Patna High Court
Pooja Verma vs The Patna University, Patna And Ors on 19 December, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7387 of 2018
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Pooja Verma only Daughter of Late Prof, Sudha Verma (mother) and Late
Mauti Prasad Verma (Father), resident of 139 S.K. Nagar, Road No. 23, P.S.
Budha Colony, in the town and district of Patna.
... ... Petitioner/s
Versus
1. The Patna University, Patna
2. The Vice-Chancellor, Patna University, Patna.
3. The Registrar, Patna University, Patna.
4. The Dy. Registrar, Patna University, Patna.
5. The Assistant Registrar, Patna University, Patna.
6. The Head of the Department of Philosophy, Patna University, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Arif Raza and
Mr. Md. Ataul Haq, Advocates
For the Respondent/s : Mr. Mrigank Mauli, Sr. Advocate with
Mr. Manish Dhari Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
CAV JUDGMENT
Date : 19-12-2024
Heard Mr. Arif Raza, learned Advocate for the
petitioner, duly assisted by Mr. Md. Ataul Haq, and Mr. Mrigank
Mauli, learned Senior Advocate with Mr. Manish Dhari Singh,
learned Advocate for the University.
2. The petitioner claims herself to be the only issue
and legal heir of late Professor Sudha Verma (mother) and late
Mauti Prasad Verma (father), as per the family list issued by the
Circle Officer, Patna Sadar, has preferred the present writ
petition seeking a direction for fixation and payment of all the
pre and post retiral benefits, including Pension, Gratuity, Group
Insurance and GPF of the petitioner's deceased mother.
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3. It is the contention of the learned Advocate for the
petitioner that the mother of the petitioner, late Professor Sudha
Verma served as a Lecturer/Reader in the Department of
Philosophy, Patna University from 31.01.1978 till her
superannuation upon attaining the age of 62 years on
30.11.2004
. On submission of joining of the late mother of the
petitioner on 31.01.1987 till 30.09.1995 the University has paid
her full salary and also deducted GPF contribution but all of a
sudden the University arbitrarily stopped payment of her salary
and other benefits with effect from October, 1995 vide letter
contained in Memo No. 1416 dated 08.11.1995 and directed her
to appear before the Medical Board and the Enquiry Committee.
The erstwhile teacher moved this Court in CWJC No. 5988 of
1997 for payment of her salary for the period 08.07.1993 to
07.07.1994, 08.07.1994 to 16.07.1994 and 17.07.1994 to
31.08.1994. The writ petition was disposed off on 26.10.1997
directing the Vice Chancellor, Patna University to consider her
claim. The claim of the erstwhile teacher was considered and
salary for the different period was settled.
4. It is worthy to note that the mother of the petitioner
subsequently preferred another writ petition bearing CWJC No.
735 of 2003 for salary of subsequent period which was disposed
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off on 02.07.2010 with the similar direction. The Vice
Chancellor of the University considering the claim of the
petitioner passed a reasoned order on 25.02.2015 which was put
to question in CWJC No. 16478 of 2016. It is the contention of
the petitioner that while the erstwhile teacher was waiting for
the payment of her due salary and fixation of last pay before her
superannuation, she had been diagnosed with serious ailments
of Obstructive Pulmonary Disorder and her treatment was
started in a reputed hospital of Mumbai. Despite the aforesaid
fact, she sent all the necessary pension papers on 22.04.2016
through courier to the Head of the Department of Philosophy,
Patna University and the copy of which was also sent to the
Registrar of the University, who has received the pension papers
and necessary documents. Nonetheless, the claim of the
petitioner’s mother for pre and post retial benefits kept pending
and in the meanwhile she died on 20.02.2018.
5. It would be also pertinent to note here that while the
matter was pending consideration, this Court vide order dated
15.05.2023 directed the University to take a decision in the
matter in relation to the claim of the petitioner. The claim of the
petitioner was duly considered by the Vice Chancellor, Patna
University after affording opportunity of hearing to the
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petitioner. However, the same has been negated vide order dated
08.07.2023. The Vice Chancellor, Patna University has arrived
at a conclusion that in the light of continuous unathorised
absence from October, 1995 onwards till November, 2004, her
services will be treated as confiscated. Thus, the question of
pension/gratuity does not arise. It is also directed that due to
depleted earned leave account, encashment is not admissible.
Whatever amount will be in Provident Fund and Group
Insurance schemes that may be paid to the nominees as
mentioned in service book/successor-cum-petitioner. The
petitioner on being aggrieved with the order of the Vice
Chancellor, as discussed hereinabove, filed an Interlocutory
Application bearing I.A. No. 1 of 2023 seeking quashing of the
same.
6. Mr. Raza, learned Advocate for the petitioner while
assailing the impugned order has submitted that the Vice
Chancellor of the University while passing the impugned order
has not applied his mind and, in fact, on an incorrect assumption
on facts has passed the order confiscating the post retiral
benefits. It is also contended that the authority while passing the
order of confiscation has misinterpreted Rule 103 of the Bihar
Pension Rules, 1950, which is, per se, not applicable. The
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respondent authorities could not withhold the retiral benefits in
absence of any proceeding, muchless the proceeding under the
Bihar Pension Rules. The erstwhile teacher superannuated on
30.11.2004 and after 19 years of her retirement and about 6
years of her death, the order of confiscation of her post reitral
dues is wholly unjustified, in as much as, the same cannot be
passed after retirement of the employee when relationship of the
employer and the employee already ceased.
7. Heavy reliance has been placed on a decision of the
Hon’ble Supreme Court in the case of D.V. Kapoor v. Union of
India & Ors., AIR 1990 SC 1923, wherein the Hon’ble Court
held that the employee’s right to pension is a statutory right. The
measure of deprivation therefore, must be correlative to or
commensurate with the gravity of the grave misconduct or
irregularity as it offends the right to assistance at the evening of
his life as assured under Article 41 of the Constitution. Further
reliance has also been placed on a decision rendered by the
learned co-ordinate Bench of this Court in the case of Bindhya
Nath Jha & Anr. vs. The Patna Regional Development
Authority & Ors. (CWJC No. 5731 of 1982), disposed off on
15.05.1990, wherein the Court held that the disciplinary
proceeding against a Government Servant comes to an end
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when he retires. He can be retained in service after his
retirement so that a punishment may be imposed on him in a
pending disciplinary proceeding. In the case in hand, since there
had never been any departmental proceeding nor the erstwhile
teacher had ever been suspended or dismissed from service, no
order forfeiting the pre and post retiral benefits can be passed by
any of the authority, is the contention of learned Advocate for
the petitioner.
8. On the other hand, Mr. Mrigank Mauli, learned
Senior Advocate representing the University has contended that
on account of frequent absent from the classes, the matter has
been brought to the knowledge of the controlling officer. On
being assigned the reason of poor well being and citing health
reasons, a Medical Board was constituted and the erstwhile
teacher was directed to appear before it. Initially she did not turn
up before the Committee as a result of which, her salary was
withheld for disobeying the order. However, she was later on
declared medically fit after thorough examination. Since in the
meanwhile she filed a writ petition before the Hon’ble Court;
and in compliance with the order passed by this Court in CWJC
No. 5988 of 1997, the salary was released after sanctioning the
admissible leave as per rules. However, again from October,
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1995 onwards till 31.11.2004 i.e., the date of retirement, she was
continuously remained on unauthorised leave. On account of her
absence and holding no classes, several complaints were lodged
by the Head of the Department with the University
administration narrating the facts of excessive loss in the
conduct of classes, resultantly the syllabus lagged far behind
and students suffered a lot. This led to an enquiry leading to a
decision to initiate a departmental proceeding. However, on
account of the undertaking given by the erstwhile teacher, she
was given an opportunity to join in the Directorate of Distance
Education. The decision on disbursement of salary of disputed
period was to be based on the intimation of controlling officer
about her further sanctioning. This led to filing of another writ
petition bearing CWJC No. 735 of 2003.
9. In compliance of the order of this Court, in the
afore-noted case, the claim of the erstwhile teacher was
considered by the Vice Chancellor but it did not find any favour
which led to another round of litigation giving rise to CWJC No.
16478 of 2016. The learned Court having heard the parties and
taking into consideration the order passed by the Vice
Chancellor did not find any infirmity in the impugned order by
which the claim of salary of the petitioner has been rejected on
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the ground that the petitioner was unauthorisedly absent for a
long period. Referring to the order dated 13.03.2023 passed by
this Court in CWJC no. 16478 of 2016, Mr. Mauli, learned
Senior Advocate thus contended that admittedly the petitioner
remained absent for a period from October, 1995 till 31.11.2004
and resultantly the claim of salary for such period has been
negated by this Court.
10. Learned Senior Advocate has further taken this
Court to article 13 and 9(e) of the statute and submitted that an
interruption in the service of a University servant entails
forfeiture of his past service. Drawing the attention of this Court
to sub-section(3) of Rule 103 of the Bihar Pension Rules, 1950,
he has further highlighted the condition which entails forfeiture
of past service on account of interruption. It is thus contended
that the claim of the erstwhile teacher was duly considered by
the Vice Chancellor pursuant to the order of this Court dated
15.05.2023 and on being found that the University is not meant
only for paying salary and terminal benefits to the employees,
who are appointed for the students; the right of the student
should also be protected. If any employee decides not to join the
respondent University will have to act for safeguarding the
welfare of a student. So merely on the ground that she neither
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resigned nor was dismissed, her demand cannot be allowed.
Accordingly, in the light of the relevant Articles of the Statute
and the prescription of the Bihar Pension Rules, the claim raised
before this Court has also been turned down by order dated
08.07.2023. Heavy reliance has been placed on a judgment
rendered by the Hon’ble Apex Court in the case of Vijay S.
Sathaye v. Indian Airlines Limited & Ors. reported as 2013
(10) SCC 253.
11. This Court has given anxious consideration to the
submissions advanced on behalf of the learned Advocate for the
parties and also meticulously perused the materials available on
record. Admittedly, the claim of the erstwhile teacher for salary
for the period October 1995 till 30.11.2004 was turned down by
the Vice Chancellor of the University on being found that she
was continuously on unauthorised leave, which order of the
Vice Chancellor also get affirmed in CWJC No. 16478 of 2016.
The learned Writ Court while considering the materials
available on record and after going through the order passed by
the Vice Chancellor did not find any infirmity in the impunged
order passed by the Vice Chancellor by which the claim of the
petitioner has been rejected. Hence the issue with regard to
unauhtorised absence leading to non-payment of salary came to
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be settled.
12. Now coming to the question as to whether in
absence of any departmental proceeding either before or after
superannuation on account of unauthorised absent can induce
the University leading to forfeiture and confiscation of the
retiral benefits of the employee. While negating the claim of the
petitioner for retiral benefits and treating her service as
confiscated, the Vice Chancellor of the Patna University has
taken note of Articles 13 and 9(e) of the regulation provided
under the Statute of the University which reads as follows:
“(13) An interruption in the service of a
University servant entails forfeiture of his past
service, except in the following cases:-
(a) Authorised leave of absence,
(b) unauthorised absence in continuation of
authorised leave of absence so long as the office
of the absentee is not substantively filled. If his
office is substantively filled, the past service of
absence will be forfeited;
(c) Suspension immediately followed by re-
instatement, which need not be to the same
office;
(d) Abolition of office or loss of appointment
owing to reduction of establishment;
(e) Time occupied in transit from one
appointment to another, provided that the
University servant is transferred under the order
of the competent authority.
(9) Subject to the provisions of the Act and terms
and conditions of transfer of the government
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servants concerned the service of a University
servant may be terminated by the Syndicate on
one or more of the following grounds:-
(e) continued absence from duty for more than
five years.”
13. Admittedly, from perusal of both the Articles, it
appears to this Court that an interruption in service of a
University servant may give cause to forfeiture of his past
service if an employee is not on authorised leave of absence or
if he is unauthorised absent in continuation of authorised leave
of absence so long as the office of the absentee is not
substantively filled. Article 9 also makes it clear that if a
University servant remained continued absent from duty for
more than five years, the service of the University’s servant may
be terminated by the Syndicate. There is no material on record
which suggests that the leave of the erstwhile teacher has ever
been approved by the controlling authority or the University.
Thus, in such circumstances, there is no hesitation for this Court
to hold that the erstwhile employee was on unauthorised leave
for a petty long time since October 1995 till her retirement.
14. It would be worth noticing here that the University
has also adopted the Bihar Pension Rules, 1950. The afore
noted Articles as prescribed in the Statute are seemingly akin to
Rule 103 of the Bihar Pension Rules, 1950, which provides
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identical prescription for forfeiture of past service on account of
unauthorised absence leading to interruption in service. Once
the University authority decided and concluded it a case of
continuous unauthorized absence of the erstwhile teacher, which
order also stood sanctified by the learned co-ordinate Bench in
CWJC No. 16478 of 2016; This Court is of the opinion that in a
case where the government servant is held to be unauthorised
absent leading to interruption in service, it certainly entails
forfeiture of his past services.
15. It is the admitted position that at no point of time
any departmental proceeding was ever initiated against the
erstwhile teacher, but once she herself chosen to remain absent
or voluntarily left her service; whether in such circumstances
initiation of departmental proceeding is sine qua non. This
question has been aptly answered by the Hon’ble Apex Court in
the case of Vijay S. Sathaye (supra), wherein the Court held that
the employee has right to abandon the service any time
voluntarily by submitting his resignation and alternatively, not
joining the duty and remaining absent for long. Absence from
duty in the beginning may be a misconduct but when absence is
for a very long period, it may amount to voluntary abandonment
of service and in that eventuality, the bonds of service come to
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an end automatically without requiring any order to be passed
by the employer. It would be worth benefiting to encapsulate
the relevant paragraphs for proper appreciation of the issue:
“12. It is a settled law that an employee cannot
be termed as a slave, he has a right to abandon
the service any time voluntarily by submitting his
resignation and alternatively, not joining the duty
and remaining absent for long. Absence from
duty in the beginning may be a misconduct but
when absence is for a very long period, it may
amount to voluntary abandonment of service and
in that eventuality, the bonds of service come to
an end automatically without requiring any order
to be passed by the employer.
13. In Jeewanlal (1929) Ltd. v. Workmen [AIR
1961 SC 1567] this Court held as under : (AIR p.
1570, para 6)
“6. … there would be the class of cases where
long unauthorised absence may reasonably give
rise to an inference that such service is intended
to be abandoned by the employee.”
(See also Shahoodul Haque v. Registrar, Coop.
Societies [(1975) 3 SCC 108 : 1974 SCC (L&S)
498 : AIR 1974 SC 1896] .)
14. For the purpose of termination, there has to
be positive action on the part of the employer
while abandonment of service is a consequence
of unilateral action on behalf of the employee
and the employer has no role in it. Such an act
cannot be termed as “retrenchment” from
service. (See State of Haryana v. Om Parkash
[(1998) 8 SCC 733 : 1999 SCC (L&S) 262])
15. In Buckingham and Carnatic Co. Ltd. v.
Venkatiah [AIR 1964 SC 1272], while dealing
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with a similar case, this Court observed : (AIR p.
1275, para 5)
“5. … Abandonment or relinquishment of service
is always a question of intention, and, normally,
such an intention cannot be attributed to an
employee without adequate evidence in that
behalf.”
A similar view has been reiterated in G.T. Lad v.
Chemical and Fibres of India Ltd. [(1979) 1 SCC
590 : 1979 SCC (L&S) 76 : AIR 1979 SC 582]
16. In Syndicate Bank v. Staff Assn. [(2000) 5
SCC 65 : 2000 SCC (L&S) 601] and Aligarh
Muslim University v. Mansoor Ali Khan [(2000)
7 SCC 529 : 2002 SCC (L&S) 965 : AIR 2000 SC
2783] this Court ruled that if a person is absent
beyond the prescribed period for which leave of
any kind can be granted, he should be treated to
have resigned and ceases to be in service. In such
a case, there is no need to hold an enquiry or to
give any notice as it would amount to useless
formalities. A similar view has been reiterated in
Banaras Hindu University v. Shrikant [(2006) 11
SCC 42 : (2007) 1 SCC (L&S) 327] , Chief
Engineer (Construction) v. Keshava Rao [(2005)
11 SCC 229 : 2005 SCC (L&S) 872] and Bank of
Baroda v. Anita Nandrajog [(2009) 9 SCC 462 :
(2009) 2 SCC (L&S) 689].”
Emphasis supplied
16. This Court is also apprised of the fact after service
of absence report by the Head of Department of Philosophy to
the University vide P.U. Memo No. G/01 dated 02.01.1999, one
Senior Professor was appointed to examine the unauthorised
absence of erstwhile teacher. On several notice and reminders,
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she appeared on 03.06.2000 and explained her position and
assured that she would be engaging her class regularly, by
submitting a written undertaking. In such circumstances, she
had given a chance to resume her duties, with a stipulation that
final decision with regard to payment of salary should be taken
on compliance of the undertaking; but, thereafter, she did not
join her duty till superannuation.
17. When a government servant wilfully absents
himself/herself from duty for a long period without giving
notice to the employer, he/she can not get the pay for period
during which he/she remained absent. The erstwhile employee
had been given proper opportunity to satisfy the authority and
resume her duty, but she did not do so, hence, in no
circumstances, she would be entitled to get the premium of her
wilful absence or voluntary abandonment of service.
18. In view of the discussions made hereinabove and
the position in law, this Court does not find any merit in the
present writ petition and, accordingly, the same stands
dismissed.
19. However, pursuant to the order of the Vice Chancellor
dated 08.07.2023, the amount under the Provident Fund and Group
Insurance scheme as well as any other admissible amount, if not
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paid till date, shall be paid to the petitioner, in accordance with
law, preferably within a period of 8 weeks from the date of the
receipt/production of a copy of this order.
(Harish Kumar, J)
Anjani/-
AFR/NAFR CAV DATE 22.10.2024 Uploading Date 21.12.2024 Transmission Date