Pensionary benefits have to be calculated on the basis of the last ten months' salary drawn by the petitioner, and the period of unauthorised absence cannot be ignored for the purpose of computing entitlement/eligibility of the pensionary benefits.

1. The grievance of the petitioner in this writ petitioner is that the Respondents have wrongly denied his pension from the due date. Respondents have calculated pensionary benefits on the basis of salary drawn by the petitioner on 1.5.1973 and his service for the subsequent period till he attained the superannuation on 31.1.1984 has not been taken into account for the purpose of pensionary benefits.

2. In short, relevant facts are that the petitioner was in service of the State Government as Compounder/Dresser. The petitioner on transfer from Simri Centre, Birpur joined at Salakhua on 23rd May, 1970. In the year 1972 his land and house properties were damaged because of the flood in Koshi river and under such circumstances he went on leave. When he did not return, a show cause notice vide letter dated 1.5.1973 (Annexure-3) was issued to him for his above unauthorised absence and further directing him to return to his work within three days, on failure of which strong departmental action would be taken against him. According to the petitioner, he reported for duty on 24.8.1981, but the same was not accepted by the Civil Surgeon, Saharsa, and the matter was referred to the Government by him. However, the petitioner never joined and neither approached this Court with the said grievance that he was not allowed to join. The petitioner on attaining the date of superannuation retired from service on 31st January, 1984 and thereafter approached for fixation of his pension and payment of pensionary benefits. In paragraph 20 of the writ petition, it is stated that the petitioner is not claiming his salary from the date of his absence till the date of retirement rather through this writ petition he claims only the retirement benefit as well as pension for which he is entitled in law.

3. It is submitted on behalf of the petitioner that the Respondents are not legally justified in not counting the period of service of the petitioner since after 1.5.1973 till his retirement though admittedly his service was not terminated on account of his long absence from duty. According to the learned counsel, Rule 76 of the Bihar Service Code, which provides for automatic termination on account of unauthorised absence for five years was declared ultra vires long bark and the said provision is no more there in the statute. As such, unless the service of a Government Servant is terminated he cannot be deprived of the benefits for the period of his absence even if it is unauthorised.

4. According to the learned counsel for the Respondents, the petitioner cannot claim any benefit for his service after 1.5.1973 till his retirement as he was unauthorisedly absent and the said period cannot be counted for the purpose of fixation of his pensionary benefits, as no leave was due and/or sanctioned and the absence during the said period was unauthorised.

5. This Court does not find substance in the last submission of the learned counsel for the State. It is true that when no action was taken for his said unauthorised absence, the petitioner will be entitled for pensionary benefits on the basis of last ten months salary drawn by him and not for any other benefit or the salary on that basis for which he would have been entitled if his service during his unauthorised absence is also counted for the purpose of pensionary benefits. According to the decision of the Apex Court in the case of M.L. Jain V/s. Union of India, reported in A.I.R. 1985 Supreme Court 619 (at 621 left hand column), the pensionary benefits have to be calculated on the basis of the last ten months salary drawn by the petitioner. Obviously when no salary is claimed by the petitioner for his absence till the date of his retirement, his pensionary benefits cannot be computed on the basis of the salary which he would have drawn during the period of his unauthorised absence, but there cannot be any dispute that for the purpose of computation regarding entitlement/eligibility of the pensionary be