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2011 DIGILAW 576 (ALL)

RAJEEV KUMAR UPADHYAY v. STATE OF U. P.

2011-03-08

DEVI PRASAD, S.C.CHAURASIA

body2011
JUDGMENT By the Court.—Heard learned counsel for the parties and perused the record. 2. The present writ petition under Article 226 of the Constitution of India has been preferred against the impugned order by which the services of the petitioner alongwith other employees, have been dismissed on account of absence from duty. 3. It has been submitted by learned counsel for the petitioner that the petitioner has submitted an application for voluntary retirement from service on 1st August, 2006, under Fundamental Rule 56 of the Financial Hand Book on account of his bad health and prolong illness. 4. The petitioner has again submitted an application on 2nd August, 2006, to the Chief Medical Officer, Mathura, for making payment of medical leave for the period from 19-7-2004 to 30-7-2006, after its sanction and also prayed for making payment from 1.7.2004 to 18.7.2004. The Under Secretary of the Medical Department has written letter No. R.G.-92/Chi-3-06-RG-13/2006 dated 30th December, 2006 to the Director General, Medical and Health Services, U.P., in respect of the verification of the integrity of the petitioner in the character roll, so that necessary decision may be taken in respect of the voluntary retirement of the petitioner. 5. The Director General, Medical and Health Services, U.P. Lucknow, has written a letter dated 15th March, 2007 to the Chief Medical Officer, Mathura, with regard to sending of the required entries/character roll and also to communicate whether any departmental enquiry/vigilance enquiry is pending against the petitioner and whether the petitioner is previously convicted or not. In pursuance to the said letter dated 15th March, 2007, the Chief Medical Officer, Mathura, has sent the required information of the character roll entry alongwith the annual entry of the year 2004-2005 of the petitioner. The Additional Director, Medical, Health and Family Welfare, Agra Mandal, Agra, has written a letter dated 28th March, 2007, to the Joint Director(Gopan), Medical and Health Services, U.P. Swasthya Bhawan, Lucknow, to send the requisite information. It appears that the Chief Medical Officer, Mathura, vide letters dated 18-9-207 and 11-10-2007, has sent the copy of the required annual entry to the Additional Director (Karmik), Medical and Health Services, U.P., Lucknow. While submitting communication, the Chief Medical Officer, Mathura, has also informed that the petitioner had proceeded on causal leave for two days i.e. 17 and 18th July, 2004. While submitting communication, the Chief Medical Officer, Mathura, has also informed that the petitioner had proceeded on causal leave for two days i.e. 17 and 18th July, 2004. The Additional Director, Karmik, on behalf of the Director General, Medical and Health Services, U.P. Lucknow has written a letter on 4.12.2007 to the concerned department of the state government informing that the integrity of the petitioner is certified for the years 2000-2001 to 2004 to 2005. It has further been requested by the Additional Director, Karmik, to the state government that appropriate decision may be taken with regard to petitioner’s voluntary retirement. 6. In response thereof, vide letter dated 28th April, 2008, the Deputy Secretary, Medical Section-3, State of U.P., has called the information in respect of the integrity certificate of the petitioner from the Director General, Medical and Health Services, U.P., Lucknow. In compliance thereof, vide letter dated 05th May, 2008, the Director General, Medical and Health Services, U.P. has sent the required information to the Government and also requested the state government to give the benefit of voluntary retirement with effect from 1-8-2006 to the petitioner. Since, no decision was taken by the State Government with regard to voluntary retirement, the petitioner has submitted another representation dated 15th December, 2008, to the opposite parties No. 1 and 2, to expedite the matter with regard to voluntary retirement of the petitioner. 7. The Director General, Medical and Health Services, U.P., Lucknow, vide letter dated 30th January, 2009, has again made a request to the State Government to issue necessary orders in respect of the benefits of the voluntary retirement of the petitioner with effect from 1st August, 2006. As a follow up action, the petitioner has submitted another representation dated 16th February, 2009 to the opposite party No. 1 making request to take a decision in respect of the voluntary retirement. 8. The Under Secretary, Medical Section-3, State of U.P., has written a letter dated 8th May, 2009 to the Director General, Medical and Health Services, U.P. Lucknow, informing that the file relating to the petitioner in respect of voluntary retirement is not available with the government and hence, it is not possible to take any decision. However, on 3rd June, 2009, the petitioner was given personal pay scale alongwith others in the pay scale of Rs. However, on 3rd June, 2009, the petitioner was given personal pay scale alongwith others in the pay scale of Rs. 12000-16,500 with effect from 24-12-2003 keeping in view his excellent work and conduct on completion of 16 years of satisfactory service. Subject to aforesaid back drop, vide letter dated 8th July, 2009, the Director General, Medical and Health Services, U.P., has again requested the state government to send the required information/documents and also requested to take a decision for voluntary retirement of the petitioner. The Chief Medical Officer, Mathura, vide letter dated 20th October, 2009 has requested to do the needful in the mater of the petitioner for taking a decision in respect of the voluntary retirement of the petitioner. The Chief Medical Officer, Mathura, has written a letter dated 30th November, 2009, to the Director(Administration), Medical and Health Services, U.P. Lucknow, to take necessary steps with regard to petitioner’s voluntary retirement. The Director General, Medical and Health Services, U.P., Lucknow, has again written a letter on 9-12-2009 to the Deputy Secretary, Medical Section-3, State of U.P., requesting him to take necessary decision in the matter of voluntary retirement of the petitioner. The Additional Director, Medical Health and Family Welfare, Agra Mandal, Agra, has written a letter dated 8th February, 2010, to the Director (Administration), Medical and Health Services, U.P., Lucknow, stating therein that due to error, the name of the petitioner has been shown in the list of absented Medical Officers. His name be deleted from the list of absented Medical Officers and a decision be taken in respect of voluntary retirement of the petitioner. 9. In response to the letter dated 8th July, 2009, the State Government vide its letter dated 15th December, 2009, has informed the Director General, Medical and Health Services, Lucknow, copy of which has been filed as Annexure No. C.A.-46 to the counter-affidavit, that petitioner’s name has been included in the list of unauthorized absented employees, hence, no decision can be taken with regard to petitioner’s voluntary retirement. It appears that thereafter, petitioners’ services also have been dispensed with by the impugned order. 10. It appears that thereafter, petitioners’ services also have been dispensed with by the impugned order. 10. The Director General, Medical and Health Services, U.P., has written a letter dated 5th March, 2010 to the Deputy Secretary, Medical Section-3, State of U.P., stating that the name of petitioner has been wrongly shown in the list of the absented employees and hence, a decision be taken with regard to voluntary retirement of the petitioner. Thereafter, by the impugned order dated 3rd May, 2010, the services of the petitioner have been dispensed with, hence, the present writ petition has been filed. 11. While assailing the impugned order, learned counsel for the petitioner has raised two grounds. Firstly, the application for voluntary retirement of the petitioner was pending since 1st August, 2006 which was not decided by the state government and only communication was sent after lapse of almost three years informing that petitioner’s name has been included in the list of absented employees, hence, no decision could be taken on the application of petitioner for voluntary retirement. That too has been refuted by the Director General, Medical and Health Services and hence, the opposite parties are not justified in passing the impugned order. 12. Second submission of learned counsel for the petitioner is that no enquiry was held while passing the impugned order and in case, the regular enquiry could have been held with due communication, the petitioner could have submitted reply to the charge-sheet. The petitioner has moved an application for voluntary retirement, but, no decision could be taken treating him unauthorizedly absent from duty. 13. So far as first submission of learned counsel for the petitioner with regard to submission of application for voluntary retirement under Fundamental Rule 56 of the Financial Hand Book, is concerned, that seems to be correct. The documents, letters and communication referred to hereinabove have been attached with the writ petition and it has not been disputed by learned Standing Counsel. It is evident that there was effective cooperation between the petitioner, department and the state government. The provisions contained under Fundamental Rule 56 of the Financial Hand Book has got statutory force and it was incumbent on the state government to take a decision within a period of three months from the date of receipt of the application of the petitioner for voluntary retirement dated 1st August, 2006. The provisions contained under Fundamental Rule 56 of the Financial Hand Book has got statutory force and it was incumbent on the state government to take a decision within a period of three months from the date of receipt of the application of the petitioner for voluntary retirement dated 1st August, 2006. In case, no decision is taken by state government, then an inference may be drawn that the state government has accepted the application of the petitioner for voluntary retirement in view of law laid down by this Court in Writ Petition No. 5 (S/B)/2010, Laxmi Kant Shukla Versus State of U.P. decided on 16-9-2010. 14. So for as holding of enquiry is concerned, it has been submitted by learned counsel for the opposite parties that due communication was sent to the petitioner, but, the petitioner did not turn up, seems to be correct to that extent from the letters & applications. Whether the petitioner was individually informed through the head of the department with the charge-sheet or not, is a question, which requires consideration. Moreover, when the application for voluntary retirement is pending. 15. It is settled law that the regular enquiry means service of charge-sheet with liberty to submit the reply to the charge-sheet and also opportunity to cross-examine the witnesses with liberty to adduce evidence with the opportunity of personal hearing. 16. In the present case, it appears that no enquiry was held, hence, an inference may not be drawn by the opposite parties that the petitioner has absented himself from duty, prima facie, seems to be misconceived. Once, the petitioner has moved an application for voluntary retirement, then it was incumbent on the state government to pass order on petitioner’s application for voluntary retirement and communicate the decision within a period provided under Rule 56 of the Financial Hand Book. 17. In view of above, the impugned order seems to have been passed without application of mind. 18. Right to livelihood is a right guaranteed under Article 21 of the Constitution of India. State or its authority has got no right to deal with the employee mechanically and without application of mind to the requests made by the employees. In the present case, before declaring petitioner absconded, the state government should have taken a decision on the application for voluntary retirement of the petitioner. 19. State or its authority has got no right to deal with the employee mechanically and without application of mind to the requests made by the employees. In the present case, before declaring petitioner absconded, the state government should have taken a decision on the application for voluntary retirement of the petitioner. 19. Needless to say that the power conferred under Rule 56 of the Financial Hand Book, has got statutory force and in case, it is invoked by a government employee, then it shall be statutory duty of the state government to take a decision in accordance to law. In the present case, the state government has failed to discharge its obligation provided under Rule 56 of the Financial Hand Book. It not only amounts to violation of principles of natural justice but also is an arbitrary act on the part of the state government. 20. In view of above, the writ petition deserves to be allowed. The writ petition is allowed accordingly. 21. A writ in the nature of certiorari is issued quashing the impugned order dated 3rd May, 2010, as contained in Annexure No. 1 to the writ petition so far as it relates to the petitioner, with all consequential benefits with liberty to the opposite parties to pass a fresh order. 22. A writ in the nature of mandamus is also issued commanding the state government to take a decision on the pending application of the petitioner for voluntary retirement on merits, in accordance to law. —————