Nagar Nigam,Kanpur Nagar,Thru ... vs State Of U.P. And Others
2013 Latest Caselaw 7124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 21
 

 

 
Case :- WRIT - A No. - 40644 of 2011
 

 
Petitioner :- Nagar Nigam,Kanpur Nagar,Thru Mukhya Nagar Adhikari &Others
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Krishna Agrawal
 
Counsel for Respondent :- C.S.C.,Kshitish Pandey,Vikas Budhwar
 

 
Hon'ble Rakesh Tiwari, J
 
Hon'ble Bharat Bhushan,J.

(per Hon. Bharat Bhushan, J.)

1. Petitioners by means of this writ petition seek quashing of the order dated 1.4.2011 passed by State Public Services Tribunal, Lucknow (in short Tribunal'), whereby the punishment order of dismissal of Dr.(Smt) Brijbala Tiwari, respondent no. 2 dated 7.2.1997 was set aside with all consequential service benefits except back wages.

2. The facts necessary for adjudication of this writ petition are that Dr. (Smt) Brijbala Tiwari was initially appointed on 9.5.1973 as Medical Officer, Grade II, Allopathy by Nagar Mukhya Adhikari, Nagar Nigam, Kanpur Nagar (petitioner no. 2) on temporary basis for six weeks. Her appointment was subject to approval of the State Government or till appointment of a regularly selected candidate on the said post.

3. Dr. (Smt) Brijbala Tiwari, respondent no. 2 joined her services on 16.5.1973 which was extended by the State Government (respondent no. 1) from time to time till further orders or until such time the regularly selected candidate appointed through selection made in accordance with the rules joined the post. Later on, Director, Local Bodies, UP regularised her services along with other candidates vide order dated 13.1.1987 (Annexure No. 2 to the writ petition) whereupon she was transferred from Maternity Centre Krishna Nagar to Male and Female Dispensary, Bansmandi, Kanpur Nagar vide order dated 9.11.1989 by Nagar Swasthya Adhikari (Chikitsa) Nagar Nigam, Kanpur. It is averred that inspite of service of transfer order, Dr. (Smt) Brijbala Tiwari failed to handover the charge and join at her transferred place of posting as such Nagar Swasthya Adhikari (Chikitsa)/petitioner no. 3 sought explanation from her on 17.1.1990.

4. Respondent no. 2 appears to have handed over the charge of Maternity Centre, Krishna Nagar on 1.3.1990 but did not join at her transferred place of posting. Ultimately the State Government suspended her on 27.6.1991 and a charge sheet was served upon her on 28.6.1991. Respondent no. 2 denied all the charges by means of her reply dated 12.9.1991 and enquiry was concluded after giving due opportunity of hearing to her. Respondent no. 1, thereafter, issued a show cause notice along with copy of the enquiry report on 25.5.1996 to the delinquent employee/respondent no. 2. She filed her reply on 7.3.1996 and she also availed opportunity of personal hearing afforded to her by respondent no. 1 on 22.10.1996. Thereafter, her services were terminated by respondent no. 1 vide order dated 7.2.1997. After invoking the jurisdiction of Lucknow Bench of this Court as well as the Apex Court, respondent no. 2 preferred Claim Petition No. 1463 of 2009 before the Tribunal, Lucknow, which vide its order dated 1.4.2011/corrected order dated 21.4.2011 set aside the order of termination of respondent no. 2 granting her all consequential service benefits excepts back wages.

5. Aggrieved by the order dated 1.4.2011, passed by Tribunal, present writ petition has been filed by the petitioners interalia on the ground that requirement of consultation with the Uttar Pradesh Public Service Commission (hereinafter referred as Commission), before passing the termination order is not mandatory and in any case since the initial appointment of respondent no. 2 and its subsequent regularisation was not done with the prior approval of the Commission hence there would be no illegality even if the Commission was not consulted prior to her dismissal from service.

6. Respondent no. 2 filed her counter affidavit stating therein that the impugned judgement and order of learned Tribunal is valid and justified and the same does not warrant any interference by this Court.

7. Petitioners have filed the rejoinder affidavit primarily reiterating the contention of the writ petition stating that the instant writ petition has been filed with due consent and approval of the State Government and as the employment and disbursement of service benefits are the sole domain and responsibility of the State Government, therefore, the writ petition is maintainable at the instance of the petitioner. However, the State Government has also been arrayed as respondent no. 1 in the writ petition to avoid any legal complications.

8. Refuting the allegations of petitioners, learned counsel for the respondents submitted that pursuant to her transfer to the Male and Female Dispensary, Bansmandi, Kanpur Nagar she tried many times to join at the new transferred place of posting at Bansmandi dispensary but she was not permitted to join by the Medical Officer there on the pretext that the copy of her transfer order had not been marked to him till then and that Medical Officer did not permit her to join at maternity centre from where she has been relieved.

9. It is further averred in the counter that express rule contained in Uttar Pradesh Palika (Centralised) Services Rules 1966 with 13th Amendment Rules 1987 requires prior consultation with Commission before passing the dismissal order claiming that once the Statute provides a thing to be done in a particular manner then it has to be done in that particular manner and not otherwise and therefore failure to comply with that provision makes the termination order vitiated in the eyes of law.

10. Petitioners have reiterated that failure of respondent no. 2 to join the Male and Female dispensary, Bansmandi, Kanpur Nagar was contrary to the rules of service and therefore, enquiry and consequent punishment are legal and justified in law.

11. Heard Sri Krishna Agarwal, learned counsel for the petitioners, Mr Vikas Budhwar, learned counsel for the respondent no. 2 and learned Standing Counsel for the respondent no. 1 and have also perused the material on record.

12. It appears that the Tribunal had set aside the punishment order on two grounds. Firstly, it held that the impugned order of termination was passed without discussing the points raised by the respondent no. 2 in her explanation to the charge sheet and the reply to the show cause notice despite the fact that she had submitted her detailed explanation on 12.2.1991. The Tribunal further held that the punishing authority also failed to take cognizance of the reasons advanced by her for not joining at transferred place.

13. A perusal of her explanation shows that respondent no. 2 had furnished two explanations (I) on service of charge sheet; and (ii) in reply to the show cause notice. Both of them were taken into account by the punishing authority in passing the final order (Annexure No. 13 to the writ petition). The punishing authority considered each submission of Dr. (Smt) Brijbala Tiwari and thereafter dealt separately in a reasonable and logical manner in the impugned order repelling her explanations by cogent reasons.

14. Secondly, the Tribunal held that no prior consultation was held with Commission before passing the impugned order of termination. Petitioners have raised two arguments to counter the reasoning given by the Tribunal.

15. Learned Counsel for the petitioners has stated that the initial appointment and thereafter regularisation of respondent no. 2 was not done with prior consultation of Commission. Therefore, her dismissal from service requires no prior consultation with the Commission. He further submits that requirement of prior consultation with the Commission is not mandatory.

16. Learned counsel for the petitioners submits that provision of Article 320 (3) (C) of the Constitution has been held by Apex Court as directory and not mandatory. Therefore, if it is maintained that prior consultation with the Commission was required even then non consultation with the Commission would not make the dismissal order invalid. In this regard, petitioners have placed reliance on the decisions of Apex Court in Union of India and another Vs T. V. Patel, (2007) 4 SCC 785; State of UP VS Manbodhan Lal Srivastava, AIR 1957 SC 912 (V 44 C 136 Dec) and State of Andhra Pradesh and another Vs Dr. Rahimuddin Kamal, AIR 1997 SC 947.

17. The provision of prior consultation with the Commission either by Union or State as the case may be is enshrined under Article 320 (3)(c) of the Constitution of India. This constitutional provision was discussed threadbare in 'Manbodhan Lal Srivastava' judgement (supra) wherein the Apex Court held that prior consultation with the Commission is merely directory and not mandatory in nature. While holding that the aforesaid constitutional provision is directory, it was also held that the President or the Governor, as the case may be, is authorised to make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for Commission to be consulted. While discussing the aforesaid provision, Apex Court held thus:-

"Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for, in order, first, to give an assurance to the Services that a wholly independent body, not directly concerned with the making of orders adversely affecting public servants, has considered the action proposed to be taken against a particular public servant, with an open mind; and, secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale of public services.

It is, therefore, incumbent upon the Executive Government, when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation."

18. Bare perusal of the aforesaid conclusion of the Apex Court would shows that while on one hand provisions of Article 320 (3) (c) of the Constitution are not mandatory in nature. But once the specific regulations have been framed, they are meant to be followed in letter and spirit. Executive authority cannot claim that we have made the rules but we will not follow them in any specific case. This conclusion of the Apex Court has never been disturbed either in 'T.V. Patel' (supra) or in 'Dr. Rahimuddin Kamal' (supra).

19. As far as the decision of Dr. Rahimuddin Kamal (supra) is concerned, it cannot be used for the benefit of petitioner on another count as well. Rule 4(2) of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules provides prior consultation with the Vigilance department in certain cases. For the sake of convenience, Rule 4 of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules is quoted as under:-

"(1) In every case referred to in sub-rule (1) or (2) of rule 3, on completion of investigation, the anti corruption department or other departmental authority concerned shall submit a report of the case to the Government.

(2) The Government shall after examining such records and after consulting the Heads of Department concerned, if necessary, decide whether the case shall be tried in a court of law of inquired into by the Tribunal or departmental authority. But before taking a decision, the Government shall consult the Andhra Pradesh Vigilance Commission."

20. A close examination of aforesaid rule clearly discloses that it had nothing to do with prior consultation with the Public Service Commission. Status of Public Service Commission is entirely different. It is a creation of Indian Constitution while the Andhra Pradesh Vigilance Commission for which the consultation is required under the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Rules is a creation of statutory provision. In any case, the word 'shall' appearing in clause (1) of Rule 4 aforesaid was held to be directory.

21. The case in hand is admittedly governed by the U.P. Palika (Centralised) Services Rules 1966 which was amended from time to time and vide notification dated 1.6.1987 13th amendment rules have been promulgated. Proviso of Rule 37 provides as under:-

Rule 37 Disciplinary Proceedings:- (1) Subject to such modifications as the Government may make from time to time, and subject to the provisions of sub-rules (3) and (4), the same rules regarding disciplinary proceedings, appeals and representation against punishment, as are applicable to the employees of the Mahapalika under UP Nagar mahapalika Seva Niyamavali, 1962, shall apply to the officers of the Centralised Services.

(2) The authority competent to impose the punishment of dismissal or removal from service or reduction in rank on the officers of the Centralised Services shall be the State Government. As regards other punishments, the President of the Municipal Board or the Mukhya Nagar Adhikari of the Mahapalika, as the case may be, shall be the competent authority:

Provided that it shall be necessary to consult the Commission before passing an order for the dismissal or removal from service or reduction in rank on respect of any such officer.

(3) In cases requiring immediate suspension of an officer of the Centralised Services, the power of suspending such an officer shall be exercised by such authority as may be specified in this behalf by the Government; and in other cases requiring suspension of an officer, reference shall be made to the Government.

(4) In case where the disciplinary proceedings against an officer have been started by the President or Mukhya Nagar Adhikari in accordance with the provisions of sub-rule(2) above; and after the completion of enquiry he comes to a provisional conclusion that a penalty of dismissal or removal from service or reduction in rank is required, he shall refer the case along with his findings and recommendations to the Government for final orders.

22. The aforesaid rules entails prior consultation with the Commission before passing dismissal, removal or reduction in rank order. The word 'Shall' has been re-eninforce by using the word 'necessary'. It is apparent that the service rules applicable within the department contemplate prior consultation with the Commission. Admittedly, such prior consultation was not held in the instant case. Therefore, we hold that the aforesaid rule was violated in passing the impugned punishment order.

23. We also do not approve the arguments of learned counsel for the petitioners that the consultation in the case of respondent no. 2 was not required as her initial appointment was not done with the prior consultation with the Commission. One can have different manner and source of recruitment. Once candidates are recruited in a particular department and their services are regularised then they become part of single cadre. One cannot say that services of different persons of same cadre recruited in different manner will be governed by different rules specifically in absence of specific provision in the rules. There are no separate rules for the employees who were initially recruited in adhoc or temporary manner and later their services were regularised. The same departmental rules would apply to all employees of the department after they become part of service. The U.P. Palika (Centralised) Services Rules 1966 also do not contemplate any discrimination between the regular employees of the department recruited from different sources or in a different manner. Thus, it is apparent that once services of respondent no. 2 Dr. (Smt) Brijbala Tiwari were regularised same shall be governed by same set of U.P. Palika (Centralised) Service Rules 1966, which are applicable to other employees of the department.

24. It is admitted case of both the parties that the rule of prior consultation with the Commission was not observed before passing the impugned order of termination. Therefore, we believe that the reasoning given by the Tribunal is justified and cannot be disturbed.

25. In view of above, the writ petition is liable to be dismissed and is hereby dismissed. Costs made easy.

Order Date :- 26.11.2013

RavindraKSingh