JUDGMENT Sunil Ambwani, J.
1. Heard Sri Arun Kumar, learned counsel for the petitioner, and learned Standing Counsel. The parties have exchanged pleadings and with their consent the writ petition has been heard at the admission stage.
2. On 6.5.2003, following orders was passed issuing interim mandamus to the State Government to consider and decide petitioner's leave application dated 5.1.1998 along with Chief Medical Officer's fitness certificate.
3. "This is the fifth writ petition filed by the petitioner praying for joining and for arrears of salary. Petitioner was appointed as Junior Engineer in 1974 in Public Works Department. On 7.1.1981 he joined his duty at Azamgarh. On 8.2.1981 he fell ill, vomitted blood and suffered from dysentery. He was admitted in the Government Hospital and was subsequently shifted to Ballia. It is alleged that he sent several leave applications. On 5.1.1989, after 8 years he made an application to Executive Engineer to join along with a fitness certificate from Chief Medical 'Officer who certified that petitioner was suffering from, 'Ulcerative Colitis associated with Haemorrhoids with Anaemia'. The Executive Engineer referred the matter to Chief Engineer. In first writ petition decided on 10.5.1994, the Chief Engineer was directed to look into the matter and take appropriate decision. A contempt petition was filed and after bailable warrants an order was passed on 26.4.1995 rejecting his application. In second writ petition, on 26.4.1995, the order was quashed on the ground that no reasons have been given. The third writ petition was disposed of on 28.5.1998 to comply with the order passed in the second writ petition. This time the Engineer-in-Chief by his order dated 2.12.1998 rejected the application on the ground of his absence from duty on account of which his services stood automatically terminated after 5 years under the Fundamental Rule 18 Financial Band Book, Volume 2, Part II to IV. The fourth writ petition was filed on 19.1.2001. The Court found, that Fundamental Rule 18 has been amended in 1989 with the result that leave for more than 5 years can only be sanctioned by the State, Government; and that the absence for more than 5 years attracts for disciplinary action. The writ petition was allowed quashing the order dated 2,12.1998 and leaving it open to the respondents to initiate disciplinary action.
4. Now the complain is that no one has acted upon the orders of this Court and that neither leave has been granted nor any disciplinary action has been initiated.
5. This Court does not want to again decide this writ petition without calling for counter affidavit. Let learned Standing Counsel file a counter affidavit within six weeks. Petitioner shall have two weeks thereafter to file rejoinder affidavit. List in the third week of August, 2003.
6. In the meantime, having regard to the facts and circumstances of the case, an interim mandamus is issued to the State Government to consider and decide petitioner's leave application. The application dated 5.1..1989 along with Chief Medical Officer's fitness certificate shall be treated to be the leave application. An interim mandamus is also issued to the Chief Engineer, Public Works Department, Azamgarh Region, Azamgarh to consider and initiate proceedings against petitioner in view of the order dated 19.1.2001 in writ petition No. 8318 of 1999. Both the parties will Carry out interim mandamus within two months or show cause by filing counter affidavit within the same period. In case the interim mandamus is not carried out, the Court shall consider to allow petitioner to join on the next date of hearing."
7. On 23.8.2005 a last opportunity was given to the Chief Engineer Public Works Department to carry out order dated 6.5.2003 failing which it was directed that he shall be held personally responsible for arrears of wages to be paid to the petitioner.
8. In the counter affidavit of Kunwar Satya Narain Singh Chandramani, Assistant Engineer, Nirman Khand-2 (S.R.P.-2) PWD, Azamgarh was filed on 11.8.2003 it is stated that the High Court has incorrectly interpreted the provisions of Fundamental Rule 18 of the Financial Hand Book Vol 2 Part II to IV. The petitioner's services came to an end, and he ceased to be an employee of the State Government at the end of five years of his absence on 9.2.1986, and thus the Amendment to Rule 18, by notification dated 12.9.1989 was not applicable to the petitioner's case. In para 3 of the Counter affidavit he states that the judgment of this Court dated 19.1.2001 in Writ Petition No. 8318 of 1999 is incorrect. In para 4 of the counter affidavit ,it is stated that steps were taken to file special appeal against the judgment dated 19.1.2001 and that the Law Department had given its consent but since considerable time was lost in the procedure for filing appeal. In the meantime the present writ petition was filed, in which the matter is under consideration.
9. Learned Standing Counsel submits that now since the matter is being considered in this fifth Writ Petition, he may be permitted to submit that the interpretation given by this Court to Rule 18 is incorrect. In the alternative he submits that the department may be permitted to draw disciplinary proceedings in compliance with the provisions of the Rules.
10. Sri Arun Kumar, learned counsel for the petitioner submits that the judgment dated 19.1.2001 in fourth Writ Petition No. 8318 of 1999 filed by the petitioner has become final between the parties. The principles of rejudicata are applicable to the present case. The matter cannot be re-agitated in this writ petition. The State Government did not chose to challenge the judgment and thus the petitioner cannot be deprived to the benefit of judgment between the parties by the court of competent jurisdiction, on the same issue. He submits that now more than five years have passed but the respondents have failed to initiate any disciplinary proceeding. They have not considered petitioner's leave application in pursuance of interim mandamus issued on 6.5.2003 and thus the respondents be directed to reinstate the petitioner with all consequential benefits including arrears of salary with interest.
11. The issue that the petitioner's services came to an end and he ceased to an employee of the State Government at the end of five years of his absence was directly involved between the petitioners and the State Government The Writ Petition No. 8318 of 1999 was decided in his favour by judgement dated 19.1.2001. The State Government did not challenge the judgement and that the issue has become final between the parties by the, court of competent jurisdiction. The principle of rejudicata applies to the writ petitions. In Dharrao v. State of U.P. , the Supreme Court held that it is in the interest of public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in public interest that individual should not be vexed twice over with the similar kind of litigations. These two principles form the foundation of the general rule of resjudicata and is equally relevant in dealing with the fundamental rights under Article 32 of Constitution of India. These principles were made applicable to proceedings under Article 226 of Constitution of India. In Gulab Chandra v. State of Gujarat ; the Direct Recruitment Class II Engineering Officers Associations v. State of Maharashtra and Durg Raj Nandgaon Gramin Bank v. Suresh Kumar (1991)1 SCC 243. The belief of the learned standing counsel as such to assail the finding recorded in Writ Petition No. 8318 of 1999 decided dated 19.1.2001 cannot be permitted.
12. The un-amended fundamental Rule 18 of the financial hand book VII to IV Chapter IV before its amendment provided for automatic cessation of service without giving any opportunity of hearing to such persons have remained absent for more than five years. The rule was declared ultra vires Article 14, 16 and 311 of Constitution of india and was subsequently amended by Notification dated 12.9.1989 which reads as follows.
"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. In Jai Shanker v. State of Rajasthan, the Supreme Court set aside the order of removal from service for setting aside leave without giving opportunity of show cause as violative of Article 111 Constitution of India, even though the service regulations provide that there is automatic termination of services for overstaying leave. In Shahoodul Huq v. Registrar, Cooperative Societies the appellant applied for leave to go on pilgrimage to Muqqa. He left without grant of any leave. He applied for extension of leave from Muqqa which was never granted. He came back after a year and fell ill. He was removed from service. The order was challenged as contrary to constitutional guaranteed under Article 311 of Constitution of India inasmuch as. he was dismissed without giving him any opportunity to show cause. The Supreme Court did not doubt that Article 311 will apply and that the employee cannot be dismissed without giving him an opportunity of hearing. In that case, however, since show cause notice was given to the petitioner, the Supreme Court did not interfere.
14. The submission that Rule 18 was amended on 12.9.1989 and that under the un-amended Rule 18 the petitioner's services came to an and, The five years of his absence from 9.2.1986, ignores the fact that such termination of services will be violative of Article 14 and 311(2) of Constitution of India. The continuous absence beyond five years amounts to misconduct. In law a person may explain even such circumstances which normally a person may not be realised. The case of a Japanese Soldier who went in hiding and came out after 18 years without having knowledge that the war have ended long ago is one of such example. A person may be mentally incapacitated or may be suffering from such ailment which may not allow him to apply or for extension of leave. In service matters there is nothing which happens automatically. Where an employer is required to give an opportunity to the person to explain the circumstances in which he remained absent, the period of absence is not material .
15. Now more than four years have passed since this Court directed the respondents, while quashing the orders dated 4.9.1998 to initiate disciplinary proceedings against the petitioner, and to take appropriate decision in accordance with law. No such decision has been taken so far. Further the respondents' did not avail the opportunity given by this Court all over again dated 6.5.2003, to consider petitioner's leave application, along with fitness certificate dated 5.1.1989. It will now be a futile exercise now to allow the respondents to hold a disciplinary enquiry after Jour and half years as the respondents have failed to avail the opportunity.
16. In view of the special facts and circumstances of the case, the writ petition is allowed. The respondents are directed to reinstate the petitioner in service forthwith without any further delay. The entire absence shall be treated as spent on leave. The petitioner has not stated anywhere that he was not gainfully employed during the period of his absence and as such he will only be entitled to half of the back wages. The petitioner shall also be entitled cost of Rs. 25,000/- from the respondents as costs of litigation. The order shall be complied with within six weeks of its communication to Respondent Nos. 1 & 2.