STATE OF JHARKHAND Vs. ROHIT MUKHI

JUDGEMENT

(1.) The appellant State has preferred L.P.A. No. 256/2012 against the judgment given by the learned single Judge in W.P. (S) No. 4326/2007 dated 27th April, 2012, whereby learned single Judge allowed the writ petition of the petitioner, holding that as the petitioner's resignation, which was submitted on 6.2.1993, has not been accepted by the respondent-Department at any point of time, the petitioner can be treated to be in service. In view of the above, learned single Judge directed the respondent-authority to allow the petitioner to join the service. So far as payment of arrears of salary during the intervening period, i.e., from 6.2.1993 onwards, is concerned, it has been held that the same cannot be paid to the petitioner on the basis of "No work, no pay" principle and therefore, the petitioner is not entitled to backwages. It is also declared that the petitioner is entitled to have the benefits notionally, on account which he be given the permissible benefits notionally by treating intervening period as continuity of service for all other purposes. The above judgment has been challenged by the writ petitioner by preferring L.P.A. No. 228/2012, wherein it has been said that the petitioner was entitled to backwages at least from the date when he offered his joining, i.e., 16.7.2004 and the petitioner was not allowed to join the service by the respondents.

(2.) The State also has challenged the above judgment in L.P.A. No. 256/2012. Learned counsel for the appellant State submitted that the impugned judgment deserves to be set aside in view of the fact that, admittedly the writ petitioner himself submitted resignation letter on 6.2.1993 and did not turn up for service for a very long period of 14 years and in the year 2007, he gave legal notice through his counsel and that too not for joining the duties but for other benefits because of his past service rendered prior to resignation. Thereafter petitioner filed writ petition to claim which was not in existence. However, in reply it was submitted that since the petitioner remained absent from duty without leave for more than 5 years, the service automatically stood terminated.

(3.) Learned counsel for the writ petitioner vehemently submitted that earlier there was Rule 76 in Bihar Service Code, 1952, wherein it was provided that in a case, an employee remains absent from duty for more than 5 years, his service shall be deemed to have been terminated. However, that provision was struck down and thereafter clause (b) was inserted under rule 76 providing that in such circumstance of long absence, the Department may hold a departmental proceeding and may terminate the service of the employee. It is submitted, therefore, service of the employee can be terminated only by way of holding departmental proceeding even on the ground of unauthorized absence beyond the period of more than 5 years. Learned counsel for the writ petitioner submitted that the Division Benches of Patna High Court in the case of Smt. Pravabati Sengupta v. The State of Bihar & Ors., 1989 PLJR 485 and in another case of Sidhnath Upadhya v. The State of Bihar & Ors,1991 2 PLJR 148 have considered similar cases, like the case in hand and in both the cases, the Division Benches held that even in a case where the employee remained absent for 5 years and 10 years or even more, then also their services can be terminated only by following the procedures established by law, i.e., by holding a departmental proceeding. In both those cases, it has been held that such an employee, who remained absent for such a long period, shall be deemed to be in service and direction was issued to the employer to accept the employees in service. Consequential benefits were also granted, may there be denial of backwages. In view of the above, learned single Judge rightly held that since the petitioner's resignation was never accepted, he is in service and is entitled to the benefit of continuity of service. However, learned single Judge did not grant backwages from 16.7.2004, the date on which the petitioner reported for duty after his long absence.