexing a copy of the transfer order. ACCORDING to the further statements made in the writ petition, he was given his first time-bound promotion with effect from 1.4.1981 and the second time-bound promotion with effect from 1.4.1984, vide Annexure-1 wherein, according to the petitioner, he was shown to be posted at Madhepur. ACCORDING to the seniority list dated 18.12.1992 (Annexure-2), showing the seniority of Panchayat Sevak as on 31.7.1991, the petitioner was shown to be posted at Madhepur. The petitioner reached the age of superannuation in February 1996, on competition of 58 years of age. The petitioner complains before this Court that he has not been paid his salary since his transfer from Madhepur to Madhwapur from March 1979 till February, 1996, nor has been paid the post-retirement benefits. During the course of submissions. Learned Counsel for the petitioner has given up the claim for salary for the period 1979 to February 1996, and prays for release of the post-retirement benefits only. Secondly, learned Counsel submits that post-retirement benefits cannot, be withheld in view of the provisions of Rule 76 of the Bihar Service Code, and relies on a Division Bench judgment of this Court, reported in 1989 PLJR 485 Smt. Parvati Sengupta v. State of Bihar.

(3.) ON the own showing of the petitioner, he did not work at all from March, 1979 till February 1996. This appears to be clearly an enfort to avoid the order of transfer and never reported for duty at Madhwapur till his superannuation. It is further manifest that the petitioner had abandoned his job in March, 1979. Earned Counsel for the petitioner has placed reliance on Rule 76 of the Bihar Service Code which reads as follows: 76. Unless the State Government in view of the special circumstances of the case, shall otherwise determine, a Government servant, after the five years continuous absence from duty, elsewhere than on 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 prior 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 Services (Classification, Control & Appeal) Rules and Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935. It is thus manifest on a plain reading of the aforesaid provisions that Unless otherwise determined in terms of Rule 76, an employee of the Bihar Government will cease to be in Government employment after expiry of five years in case he had obtained leave which applies with greater force to the petitioner who remained absent without taking leave for continuous period of about sixteen years. Law is well-settled that leave has to be obtained in advent and then availed of which applies with much greater force in a situation like the present one. Reliance placed by earned Counsel for the petitioner on the Division Bench judgment of this Court Pravawati Sengupta v. State of Bihar (supra) is inapplicable to the facts and circumstances of the present case. That was a case where the petitioner had for a major period remained on sanctioned leave, and did not obtain leave for a smaller period because she had become a mental case, ON the other hand, according to the petitioner's own case, he absented himself for a period of sixteen years without any information at all and without obtaining prior leave. He had obviously abandoned his job and ceased to be in Government employment by automatic operation of law after expiry of five years.