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2019 DIGILAW 1516 (ALL)

Lakhan Singh v. State of U. P.

2019-05-31

SUNEET KUMAR

body2019
JUDGMENT : Suneet Kumar, J. 1. Heard Sri Anil Bhushan, Senior Counsel assisted by Sri Amit Srivastava, learned counsel for the petitioners and learned Standing Counsel for the State-respondents. 2. Petitioner came to be appointed Stenographer in 1982. By the instant writ petition, petitioner is assailing the order of termination dated 14 May 2007, passed by the fourth respondent, Executive Engineer, Minor Irrigation Division, District Firozabad. It is noted in the impugned order that petitioner vide order dated 18 November 2006, came to be attached to the office of Assistant Engineer, Mainpuri, and was relieved on 9 January 2007 for the place of posting/attachment. Petitioner neither reported at Mainpuri nor did he furnish any application for his absence. It appears that the petitioner was engaged in the electioneering of his wife who was contesting from Samta Party, consequently, the fourth respondent terminated the services of the petitioner. 3. Learned counsel for the petitioner makes two fold submission: (i) that the petitioner being a permanent Government employee could not have been terminated by order simpliciter; (ii) provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (Rules, 1999), was not followed; (iii) the principle of abandonment of service enshrined in Fundamental Rule 18 is not applicable in the instant case. 4. Learned Standing Counsel submits that (i) the petitioner abandoned his service, consequently, the service of the petitioner came to be terminated; (ii) the procedure under Rules 1999, was not required to be followed. 5. Rival submissions fall for consideration. 6. Facts, inter se, parties are not in dispute. 7. It is admitted by the respondents that the petitioner was permanent employee of the State Government and the provisions of Article 311 of the Constitution is applicable. The services of the petitioner came to be dispensed with by the impugned order for the reason that the petitioner had not reported at the place of posting/attachment at Mainpuri. Admittedly, the procedure prescribed under Rule 7 of Rules, 1999 was not followed while terminating the services of the petitioner. The services of the petitioner was terminated without framing the charges disclosing the imputation of the allegations against him. Rule 7 of Rules, 1999, reads thus: "7. Admittedly, the procedure prescribed under Rule 7 of Rules, 1999 was not followed while terminating the services of the petitioner. The services of the petitioner was terminated without framing the charges disclosing the imputation of the allegations against him. Rule 7 of Rules, 1999, reads thus: "7. Procedure for imposing major penalties.-Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner: (i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority: Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department. (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v) The charge-sheet, along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. (v) The charge-sheet, along with the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer. (vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission. (vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence: Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. (xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits: Provided that this rule shall not apply in following cases: (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules." 8. The Division Bench of this Court in Smt. Parmi Maurya v. State of U.P. and others, 2014(2) ADJ 633 (DB), held that the provisions of Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules 1999 is mandatory and it is obligatory for the employer to frame charge/conduct disciplinary enquiry by applying the principles of natural justice and prove the allegations, without adopting such procedure order passed terminating the delinquent employee is illegal. Paragraph 7 is as follows: "7. On these facts, the learned Single Judge, in our view, was clearly in error in arrogating to the Court the task of determining whether the certificate and mark sheets submitted by the appellant were genuine or otherwise. This, with respect, was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. This, with respect, was no part of the jurisdiction of the writ Court under Article 226 of the Constitution. When a substantive charge of misconduct is levied against an employee of the State, the misconduct has to be proved in the course of a disciplinary inquiry. This is not one of those cases where a departmental inquiry was dispensed with or that the ground for dispensing with such an inquiry was made out. The U.P. Government Servants (Discipline and Appeal) Rules, 1999 lays down a detailed procedure in Rule 7 for imposing a major penalty. Admittedly, no procedure of that kind was followed since no disciplinary inquiry was convened or held." 9. Rule 2(d) defines departmental enquiry and means "departmental inquiry" under Rule 7 of the rules. Rule 7 provides the procedure for imposing major penalty which states that before imposing major penalty an enquiry shall be held in the manner provided in the rule. Sub-rule (ii) provides the fact constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges. 10. The Supreme Court in Union of India v. K.V. Jankiraman, AIR 1991 SC 2010 , Union of India v. Anil Kumar Sarkar, 2013 (4) SCC 161 and State of Andhra Pradesh v. C.H. Gandhi, 2013 (5) SCC 111 , held that the enquiry commences from the date of issue of charge-sheet. Framing of the charge-sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. Service of charge-sheet on the Government servant follows decision to initiate disciplinary proceedings and it does not precede and coincide with that decision. (Vide Delhi Development Authority v. H.C. Khurana, 1993 (3) SCC 196 ). 11. The Supreme Court in Mathura Prasad v. Union of India and others, (2007) 1 SCC (L&S) 292, held that when an employee is sought to be deprived of his livelihood for alleged misconduct, the procedure laid down under the rules are required to be strictly complied with: "When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedure laid down under the sub-rules are required to be strictly followed: It is now well-settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in the manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact, for sufficient reasons may attract the principles of judicial review." 12. The Division Bench of this Court in Dr. Subhash Chandra Gupta v. State of UP. and others, 2012(1) ESC 279 (All)(DB), while dealing with the provision of rule 7 and 9 of the Rules, held that the procedure for imposition of major penalty is mandatory and where the statute provides to do a thing in a particular manner that thing has to be done in that manner. Paras 15 and 16 is as follows: "15. It is well-settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgment of the Apex Court in State of UP. and another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 , as well as by a Division bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541 . 16. A Division Bench decision of this Court in the case of Salahuddin Ansari v. State of UP. and others, 2008(3) ESC 1667 (All)(DB), held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceedings including the order of punishment has observed as under: "10. ......... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. and others, 2008(3) ESC 1667 (All)(DB), held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceedings including the order of punishment has observed as under: "10. ......... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma v. UP. Cooperative Spinning Mills and others, 2001(2) UPLBEC 1475 and Laturi Singh v. U.P Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005." 13. Applying the law, stated herein above, on the facts of the case at hand, it is admitted by the respondents that the petitioner was terminated directly without following the procedure as provided under rule 7 of the Rules. Enquiry against the petitioner was never contemplated nor charges was framed, major penalty of termination was imposed straight away which was not permissible under the Rules. 14. It is not a case of abandonment of service in terms of Fundamental Rule 18 as is being urged by the learned counsel for the respondents. Fundamental Rule 18 reads thus: "18. Unless the Government, in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, a Government servant ceases to be in Government employ." 15. It is settled law that a Government servant cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 16. Absence from duty in the beginning may be misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. 16. In Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, AIR 1961 SC 1567 , the Apex Court held: "........if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cast a break in continuity of service.....We would like to make it clear that.....there would be class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee." 17. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action of the employee and the employer has no role in it. 18. The discharge from service of an individual by way of punishment amounts to removal from service and the constitutional protection cannot be taken away in any manner without affording opportunity and show-cause to the incumbent. Even if it is a question of automatic termination of service for being continuously absent over a period of five years, Article 311 applies to such cases where the authority chooses to terminate the services of the employer. (Refer: Jai Shankar v. State of Rajasthan, AIR SC 492; Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409 and B.N. Tripathi v. State of U.P., AIR 1971 All 346 ) 19. In the facts of the case in hand, Fundamental Right 18 would not apply. It is not a case of unilateral abandonment of service. Petitioner admittedly came to be terminated for misconduct i.e. unauthorized absence without following the prescribed statutory procedure. The impugned order stands vitiated. 20. During the pendency of the writ petition, petitioner retired on 31 December 2016 on attaining the age of superannuation. It is informed by the respective counsels that the impugned order of termination came to be stayed by this Court on 20 November 2007. The impugned order stands vitiated. 20. During the pendency of the writ petition, petitioner retired on 31 December 2016 on attaining the age of superannuation. It is informed by the respective counsels that the impugned order of termination came to be stayed by this Court on 20 November 2007. Petitioner pursuant thereof, continued in service, however, has not been paid post retiral dues due to the pendency of the instant writ petition. 21. Having due regard to the facts and circumstances of the case, the impugned order dated 14 May 2007, passed by the fourth respondent is set aside and quashed. The writ petition is allowed. Petitioner is entitled to post retiral benefits, to be released by the fourth respondent within three months from the date of filing of certified copy of this order, failing which, petitioner shall be entitled to interest @ 7% on the entire amount from the due date. 22. No cost.