Judgment

BEG, J. :- The appellant had challenged an order or his removal from service dated 11-3-1966 by means of a Writ Petition dismissed by a Bench of Patna High Court on 29-9-1967. He asserted that, although he had been appointed temporarily as a routine Clerk in the office of the Co-operative Societies, Bihar, he had been confirmed by an order dated 6-4-1956 in that post. That order, however merely says that he was allowed to continue in the post held by him until further orders. We do not think that it could amount to his confirmation in service. On 21-11-1961, he was appointed on the post of Local Auditor of Co-operative Societies from the date of his joining on starting pay in the scale of Rs. 75-2-85-EB-xxx together with the usual cost of living allowance and fixed D. A. of Rs. 40/- p.m. sanctioned by the Government from time to time. Learned Counsel for the appellant now relies on this order as sufficient for showing that the applicant was appointed permanently as Local Auditor although the order is some-what dubious.

2. Other facts, relating to the service of the appellant are not material until we come to 15-11-1963 when the applicant applied for leave to go on pilgrimage to Mecca. It appears that the applicant had left without grant of any leave, but had applied on 27-4-1964 from Mecca, for an extension of leave which was, in fact, never granted. He came back nearly a year afterwards. He alleges that he resumed duty on 8-10-1964 and was then compelled to take leave. He says that he fell ill on 7-11-1964 and could not attend to work until he got the order of his removal retrospectively from 4-1-1964. He asserted that he had been dismissed contrary to the Constitutional guarantee conferred upon him by Art. 311 of the constitution inasmuch as he had been dismissed "without giving him any opportunity to show cause, without any proceeding and without any enquiry.

3. It is true that the order of removal says that :

X X X it is clearly proved that Shri Haque has continuously, of his own sweet will, been on leave from 4-1-64, without obtaining previous permission, that his work as local auditor, co-operative Society, has always been quite unsatisfactory and that he was given sufficient opportunity to make improvement in his work but still it did not produce any effect on him.

The order further says :

"As Haque has been an old (?) local auditor, his services are, in view of the above facts terminated with effect from the forenoon of 4-1-64.

But, a glance at the counter-affidavit filed on behalf of the Respondent shows that the appellant had been given a number of chances to improve his work about the unsatisfactoriness of which he had been informed, that he had probably deserted his post of duty because he was unable or unwilling to work, that he had made a number of representations, and also that before any action was taken against him, the district Audit Officer Co-operative Societies Gaya, had asked him to explain, by means of a Memo dated 11-1-64, why he had been absent for so long from work without permission. It is stated in the counter affidavit that the communication sent to him by registered post was returned as he could not be found. After that two other communications dated 5-9-1964, were sent to him asking him to explain his conduct, but he did not care to reply to them. Hence, he had to be removed from service for having left his post of duty without any authority for a very long period. The appellant did not attempt to explain his omissions satisfactorily even in his affidavits filed in the High Court. In reply to the counter-affidavit filed on behalf of the respondent, he merely stated, in an affidavit that he reaffirmed his previous assertions. This is really no explanation. It is not even a specific denial.

4. Learned Counsel for the appellant has cited case on the protection of Article 311 of the Constitution to Government servants including temporary Government servants. He has relied especially on Jagd