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Judgment
This petition has been filed with the prayer that a writ of mandamus be issued directing the respondents to allow the petitioner to resume his duties as Health Education Officer in the district of Moradabad and a direction be issued to treat him in continuous service and to pay arrears of salary.
The petition was heard for admission on 20492 when the learned Standing Counsel was granted a month''s time for filing counter affidavit On 1791993 and 11293 time was again granted for the purpose of filing counter affidavit. On 5194, on the prayer made by learned Standing Counsel, three weeks'' further time was granted for filing counter affidavit with a clear direction that no further time would be granted for this pur�pose and the petition itself may be disposed of finally on the next date. The matter was listed on 14294 when the learned Standing Counsel, in a routine manner, again made a prayer for some further time being granted. However, as inspite of sufficient opportunity having been given, no counter affidavit was filed, it was considered proper not to give any further time and the petition was heard on merit.
The averments made in the petition show that the petitioner was appointed as Small PoxInspector in July, 1962 and was subsequently promoted as Para Medical Assistant and then as BlockExtension Educator. This post has been subsequently redesignated as Health Education Officer. In October, 1980 the petitioner was working at Tajpur Primary Health Centre in the District of Moradabad when he was served with a transfer order and was directed to report for duty to Chief Medical Officer, district TehriGarhwal. The petitioner made a protest regarding his transfer to TehriGarhwal and appears to have made several representation in this regard. It is averred that the C. M. O., Moradabad, also made recommen�dation for cancellation of his transfer order vide his letter dated 151180. However, almost after ten years, the petitioner was served with a copy of letter dated 21490 sent by the Director. Family Welfare, U. P. Lucknow intimating that his services had been terminated on account of his ten years absence from service without leave in accordance with Rule 18 of Part2 to 4 of ChapterIII of U P, Fundamental Rules (Annexure7 to the writ petition). The petitioner made further representations and has thereafter filed the present writ petition seeking the reliefs as mentioned above.
The first submission of learned counsel for the petitioner is that no specific order had been passed transferring him to TehriGarhwal nor such an order had been given to him and in absence thereof, the petitioner could not have been permitted to join at TehriGarhwal and it would have been a futile exercise on his part to have gone there. It is thus submitted that in absence of any order of transfer in the name of the petitioner he was justified in not reporting for duty at TehriGarhwal. In support of his submission, learned counsel has placed reliance upon Annexure1 to the writ petition. I have carefully perused the documents annexed alongwith the writ petition and in my opinion, Annexure1 is either not a correct copy or is not a complete copy of the transfer order. It appears that some sentences are missing from page2 of the aforesaid document. The subse�quent annexures namely, representation of the petitioner (Annexure2), the letters of C. M. O., Moradabad dated 151180, 14585, 111088 and 41289 (Annexure3, 4, 5 and 6 to the writ petition) show that the petiti�oner had in fact been transferred to TehriGarhwal and a transfer order had been served upon him. Therefore, it will not be correct to ray that no specific transfer order transferring the petitioner to TehriGarhwal had been passed. That apart, on the own showing of the petitioner, he never reported for duty in the office of C. MO., Tehri Garhwal and therefore, it is not open to him to contend that on account of any alleged absence of a specific order, he would not have been permitted to join duty. The mate�rial on record shows in unmistakable terms that the petitioner deliberately did not report for duty at the place where he had been transferred, namely at TehriGarhwal.
The principal question to be considered is whether the order dated 21490 passed by the Director, Family Welfare U. P. Lucknow, terminat�ing the services of the petitioner on account of his ten years absence from duty without leave, is a legally correct order. Learned counsel for the petitioner has submitted that the order has been passed without giving any opportunity of hearing to the petitioner and being punitive in nature is violative of Article 311 of the Constitution of India. The order has been passed in exercise of powers conferred by Rule 18 of ChapterIII relating to General Condition of Service of U. P. Fundamental Rules and it reads as follows :
"18. Unless the Government, in view of the Special Circumstances of the case, shall otherwise determine, after five years'' conti�nuous absence from duty elsewhere than on a foreign service in India, whether with or without leave, a government servant ceases to be in Government employ."
The Rule no doubt says that five years continuous absence from duty a government servant ceased to be in government employ. The ques�tion to be considered is whether in a case where a government servant has been absent from duty continuously for five years or more, his services will come to an automatic end or his services can be terminated after giving him an opportunity and complying with the provisions of Article311 of the Constitution of India.
In Deokinandan Prasad v. State of Bihar AIR 1971 SC 1409 a Constitution Bench of the Supreme Court had an occasion to consider Rule76 of Bihar Services Code which is similar to U. P. Fundamental Rule 18 (para16 of the reports). It was held that though the Rule pres�cribes automatic termination of service for continuous absence for five years, order passed to that effect without giving an opportunity to the government servant offends Article311 of the Constitution. Again in State of Assam v. Akshaya Kumar Dev AIR 1976 SC 376 while considering the provisions of F. R. 18 of Assam Fundamental and Subsidiary Rules, which are exactly similar to F. R. 18 of U. P., the Court ruled that where services of a permanent government servant were, terminated on account of his continuous absence from duty for more than five years without giving any opportunity, the termination was illegal and "cessation" of service pursuant to the rule would, in substance and effect, stand on the same foot�ing as ''''his removal" within contemplation of Article311 of the Constitu�tion, when it is against the will of an employee who is willing to serve, or who had never lost animus to rejoin his duties on the expiry of his leave. In both these cases, the Court relied upon an earlier decision of a Consti�tution Bench in Jai Shanker v. State of Rajasthan AIR 1966 SC 492 where it was held as follows ;
"The removal of a Government servant from service for overstaying his leave is illegal even though it is provided by the service Regulation that any individual who absents himself without permission after the end of his leave would be considered to have sacrificed his appointment and may be reinstated only with the sanction of the competent authority.
A discharge from service of an incumbent by way of punishment amounts to removal from service, and the constitutional protection of Art. 311 cannot be taken away from him by contending that under the Service Regulations the incumbent himself gives up the employment and all that the Government does is not to allow the person to be reinstated."
A contrary view appears to have been taken in Shahadul Haque. v. Registrar, Cooperative Societies, Bihar AIR 1914 SC 1896. The employee concerned applied for leave for going on piligrimage to Mecca on 151163 but left without sanction of leave. He came back nearly after one year and claimed to have resumed duty on 81064 but did not attend work after 71164. He was removed from service retrospectively from 411964. The Court held as follows in para4 of the reports :
"In any case, on the facts before us, we think that it will be useless to afford any further opportunity to the appellant to show cause why he should not be removed from service. The undenied and undeniable fact that the appellant had actually abandoned his post of duty for an exceedingly long period, without sufficient grounds for his absence, is so glaring that giving him further opportunity to disprove what he practically admits could serve no useful purpose. It could not benefit him or make any difference to the.........order which could be and has been passed against him."
However, the decision given in case of Shahadool Haque (supra) has been rendered by a bench of three Hon''bie Judges while the cases of Jai Shanker and Deokinandan Prasad have been decided by benches of five Hon''bie Judges, nor the aforesaid decisions were noticed in that case. Therefore, the earlier decisions rendered by the Constitution Benches have to be followed. The law laid down by the Supreme Court, therefore, clearly shows that even if there is a service rule which provides that on account of five years or more continuous absence from duty a government servant ceases to be in government employ, no order of termination of service can be passed without complying with the requirement of Article311 of the Constitution.
It has been averred in paras29, 30 and 33 of the writ petition that the petitioner was never given information or notice or opportunity of hearing before passing the order dated 21490. It has also been averred that no charge sheet was ever served upon him. Therefore, it is clear that the order terminating the service has been passed in violation of Art. 311(2) of the Constitution and the same cannot be sustained and has to be quashed.
The next question to be considered is as to whether the petitioner is entitled to salary for the past period. The allegation in para7 of the writ petition as well as various documerits annexed alongwith the writ petition show that a copy of the order dated 19980, transferring the petitioner from Moradabad to TehriGarhwal, was served on 251080. On the own showing of the petitioner he never went to TehriGarhwal and did not report for duty at the place where he was directed to join. It is not a case where the petitioner has been prevented by any authority of the State government from joining the duty at the place of his posting. The petitioner has himself not complied with transfer order and has not made any attempt to joint duty. As the petitioner has not done any work on account of his own inaction, he is not entitled to any salary subsequent to the date when he was relieved from Moradabad. The principle ''no work no pay'' will also be applicable The problem can also be looked in from another angle. It is stated in para11 of the writ petition that he was appointed in July, 1962. If the order dated 21490 (Annexure7 to the writ petition) had not been passed and things were allowed to remain as they were, the petitioner would have attained the age of superannuation after sometime. Obviously in such a situation he could not have claimed salary for the period subsequent to the date on which he was relieved from Moradabad. It is true that the C. M. O., Moradabad had recommended to the authority at Lucknow on 151180 for adjusting the petitioner at Moradabad itself but unless the transfer order was cancelled, the petitioner was bound to comply with the same and work at the place where he had been transferred. Since the transfer order was never cancelled or rescinded, the petitioner has committed a misconduct and he cannot claim salary for the past period.
In the result, the writ petition is allowed in part. The order dated 21490 passed by the Director, Family Welfare, U. P., Lucknow (Annexure7 to the writ petition) is quashed. The petitioner may approach respondents no. 1 and 3 with a certified copy of this order within a month. The aforesaid respondents are directed to pass an appropriate posting order within three weeks of the receipt of the certified copy of this order. The petitioner shall join duty and do work at the place indicated by respondents no. 1 and 3 within the time allowed by them. He shall be entitled to salary w.e.f the date he joins duty.
It is being made clear that it will be open to the respondents or any other appropriate authority of the State Government to take discipli�nary action against the petitioner for having not complied with the transfer order and having remained absent from duty, in accordance with law.
(Petition allowed partly.)