- (1.) THE subject matter of challenge in this application under Article 226 of the Constitution is the order dated 16th of November 1973 issued by the Commissioner and Secretary, Education department. The said order stated as follows : "it appears that some employees of this Department abstained themselves from office on the 27th July, 1973, the day of 'bundh' without prior permission, inspite of the directions given in the Home' (Poll) Department order No. 1074 PS dated 20. 7. 73 which was circulated to all the Government servants. It also appears that all these employees applied for leave either for that day only i. e. the 27th July, 1973 or for a period inclusive of that date. After examination and scrutiny of the leave applications of the employees concerned the undersigned is satisfied that the grounds for leave as given by some of the employees, as mentioned in the enclosed statement, are not convincing. In terms of the Finance (Audit) Department Memo No. 4896 (210)-F dated 30. 7. 73, the undersigned directs that the absence on the 27th July, 1973 or for the period inclusive of the 27th July, 1973, of the employees as mentioned in the statement enclosed should be treated as break in service with the consequences as mentioned in the Finance Department Memo No. 4845-F dated the 23rd November, 1970. It is further ordered that the pay already drawn for the period shown against each in the statement enclosed be recovered from his/her pay/leave salary for the month of November, 1973 payable on the 30th November, 1973".
(2.) ALONG with the said order the statement of employees of the education Department whose leave was refused indicating their designation and period of leave refused was attached. The number of employees involved in that statement were 64. This is an application by 50 of those employees. The main question involved is the validity of the consequences visited upon these employees for non-attendance of office on 27th of July, 1973. In order to appreciate the questions it would be necessary to refer to certain facts. It appears that on 20th of July, 1973 the Chief Secretary to the Government of West Bengal issued a circular to the following effect:- "in view of the threatened 'bandh' called on the 27th July, 1973 it is directed that it should be impressed on all Government servants that they are required to attend office on that day as usual. It is further requested that a statement of those who absent themselves from office on that day be prepared showing their residential address and explanations be obtained from them about reasons of their absence. 2. This may be communicated to all Directorates and Sub-ordinate offices for necessary action. " On the 30th of July, 1973 the Chief Secretary issued another circular which was to the following effect :-- "in inviting a reference to Home (Political) Department No. 1074-PS dated 20. 7. 73 regarding attendance on the 27th July, 1973 the undersigned is directed to state that the required explanation should be called by the appointing authority by the 10th August 1973 from those who did not attend office on the 27th July, 1973 and, if the appointing authority, after enquiry if necessary and examination of the explanation, is not satisfied about the genuineness of the reasons for the absence will be treated as break in service with all its consequences as mentioned in Finance (Audit) Department No. 4845--F, dated 23rd November, 1970. In such cases of break in service, again, pay, if already drawn, for the 27th July, 1973 prior to a decision regarding explanation, will be recovered from pay/leave salary for the month of August payable on the 1st of September, 1973. As to leave applications received up to 26th of July, 1973 these may be disposed of after the leave granting authority has fully satisfied himself of the genuineness of the reasons for which leave has been asked for, if these leave applications have been or are rejected these absentees may also be required to submit their explanation and if the explanation is not satisfactory, the absence in these cases also will be treated as break in service," It appears from the aforesaid circulars that the Chief Secretary was directing the Heads of the respective departments to examine the question of attendance on the 27th of July, 1973. If the employees were absent explanation was directed to be called far by the appointing authority from those who did not attend on the 27th of July, 1973 and if the appointing authority after necessary enquiry and examination of the explanation was not satisfied about the genuineness of the reasons for the absence, the absence was directed to be treated as break in service with all the consequences mentioned in the Finance (Audit) Department no. 4845-F, dated 23rd of points raised. 1. Whether the break in service is a termination of service followed by a fresh appointment. 2. Whether the break shall have effect on the existing pay, on the accumulated leave at credit and on the drawal of future increment. 3. Whether the break shall have effect on the calculation of a complete year for the purpose of half-pay leave. November, 1970. In the said memorandum dated 23rd of November, 1970 the consequences or the meaning of the expression 'break-in-Service' were explained as follows:- "in continuation of this Deptt. Memo. No. 4342 (210)-F dated 14. 9. 70, the undersigned is directed, to enclose the following further clarifications in regard to certain points raised in connection with the 'break-in-Service' of the Govt. employees for their participation in the strike during the 26th, 27th and 28th August, 1970. Clarifications" 1. No. 2. Leave earned up to the 25. 8. 70 will be allowed to be carried forward on and from 29. 8. 70. The period of break should be excluded for calculation of earned leave. There will be no effect on pay. The next date of increment will however be deferred by three days of unauthorized absence in terms of Rule 48 (a) of W. B. S. R. Pt. I.
(3.) DUE to break in service, the period of the year before the break cannot be taken into account for the purpose of counting the year which would have been completed on or after 26. 8. 70. A new cycle of a completed year of a service will commence from 29. 8. 70 for the purpose of admissibility of half-pay leave under Rule 173 (a) of W. B,s. R. Pt. I.;