BIRENDRA KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is a non -gazetted Government servant working as a lower division assistant in the office of the Inspector -General of Police, Bihar, Patna. During the last strike pf the non -gazetted officers of Bihar, it was alleged that the petitioner absented himself from duty without permission for five days, viz., from 20 to 24 February 1968 (inclusive). The petitioner, while not denying expressly the fact that he absented himself from duty, however, stated that, during the said period, he remained within his sphere of duty, viz., in the city of Patna, and that he did not leave the place. The expression " sphere of duty " has been defined in Rule 43 of the Bihar Service Code, 1952, as the local area within which the duties of the Government servant are ordinarily confined. On 28 February 1968, the Assistant Inspector -General of Police, who is said to be the head of the office in which the petitioner was working, issued an order (annexure A) to the effect that those non -gazetted employees who absented themselves without authority during the strike will not be permitted to draw their pay for the period of absence. This writ was filed by the petitioner on 4 March 1968, challenging the validity of that order. The Assistant Inspector -General of Police, on receipt of further instructions from the Government (annexure D), issued another order (annexure C), superseding the earlier order and granting extraordinary leave in exercise of the powers conferred by Rule 180(b) of the Bihar Service Code to those members of the non -gazetted staff of his office who were absent from duty without authority, while on strike. The petitioner, thereupon, filed an amendment to his petition, and challenged the validity of the subsequent order (annexure C), granting him extraordinary leave.

(2.) Thus, the facts which are unchallenged are these. The petitioner did not attend his duties in the office of the Assistant Inspector -General during the strike period from 20 to 24 February 1968, though he was within the sphere of his duty. The expression " duty " has been defined in Rule 14 of the Bihar Service Code, and, admittedly, the petitioner's case will not come under any of the various clauses of that definition. Rule 58(a) of the Bihar Service Code says that a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties, It is true that there are other provisions in the Service Code (such as provisions dealing with casual leave, etc.) under which a Government servant may be deemed to be on duty, even though he may not be actually discharging his duties. But these special circumstances, where the deeming provisions may be applied, cannot be availed of by the petitioner because of the absence of the necessary averments for such application.

(3.) There are two prayers In the writ petition as amended, viz., -