Aloke Chakrabarti, J. - (1.) THE petitioner, who was appointed as clerk in Civil Court, Kanpur absented from service from 31.1.1977 and remained continuously absent for more than five years. The respondent No. 2 served charge -sheet dated 8.2.1985 on the ground of his remaining absent from duty fore more than five years. The petitioner by his letter dated 3.3.1985 sought one month's time for submitting reply. Enquiry was held and report was submitted by the Enquiry Officer dated 28.3.1985. The petitioner was sent show cause notice dated 24.4.1985 proposing punishment of dismissal. The petitioner submitted his reply dated 13.5.1985 and thereafter order of dismissal was passed on 29.5.1985, The petitioner filed an appeal before the respondent No. 1 and the appeal was dismissed by order dated 16.3.1988. Challenging dismissal order dated 29.5.1985 and the appellate order dated 16.3.1988 this writ petition was moved. Respondents filed counter affidavit and the petitioner filed rejoinder affidavit.
(2.) HEARD the learned counsel for the petitioner and Mr. S.M.A. Kazmi, learned counsel for the respondents. First contention of the petitioner is that under Rule 18 of the Financial Hand Book Volume (2), a Government servant ceases to be a Government employee after five years of continuous absence from duty elsewhere than foreign service and in the present case the petitioner has continuously made application and as such the petitioner could not cease to be in the employment of the respondent. In support of such contention, learned counsel referred to the case of State of Assam v. Akshaya Kumar : AIR 1976 SC 37, wherein analogous provision was considered and explained. Learned Standing Counsel for the respondents contends that the law decided in the said case of State of Assam v. Akshaya Kumar (supra) does not apply in the present case in view of the facts that the petitioner was all through given opportunity and thereby not only the principles of natural justice were complied with but the petitioner had all opportunities to defend himself at various stage of proceeding. Learned counsel for the respondents contended that from the various documents annexed to the writ petition it is clear that the petitioner knew about the proceeding at all stages but he never participated therein except asking for adjournment on some occasion and that too without having sufficient ground.
(3.) SECOND contention of the petitioner is that the opportunities given to him were not effective opportunities and the enquiry was ex -parte. It is contended that several applications were made as stated in the writ petition and as appears to have been admitted by the respondents in their various documents and accordingly, disposal of the disciplinary proceeding in the present manner amounted to violation of principles of natural justice. Learned Standing Counsel for the respondents raised objection to the aforesaid contentions relying upon the records of the proceeding, copies whereof have been annexed to the writ petition and it is contended on the basis of the said documents that the petitioner never cared to avail of the opportunities given to him and did not produce any sufficient material justifying adjournment for granting further opportunity to the petitioner.;