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2022 DIGILAW 623 (ALL)

Jugal Kishore Srivastava v. State of U. P.

2022-04-25

PRAKASH SINGH

body2022
JUDGMENT : Shree Prakash Singh, J. Heard Sri Nirankar Singh, learned counsel for the petitioner, Sri Kuldeep Singh, learned Standing Counsel for the State and perused the record. 2. By means of instant writ petition, a challenge has been made to the order dated 19.1.2007 passed by respondent No. 5 as well as the order dated 30th July, 1991 passed by the respondent No. 4. 3. Factual matrix of the case is that the petitioner, at the very inception, joined the services on 4th February, 1972 on the post of Panchayat Sevak and served best of the satisfaction of his superiors. On 15th June, 1990, the petitioner was posted at Vikas Khand-Masodha, and he was transferred and was relieved to serve at Sohawal Block, District Faizabad. After the transfer order was passed, the petitioner could not join at the transferred place as he was bed ridden and petitioner was suffering with the acute mental depression and other serious diseases, therefore, he could not approach to the authorities concerned but he had sent several applications as well as medical prescription/certificate issued by the medical officer to the department. 4. Allegedly the authorities of the department never communicated the petitioner that any departmental proceeding has been initiated against him for his alleged unauthorised absence and behind the back of the present petitioner, the aforesaid enquiry proceedings were completed and impugned order dated 30th July, 1991 was passed. 5. Further, it is also the case of the petitioner that the impugned order dated 30th July, 1991 never came into knowledge of the petitioner, prior to year 2001 as he was suffering with serious ailments and was bed ridden and as soon as order dated 30th July, 1991 came into knowledge of the petitioner, he immediately filed a case before the labour Court assailing the order dated 30th July 1991. The case before the labour Court was registered as Case No. 56 of 2001 (Jugal Kishore Srivastava v. Zila Panchayat Raj Adhikari, Faizabad). The petitioner kept on persuading the aforesaid case and ultimately the same was decided on 19.1.2007. In the aforesaid matter, the Distrtict Panchayat Raj Adhikari who was representing the department, filed objection/written statement by way of submitting reply/written statement and after the aforesaid reply, the labour Court decided the matter on 19.1.2007, wherein following findings have been recorded. The operative portion of the order are extracted as follows : 6. In the aforesaid matter, the Distrtict Panchayat Raj Adhikari who was representing the department, filed objection/written statement by way of submitting reply/written statement and after the aforesaid reply, the labour Court decided the matter on 19.1.2007, wherein following findings have been recorded. The operative portion of the order are extracted as follows : 6. By the aforesaid order, case filed before the labour Court was consigned to record, as on 17.1.2007, the petitioner himself filed an application stating therein that he had filed the aforesaid case on wrong advice as he being the Government employee cannot be entertained by the labour Court and as such the labour Court dropped the proceedings. 7. In the year, 2007, when the matter was ultimately closed before the labour Court then the petitioner filed this writ petition assailing the order of the labour Court as well as order dated 30th July 1991 passed by District Panchayat Raj Adhikari, Faizabad. 8. Learned counsel appearing for the petitioner submits that the petitioner was relieved from Amaniganj on 15.6.1990 though he was bed ridden due to acute mental depression with other ailments and therefore, he could not join at the place of his posting. Since, the petitioner was bed ridden upto the year 2001 due to his prolonged serious ailment and when he became physically fit, he sent an application and informed that due to illnesss, he was not able to join on the post. The reply which was submitted by the respondent department before the labour Court transpires that the services of the petitioner were terminated on 30.7.1991, though, no opportunity of hearing was accorded to the petitioner prior to passing of the order aforesaid. He next added that allegedly the departmental proceedings were initiated against the petitioner, and he was suspended though the same were never communicated to the petitioner and further the petitioner was never paid the subsistence allowance and thus, the termination order dated 30.7.1991 is void ab-initio. 9. Argument advanced by the learned counsel for the petitioner with respect to the procedure for imposing major penalty has been envisaged in Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as Rules,1999). In the aforesaid Rules, detailed procedure has been prescribed in the case of awarding major penalties. 9. Argument advanced by the learned counsel for the petitioner with respect to the procedure for imposing major penalty has been envisaged in Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as Rules,1999). In the aforesaid Rules, detailed procedure has been prescribed in the case of awarding major penalties. Since, the Enquiry Officer appointed under Rules, 1999 acts as a quasi judicial authority and therefore, the principle of natural justice must have to adhere. He also added that the procedure has also been provided under Rule 7(X) of the Rules, 1999, where the charged Government servant does not appear on the date fixed in the enquiry or at any stage of the proceeding inspite of the service of the notice on him. For ready reference, the provision of Rule 7(X) of the Rules, 1999 is extracted hereinunder : (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 havging 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.'' 10. Referring the aforesaid Rule, he submits that the controversy in the instant matter is that the delinquent employee did not appear before the Enquiry Officer and therefore, the Enquiry Officer has concluded the enquiry, but, the Enquiry Officer while proceeding with the alleged ex parte enquiry, did not act in accordance with the mandate of Rule 7(X) of Rules, 1999. 11. Further submission of learned counsel for the petitioner is that despite so many applications and medical prescriptions as well as medical certificates submitted before the departmental authorities, the petitioner was neither communicated that any departmental proceeding has been initiated or they are going to consider such applications and certificates. All the departmental proceedings have been done behind the back of the petitioner and the opportunity of hearing was not accorded to the petitioner and the departmental proceedings have been concluded dehorsing the Rules, 1999. All the departmental proceedings have been done behind the back of the petitioner and the opportunity of hearing was not accorded to the petitioner and the departmental proceedings have been concluded dehorsing the Rules, 1999. He added that violating the principles of natural justice as well as the provisions prescribed under Rules, 1999, the enquiry proceedings have been concluded and the major punishment has been awarded to the petitioner, which infringes the rights of the petitioner, guaranteed under Articles 14 and 16 as well as 311(2) of the Constitution of India. 12. Explaining the delay and laches, it has been submitted by the learned counsel for the petitioner that same are not deliberate and intentional or negligent act in filing the present writ petition, as the petitioner was bed ridden due to acute mental depression and other diseases, upto the year 2001 and thereafter, as soon as he became physically fit, he preferred a case before the Labour Commissioner, which was dismissed vide order dated 19.1.2007 and the reference too was dismissed on 23.5.2007. Since, the petitioner filed the aforesaid case on wrong advice and therefore, there was no deliberate delay or laches on the part of the petitioner. 13. He has further drawn attention of this Court that even assuming that the present petitioner has avoided to appear before the Enquiry Officer in the departmental proceedings, it was incumbent upon the Enquiry Officer to proceed with the enquiry proceedings as per the provisions emanates in Rule 7(X) of the Rules, 1999. But, so far as the present matter is concerned, the procedure with respect to ex parte enquiry has not been followed by the Enquiry Officer and directly, the order of termination has been passed. 14. He further submits that in fact the instant writ petition is maintainable before this Court even there is provision of filing an appeal before the State Government as since it is well-settled law that alternative remedy would not be an absolute bar where there is violation of principle of natural justice or the order under challenge is passed without jurisdiction and the present matter is the best example of gross violation of principle of natural justice as no opportunity of hearing accorded to the petitioner 15. Adding his arguments, he submits that the matter is pending consideration before this Court since year 2007 and after passing of more than fifteen years, no frutiful purpose would be subserved to remit it back to the state Government for opening the door of filing an appeal. 16. Placing the aforesaid argument, learned counsel for the petitioner has relied upon a judgment in Satwati Deswal v. State of Haryana and others, 2010(1) SCC 126 and referred the para 5, 6, 7, 8 and 9 which are extracted as follows; ''5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show-cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well-settled that a writ petition can be held to be maintainable even if an alternative remedy available to an aggrieved party where the Court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question. 6. The aforesaid exceptions recognized by this Court were taken note of by this Court in the case of A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and another ( AIR 1961 SC 1506 ), in which the Constitution Bench laid down the principles of the above exceptions when writ application could be entertained even if an alternative remedy was available to an aggrieved party. The same view was expressed by this Court in the case of L.K. Verma v. H.M.T. Ltd. and another ( AIR 2006 SC 975 ) and M.P.State Agro Industries Development Corporation and another v. Jahan Khan ( AIR 2007 SC 3153 ). 7. Such being the position and in view of the admitted fact in this case that before termination of the services of the appellant, no disciplinary proceeding was initiated nor any opportunity of hearing was given to the appellant. It is clear from the record that the order of termination was passed without initiating any disciplinary proceedings and without affording any opportunity of hearing to the appellant. It is clear from the record that the order of termination was passed without initiating any disciplinary proceedings and without affording any opportunity of hearing to the appellant. In that view of the matter, we are of the view that the writ petition was maintainable in law and the High Court was in error in holding that in view of availability of alternative remedy to challenge the order of termination, the writ petition was not maintainable in law. 8. Apart from that, on a cursory look of the statutory provision of the Constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of termination of service, an inquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an inquiry shall be proposed and opportunity must be given to the employee to submit a written statement stating therein whether he/she desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. On this count alone, therefore, the High Court was, in our view, in grave error in dismissing the writ petition of the writ petitioner. 9. Accordingly, the impugned judgment of the High Court is set aside and the order of termination passed against the appellant is quashed and the writ petition stands allowed. However, it would be open to the authorities, if so desire, to initiate disciplinary proceedings against the appellant for her termination from service and if such disciplinary proceedings are initiated, the authorities shall give proper opportunity of hearing and permit the parties to adduce evidence in support of their respective stands and after giving such opportunity, the disciplinary authorities thereafter shall give hearing to the appellant and then pass a final order on the question of termination of service of the appellant in compliance with the concerned statutory rules applicable to the appellant.'' 17. He has further placed reliance upon the case in Mafatlal Narandas Barot v. J.D. Rathod, AIR 996 SC 1364 and has referred para 12 of the abovesaid judgment, which is extracted as under; ''12. He has further placed reliance upon the case in Mafatlal Narandas Barot v. J.D. Rathod, AIR 996 SC 1364 and has referred para 12 of the abovesaid judgment, which is extracted as under; ''12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show-cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guild and establish his innocence with he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show-cause against the action proposed to be taken against him.'' 18. While referring the aforesaid judgments, he submits that in fact an employer is under obligation to conduct due enquiry, even if the delinquent employee has absented himself before the enquiry officer as there cannot be automatic removal from service, without following due process of law. 19. He also quoted the provisions of Rules, 1999 wherein, there is provision of ex parte enquiry and as such he submits that in fact even if the petitioner was not appearing before the enquiry officer, the enquiry officer was under obligation to conclude the enquiry, adhering the provisions of an ex parte enquiry, as provided under 'Rules, 1999', which has not been followed. Therefore, submission is that the writ petition may be allowed and the impugned orders dated 19.1.2007 and 30.7.1991, may be quashed. 20. Countering the aforesaid submissions, learned Standing Counsel appearing for the State has vehemently opposed the contentions aforesaid and submits that in fact the writ petition is not maintainable on the ground that the petitioner has efficacious and alternative remedy to file an appeal before the State Government. He further added that in fact so far as the assertion of the petitioner is concerned that he has given the applications annexing therein the medical prescription and medical certificate, regarding ailments that too was never received in the office of the department. He further added that in fact so far as the assertion of the petitioner is concerned that he has given the applications annexing therein the medical prescription and medical certificate, regarding ailments that too was never received in the office of the department. He also contended that in fact the show-cause notices were issued but the same was not responded and as such the enquiry proceeding was concluded and the disciplinary authority passed the order dated 30th July, 1991. 21. In support of his contentions, he has relied upon a case in Union of India and others v. Bishamber Das Dogra, (2009) 13 SCC 102 and has referred paragraph 30 and 31 of the judgment which are extracted as follows : ''30. In view of the above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that his past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record on the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require. 31. It is settled legal proposition that habitual absenteeism means gross violation of discipline [vide Burn & Co. Ltd. v. Workmen (AIR p. 530, para 5) and L&T Komatsu Ltd. v. N. Udayakumar (SCC p. 226, para 6).] 22. Having heard the learned counsel for the parties and after perusal of records, it reveals that the petitioner was said to be suffering with serious ailments and as such he could not sent application to the department alongwith medical certificate. Further the department started enquiry and show-cause notice was issued and there was past misconduct of the petitioner, as he absconded earlier in year 1980 and therefore, under impression that no fresh enquiry is required, after show-cause notice issued, therefore, the order dated 30th July, 1991 was passed. 23. Further the department started enquiry and show-cause notice was issued and there was past misconduct of the petitioner, as he absconded earlier in year 1980 and therefore, under impression that no fresh enquiry is required, after show-cause notice issued, therefore, the order dated 30th July, 1991 was passed. 23. The petitioner was in Government service, thus while having at a glance over the relevant provisions of U.P. Government (Discipline and Appeal) Rules, 1999 (hereinafter referred to as Rules, 1999), Rule 7 of the Rules, 1999, it emerges that where a charged Government servant does not appear on the date fixed, in the enquiry or any of the stage of the disciplinary proceedings (even having the knowledge of the date), despite the notice is served upon him or her, the Enquiry Officer, shall proceed with the ex parte enquiry, wherein the statements of the witnesses mentioned in the charge-sheet, shall also be recorded. 24. 'Rules 1999', clearly indicates, the exigency, where the delinquent/charged employee deliberately avoids to associate him with the enquiry, proceedings, it is open to the Enquiry Officer to proceed with ex parte enquiry, meaning thereby that even the delinquent employee does not respond either presenting himself or by way of responding through his reply, the Enquiry Officer is duty bound to proceed with the enquiry, ex parte and therefore, in all the eventualities, the enquiry proceedings will go to its logical end. In the present matter, it is apparent that the charged employee has neither filed any reply to the charges levelled against him vide the charge-sheet nor he ever appeared before the Enquiry Officer, even after service of notice and the date, time and place fixed by the Enquiry Officer. 25. Now the question cropped up that whether in case, an employee is unauthorizedly absent from duty, the ex parte departmental inquiry is required, even if there is misconduct of such employee in past also. Further, if the delinquent employee does not appear and respond in the enquiry, whether due enquiry is required in such events? 26. The procedure for conducting the disciplinary enquiry is envisaged in Rules, 1999, wherein it is mandated that in case, the charged Government servant does not appear on the date fixed in the enquiry or at any stage of the proceedings, inspite the service of notice, the Enquiry Officer is duty bound to proceed with the ex parte enquiry proceedings. 27. The procedure for conducting the disciplinary enquiry is envisaged in Rules, 1999, wherein it is mandated that in case, the charged Government servant does not appear on the date fixed in the enquiry or at any stage of the proceedings, inspite the service of notice, the Enquiry Officer is duty bound to proceed with the ex parte enquiry proceedings. 27. Law is settled as in the case of Tata Oil Mills Co. Ltd. v. Their Workmen, (1963)II LLJ. 78(SC), Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348 and Uma Shanker v. Registrar, 1992(65) FLR 674 (All) and it has categorically been held that even if the charged employee refuses to participate in the enquiry, the employer cannot straightaway dismiss him, but, he must hold an ex parte enquiry. 28. Again in the case of Subhash Chandra Sharma v. Managing Director, U.P. Co-operative Spininng Mills Federation Ltd., Kanpur and another, 2000(1) UPLBEC 541 , the Court has held as follows : ''In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice.'' 29. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice.'' 29. The aforesaid ratio of the Judgments are based on the principles of law that the initial burden is on the department to prove charges against the delinquent employee, where there are charges leading to major penalty and it is further borne out that the Enquiry Officer has to adduce evidence and to hold enquiry as well. 30. It is settled law that the inquiry officer discharges his duties as quasi-judicial officer and thus, his entity is different than his post or lien in the department and he has to search out the truth, being impartial and judicious. Since the major punishment awarded to an employee is profound impact therefore, the rules must be followed in strict manner and the principles of natural justice shall be taken care of. 31. Thus, admittedly, the Enquiry Officer did not proceed with the ex parte inquiry as it is alleged that the present petitioner deliberately did not appear before the Enquiry Officer and he did not file any response in the form of reply and therefore, charges are proved, therefore, the Enquiry Officer concluded the enquiry, ignoring the provisions envisaged under Rule 7(X) of Rules, 1999, which vitiates the enquiry proceedings. 32. Coming to the issue of alternative remedy, this Court has noticed that the matter is pending before this Court since the year 2007 and about more than 15 years have been passed and therefore, the alternative remedy would not come in the way to decide the matter finally by this Court while invoking jurisdiction under Article 226 of the Constitution of India. The question of maintainability on the ground of alternative remedy has been settled in the case of Durga Enterprises(P) Ltd. and another v. Principal Secretary, Government of U.P. and others, (2004) 13 SCC 665 , by the Apex Court while holding that in the writ petitions in which, the pleadings are complete, ought to have been decided on merits, instead of relegating the parties to the other alternative forums. The analogy behind the said ratio that the rule of alternative remedy is rule of convenience and the same should not be applied in a strict manner and particularly, in the cases, which are pending before the High Courts for a long period of time. The abovesaid ratio has again been reiterated by the Division Bench of this Court in the case in R.P. Pandey v. U.P. Power Corporation Ltd. and others, 2004(22) LCD 20. 33. So far as the delay in filing the writ petition is concerned, it is evident that petitioner has chosen wrong forum, though he has filed a case before the labour Court and State filed objection/written statement but never raised question of maintainability. It is the petitioner, who himself came forward and submitted an application and averred that since the petitioner is Government employee and as such, the jurisdiction of labour Court would not lie and as such labour Court dropped the proceeding and petitioner approached this Court by filing the instant writ petition, and as such, it is immaterial in the present case. 34. In view of the aforesaid submissions and discussions, this Court is of considered opinion that the enquiry proceedings vitiate in the eyes of law as the order dated 30.7.1991, assails illegality and infirmity. 35. Consequently, the impugned order dated 30.7.1991 is hereby quashed. Since, the delinquent employee has retired and therefore, no fruitful purpose would be sub-served to remit back the matter to proceed for a fresh enquiry, therefore, the respondent No. 4 is hereby directed to pay the dues including the pension considering the period of year 1991 to 2007. 36. It is made clear that department is not under obligation to pay back wages, under the settled proposition of law, namely of 'no work no pay.' 37. Consequently, the writ petition is partly allowed. 38. No order as to costs.