JUDGMENT
Sunil Ambwani, J.
1. Heard Sri R. N. Singh for petitioner and Sri S. K. Garg, learned standing counsel.
2. Briefly stated the facts giving rise to this case are that petitioner was appointed as village level worker in department of planning at Deoria on 22.5.1961. He was posted as Village Development Officer at Block Dudahi District Deoria in 1976. He was transferred to Azamgarh in the year 1976 and took charge from Shri Raghunath Rai at Block Tahbarpur, district Azamgarh on 26.6.1976. It is alleged that a false report was lodged against him on the same day by Sri Ram Kathin Singh, Block Development Officer with allegations that petitioner has misappropriated Rs. 4,048.51, under Section 409, I.P.C. at P.S. Ahraula, district Azamgarh. Thereafter petitioner was not allowed to work. He made several representations for payment of salary and for allowing him to work to the higher authorities without any result. As he was on the verge of starvation, he left the station and went to his village in District Deoria. On 20.4.1984, he was arrested in the criminal case and was sent to Jail. His bail application was allowed and he was enlarged on bail on 23.4.1984. It is contended that no departmental enquiry was held against him. The Criminal Case No. 101 of 1983 under Section 409 at P.S. Ahraula ended in acquittal on 31.10.1988. It was found by Judicial Magistrate, Phoolpur, Azamgarh, that no case for embezzlement was made out. One witness Sri Raghunath Prasad, Senior Clerk of the Block was produced as P.W. 1. The Complainant Block Development Officer was summoned several times, but he did not appear before the Court.
3. After his acquittal petitioner made a representation on 17.2.1989 to be reinstated in service. This representation is alleged to have been sent by registered post. He did not receive any reply. This writ petition was filed on 11.7.1989. The Court granted time to the respondents to file a reply.
4. In the counter-affidavit of Sri Om Prakash Verma, Block Development Officer, Tahbarpur, district Azamgarh, it is stated that petitioner joined at Block Tahbarpur on 22.7.1976 at Nayaya Panchayat Bhimalpatti and took charge from one Sri Raghunath Rai, Village Development Officer which falls in Block Tahbarpur. Petitioner initially joined as Village Development Officer, Block Tahbarpur on 22.7.1976 and was thereafter posted at Bheemapatti Nayaya Panchayat where he took over charge on 26.7.1976. He was absented from duty from 1.10.1976, without any information. Several letters were sent to him at his home address but he did not join the office. Since he absented from duty from many years and after verification it was found that material amounting Rs. 4,048.51 is missing, the then Block Development Officer Sri Ram Kathin Singh lodged an F.I.R. against him under Section 409, I.P.C., for more than four years on 12.3.1982. The petitioner appeared before Judicial Magistrate, Phoolpur, on 16.9.1983 and was sent to Jail on 17.9.1983. His bail application was rejected. The District Judge granted him bail on 22.9.1983 and that he was released on 23.9.1983. He was never suspended. He absented from duty from 1.10.1976 and never presented himself to join the office. In para 13 of the counter-affidavit, it is stated that although the representation was received, but the same was not signed by the petitioner.
5. Sri R. N. Singh submits that petitioner was ready and willing to join but that he was not permitted to serve by the then Block Development Officer. Petitioner was falsely implicated in criminal case and was thereafter acquitted. He was never given any notice or charge-sheet departmental proceedings were taken against him. As a permanent Government servant his services could not have been dismissed without giving him charge-sheet and holding departmental enquiry. There was absolutely no Justification for the respondents to refuse to allow him to join after his acquittal.
6. Sri S. K. Garg, learned standing counsel submits that petitioner abandoned the employment. He absented from 1.10.1976 and never reported to join. According to him under Rule 18 of Financial Hand Book Vol. 2 Part-II, petitioner after five years of absence ceases to be in Government service. A person, who absents himself for more than five years without any reason and does not appear to join, has to be treated as absentee and ceases to be in Government employment.
7. The petitioner absented from duty w.e.f. 1.10.1976. Several letters were sent to him to Join. He neither reported for duty nor made any application for leave. A report was lodged against him on 12.3.1982. He surrendered and was granted bail on 22.9.1983. He continued to remain absent even thereafter. He alleges that he went to Join, after his acquittal, in the second week of December, 1988, and was not permitted to resume work. His first representation dated 17.2.1989, was received without his signatures. This representation refers to a false police case against him. There is no explanation for his absence except a reference of an alleged false report and his acquittal.
8. Fundamental Rule 18 of U. P. Financial Handbook Volume 2 Part II provides for grant of special leave by State Government, of a period beyond five years. The Rule is quoted as below :
“18. Unless the Government, in view of the special circumstances of the case, shall otherwise determine, after five years’ continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, a Government servant ceases to be in Government employment.”
9. This rule was amended w.e.f. 12.9.1989, providing that absence beyond five years will attract the provisions of rules relating to disciplinary proceedings. In the present case, the period of five years of continuous absence without explanation came to end on 1.10.1981. After this date the petitioner ceased to be in Government employment. There is no question of grant of leave as petitioner did not make any such application either before 1.10.1981 even after the date. The amendment calling for a disciplinary enquiry came into force after about eight years. The petitioner has also failed to plead or prove any special circumstances which kept him away from duties.
10. Counsel for petitioner has cited same cases at the bar, in support of his submission that absence from duty is a misconduct and that services of a delinquent employee may be terminated after proper departmental enquiry and relies upon Vinod Chandra Shukla v. Chief Medical Officer, Hamirpur, 1992 (1) AWC 470. In the present case, petitioner abandoned employment for about twelve years. It is not a case of absence from duty but abandonment of service.
11. For the aforesaid reasons, I find that petitioner ceased to be in Government employment on 1.10.1981. He approached the Court after about eight years. He is as such not entitled to the relief of reinstatement. He cannot be granted back wages of these five years, as he did not work and has not given any facts about his gainful employment elsewhere. Since his services were not terminated by any express order, he will be entitled to the service benefits for the period of 22.5.1961 to 1.10.1976. His pension shall be calculated taking the qualifying confirmed period of service, and he shall be entitled to arrears of these service benefits and pension with all its revisions.
12. The writ petition is partly allowed with the aforesaid directions. There shall be no order as to costs.