B.N. Agrawal and N. Rai, JJ.

Heard learned counsel for the petitioner and State.

2. This writ application has been filed for quashing the order dated 31.12.1987 contained in Annexure 3, passed by respondent-Executive Engineer, whereby he has passed an order for dismissal of the petitioner purporting to act under Rule 76 of the Bihar Service Code, and the order dated 7.7.1990, contained in Annexure 5, passed by respondent Managing Director affirming the same.

3. Undisputedly, Rule 76 of the Bihar Service Code has been declared to be invalid by a Division Bench of this Court in the case of Sobhna Das Gupta Vs. State of Bihar (1973 B.B.C.J., 202 : 1974 PLJR 382). Under that rule, a Government servant who remains absent for a period of five years or more shall cease to continue in Government employment. It appears that the petitioner absented from duty without any leave for a period of about 19 years. It is stated that the petitioner submitted his joining on 12.1.1987 but the authority instead of accepting the petitioner's joining passed the impugned order, contained in Annexure 3 dismissing him from service. In the case of Sobhna Das Gupta (supra), while declaring Rule 76 to be invalid, this Court held that a Government servant can be dismissed from service after following the procedure prescribed for remaining absent from duty without leave. But in the case in hand, no procedure has been followed before passing the order of dismissal. Accordingly, in view of the aforesaid fact, we are of the view that the impugned orders cannot be maintained.

4. In the result, this writ application is allowed and the orders contained in Annexures 3 and 5 are hereby quashed. We may, however, observe that now the respondent Executive Engineer shall initiate a departmental proceeding against the petitioner for dismissing him from service or for taking any other disciplinary action against him on the ground that he remained absent from duty for a period of about 19 years. The proceeding must be initiated within three months from the date of receipt/production of a copy of this order. In the said proceeding, the petitioner should file show cause and after holding enquiry the concerned authority should take a decision in accordance with law.

5. Since the petitioner had submitted his joining on 12.1.1987, after remaining absent for about 19 years, for resuming his duty and the authority did not pass any order for joining rather passed an order for his dismissal on 31.12.1987, we are of the view that the petitioner is entitled to salary from 12.1.1987 till today. This payment must be made within one month from the date the departmental proceeding is initiated against the petitioner. The petitioner shall also be entitled to payment of current salary so long as order in the disciplinary proceeding is not passed after holding an enquiry in accordance with law. We may clarify that we should not be misunderstood to have expressed any opinion with regard to the merit of the departmental proceeding which will be initiated one way or the other, which will be decided, in accordance with law by competent authority, without being prejudiced by any observation made in this order.

6. With the aforesaid direction, this writ application is disposed of.