The special appeal has arisen from a judgment and order of the learned Single Judge dated 17 December 2015, dismissing a writ petition filed by the appellant. The relief which the appellant sought, apart from challenging the departmental orders denying his claim of retiral dues, was a mandamus for the payment of arrears of salary, pensionary benefits, gratuity and general provident fund by calculating it upto the date of his superannuation on 31 July 1993. Interest was also claimed. The learned Single Judge dismissed the writ petition holding that the appellant was habitual in remaining absent from duty unauthorizedly and his absence would be treated as an abandonment of service. The petition has, accordingly, been dismissed.
The appellant was appointed on 14 October 1961 on a substantive basis on the post of Village Level Worker (now re-designated as Gram Vikas Adhikari). He was confirmed in service on 16 February 1972. The case of the appellant is that in September 1979, when he was posted at development block Bhathat in district Gorakhpur, he proceeded on four days casual leave by submitting an application on 21 September 1979. The appellant was diagnosed as a chronic patient of Tuberculosis and, according to him, he had informed the Block Development Officer about his illness. The appellant claims to have undergone a prolonged treatment and upon being declared fit to resume his duties, submitted his joining report on 25 September 1984 together with a fitness certificate to the Chief Medical Officer, Gorakhpur. However, the Chief Development Officer, on the ground that the appellant had remained absent for a period of five years and four days, did not accept his joining report and referred the matter on 26 November 1984 to the Commissioner, Rural Development. The appellant was not allowed to resume his duties and eventually attained the age of superannuation on 31 July 1993. After his retirement, the appellant submitted representations on 24 August 1993 to the Chief Development Officer and thereafter on 12 November 1997, 2 December 1999 and 5 May 2001. The representation of 5 May 2001 is stated to have been referred by the Under Secretary to the Commissioner. On 20 January 2000, the case of the appellant for the release of his retiral dues was referred by the Chief Development Officer, Gorakhpur to the Commissioner, Rural Development. On 26 February 2000, a communication was addressed by the Chief Development Officer to the Block Development Officer in regard to the release of the amounts standing to the credit of the appellant in his GPF account in accordance with the rules. On 2 May 2000, the Chief Development Officer addressed a letter to the Additional Commissioner (Administration). A lengthy correspondence ensued with the appellant addressing representations again on 20 June 2001 and 16 March 2006. On 12 November 2001, the Additional Commissioner (Administration) addressed a communication to the State Government through the Principal Secretary, seeking a clarification in regard to the reference which was made to the State Government. In this background, the appellant filed a writ petition in 2006 (Writ Petition No.4782 (S/S) of 2006) seeking a decision on the reference which was made in regard to the terminal dues of the appellant and for a decision on the representations submitted by the appellant. The writ petition was eventually withdrawn on 21 May 2012 with liberty to file a fresh writ petition.
On 18 May 2012, the Principal Secretary addressed a communication to the Commissioner, Rural Development, directing that steps be taken in accordance with law and, if any dues were payable to the appellant, that may be paid or a reasoned order may be issued. On 19 May 2012, the District Development Officer, Gorakhpur passed an order rejecting the claim of the appellant. The order records that on 15 March 1985, the Chief Development Officer had informed the appellant that he was not being permitted to join as a result of his being on unauthorized absent and on account of the abandonment of service. No pensionary benefits would be granted. However, it was stated that on the principle of 'no work no pay', no salary was payable to the appellant. The appellant challenged this order in the writ proceedings before the learned Single Judge. By a judgment and order dated 17 December 2015, the learned Single Judge dismissed the writ petition.
Now, at the outset, it would be necessary to refer to the fact that inadvertently, the learned Single Judge relied upon the amended provisions of FR 18 of the U P Financial Hand Book, Volume 2, Part II. These amended provisions came into force on 12 September 1989 and read as follows:
"18. Unless the Government, in view of the special circumstances of the case, otherwise determine, after five years' continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, no Government servant shall be granted leave of any kind. Absence beyond five years will attract the provisions of rules relating to disciplinary proceedings."
At the material time, Rule 18, in its un-amended form, reads as follows:
"18. tc rd 'kklu fdlh ekeys dh fo'ks"k ifjfLFkfr;ksa dks n`f"Vxr djds blds foijhr fuf'pr u djs] Hkkjr esa okg~; lsok ds vfrfjDr] pkgs vodk'k ij ;k fcuk vodk'k ds viuh fM~;wVh ls ikap o"kZ ls vf/kd yxkrkj vuqifLFkfr ij 'kklu dh lsok ls ljdkjh deZpkjh dk vkfLrRo lekIr gks tkrk gSA"
The provisions of Fundamental Rule 18, as they stood prior to the amendment, contemplated that the services of an employee who had remained absent from duty beyond a period of 5 years would be treated to have ceased.
A similar provision came up for consideration before the Supreme Court in The State of Assam Vs Akshaya Kumar Deb1. The material part of Financial Rule 18 which was in issue in that case and which broadly corresponds to FR 18, in its un-amended form, reads as follows:
"12.
Unless the Provincial Government, in view of the special circumstances of the case shall otherwise determine, after five years' continuous absence from duty, elsewhere than on foreign service, in India, whether with or without leave, a Government servant ceases to be in Government employ."
The Supreme Court held that cessation of service under Financial Rule 18 would, in substance and effect, stand on the same footing as 'removal from service' as contemplated under Article 311 (2) of the Constitution. Consequently, it was held that removal under Financial Rule 18 visits an employee with evil consequences and since it implicates a forfeiture of benefits already earned, the constitutional protection guaranteed by Article 311 (2) has to be observed. The Supreme Court observed as follows:
"17. ... The respondent was a permanent government servant. He had a right to his substantive rank. According to the test laid down by this Court in Parshotam Lal Dhingra's case2, the mere termination of service, without more, of such an employee would constitute his 'removal' or 'dismissal' from service, attracting Article 311 (2). From the constitutional standpoint, therefore, the impugned termination of service will not cease to be 'removal' from service merely because it is described or declared in the phraseology of F.R. 18 as a 'cessation' of service. The constitutional protection guaranteed by Article 311 (2) cannot be taken away "in this manner by a side wind."
The judgment of the Supreme Court was rendered on 2 May 1975. In the present case, the period of absence of the appellant is stated to be from 21 September 1979 to 24 September 1984. The act of removal under FR 18 of the Financial Hand Book took place without affording to the appellant the protection which has been conferred by Article 311 (2) of the Constitution.
In the counter affidavit which was filed on behalf of the State, it was stated that a notice was addressed to the appellant on 15 March 1985. In his rejoinder affidavit, the appellant specifically denied the receipt of any such letter or notice. But, be that as it may, it is evident that no enquiry was held; no opportunity of being heard was ever afforded to the appellant and his removal from service allegedly under FR 18 took place without granting him the benefit of the protection guaranteed by Article 311 (2) of the Constitution.
The learned Single Judge has proceeded to hold, relying on decisions of the Supreme Court, that a long absence from service would amount to abandonment of service and on the basis of this principle, proceeded to dismiss the writ petition. The judgment of the learned Single Judge overlooks the legal position which emerges from the decision of the Supreme Court in The State of Assam Vs Akshaya Kumar Deb (supra) in which a provision pari materia to FR 18 of the Financial Hand Book in the State of Uttar Pradesh came to be interpreted. The principle of law which has been laid down by the Supreme Court while construing an analogous provision is binding.
In the present case, the principle which has been laid down by the Supreme Court is squarely attracted. The manner in which the services of the appellant were dispensed with was, hence, completely arbitrary and contrary to law.
However, the aspect which needs to be considered by the Court is whether, as submitted before the Court by the learned Standing Counsel, there was a gross delay on the part of the appellant in moving the Court for espousal of his legal remedies, which would dis-entitle him to the grant of any relief. Even before he filed his first writ petition in 2006, the record before the Court makes it clear that the appellant was continuously pursuing his remedies before the State Government for the payment of his retiral dues. As we have noted earlier, the matter was, in fact, pending before the State Government and no decision had been taken on the reference which had been made on 20 January 2000. In fact, that is why, eventually the appellant was constrained to file a writ petition in 2006 for a decision on the reference and on his representations which were submitted in the meantime. The writ petition remained pending and it was on 18 May 2012 that a communication was addressed by the Principal Secretary to the State Government to the Commissioner, Rural Development, to take a decision in regard to the payment of retiral dues. The District Development Officer rejected the representation on 19 May 2012, which led to the filing of the second writ petition.
In this view of the matter, we are not inclined to non-suit the appellant on the ground of delay when the record before the Court indicates that he was fighting a lone battle for the release of his retiral dues, right from the date of his superannuation on 31 July 1993. Moreover, a claim for the payment of retiral dues raises a continuing cause of action and this Court would be averse to deny the claim for the payment of retiral dues based on services rendered on the ground of delay. The ultimate relief which is to be granted can be appropriately structured by the Court. Moreover, as the record before the Court indicates, despite instructions for the payment of his GPF contribution, the grievance of the appellant is that no payment has been made to him.
For these reasons, we are of the view that the judgment and order of the learned Single Judge dismissing the writ petition, resulting in the denial of retiral dues, is unsustainable and would have to be set aside. We order accordingly. We are of the view that the ends of justice would be met in the present case by directing that the appellant, for the purpose of computing his retiral dues, would be treated as having continued in service upto the date of his superannuation on 31 July 1993. However, the appellant would not be entitled to any arrears of salary or pecuniary or monetary benefits for the period from 21 September 1979 until the date of his superannuation on 31 July 1993. However, this period shall be treated as a period without break in service for the purpose of computing the retiral dues of the appellant. The retiral dues of the appellant shall, accordingly, be computed on the aforesaid basis and the arrears shall be paid within a period of four months from the date of receipt of a certified copy of this order. The appellant would be entitled to the payment of the aforesaid arrears with effect from the period commencing from 1 July 2009, which is a period of three years prior to the filing of the writ petition, which has resulted in the impugned judgment and order of the learned Single Judge. The appellant will be entitled to the payment of his provident fund dues, unless they have been paid already.
The special appeal is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 20.1.2016 RKK/-