SUPREME COURT OF INDIA

Before:- S.P. Kurdukar, S. Rajendra Babu and D.P. Mohapatra, JJ.

CA 8562/1997. D/d. 2.12.1999.

Vinod Bhanti - Petitioner

Versus

State Of Bihar And Ors. - Respondent

A. Absence from duty - Resignation - Appellant confirmed as Orthotist and Prothotist at Artificial Limb Centre on 11.10.1977 - Tendered his resignation but before its acceptance by the Govt. he withdrew it on 6.12.1981 - Held - After having withdrawn the resignation appellant could not be deemed to have been relieved in view of the fact that centre was non-functional - Moreover he was allowed to resume work on 3.4.1988 - Absence of appellant from service for more than 5 years not proved from the material on record - Appellant entitled to continue in service.

[Para 5]

B. Back wages - Since employee did not actually work he cannot be allowed to get back wages for that period.

[Para 7]

ORDER

S.P. Kurdukar, J. - This civil appeal is directed against the judgment dated May 1, 1996 rendered by the Division Bench of the High Court of Patna in Letters Patent Appeal No. 776 of 1995 affirming the judgment of the learned single Judge.

2. The relevant facts for the disposal of this appeal may be briefly summarised as under:

The appellant joined as Orthotist and Prothotist at the Artificial Limb centre, Patna run by the Red Cross Society. This center was taken over by the Government of Bihar. This center was thereafter transferred to the Health Department of the Government of Bihar. The appellant came to be confirmed on October 11, 1977 with effect from September 22, 1977. The appellant was asked by the Professor and Head of the Orthopaedics Department, Medical College Hospital to take lectures in Patna Medical College Hospital. It appears that the appellant on November 6, 1981 submitted his letter of resignation to be effective from November 30, 1981. Before the acceptance of the resignation letter by the Government the appellant on December 6, 1981 withdrew the same. The appellant thereafter came to be transferred to Patna Medical College Hospital in the Department of Physical Medicine and Rehabilitation. Thus the appellant continued in service.

3. On April 3, 1988 the appellant joined the Physical Medicine and Rehabilitation Department. Respondent 4 wrote to the State Government that since the appellant's resignation was not accepted, he may be asked to start the Rehabilitation center. Respondent pursued this matter on the same lines and requested the Government to allow the appellant to rejoin at the Artificial Limb center which was closed down some three years back so that the said center would become functional. In view of this correspondence resting with the Government, Respondent 4 also asked the Government to release the salary of the appellant. From the record it appears that the appellant was awarded certificate of honour in recognition of his good services during the past 25 years at the Limb center. However, on May 24, 1994 the Government informed the Professor and Head of the Department (Physical Medicine and Rehabilitation Department), Patna Medical College Hospital that although the appellant's resignation was not accepted but as he was absent for more than 5 years from December 6, 1981 till April 11, 1988 he would be deemed to have been relieved from service. Consequently, the Department of Physical Medicine and Rehabilitation of Patna Medical Hospital informed the appellant that he would be deemed to have been relieved from the Limb center workshop.

4. Aggrieved by this order the appellant preferred a writ petition claiming certain reliefs. The learned single Judge by the judgment and order dated July 26, 1995 dismissed the said writ petition. The letters patent appeal filed by the appellant met with the same fate. It is against this judgment of the High Court the appellant has filed this civil appeal.

5. After hearing learned Counsel for the parties, we are of the opinion that after having withdrawn the resignation the appellant could not be deemed to have been relieved in view of the facts and circumstances of the case that the centre was not functional during December 6, 1981 till April 11, 1988. In addition to this the appellant was allowed to resume work from April 3, 1988 and continued to work till he was deemed to have been relieved from service vide order dated May 24, 1994. In our opinion, the material on record does not indicate that the appellant was absent from the service for more than 5 years. In these circumstances, the Government was totally wrong in holding that the appellant was absent for more than 5 years and therefore he would be deemed to have been relieved from service.

6. The learned single Judge of the Patna High Court as well as the Division Bench did not refer to these aspects while dismissing the cause of the appellant. Since this error is apparent on the face of the record we are of the opinion that the impugned orders of the High Court cannot be sustained. Consequently, the order dated May 24, 1994 passed by the Government and confirmed by learned single Judge and affirmed by the Court of appeal are required to be quashed and set aside and we accordingly do so.

7. The next question that needs to be considered is as to whether the appellant is entitled to back wages for the period December 6, 1981 to April 11, 1988 during which period he was not doing any work at the center. As indicated earlier, since the center itself had become non-functional there was no question of not working in such a non-functional center and therefore we would be justified in denying the back wages for the period for which he did not actually work. This, however, does not preclude the appellant from getting continuity of service and other benefits flowing there from. Consequently, we direct that the appellant be allowed to resume the work. He will get continuity of service but however he will not be entitled to the back wages during the period for which he did not work at the center.

8. In the result, the appeal succeeds and the impugned judgments and orders of the High Court are set aside. Consequently, the order dated May 24, 1994 passed by the Government and communicated by the Department on June 1, 1994 to the appellant are quashed and set aside.

In the, circumstances, there will be no order as to costs.

Appeal Allowed.