Sabayasachi Mukherjee, J.
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 'bandh' without prior permission, in spite 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 same 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 'bandit' 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 attendence on the 27th July, 1973 the undersigned is directed to slate 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 upto 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 for 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 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 (2I0)-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.
Points raised Clarifications
1. Whether the break in service is a 1. No.
termination of service followed by a
fresh appointment.
2. Whether the break shall have effect on 2. Leave earned upto the 25-8-70 will be
the existing pay, on the accumulated allowed to be carried forward on and
leave at credit and on thedrawal of from 29-8-70. The period of break
future increment. 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 unauthorised absence in terms
of Rule 48(a) of W.B.S.R. Pt. I.
3. Whether the break shall have effect 3. Due to break in service, the period of
on the calculation of a complete year the year before the break cannot be taken
for the purpose of half-pay leave. into account for the purpose of counting
the year which would have been comp-
leted 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.
4. Whether the break shall have effect on 4. Attention is invited to Rule 4 of the
the declaration of quasi-permanency or West Bengal Service (Temporary) and
permanency-in-status. quasi-permanent service with permanent
status Rules, 1967. The continuity
having been disrupted by 3 days of
unauthorised absence and previous
service having been forfeited, the period
of continuous service necessary for
conferment of permanent or quasi-
permanent status will obviously
commence from the 29th August, 1970
for all Govt. employees in whose cases
declarations have not been issued by
competent authorities conferring
quasi-permanancy or permanent status
before the 26th August, 1970,
5. What should be the latest date for 5. Such application submitted upto the
receipt of applications for condonation 31st December, 1970 may be taken up
of break in service. for consideration.
6. Whether the period before the break in 6. Attention is invited to the concluding
service shall be considered for retire- paragraph of this Deptt. Circular
ment benefits. No. 4342 (210)-F dt. 14-9-70. The
break in service constituted under
Article 420 C.S.R. involves forfeiture
of past services for the purpose of
pension and gratuity. The break-in-
service constituted 26-8-70 to 28-8-70,
therefore, entails forfeiture of past
services unless it is condoned by the
appointing authority in terms of the
said Memo. No. 4342 (210)-F dt. 14-9-70.
The provisions of Articles 421 and 422
C.S.R. should stand rescinded for
these purposes.
3. 27th of July, 1973 was declared as bandh day by some of the political parties in the State. The petitioners contend that on account of various reasons including medical grounds the petitioners could not come to office on 27th of July, 1973 or for a period inclusive of that date and they duly applied for leave for their respective periods of absence. According to the petitioners the statements contained in their leave applications were true and correct. The petitioners state that the absence of the petitioners on 27th of July, 1973 or for a period inclusive of that date was solely for unavoidable, compelling and unforeseen circumstances and as such the petitioners were entitled to leave as prayed for in their respective applications. The petitioners further state that the pay and allowances of the petitioners for the whole of the months of July and August had been paid. The petitioners also state that they were similarly paid their pay and allowances for the months of September and October. Thereafter the memorandum dated 16th of November, 1973 directing recovery from the pay and allowances of the petitioners and effecting break-in-service of the petitioners with all the consequences as mentioned in the memorandum dated 23rd November, 1970 was issued. The terms and conditions of the said memorandum dated 16th of November, 1973 have been set out hereinafter. The petitioners moved this application on the 28th of November, 1973 under Article 226 of the Constitution and obtained a rule nisi and an order of injunction until the disposal of the rule nisi.
4. The petitioners challenge the said memorandum dated 16th November, 1973 as being in violation of the said circulars dated 20th of July and 30th of July, 1973. It was contended that the said memorandum was issued without calling for by the appointing authorities, i.e., Deputy Secretary and Assistant Secretary for Class III and Class IV employees respectively by August 10, 1973 any explanation of the said absence and without any enquiry and examination of the explanations as required by the memorandum dated 30th July, 1973. It was submitted, therefore, that the respondent No. 4, namely, Commissioner and Secretary Education Department acted in excess of his jurisdiction and contrary to the order: and directions contained in memorandurm dated 20th, July, 1973 and 30th July, 197: referred to hereinbefore. The petitioners further contend that the petitioners had been refused leave arbitrarily and in contravention of relevant provisions of the West Bengal Service Rules. The procedure for granting leave was not followed. The petitioners further contend that as a result of the said notification dated 16th of November, 1973 penal consequence have been imposed upon the petitioners and the petitioners have been penalised and such penalties have been imposed upon the petitioners without following the procedure for the imposition of the penalty and was in violation of the Rule 8(iii) of the West Bengal Service (Classification, Control and Appeal) Rules, 1971. It was lastly contended that the Commissioner and Secretary Education Department was the appellate authority in respect of the petitioners belonging to Class III service and was in much higher rank and office of the appellate authority in respect of the petitioners be-longing to Class IV service. It was further submitted that the Commissioners and Secretary, Education Department being respondent No. 4 herein had wrongly usurped the power, function and authority of his subordinate officers and deprived the petitioners of the appellate provisions and as such the order passed on the 16th of November 1973 was illegal and contrary to law.
5. On behalf of the respondents it was contended that under the rules the petitioners were not entitled to leave as a matter of course. Having regard to the high percentage of absence in comparison to the usual or normal percentage of absence on other days the leave application of the petitioners for absence on and from period including 27th of July, 1973 were considered to be not genuine and as such the Head of the Department refused to grant such leave. The facts and circumstances of the consideration of the leave application have been set out in paragraph 5 of the affidavit of Bibhuti Bhusan Dutt affirmed on the 16th of January, 1974. In the permises it was submitted that the petitioners were absent without authority and as such under the rules the petitioners were not entitled to pay and allowances for the period of absence and the petitioners were liable to have their services broken in consequence of the relevant rules and provisions applicable to the Government servants including the petitioners. It was further contended that the circulars dated 20th July, 1973 and 30th July, 1973 need not require the authority of being made rules inasmuch as the said circulars were merely clarificatory of the positions prevailing under the rules. It was submitted that the said circulars did not create any new offence or impose any new burden upon the petitioners.
6. The position, therefore, is that the petitioners abstained from work on 27th of July, 1973 which was a bundh day. The petitioners had applied for leave on that date or for period including that date. Such leave was not granted. In the premises the order dated 16th of November, 1973 was passed. The said order mainly involves two consequences, namely, (1) that if the pay already drawn for period of absence including 27th July, 1973 should be recovered from the future pay of the petitioners and (ii) the absence should be treated as break-in-service with all the consequences. Therefore, the petitioners were deprived of their pay end allowances for the period they abstained from work including the period of 27th July, 1973 and the period of absence was treated as break-in-service. The question is whether in imposing these two consequences upon the petitioners the respondent No. 4 had acted illegally.
7. The first question, therefore, is whether leave was properly refused or not. Rule 153 of Chapter XV of the West Bengal Service Rules, Part I, provides that leave cannot be claimed as a matter of right, when the exigencies of the public service so required discretion to refuse or revoke leave of any description was reserved to the authority empowered to grant it. Now, in this case leave had been applied for on various grounds including illness of the person concerned or members of the family. Such leave was refused. It is true that from the affidavit-in-opposition it does not appear that each individual case was examined but, having regard to the percentage of absence during the normal period if the authority competent to grant leave, considers it necessary to refuse leave in the background of the fact that 27th of July, 1973 was a bundh day and there would be a tendency on the part of the many of the employees to abstain themselves on the plea or excuse of unavoidable circumstances, in the absence of other materials and particulars it cannot be said that the authorities concerned had acted illegally or in a mala fide manner. It is true that in a situation of this type certain injustice might occur in individual cases but a pragmatic view of the matter should be taken and having regard to the usual percentage of absence if the appointing authority does not feel convinced of the genuineness of the grounds advanced by the employees, in my opinion, in an application under Article 226 of the Constitution in the absence of any specific mala fide attitude towards the employee the order refusing to grant leave cannot be termed as illegal or violative of the rules. I am also unable to accept the contention that the respondent No, 4 being the appellate authority for disciplinary proceeding and being an authority higher than the appellate authority in respect of the Class IV employees of the Government of West Bengal was not competent to deal with the applications for leave or pass the impugned order dated 16th of November, 1973. In so far as the order in question refusing to grant leave and imposing the consequences of absence without leave upon the petitioners by depriving the pay of the petitioners for that date is concerned in my opinion, as the Head of the Department, the respondent No. 4 was comperent to pass the impugned order. Inasmuch as the order in question in so far as it refuses to sanction leave to the petitioners for 27th July, 1973 are for a period inclusive of 27th of July, 1973 and in so far as the petitioners are visited with the consequences of absence without leave by having their pay cut for that period are concerned the same is not a penalty and as such the question of appellate authority imposing a penalty, does not arise. Under item 5 of appendix 4 of the West Bengal Service Rules, Part I; Heads of the Office might grant leave of all kinds to the staff belonging to Class III and Class IV service provided local arrangements could be made to carry on the work. On the 27th of July. 1973 in view of the peculiar circumstances of the day it appears that local arrangement could not be made to carry on the work in view of the fact that so many of the employees were absent. In the permises the order in question being by the Head of the Department was competent. As the petitioners were absent without proper leave under proviso to Rule 26 of the West Bengal Service. Rules, Part I, which was amended on the 7th of January, 1972 the petitioners were not entitled to draw any pay or allowances for that date. The Rule 26 as amended provided as follows:
26. Subject to any exceptions specifically made in these rules, an officer shall begin to draw the pay and allowances attached to the post held by him with effect from the date when he assumes the duties of the post and shall cease to draw them as soon as he ceases to discharge those duties.
Provided that an officer who is absent from duty without authority on any day or part of the day shall not be entitled to draw any pay or allowance for that day.
Note.--A Government servant will begin to draw the pay and allowance attached to the post held by him with effect from the date on which he assumes the duties of that post, if the charge is transferred before noon of that date. If the charge is transferred in the afternoon he commences to draw them from the following day.
8. Inasmuch as I find that the petitioners were absent without leave, and such leave had been properly refused, the petitioners were not entitled to pay and allowances in accordance with the rules applicable to the petitioners. Therefore, the question whether the circulars dated 20th of July, 1973 and 30th of July, 1973 were valid or proper and whether order was in compliance with the aforesaid circulars need not be considered. The next question that falls for consideration in this case, is whether after the petitioners had been allowed to draw their salary upto October, 1973 it could be directed by the impugned order dated 16th of November, 1973 that the pay and allowances for the period of 27th of July, 1973 should be recovered from their future salary. I do not find any infirmity in that part of the order. If the petitioners have been paid their pay and salary for 27th of July, 1973, which the petitioners were not entitled to under the relevant provisions of rules, the petitioners are liable to refund the same and as such the respondents are entitled to recover the same. If that is the position then merely because there has been a delay in recovery from the pay and allowances of the petitioners the pay and allowances wrongfully collected by the petitioners for 27th of July, 1973, cannot lead to any illegality. No principle of limitation is involved in this matter.
9. The next question that falls for consideration in this case, is, whether the order in so far as the order directed that there was a break-in-service of the petitioners the same was illegal. 'Break-in-Service' as such is not defined in any of the rules applicable to the petitioners. At least my attention was not drawn to any such rules. Break-in-Service that was contemplated to be imposed by the impugned order has been clarified in the memorandum dated 23rd of November, 1970. In answer to question No. 6 in the said memorandum it has been stated that break-in-service would be in same terms as Article 420 Civil Services Regulations which provided that any interruption to service of an officer would entail forfeiture of his past service except in certain specific cases. Therefore, for pension and retirement benefit and for other benefits and for other benefits like the benefit of leave, calculation of leave period, declaration of quasi-permanency or permanency the break-in-service would have the consequences of forfeiting the past services of an employee. The question, is, whether the respondent No, 4 was competent under the rules to pass the order directing that there would be break-in-service in the manner he did it is admitted that there was no enquiry held pursuant to the disciplinary rule applicable to the petitioners. Rules 3B and 3C of the West Bengal Service Rules, Part I, provided as follows:
3B. Notwithstanding anything contained elsewhere in these rules or in any other rules for the time being in force, if a Government servant, being present at the place of his duty, abstains from work without permission or refuses to work at any time during the prescribed hours of work on any day, he shall, in addition to being liable to such disciplinary action as may be taken against him for such day and shall not be entitled to draw any pay or allowances for such day.
3C. Notwithstanding anything contained elsewhere in these rules, or in other rules for the time being in force:
(a) If any Government servant resorts to or in any way abets any form of strike for any period in connection with any matter pertaining to his service or the service of any other Government servant, he shall, in addition to being liable to, such disciplinary action as may be taken against him in that connection, be deemed to be absent without leave during such period and shall not be entitled to draw any pay or allowance for that period.
(b) The authority empowered to grant leave may either commute restrospectively such period of absence without leave into extraordinary leave or may treat such period of absence without leave as amounting to a break-in-service, entailing forfeiture of his previous service and may pass orders accordingly.
10. Now, in this case neither of these two rules can have any application. There was no participation by any of the petitioners in any strike in connexion with any matter pertaining his own service or to the service of any other Government servant. Rule 35 of the West Bengal Services (Death-cum-Retirement Benefit Rules) provides as follows:
35. Interruptions.--(1) Subject to provisions contained jn sub-rule (2) of Rule 22 an interruption in the service of an officer entails forfeiture of his past service except in following cases, namely:
(a) authorised absence of leave;
(b) suspension where it is immediately followed by reinstatement, whether to the same or a different office, or where the officer dies or is permitted to retire or is retired while under suspension;
(c) abolition of office or Joss of appointment owing to reduction of establishment;
(d) transfer to non-qualifying service in an establishment under Government control;
(e) the period occupied in transit from one appointment to another, provided the officer is transferred under the orders of the competent? authority and the period does not exceed the amount of joining time admissible in case of a Government servant transferred from one post to another in the interest of.
(2) The competent authority may commute retrospectively the period of absence without leave into extraordinary leave without pay and allowances.
(3) Upon such conditions as it may think fit in each case to impose the competent authority may condone interruptions in service.
Note.--In view of present rule in respect of counting of qualifying service and reckoning of emoluments for pension and retiring benefit no condonation should hereafter be allowed except with the approval of Government. Before sanctioning any condonation by Government, the following conditions are required to be fulfilled, namely:
(a) the interruption has been caused by reasons beyond the control of the Government servant concerned;
(b) the service preceding the interruption should not be less than five years' duration;
(c) the interruption or interuptions taken together if there be more than one should not be of more than six months' duration.
11. Therefore, under that rule 'interruption' entails forfeiture. The question is whether an unauthorised absence involves interruption in service. In this case again interruption in service has not been defined. Counsel for the petitioners drew my attention to the meaning of interruption in the Shorter Oxford Dictionary, 3rd Edition, page 1032 which gives the following meaning:--'The action of interrupting or the fact of being interrupted, hindrance of course or continuance or temporary stoppage or cessation, a breach of continuity in space or serial order'. It is true that absence from work interrupts the work. Unauthorised leave is such absence from work. But in case of employees who are permanent employees absence by itself, authorised or unauthorised, does not in my opinion, unless there are specific rules to that effect, cause 'interruption in the service'. If there is no rule which entails that unauthorised absence from work entails interruption in service, in my opinion by the memorandum dated 16th of November, 1973, the respondent No. 4 was not competent to direct that for unauthorised absence of the petitioners for period including 27th of July, 1973 the said period should be treated break-in-service, in the manner he had done. In any event I do not find anything in the rules which provides that break-in-service would follow as an automatic consequence of unauthorised leave of absence. Rule 35 of the West Bengal Services (Death-cum-Retirement Benefit) Rules only provides for the consequences of interruption so far as Death-cum-Retirement benefits are concerned. But the break in service imposed by the impugned order entailed other consequences as well as would be apparent from the answers given to questions 2 to 4 of the memorandum dated 23rd November, 1970. Unauthorised leave of absence by a Government employee may be an act of indiscipline but in the absence of specific and clear rules, without proper disciplinary proceedings and holding an enquiry, the consequences of break-in-service in my opinion, cannot be imposed on the petitioners in the manner done. The circulars dated 20th of July, 1973 and 27th July, 1973 though the same warned the employees that absence on 27th of July, 1973 would constitute a break-in-service, in my opinion, would not vest or confer jurisdiction upon the respondent No. 4 to pass an order directing that there would be break-in-service. These circulars have no statutory force and are not rules framed under Article 309 of the Constitution. I have already held that Rules 3B and 3C of the West Bengal Service Rules are not applicable in the instant case. Rule 35 of the West Bengal Services (Death-cum-Retirement Benefit) Rules only provides for the consequences of interruption. In view of the fact that there was no rule, in my opinion, the respondent No. 4 was not competent to pass the order dated 16th of July, 1973 in so far as it directed that for the absence on the 27th of July, 1973 or for any period including 27th of July, 1973 there would be break in-service of the petitioners. The rights of the petitioners and their liabilities to be proceeded for infringement of rules must be guided by the provisions of the rules and not by executive instructions. Reliance for this proposition may be placed on the observations of the Supreme Court in the case of Mannalal Jain v. State of Assam : [1962]3SCR936 of the judgment. The circulars dated 20th of July, 1973 and 30th of July, therefore, do not affect the position, though in my opinion these need not be set aside as such. Reliance in this connection may also be placed on the observations of the Supreme Court in the case of I.N. Saksena v. State of Madhya Pradesh 1967 II L.L.J.427 (l967)S.C. page 1264 at paragraphs 8, 9 and 10. Counsel for the petitioner also drew my attention to the decision of the Supreme Court in Deokinandan Prasad v. State of Bihar : (1971)ILLJ557SC . But in the facts and circumstances of the case in my opinion the observations made by the Court are not relevant for the present purpose.
12. In the view I have taken the impugned order dated 16th of November, 1973 in so far as it directs that for absence of the petitioners on 27th of July, 1973 or for any period including the 27th of July, 1973 should be treated as period constituting break-in-service is bad and is, therefore, set aside and quashed. The rest of the order stands. The Rule is made absolute to the extent indicated above. There will be no order as to costs. This order will not prevent the respondents from proceeding against the petitioners for imposition of any penalty for unauthorised absence in accordance with law.