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According to the petitioner this order is illegal and void. ARG |
This is the fourth order that is under challenge. ARG |
According to the petitioner the order dated August 5, 1966 is an order removing him from service and it is illegal and void as it has been passed in contravention of article 311 of the Constitution. ARG |
Further the order is also not legal and not warranted by the Rules for the reason that the petitioner had not been absent from duty for over five years continuously. ARG |
According to the petitioner there is a further infirmity in the order as the respondents are inconsistent in their pleas regarding the date from which the period of continuous absence has to be calculated. ARG |
This plea is based upon the different dates given in the order dated August 5, 1966 and the dates given in the counter affidavit filed on behalf of the respondents. Ratio |
The attack on the order dated June 12, 1968 is two fold, namely, (a) that it is not warranted by r. 46 of the Pension Rules under which it is purported to be passed; and (b) the petitioner 's right to get pension is property and by the respondents not making it available to him, his fundamental rights guaranteed under ... |
The Assistant Director of Education has filed a counter affidavit on behalf of the respondents. ARG |
According to the respondent the orders of censure passed on September 2, 1953 and of reversion dated March 5, 1960 are valid and legal and in passing those orders no violation of any rules has been made. ARG |
The petitioner was given full opportunity to participate to the inquiry proceedings and it was after considering the report as well as the explanation furnished by the petitioner that the order of reversion was passed. FAC |
The petitioner is not entitled to challenge any of those orders as they are concluded by the decision of the Patna High Court dated March 4, 1967 in Second Appeal No. 640 of 1964. FAC |
Regarding the order dated August 5, 1966, it is admitted by the respondents that the petitioner was on duty till March 10, 1960. FAC |
He ceased to attend office only from March 11, 1960. FAC |
It is further admitted that it has been stated by mistake in the order that the petitioner has not been on duty for more than five years since March 1, 1960. FAC |
The date "March 1, 1960 should be read 640 as "March 11, 1960". FAC |
The respondents dispute the averment of the petitioner that he left the headquarters from March .11, 1960 with the permission of the authorities. FAC |
On the other hand, according to them, the petitioner had put in an application in the office of the Sub Divisional Educational Officer for leave on March 11, 1960 and that he did not obtain any prior permission for leaving the headquarters. FAC |
It is further averred that the order dated March 5, 1960 reverting the petitioner came into effect immediately and the petitioner was also informed of the same. FAC |
It is specifically pleaded by the respondent as follows: "In other words since 11 3 1960 till 5 8 1968 he was continuously not in service for more than 5 years. FAC |
By virtue of rule 76 of Bihar Service Code of 1952 the petitioner ceased to be in the service of the Government as he remained absent from duty continuously for 5 years and this itself amounts to misconduct and inefficiency in the service. FAC |
In the present case the provisions of article 311 do not apply to the facts of this case because his services are not terminated on account of any charge but are automatically terminated by virtue of the statute i.e. rule 76 of the Bihar Service Code 1952. Ratio |
Article 311 applies where the services of a government servant are terminated in respect of any charge. Ratio |
But it does not apply where a government servant ceases to be a government servant by virtue of any statute." Ratio |
According to the respondent there has been no breach committed of article 311 of the Constitution when the order dated August 5, 1966 was passed on the basis of r. 76 of the Bihar Service Code, 1952 (hereinafter to be referred as the Service Code). Ratio |
It is to be noted at this stage that there is a variation regarding the dates of continuous absence for over five years mentioned in the order and in the counter affidavit. Ratio |
They will be dealt with by us when the attack of the petitioner on the order dated August 5, 1966 is con sidered. Ratio |
It is further admitted by the respondents that even after the injunction order was passed by the Munsif, the Department was always insisting on the petitioner to join in the lower grade to which post he had been reverted and that the petitioner never joined that post. FAC |
Dealing with the order dated June 12, 1968 in and by which the petitioner was informed that the Department was unable under r. 46 of the Pension Rules to grant him pension, the respondents state that the order is valid and fails squarely under the said rule. FAC |
According to the respondents the order dated August 5, 1966 is an order removing the petitioner from service for not attending to his duty for more than five years and that by itself amounts to misconduct. FAC |
Therefore, the petitioner was not entitled to claim 641 any pension. FAC |
There is also an averment to the effect that there is no question of any fundamental right of the petitioner being affected by the orders under attack and hence the writ petition is not maintainable. FAC |
The petitioner has filed a rejoinder wherein he has pointed out the inconsistent dates given in the order dated August 5, 1966 and in the counter affidavit filed on behalf of the respondents by the Assistant Director of Education. FAC |
According to the petitioner in whatever manner the period is calculated either as per the dates given in the order or by the dates given in the counter affidavit, rule 76 does not apply as he has not been continuously absent from duty for over five years. ARG |
The petitioner further avers that he was absent from duty after taking the permission of the autho rities. ARG |
According to the petitioner he has not been continuously absent from duty for over five years if the period is properly calculated according to the various orders passed by the Munsif. ARG |
Patna, in his title suit. ARG |
According to the petitioner, when a court has restrained the respondents from giving effect to the order of reversion and when he offered to join duty in the post from which he was reverted, the respondents without any regard for the court orders, did; not permit him to join duty, but, on the other hand, insisted that ... |
This, according to the petitioner, is illegal. ARG |
The petitioner further reiterates his allegation that he was entitled to pension and that withholding of the same affects his fundamental rights. ARG |
According to the petitioner the respondents do not deny his right to get pension but, on the other hand, plead that as he has been removed from service by the order dated August 5, 1966, he is not entitled to pension by virtue of r. 46 of the Pension Rules. ARG |
He further points out that as the order dated August 5, 1966 is illegal, the order dated June 12, 1966, which is based upon the earlier order, is also null and void. ARG |
The questions that arise for consideration are whether the orders dated August 5, 1966 and June 12, 1968 are legal and valid. Ratio |
Before we consider that aspect, it is necessary to state that in order to sustain this petition under article 32, the petitioner will have to establish that either the order dated August 5, 1966 or June 12, 1968, or both of them affect his fundamental rights guaranteed to him. Ratio |
The order of August 5, 1966, according to the petitioner, is one removing him from service and it has been passed in viola tion of article 311. ARG |
That the said order is one removing the petitioner from service is also admitted by the respondents in paragraph 11 of the counter affidavit filed on their behalf by the Assistant Director of Education. Ratio |
Assuming that the said order has been passed in violation of article 311, the said circumstance will not give a right to the petitioner to approach this Court under article 32. Ratio |
The stand taken by the petitioner is that his right to get 41 1 S.C. India/71 642 pension is property and it does not cease to be property on the mere denial or cancellation by the respondents. Ratio |
The order dated June 12, 1968 is one withholding the payment of pension or at any rate amounts to a denial by the respondents to his right to get pension. Ratio |
Either way, his rights to property are affected under articles 19(1)(f) and 31(1) of the Constitution. Ratio |
His right to pension cannot be taken away by an executive order. Ratio |
In the counter affidavit, the respondents do not dispute the rights of the petitioner to get pension, but they take the stand that the order dated June 12, 1968 is justified by r. 46 of the Pension Rules. Ratio |
This aspect will be dealt with by us later. Ratio |
There is only a bald averment in the counter affidavit that there is no question of any fundamental right and therefore this petition is not maintainable. Ratio |
As to on what basis this plea is taken, has not been further clarified in the counter affidavit. Ratio |
But before us Mr. B. P. Jha, learned counsel for the respondents, urged that by withholding the payment of pension by the State, no fundamental rights of the peti tioner have been affected. ARG |
We are not inclined to accept the contention of Mr. Jha that no fundamental rights of the petitioner are affected by passing the order dated June 12, 1968. 'We will refer to the relevant Pension Rules bearing on the matter and also certain decisions. Ratio |
In our opinion, the right to get pension is "property" and by withholding the same, the petitioner 's fundamental rights guaranteed under articles 19(1)(f) and 31(1) are affected. Ratio |
As the matter is being discussed more fully in the latter part of the judgment, it is enough to state at this stage that the writ petition is maintainable. Ratio |
Even according to the respondents the order dated June 12, 1968 has no independent existence and that order has been passed on the basis of the earlier order dated August 5, 1966. Ratio |
In our opinion, if the order dated August 5, 1966 cannot be sustained, it will follow that the order dated June 12, 1968 will also fall to the ground. Ratio |
Hence we will deal, in the first instance, with the validity of the order dated August 5, 1966. Ratio |
The full text of the order dated August 5, 1966 passed by the Director of Public Instruction, Bihar, is as follows: "Number 7 / 07 / 60 Edn.3791 Sri Devaki Nandan Prasad, Sub Inspector of Schools, Deoghhar, having not been on his duties for more than 5 years since 1 3 60 has ceased to be in Government employ since 2 3 ... |
(Sd.) K. Ahmed Director of Public Instruction Bihar. FAC |
643 Memo No. 3791 Patna, dated 5th August, 1966. FAC |
Copy forwarded to Sri Devaki Nandan Prasad, New Yarpur, Patna for information. FAC |
Rule 76 of the Service Code reads as follows: "Unless the State Government, in view of the special circumstances of the case shall otherwise determine, A Government servant after five years of continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave, ceases to be in Govern... |
" The essential requirement for taking action under the said rule is that the government servant should have been Continuously absent from duty for over five years. Ratio |
Under this rule it is immaterial whether absence from duty by the government servant was with or without leave so long as it is established that he was absent from duty for a continuous period for over five years. Ratio |
We are referring to this aspect because it is the case of the petitioner that he availed himself of leave with effect from March 11, 1960 and he left the headquarters after obtaining the necessary sanction from his superior officers. Ratio |
On the other hand, it is the case of the respondents that the petitioner merely putting in an application for leave from March 11, 1960 left the headquarters without obtaining the prior permission of the superiors. Ratio |
It is not necessary for us to deal with this controversy, as under the rules absence for the period stated therein, either with or without leave, are both treated on the same basis. FAC |
According to the dates given in the order, the petitioner has not been on his duties for more than five years from March 1, 1960 and that he ceased to be in government employ from March 2, 1965. Ratio |
According to the petitioner this order is illegal because he was on duty till March 10, 1960 in which case continuous absence of five years would not be completed on March 2, 1965. ARG |
But the more serious attack against this order is that there is no question of the petitioner not being on his duties continuously for more than five years. Ratio |
On the other hand, according to him, he has always been ready and willing to do his duty and the respondents have illegally prevented him from joining duty by ignoring orders of the civil court. Ratio |
In this connection, on behalf of the petitioner, Mr. Bishan Narain, learned counsel, has referred us to the details regarding the institution of the title suit No. 86 of 1961 by the petitioner as well as to certain orders passed by that court. ARG |
He has also drawn our attention to the letters written by the petitioner to the authorities offering to work and the respondents not sending any reply and ultimately asking the petitioner to join duty in the reverted post, though the order of reversion has been declared, illegal by the Munsif, Patna. ARG |
We have already referred 644 to the averments in the counter affidavit filed on behalf of the respondents. Ratio |
So far as this aspect is concerned, it is admitted in paragraph 8 of the counter affidavit that the petitioner was on duty till March 10, 1960 and that he ceased to attend to his duty only from March 11, 1960. Ratio |
Therefore, the averment of the petitioner that he was on duty till March 10, 1960 is accepted as correct by the respondents. Ratio |
Therefore, it follows that even according to the respondents, the petitioner was absent from duty con tinuously for more than five years only from March 11, 1960 and he ceased to be in government employ on March 2, 1965. Ratio |
Without anything more it can be easily said that this calculation is absolutely erroneous because from the dates mentioned above, the petitioner cannot be considered not to have been on duty for more than five years. Ratio |
There is a slight shift in the stand taken by the respondents in the counter affidavit. Ratio |
While they admit that the date from which the period of absence should be calculated is March 11, 1960 and not March 1, 1960, they have stated that the petitioner. Ratio |
was absent from March 11, 1960 till August 5, 1966, the date on which the order was passed and hence he was continuously not in service for more than five years. Ratio |
That is even the outer period given in the order dated August 5, 1966, namely, March 2, 1965 is changed by the respondents to the date of passing of the order dated August 5, 1966. Ratio |
We will now proceed on the basis that the order dated August 5, 1966 should be read in such a manner that the petitioner was not on his duty continuously for more than five years from March 11, 1960 till August 5, 1966. Ratio |
If the, respondents are able to establish this circumstance, it is needless to state that r. 76 of the Service Code will come into operation irrespective of the fact whether the petitioner was absent with or without leave. Ratio |
According to the petitioner, he has not been continuously absent for over five years even during the above period as stated by the respondents. Ratio |
It is now necessary to refer to certain proceedings connected with the title suit No. 86 of 1961 instituted by the petitioner in the Court of the Munsif III, Patna. Ratio |
In that suit the petitioner challenged the order dated March 5, 1960 in and by which he was reverted to the lower division of the Subordinate Educational Service and a censure was directed to be recorded against his character roll. Ratio |
According to the respondents in this suit Me order of censure passed on September 2, 1953 was also challenged. Ratio |
On August 5, 1961, the Munsif passed an order restraining the present respondents from operating the punishment order passed on March 5, 1960 by the Director of Public Instruction on the petitioner till the disposal of the suit. FAC |
It is now admitted by the respondents that the petitioner was on duty till March 10, 1960 and 645 that he was absent only from March 11. FAC |
That there was an order of temporary injunction passed by the court restraining the respondents from giving effect to the order of March 5, 1960 is not challenged in the counter affidavit. FAC |
According to the petitioner he went on October 13, 1961 to join his post from which he was illegally reverted, but in spite of the order of the Munsif, Patna, the respondents did not permit him to join duty. FAC |
That he was prepared to join duty and work is clear from the letters written by the petitioner to the Director of Public Instruction on October 13, 1961, October 24, 1961 and November 1, 1961. FAC |
There was no reply by the respondents. FAC |
It is no doubt true that on April 3, 1962, the temporary injunction granted by the Munsif, Patna, was vacated by the Subordinate Judge. Ratio |
On April 11, 1963 the title suit No. 86 of 1961 instituted by the petitioner was decreed and the respondents were prohibited from enforcing the order dated March 5, 1960 reverting the petitioner from the senior grade to the lower grade of the Subordinate Educational Service. FAC |
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