JUDGMENT Tarun Agarwala, J.
1. The petitioner alleges that he was appointed as an Assistant Teacher, and the Up Basic Shiksha Adhikari by an Order, dated 31.3.1983, placed the petitioner under suspension for being continuously absent for one month. By the said Order the petitioner was attached and was directed to give his attendance at Central Junior High School, Aligarh during the suspension period.
2. Being aggrieved by the aforesaid Order, the petitioner filed Civil Misc. Writ Petition No. 14085 of 2001, alleging that inspite of the lapse of 18 years he was still under suspension and that no charge-sheet or enquiry had been issued against him till date. The petitioner further alleged that he had also not been paid the subsistence allowance. The petitioner alleged that he made several efforts and approached the respondents to pay the subsistence allowance and to get the suspension Order revoked, but the authorities paid no heed to his submissions. The petitioner further alleged that by an Order dated 30.8.1999, the District Basic Education Officer directed the petitioner to attach himself with the Primary Pathshala Sattar Nagar, Block Majhgawan, district Bareilly. Based on the aforesaid Order, another Order dated 3.8.2000 was passed by the District Basic Education Officer directing the Accounts Officer to pay the subsistence allowance to the petitioner on the basis of which it is alleged that a sum of Rs. 405/- for the month of August and September, 2000 was paid to the petitioner and thereafter, the payment was stopped without assigning any reason. The petitioner therefore, approached this Court praying that the suspension Order be quashed and the petitioner should be paid the arrears of salary, etc.
3. On the aforesaid allegation this Court passed an ex-parte interim Order directing that if the petitioner had not been served with any charge sheet, in that event, the suspension Order would remain stayed. Armed with the interim Order, the petitioner served a copy of the stay' Order upon the respondents on the basis of which an Order dated 17.4.2001 was passed by the respondents terminating the services of the petitioner on the ground that since the petitioner had remained continuously absent for more than five years, his services was deemed to have been terminated under Volume II, Chapter III, Rule 18 of the Financial Hand Book. The petitioner then filed a Civil Misc. Writ Petition No. 18172 of 2001 praying for the quashing of the Order dated 17.4.2001 and for payment of salary, etc.
4. Heard Sri G.K. Singh, the learned Counsel for the petitioner and Sri P.D. Tripathi, the learned Counsel appearing for the respondents.
5. The learned Counsel for the petitioner submitted that the termination of the services of the petitioner was violative of the principles of natural justice and that the services of the petitioner could not be terminated without giving a show cause notice and without affording an opportunity of hearing. The learned Counsel for the petitioner further submitted that in the present case, no charge-sheet was issued nor any enquiry was held and therefore, the impugned Order terminating the services of the petitioner on the ground of being continuously absent for five years was patently erroneous and violative of the principles of natural justice.
6. Learned Counsel for the petitioner further submitted that even under Rule 18 of Vol. II of the Financial Hand Book, the respondents were under an obligation to proceed with the disciplinary proceedings inspite of the fact that the petitioner was continuously absent for more than five years and that there could be no deemed termination of his services on the ground of being continuously absent for five years.
7. On the other hand, the learned Counsel appearing for the respondents contended that Rule 18 as it existed prior to the amendment made on 12.9.1989 would be applicable which contemplates automatic cessation of employment on being continuously absent for five years. The learned Counsel for the respondents further submitted that after the suspension Order, the petitioner did not report before the Central Junior High School, Aligarh, nor applied for subsistence allowance nor furnished any certificate to the effect that he was not engaged in any employment, as contemplated under Sub-clause (2) of Rule 53 of Chapter-II to IV of Vol. II of the Financial Hand Book and further in the absence of any certificate being given by the petitioner, he was not entitled for any arrears of subsistence allowance or for the salary. The learned Counsel for the respondents further submitted that no Order dated 30.8.1999 attaching the petitioner to the Primary Pathshala Sattarnagar, District Bareilly, was ever issued by the District Basic Education Officer nor had he issued any Order dated 3.8.2000 for payment of the subsistence allowance. The learned counsel for the respondents vehemently contended that the Orders dated 30.8.1999 and 3.8.2000 was not issued by a competent authority and that the aforesaid two Orders have been obtained or manipulated by the petitioner. The learned Counsel for the respondents stated that since the petitioner had not stirred in the matter since his suspension, he was not entitled to any relief, as he had abandoned his service. -
8. From a perusal of the record of both the writ petitions, it transpires that the contention of the respondents that the District Basic Education Officer did not issue any Order dated 30.8.1999 or the Order dated 3.8.2000, has not been denied by the petitioner in the rejoinder affidavit. The petitioner has alleged in both the writ petitions that he had made several efforts before the respondents for payment of the subsistence allowance as well as for the revocation of the suspension Order and in support of his submission, he had annexed the copies of the letters dated 30.8.1999 and 3.8.2000 to bring his writ petition within the period of limitation. These two documents have been denied by the respondents. The respondents have categorically stated that these letters have been manipulated and have not been issued by the District Basic Education Officer, which fact has not been denied by the petitioner. Therefore, no reliance can be placed on these two documents. Consequently, if these two documents are removed from the scene, the consequential result is, that, after the suspension of the petitioner, no proof or document has been enclosed by the petitioner to show that he had made efforts to get the suspension Order revoked or that he had made an effort for payment of the subsistence allowance.
9. On the other hand, the respondents have categorically stated that the petitioner did not report at the Central Primary School, Aligarh, where he was attached pursuant to the suspension Order. The respondents have categorically stated that he never approached even once for the payment of his subsistence allowance. In this regard. Rule 53 (2) of Chapter-VIII. Vol. II of the Financial Hand Book states as under :
"No payment under sub-Rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation."
10. From the aforesaid, it is clear that the subsistence allowance can only be paid, provided the Government servant furnishes a certificate to the effect that he was not engaged in any other employment, business, profession or vocation, which in the present case had not been done by the petitioner. In fact, the petitioner has admitted that he never reported for work before the Central Junior High School, Aligarh. In fact, it has come on record that the petitioner remained- in his village throughout. It may also be stated here that it is not a case of the petitioner that he had been prevented to Join duty at the place where he was attached. In fact, the petitioner himself had not made any attempt to comply with the transfer Order. Since, the petitioner did not report pursuant to the suspension Order nor made any effort to apply for subsistence allowance, therefore, on account of his own inaction he is not entitled to any subsistence allowance. Since the petitioner did not report as per the transfer Order and remained absent continuously, he is not entitled for any salary and the principle of 'No work no Pay' would be fully applicable. Therefore, in my view, the petitioner is not entitled for any suspension allowance or any part of the arrears of the suspension allowance on the ground of laches and even otherwise on merit.
11. In so far as the impugned Order of termination is concerned, the same has been passed under Rule 18 of the Rules. Rule 18 of the Financial Hand Book Vol. II has been substituted w.e.f. 12.9.1989. Rule 18 as it existed prior to 12.9.1989 is quoted hereunder :
"Unless the Government, in view of 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."
12. With effect from 12.9.1989, Rule 18 was substituted as under :
"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."
13. Learned Counsel for the respondents submitted that In view of Rule 18 as existed prior to 12.9.1989, a Government servant being continuously absent for five years would cease to be In Government employment.
14. In my view, the argument of the learned Counsel for the respondents is without any merit. In the first instance, the provisions of Rule 18 as it existed prior to 12.9.1989, will not be applicable and the Rule, which was substituted w.e.f. 12.9.1989 would be applicable to the present facts of the case, inasmuch as, the impugned Order of termination was passed on 17.4.2001 and the existing Rule 18 would be applicable. Even otherwise there cannot be automatic cessation of service. In my view, the principles of natural justice is required to be followed both in the earlier Rule as well as In the existing Rule. In my view, if a person remains absent continuously, he can be removed by following the procedure contemplated under Chapter VIII Vol. II of the Financial Hand Book and there cannot be any automatic cessation of employment. Therefore, in my view, the Order dated 17.4.2001 Is violative of the principles of natural justice and consequently, the said Order cannot be maintained. However, the mere fact that the Order of termination was passed without affording any opportunity of hearing does not in my view entitle the petitioner for the relief of reinstatement under the present facts and circumstances of the case.
15. In my view, affording any further opportunity to the petitioner to show cause as to why he should not be removed from service would be an exercise In futility. It is admitted from the record that after his suspension, the petitioner made no effort to join duty at the place where he was attached nor made any effort to get the subsistence allowance or to get the suspension Order revoked. In fact, it has come on record that he remained in his village. The petitioner, infact, admits that he was continuously absent for the last 18 years without showing any cause. Admittedly, continuous absence amounts to a misconduct and a person could be terminated on this ground. In the present case, the petitioner admits being continuously absent. Therefore, it is an undeniable fact that the petitioner had abandoned his-service. No sufficient reason has been given In the writ petition for his absence. Therefore, giving him any further opportunity to disprove the aforesaid fact of absenteeism would serve no useful purpose. The petitioner has woken up from an absurd Rip Van Winkle slumber after 20 years and now wishes to exercise his rights and Kumba Karan--like he wishes to march straight into the battle. The petitioner having slept over his rights for almost 20 years, is, therefore not entitled to any relief whatsoever. Even though, the Order of termination is incorrect, equity is not in his favour and therefore, this Court refuses to exercise its discretionary jurisdiction. Consequently, the petitioner is not entitled to any relief.
16. In view of the aforesaid, both the writ petitions have no force and are dismissed. In the circumstances of the case, there shall be no Order as to cost.