HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 A.F.R. Case :- WRIT - A No. - 2738 of 2011 Petitioner :- Dr. Tarun Rajput Respondent :- State Of U.P. And Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare Counsel for Respondent :- C. S. C. Hon'ble Sudhir Agarwal,J.
Hon'ble Brijesh Kumar Srivastava-II,J.
1. Heard learned counsels for parties and perused the record.
2. This writ petition is directed against the order dated 03.05.2010 whereby petitioner along with other officers working in Provincial Medical and Health Service Cadre (hereinafter referred to as "PHMS") has been terminated by exercising power under Article 311(2) and (3) of the Constitution of India on the ground that he has been continuously absent from service and for this reason, neither the medical services are being rendered to needy people, nor any other person can be appointed, nor even departmental enquiry is practicable since the petitioner is continuously absent and his whereabouts are not known.
3. Shri Ashok Khare, learned counsel appearing for petitioner submitted that the fact, that petitioner is continuously absent and his whereabouts were not known is factually incorrect, as the petitioner was working and discharging his duties at Community Health Center, Patiali, District Kanshiram Nagar, and when the impugned order of termination was communicated, Superintendent of the aforesaid Community Health Center actually relieved petitioner vide order dated 22.05.2010. He drew attention of this Court to para 9 and 10 of writ petition and stated that for short duration and from time to time, he had proceeded on leave which were duly sanctioned in due course of time. In any case when the impugned order was passed, he was actually discharging duties at Community Health Centre, Patiali, District Kanshiram Nagar. He further contended that though petitioner was actually discharging his duties in the aforesaid Community Health Centre, still in the impugned order, reason for his termination has been given that departmental enquiry is not practicable since whereabouts of the petitioner were not known, which is contrary to record and non est.
4. A counter affidavit is filed, sworn by one Dr. Sarvesh Kumar, Medical Superintendent, Kanshiram Nagar, wherein, it is stated that petitioner was continuously absent from duty from 15.01.2009 without any information or application, and in this regard a complaint was made by Chief Medical Officer, Kanshiram Nagar to Director (Admin.), Medical and Health Services, U.P., Lucknow vide letter dated 09.03.2009. Then in para 6 of the aforesaid counter affidavit, all the details of absence of petitioner are given, which reads as under:
"In reply thereto it is submitted that the petitioner was absent from duty from 2.6.2009 to 20.7.2009, 1.10.2009 to 4.10.2009, 9.10.2009 to 13.10.2009, 16.10.2009 to 18.12.2009, 25.12.2009 to 28.12.2009 and 3.1.2010 to 22.1.2010 without any intimation to the department. Even during the election period, he was not performing his duties in the election. In this regard an FIR was lodged against the petitioner at Police Station Kotwali, Katiyali, District Kanshiram Nagar." (Emphasis added.)
5. It is also stated that petitioner has never submitted any application for grant of leave, hence no question has arisen for sanction of leave on the ground of medical or marriage.
6. Be that as it may, the reply given by respondents in the counter affidavit, makes it very clear that after 22.01.2010 and onwards, petitioner is not absent. It proves the case of petitioner that he was discharging duties at Community Health Centre, Patiali, District Kanshiram Nagar. Moreover, period of absence of petitioner given in para 6 of the aforesaid counter affidavit shows that he was absent intermittently from 02.06.2009 till January, 2010, for a total 116 days:
Sl. No. Period No. of absence 1 June-July, 2009 19 days.
2October, 2009 25 days.
3November, 2009 30 days.
4December, 2009 22 days.
5January, 2010 20 days.
Total 116 days.
But after 22.01.2010, as per own version of respondents also, the petitioner came on duty.
7. Thus, it is clear that on 03.05.2010 and even much before thereto petitioner was actually discharging duties. Factually it cannot be said that petitioner was not working at all and his whereabouts were not known. It is a different case that petitioner was absent unauthorizedly and illegally for some times, and hence, appropriate enquiry could have been conducted under the Rules.
8. Another question is, whether Article 311(2) second proviso read with 3, was resorted validly in passing the impugned order.
9. Holding of departmental enquiry before dismissal or removal, is mandatory under Article 311(2). This case is sought to be covered by second proviso to Article 311(2) read with procedure prescribed under U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "Rules, 1999). A heavy onus lay upon respondent to show that from all the angle the case is covered by one of the grounds on which departmental enquiry may not be held or dispense with i.e. when it is not "reasonably practicable".
10. Article 311 (2)(b) was considered by a Constitution Bench in Union of India and another Vs. Tulsiram Patel (1985) 3 SCC 398, and the Court said:
"130. The condition precedent for the application of Clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by Clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by Clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation."
(Emphasis added.)
11. Again Court explained circumstances in which departmental enquiry can be dispensed with by resorting to Article 311(2)(b) in Jaswant Singh Vs. State of Punjab and Ors. (1991) 1 SCC 362. This decision has been followed very recently in Risal Singh Vs. State of Haryana and others AIR 2014 SC 2922. Therein following a sting operation by a Television channel in which appellant Police Officer was found indulged in an act of corruption, he was dismissed from service without any enquiry by resorting to Article 311 (2) second proviso (b). The Court held that before resorting to Article 311(2) second proviso (b), appropriate and valid reasons have to be recorded, as contemplated in the Constitution. Dispensation of departmental enquiry, a constitutional protection available to civil servant, cannot be taken away or denied on whims and caprices of appointing authority or the disciplinary authority.
12.In the case in hand, the only reason assigned is that petitioner is continuously absent and his whereabouts are not known. Both these facts are factually incorrect and non est. The petitioner was actually discharging his duties at Community Health Center, Patiali, District Kanshiram Nagar as per the own version of respondents, evident from para 6 of counter affidavit since, after 22.01.2010. There was no absence on the part of petitioner and he was in actual duty from 23.01.2010 till the date of termination.
13.Even impugned order of termination was served upon him while he was serving at the aforesaid center. In the circumstances, it cannot be said that departmental enquiry has been dispensed with validly and the constitutional protection available to petitioner has been done away in the manner permitted under Article 311(2) second proviso (b). In fact, the aforesaid provision is not at all attracted in the case in hand and without application of mind, the appointing authority has resorted to said power. In a wholly illegal and unconstitutional manner, it has terminated the petitioner. The correct way would have been to initiate a departmental enquiry against petitioner, serve a charge-sheet upon him for alleged unauthorized absence, if any, and thereafter to take appropriate action in the light of findings recorded by enquiry officer in a regular disciplinary proceeding held in accordance with Rules, 1999. Non compliance of aforesaid procedure of holding of departmental enquiry, and, instead, dispensation thereof in an illegal manner renders the impugned order wholly unconstitutional and void-ab-initio.
14. In the result, the writ petition is allowed. Impugned order of termination dated 03.05.2010, insofar as it relates to petitioner, is hereby quashed. Petitioner shall be entitled to all consequential benefits.
15. However, this order shall not be preclude the respondents from taking action against petitioner for any act of misconduct, including absence and misconduct, by taking action in accordance with law.
Order Date :- 3.7.2015 Mustaqeem.