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2013 DIGILAW 3075 (ALL)

Hari Prasad Singh v. State of U. P.

2013-12-17

BHARAT BHUSHAN, RAKESH TIWARI

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JUDGMENT Rakesh Tiwari, J. Heard Sri Kshitij Shailendra, counsel for the petitioner, Sri Saroj Yadav, standing counsel appearing for respondent no. 1,2 and 3 and Sri V.P. Mathur representing respondent- Commission. Perused the record. 2 The petitioner challenges the validity and correctness of the order of his dismissal from service dated 16.7.2007 issued by respondent no. 1- Secretary, Medical/Health, Lucknow. He has also prayed for issuance of a writ in the nature of mandamus commanding the respondents to accept his application dated 17.5.2003 (Annexure no. 2 to the writ petition) for voluntary retirement and make payments of all the retirement benefits as admissible under the law within the period specified by the Court. 3. Brief facts of the case culled out from record are that petitioner was appointed in Provincial Medical Service on 27.10.1988. He moved an application dated 17.5.2003 under Rule 56(C) of the U.P. Fundamental Rules, to respondent no. 1 for his voluntary retirement. In the application, he stated that he is giving notice which would come into effect from forenoon of 30.9.2003. 4. From the correspondence appended alongwith the record, it appears that respondent no. 2- Director, Medical & Health, Lucknow after enquiry vide his letter dated 14.7. 2003 submitted that neither any inquiry is pending against the petitioner nor are any dues of State property against him. The Additional Director, Medical and Health, Azamgarh Region, Azamgarh also vide his letter dated 17.11.2003 appended as annexure no. 4 informed the under Secretary, Chikitsa Anubhag-3, Lucknow that no enquiry is pending against the petitioner. 5. Since the question involved in the writ petition is dependent upon the fact as to whether any enquiry was pending against the petitioner or not, on the date of his voluntary retirement, the aforesaid letter dated 14.7.2003 of respondent no. 4 informed the under Secretary, Chikitsa Anubhag-3, Lucknow that no enquiry is pending against the petitioner. 5. Since the question involved in the writ petition is dependent upon the fact as to whether any enquiry was pending against the petitioner or not, on the date of his voluntary retirement, the aforesaid letter dated 14.7.2003 of respondent no. 2 and letter dated 17.11.2003 of the Additional Director assume relevance and the same are being quoted below for ready reference: izs"kd] egkfuns'kd] fpfdRLkk ,oa LokLF; lsok;sa] mRrj izns'k] y[kuÅA lsok esa] fo'ks"k lfpo] mRrj izns'k 'kklu] fpfdRlk vuqHkkx&3 i= la0&2Q@1238@88@ fnukad 14 tqykbZ 2003 fo"k;% Mk0,p0ih0 flag] fpfdRlkf/kdkjh] izk0Lok0dsUnz] esguxj] vktexk tk;sxk fd vkidks dqN ugh dguk gS vkSj vfUre vkns'k rnuqlkj ikfjr dj fn;s tk;sxsA vkils ;g Hkh vis{kk dh tkrh gS fd fyf[kr mRrj ds lkFk ;g Hkh v/kksgLrk{kjh dks lwfpr djsa fd D;k vki O;fDrxr lquokbZ dk volj pkgrs gSA ;fn vki fdlh lk{; dk ijh{k.k ;k izfrijh{k.k djuk pkgrs gS rks fyf[kr mRrj esa gh mudk uke vkSj laf{kIr esa muls fdl fcUnq ij c;ku@lk{; dh vis{kk dh tkrh gS] Li"V djsaA jkT;iky dh vkKk ls] tkWp vf/kdkjh vuqeksfnr ¼twfFkdk ikV.dj½ lfpo fpfdRlk ,oa LokLF;^^ 11. A perusal of this charge sheet shows that a reference has been made of the G.O. Dated 5.6.2003, by which disciplinary enquiry had been initiated against the petitioner which was pending and as such application for voluntary retirement could not have been allowed. 12. The petitioner in the aforesaid facts and circumstances preferred Writ Petition No, 56149 of 2006, Dr. H.P. Singh Vs. State of U.P. and others, challenging the charges levelled against him. This petition was disposed of vide judgment and order dated 10.10.2006, directing the respondents to conclude the disciplinary proceedings within a period of three months. Copy of the order passed in the writ petition was submitted by the petitioner before respondent no. 1 on 28.10.2006 but nothing was done by the respondents pursuant to the order dated 10.10.2006 passed by the Court. The petitioner then moved Contempt Petition No. 1255 of 2007 before the Court in which notice was issued to respondent no. 1, after which the impugned order dated 16.7.2007 dismissing the petitioner from service was passed. 13. 1 on 28.10.2006 but nothing was done by the respondents pursuant to the order dated 10.10.2006 passed by the Court. The petitioner then moved Contempt Petition No. 1255 of 2007 before the Court in which notice was issued to respondent no. 1, after which the impugned order dated 16.7.2007 dismissing the petitioner from service was passed. 13. Contention of the learned counsel for petitioner is that impugned order dated 16.7.2007 is malafide and has been passed arbitrarily to penalize the petitioner for filing the writ petition and contempt petition as well as to frustrate his application for voluntary retirement. It is also stated that the impugned order dated 16.7.2007 has not been served upon the petitioner rather a compliance affidavit is said to have been filed in the aforesaid contempt petition by the respondent that petitioner has been dismissed from service. 14. The order impugned is assailed inter alia on the grounds that order dated 5.6.2003 appointing Inquiry officer was never communicated to the petitioner nor was any charge sheet issued to him till 1.10.2003 i.e. the date petitioner's voluntary retirement has taken effect; that in case of contemplated disciplinary proceedings it is mandatory that the concerned Govt. servant should be informed before expiry of the notice period given for voluntary retirement that it has not been accepted but he was never informed of this prior to the charge sheet dated 30.7.2004. It may be noted that the charge sheet was issued against petitioner by respondent no. 1 on 30.7.2004 alleging that the petitioner never attends his duties regularly and comes to the hospital for a day or two in a month; that he does not reside in the hospital due to which official residence remains vacant and this constitute negligence of duty. Therefore, the supplementary charge sheet dated 13.4.2006 can also not stand judicial scrutiny in view of proviso to Rule 56 of the U.P. Fundamental Rules, 1956. It is stated that allegations against the petitioner in the charge sheet dated 30.7.2004 are based on the inspection report dated 2.5.2003 of the S.D.M. which have already been explained by him and thereafter his casual leave for the day was also sanctioned and he was paid salary for 2.5.2003, the day he is claimed to be unauthorizedly absent, as such inaction on the part of respondent no. 1 in not deciding the matter of voluntary retirement, cannot be made the basis for passing the impugned order dated 16.7.2007 and the same is bad in law. 15. The order impugned is also assailed on the ground that supplementary charge sheet is vague and unreasonable for the reason that from 1.10.2003, voluntary retirement of the petitioner had taken effect and thereafter petitioner having ceased from employment there was no question of any absence from duty, hence there can be no violation of rule 3(2) of U.P. Government Servant Conduct Rules, 1956 as amended; that in any case the impugned order of dismissal dated 16.7.2007 has been passed with malafide intent to frustrate voluntary retirement of the petitioner on account of his earlier petition and contempt petition against the higher authorities and as such the same is arbitrary,unjust, malafide, illegal and having also been passed in violation of the principles of natural justice, is liable to be quashed. It is also stated that inspection report of the S.D.M., Mehnagar was also never provided to the petitioner, therefore, he was not able to provide any explanation to the authorities effectively and in any case his casual leave having been granted for that day, it cannot be said to constitute any misconduct as the S.D.M. had deliberately marked him absent due to malafide reasons. It is lastly submitted that respondent no. 1 itself called instructions from medical authorities at Azamgarh, yet the impugned order of dismissal has been passed by him against settled principles of law that no order of dismissal can be passed after notice of voluntary retirement having taken effect and in any case the provisions of Rule 7,8 and 9 of the U.P. Government Servant Discipline and Appeal) Rules were not complied with in passing the impugned order dated 16.7.2007. 16. Sri Saroj Yadav, learned standing counsel has placed reliance upon the impugned order dated 13/16/7/2007 appended as annexure no. 15 wherein it has been averred that State Government vide its order dated 5.6.2003 had appointed Chief Medical Officer, Azamgarh as Inquiry Officer for conducting enquiry against the petitioner. 16. Sri Saroj Yadav, learned standing counsel has placed reliance upon the impugned order dated 13/16/7/2007 appended as annexure no. 15 wherein it has been averred that State Government vide its order dated 5.6.2003 had appointed Chief Medical Officer, Azamgarh as Inquiry Officer for conducting enquiry against the petitioner. The order dated 5.6.2003 has also been appended alongwith the counter affidavit as annexure C.A.-1, perusal of which indicates that copy of this order has not been endorsed to the petitioner but the Government had taken decision for holding enquiry against the petitioner on the charges of not regularly attending his duties at Primary Health Center, Mehnagar, district Azamgarh nominating C.M.O., Azamgarh as the Inquiry Officer. It is urged by the standing counsel that since the State Government had taken a decision to conduct enquiry and had nominated the Inquiry Officer, it is clear that enquiry was contemplated against the petitioner and therefore his application for voluntary retirement could not have taken effect on 1.10.2003 without its having been accepted by the competent authority without any formal order of acceptance. 17. After hearing the parties and on perusal of the record, the question to be decided by the Court is as to whether any enquiry contemplated against delinquent employee of which he had no information, would constitute an enquiry pending against him or not, for the purposes of his voluntary retirement. 18. Perusal of the records shows that even officers of the department had time and again informed the Government on correspondence in respect of petitioner's application for voluntary retirement, that no enquiry was pending against him. It appears that on the report of S.D.M., Mehnagar that petitioner was absent from his place of work, office order dated 5.6.2003 had been issued wherein decision appears to have been taken by the Government for holding enquiry against the petitioner regarding alleged charges of his irregular presence on duty appointing C.M.O., Azamgarh as the Inquiry Officer. But in fact neither any charge sheet was issued to the petitioner nor was he informed about any enquiry contemplated against him by the aforesaid office order. It further appears that in the meantime he applied for voluntary retirement which has taken effect on 30/9/2003 and he ceased to be in employment of the Government. However, contemplation of the Government for holding enquiry came to an end when actually charge sheet dated 30.7.2004 was issued to him. It further appears that in the meantime he applied for voluntary retirement which has taken effect on 30/9/2003 and he ceased to be in employment of the Government. However, contemplation of the Government for holding enquiry came to an end when actually charge sheet dated 30.7.2004 was issued to him. Therefore, it has to be seen whether the petitioner could have been proceeded against on the basis of enquiry which came into existence only on 30.7.2004. In this regard, we may refer to the decision of the Apex Court rendered in State of Haryana and others Vs. S.K. Singhal ( 1999) 3 UPLBEC-2246, paragraph no. 9,10,13 and 16 of which read thus : "9. The employment of Government servant is governed by Rules. These Rules provide a particular age as the age of superannuation . Nonetheless the rules confer a right on the Government to compulsorily retire an employee before the age of superannuation provided the employee has reached a particular age or has completed a particular number of years of qualifying service in case it is found that his service has not been found to be satisfactory. The Rules also provide that an employee who has completed the said number of years in his age or who has completed the prescribed number of years of qualifying service could give notice of (say) three months that he would voluntarily retire on the expiry of the said period of three months. Some Rules are couched in language which results in an automatic retirement of the employee upon expiry of the period specified in the employee's notice. On the other hand, certain Rules in some other departments are couched in language which makes it clear that even upon expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type of Rules continues after the period specified in the notice till such acceptance is communicated. Refusal of permission could also be communicated after three months and the employee continues to be in service. Cases like Dinesh Chandra Sangma Vs. State of Assam and others, 1977(4) SCC441, B.J. Shelat Vs. State of Gujarat and others, 1978(2) SCC 202 and Union of India and others Vs. Refusal of permission could also be communicated after three months and the employee continues to be in service. Cases like Dinesh Chandra Sangma Vs. State of Assam and others, 1977(4) SCC441, B.J. Shelat Vs. State of Gujarat and others, 1978(2) SCC 202 and Union of India and others Vs. Sayed Muzaffar Mir, 1995 Supp.(1) SCC 76, belong to the former category where is is held that upon expiry of the period, the voluntary retirement takes effect automatically as no order of refusal is passed within the notice period. On the other hand, HPMC Vs. Suman Behari Sharma, 1996(4) SCC584, belongs to the second category where the Bye laws were interpreted as not giving an option "to retire" but only provided a limited right to "seek" retirement thereby implying the need for a consent of the employer even if the period of the notice has elapsed. We shall refer to these two categories in some detail. 10. In Dinesh Chandra Sangma's case (supra), this Court was dealing with F.R. 56(c) as it stood then. The Court pointed out that FR 56(b) and FR 56(c) referred to rights respectively conferred on the State and on the employee. FR 56(b) conferred a right on Government to compulsorily retire an employee in public interest by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice after he attained 50 years of age or had completed 25 years of service, whichever was earlier. Correspondingly, FR 56(c) stated as follows : FR 56(C). Any Government servant may, by giving notice or not less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier." It was held by the three Judge Bench that it was clear that effect of FR 56(c) was statutory unlike in the case of contracts of employment requiring an express order of acceptance of the retirement notice. It was stated (P. 445): " There was no question of acceptance of the request for voluntary retirement by the Government when the Government Servant exercises his right under FR 56(c)." It was again stated (P. 447): " FR 56 is one of the statutory rules which binds the Government as well as tile Government Servant. It was stated (P. 445): " There was no question of acceptance of the request for voluntary retirement by the Government when the Government Servant exercises his right under FR 56(c)." It was again stated (P. 447): " FR 56 is one of the statutory rules which binds the Government as well as tile Government Servant. The condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a Government Servant to voluntarily retire with three months previous notice after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119." and at (PP.447-448 as follows): " The appellant has voluntarily retired by three months notice, not in accordance with an express or implied tend of his contract of employment, but in pursuance of a statutory rule." 13. Thus, from the aforesaid three decisions it is clear that if the right to voluntarily retirement is conferred in absolute terms as in Dinesh Chandra Sangma's case by the relevant Rules and there is no provision in Rules to withhold permission in certain contingencies, the voluntary retirement comes into effect automatically on the expiry of the period specified in the notice. If, however, as in B.J. Shelat's case and as in Sayed Muzaffar Mir's case the concerned authority is empowered withhold permission to retire of certain conditions exist, viz. In case the employee is under suspension or in case a departmental inquiry is pending or is contemplated, the mere pendency of the suspension or departmental enquiry or its contemplation, does not result in the notice for voluntary retirement not coming into effect on expiry of the period specified. What is further needed is that the concerned authority must pass a positive order withholding permission to retire and must also communicate the same to the employee as stated in B.J. Shelat's case and in Sayed Muzaffar Mir's case- before the expiry of his notice period . Consequently there is no requirement of an order of acceptance of the notice to be communicated to the employee nor can it be said that non communication of acceptance should be treated as amounting to withholding of permission. 16. In the case before us sub clause (1) of Rule 5.32(b) contemplates 'a notice to retire' and not a request seeking permission to retire. 16. In the case before us sub clause (1) of Rule 5.32(b) contemplates 'a notice to retire' and not a request seeking permission to retire. The further 'request' contemplated by sub section is only for seeking exemption from the five months period. The proviso to sub clause (2) makes a positive provision that 'where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in sub rule (1), the retirement shall become effective from the date of expiry of the said period. The case before us stands on a stronger footing than Dinesh Chandra Sangma's case so far as the employee is concerned. As already stated Rule 2.2 of Punjab Civil Service Regulation Vol. II only deals with a situation of withholding or withdrawing pension to a person who has already retired." 19 In Union of India and others Vs. Sayed Muzaffar Mir ( 1995) 1 UPLBEC-146), it has been held that an employee becomes entitled for voluntary retirement on expiry of three months notice period and order of removal passed after the period of three months, was non est. Discussing applicability of the Fundamental Rules, the Apex Court in paragraph no. 5 and 6 of this judgment, held thus : "5. The second aspect of the matter is that it has been held by a three Judges Bench of this Court in Dinesh Chandra Sangma Vs. State of Assam, 1977(4) SCC441, which has dealt with a pari materia provision finding place in Rule 56(c) of the Fundamental Rules, that where the Government servant seeks premature retirement the same does not require any acceptance and comes into effect on the completion of the notice period. This decision was followed by another three Judges Bench in B.J. Shelat Vs. State of Gujarat, 1978(2) SCC 202 , 6.The period of notice in the present case having expired on 21.10.1985 and the first order of removal having been passed on 4.11.1985, we hold that the Tribunal had rightly come to the conclusion that the order of removal was non ext in the eyes of law." 20. From the aforesaid discussion and law on the subject, it is clear that provision regarding voluntary retirement of government servant provided under Rule 56(c), Chapter IX of U.P. Fundamental Rules, envisages that a Govt. From the aforesaid discussion and law on the subject, it is clear that provision regarding voluntary retirement of government servant provided under Rule 56(c), Chapter IX of U.P. Fundamental Rules, envisages that a Govt. servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years or after he has completed qualifying service for twenty years. In the present case, claim of voluntary retirement of the petitioner was under rule 56(c), according to which the petitioner was eligible to apply for voluntary retirement with effect from 1.10.2003, hence there was no occasion for the State Government to have refused or to keep his application for voluntary retirement, pending. It is also apparent from record that petitioner was not informed about the order dated 5.6.2003 and there was overwhelming inter se correspondence between the departmental authorities stating therein that no enquiry was pending or contemplated against him; that his leave for 2.5.2003 was also regularised and payment of salary for that day made; that he was also not given any opportunity before appointment of the Inquiry Officer or submission of charge sheet dated 30.7.2004 to show that he was innocent. No material has been mentioned in the office order dated 5.6.2003 on the basis of which enquiry is said to have been contemplated against the petitioner. 21 Merely taking a decision as to whether enquiry is held or not against the petitioner and nominating Inquiry Officer, would not be sufficient until and unless contemplation comes to conclusion and is transformed into an enquiry by issuance of the charge sheet. Indication that Inquiry Officer has been nominated is different from appointment of the Inquiry Officer. Therefore, reading the two together the normal conclusion is that it is after appointment of the Inquiry Officer so nominated in a contemplated enquiry that enquiry can be said to be pending. 22. In the instant case, admittedly the charge sheet was issued on 30.7.2004 much after the notice for voluntary retirement had taken effect. Therefore, reading the two together the normal conclusion is that it is after appointment of the Inquiry Officer so nominated in a contemplated enquiry that enquiry can be said to be pending. 22. In the instant case, admittedly the charge sheet was issued on 30.7.2004 much after the notice for voluntary retirement had taken effect. The Inquiry Officer had also not been actually appointed before the voluntary retirement took effect and it is clearly established from inter se correspondence of the departmental authorities that no enquiry was pending against the petitioner and it was only in the stage of contemplation vide letter dated 5.6.2003 of which no information whatsoever was given to the petitioner coupled with the fact that the competent authority had not rejected voluntary retirement application of the petitioner by a positive act , it would be deemed to have been accepted as has been held in the decisions of the Apex Court referred to above. 23. For all the reasons stated above, the writ petition succeeds and is allowed. The order impugned dated 16.7.2007 appended as annexure no. 15 to the writ petition is quashed. The petitioner shall be deemed to have voluntarily retired on 30.9.2003 and shall be entitled to all retiral benefits in accordance with law. No order as to costs.