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Hirdya Lal v. State Of U.P - WRIT - A No. 29268 of 1994  RD-AH 15240 (4 September 2006)
Civil Misc. Writ Petition No. 29268 of 1994
State of U.P. & Others
Hon. Dilip Gupta, J.
The petitioner was working as a permanent Gangman in the Nagar Mahapalika, Gorakhpur (hereinafter referred to as 'Nagar Mahapalika') since 1981. He remained unauthorisedly absent from 1st July, 1990 to 11th October, 1993. However, he came to the Department on 11th October, 1993 and submitted the medical certificate as well as the fitness certificate and sought permission to join the post. The copy of the 'Note' which has been annexed as Annexure '2' to the petition indicates that certain recommendations were made by the office to the Administrator of Nagar Mahapalika for permitting the petitioner to join but no orders were communicated to the petitioner as a result of which the present petition was filed on 5th September, 1994 for a direction upon the respondents to permit the petitioner to join and pay his monthly salary as well as the arrears of salary.
A counter affidavit has been filed on behalf of the respondents. It has been mentioned that the petitioner unauthorisedly remained absent from 1st July, 1990 to 11th October, 1993 but no order has been brought on record to show what action was taken by the Nagar Mahapalika in respect of the services of the petitioner. A bald statement has been made in paragraph '11' of the petition that the petitioner had been removed from service and in his place a person had been employed but the copy of any such order removing the petitioner from the services of Nagar Mahapalika or appointment of any other person has not been filed along with the counter affidavit.
Learned counsel for the petitioner submitted that he was a permanent employee in the Nagar Mahapalika and, therefore, his services could not have been dispensed with without holding any enquiry, even if he had unauthorisedly remained absent from 1st July, 1990 to 11th October, 1993 and in support of his contention he has placed reliance upon a Division Bench Judgment of this Court in the State of U.P. & Ors. Vs. Jamuna Prasad Rai, (2006) 2 UPLBEC 1399.
Sri B.D. Mandhyan, learned counsel appearing for the respondents, however, submitted that in such a situation when the petitioner had remained unauthorisedly absent from duty, it must be taken that the petitioner had abandoned his service and, therefore, there was no necessity of passing any order. He further contended that in such situation, it was also not necessary to hold any enquiry against the petitioner.
I have carefully considered the submissions advanced by the learned counsel for the parties.
Sri B.D. Mandhyan, learned Senior Counsel has not placed before the Court any provision in the Act, Rules or Regulation which provides for automatic termination of services of an employee who unauthorisedly remains absent from duty. It is true that in the present case, the petitioner remained unauthorisedly absent from 1st July, 1990 to 11th October, 1993 but no order whatsoever was passed for termination of his services. This Court in the case of Jamuna Prasad Rai (supra) clearly held that even in such matters enquiry was required to be held and as there was violation of principles of natural justice, the termination order was not valid.
In view of the proposition of law laid down in the abovementioned decision of this Court and in view of the fact that no order terminating his services had been passed, the petitioner is clearly entitled to the relief claimed. Learned counsel for the petitioner has, however, very fairly stated that the petitioner would not press for any arrears of salary. In this view of the matter a direction is issued to the respondents to permit the petitioner to join his duty forthwith provided the petitioner submits in writing before the Nagar Mahapalika within a period of three weeks from today that he will not claim any arrears of salary.
The petition stands allowed to the extent indicated above.
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