Dr.(Smt.) Sudha Singh vs State Of U.P.,Thru. Prin. Secy., ...
2013 Latest Caselaw 5877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Lucknow Bench Lucknow
 

 
***********
 

 
[RESERVED]
 
Reserved On:- 04.09.2013                              	      [ A.F.R. ]       
 
Circulated On:-17.09.2013       
 
Delivered On:- 18.09.2013       
 

 

 
Court No. - 25
 

 
Case :- SERVICE BENCH No. - 198 of 2011
 

 
Petitioner :- Dr.(Smt.) Sudha Singh
 
Respondent :- State Of U.P.,Thru. Prin. Secy., Medical & Health, & Anr.
 
Counsel for Petitioner :- Pankaj Nath,Arvind Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Mateen, J.

Hon'ble Devi Prasad Singh,J.

[Per Justice Devi Prasad Singh]

1. The petitioner, a member of Provincial Medical and Health Services, has preferred the instant writ petition feeling aggrieved with an order dated 3.5.2010 passed under Article 311 (2) read with Article 311 (3) of Constitution of India by the State Government dismissing her from service. The impugned order has been passed collectively against 42 Medical Officers with approval of the U.P. Public Service Commission. The petitioner's name stands at serial No.8 of the impugned order. The order reveals that the State Government took a decision to terminate services of 435 Medical Officers who are alleged to be absence from duty since long period and their whereabouts are not known to the department.

2. According to petitioner's counsel, while working in District Hospital Ballia, the petitioner suffered with fatal accident on 5.1.2008 and in consequence thereof, her right leg was nailed causing physical infirmity to some extent. On account of physical disability to discharge duty and personal problem, the petitioner submitted an application dated 6.10.2008 for voluntary retirement under Fundamental Rule 56 of Financial Hand Book. Three months notice was given opting voluntary retirement from 7.1.2009 (expiry of three months statutory period).

3. With intention to avail medical assistance, the petitioner undergone medical leave on 12.10.2008 and remained on leave upto 6.1.2009. Thereafter, joined duty on 7.1.2009 in afternoon.

4. On 7.1.2009 after lapse of statutory period of three months, under Fundamental Rule 56 of Financial Handbook, she relinquished her Office and informed the authorities concerned. It appears that respondents have not communicated their decision in response to notice dated 6.10.2008 with regard to voluntary retirement within stipulated period of three months. Hence she preferred Writ Petition No.138 (S/B) of 2009 in this Court with the prayer that her application for voluntary retirement should be considered and decision be taken thereon within specified period.

5. While filing counter affidavit in the aforesaid writ petition, State took a stand that a disciplinary proceeding is pending against the petitioner hence, no decision could have been taken under Fundamental Rule 56 of Financial Hand Book with regard to petitioner's voluntary retirement. After hearing parties counsel, the Division bench keeping in view the averments contained in the counter affidavit filed by the State Government, finally decided the writ petition (supra) by the judgment and order dated 21.10.2009 (Annexure No.1) directing the State Government to conclude disciplinary proceeding expeditiously preferably, within a period of four months and thereafter, take a decision on petitioner's application for voluntary retirement. According to petitioner's counsel, copy of judgment and order dated 21.10.2009 (supra) was served on State Government on 9.11.2009. The judgment and order dated 21.10.2009 (supra), is reproduced as under:-

"Hon'ble Devi Prasad Singh,J.

Hon'ble Anil Kumar,J.

Petitioner is a Medical Officer and had moved an application for voluntary retirement on 06.10.2008. Since no decision was taken by the respondents present writ petition has been preferred.

In counter affidavit, it is submitted by the learned counsel for the respondents that disciplinary inquiry is pending against the petitioner and charge-sheet was served in the month of February, 2009.

Keeping in view the facts and circumstances of the case, we direct the respondents to conclude the disciplinary proceeding, expeditiously and preferably, within a period of four months from the date of receipt of a certified copy of this order.

However, after conclusion of disciplinary proceeding, the respondents shall consider and take decision with regard to application for voluntary retirement in accordance with law.

Subject to above, writ petition is disposed of finally.

Order Date :- 21.10.2009 "

6. The investigating officer submitted report on 18.11.2008. In consequence thereof, a show cause notice along with a copy of the inquiry report was served on 3.12.2009. Vide, reply dated 15.1.2010, the petitioner denied finding recorded by the inquiry officer. After considering petitioner's reply, the Government took a decision to punish the petitioner with stoppage of two annual increments temporarily for the period of two years and by a letter dated 12.3.2010 (Annexure No.3 to the writ petition) sent its decision for approval to the U.P. Public Service Commission.

7. It appears that since U.P. Public Service Commission had not sent its approval within reasonable period the State Government sent reminder dated 7.4.2010 (Annexure No.4 to the writ petition) to the Secretary U.P. Public Service Commission to accord approval to the proposal sent to punish the petitioner on 12.3.2010. The U.P. Public Service Commission granted approval, vide its letter dated 26.7.2010 for imposition of punishment with regard to stoppage of two increments for a period of two years (Annexure No.6 to the writ petition). The approval granted by the U.P. Public Service Commission dated 26.7.2010 in its totality is reproduced as under:-

" स्पीड पोस्ट

"संख्या-472/84/एडीसी/एस-8/2009-2010

प्रेषक,

अमर नाथ उपाध्याय,

उप सचिव, लोक सेवा आयोग, उ० प्र०

इलाहाबाद।

सेवा में,

सचिव,

उत्तर प्रदेश शासन,

चिकित्सा अनुभाग-11,

लखनऊ ।

इलाहाबाद, दिनांक 26 जुलाई, 2010

विषयः- डा० सुधा सिंह, परामर्शदाता, जिला महिला चिकित्सालय, बलिया के विरुद्घ प्रस्तावित दण्ड के सम्बन्ध में।

---------

महोदय,

उपर्युक्त विषयक शासन के पत्र संख्या-655/पांच-11-2010-म (310)/2008, दिनांक 12-3-2010 के संदर्भ में मुझे यह कहने का निर्देश हुआ है कि मा० आयोग द्वारा प्रकरण पर सम्यक् विचारोपरान्त शासन द्वारा प्रस्तावित दण्ड पर इस संशोधन के साथ सहमति प्रदान की जाती है कि अपचारी अधिकारी को "दो वार्षिक वेतन वृद्घियां अस्थाई रूप से दो वर्ष के लिए रोकते हुए परिनिन्दा किये जाने" का दण्ड दिया जाना समीचीन होगा।

	2-     प्रकरण मे प्रेषित अभिलेख एतद्द्वारा संलग्न करके इस आशय से वापस किये जाते हैं कि उक्त परामर्शानुसार अपचारी अधिकारी को जारी दण्डादेश की प्रति मा० आयोग के अवलोकनार्थ अधोहस्ताक्षरी को उपलब्ध कराने का कष्ट करें।
 
                                                                                                      भवदीय,
 
                                                                                               
 
संलग्नः- यथोक्ति ।                                                                             अपठनीय
 
                                                                                             (अमर नाथ उपाध्याय)
 
                                                                                                     उप सचिव। "
 

8. It appears that irrespective of the approval granted by the U.P. Public Service Commission to punish the petitioner with stoppage of 2 increments, by the impugned office memo dated 3.5.2010, petitioner's services have been dismissed without disciplinary inquiry in pursuance of power conferred by Article 311 (2) (3) of the Constitution.

9. While filing counter affidavit, State has not disputed that the U.P. Public Service Commission had accorded approval to award punishment in the manner referred to hereinabove, on 26.7.2010 (para 6 of the counter affidavit). A defence has been set up by the State that opportunity to 42 Women Medical Officers was given to resume duty within ten days by publication in the news paper on 22.7.2009 but since they did not turn up, the impugned order was passed invoking Article 311 (3) of the Constitution. The ground set up in the counter affidavit is unauthorised absence from duty. For convenience, para 9 and 11 of the counter affidavit is reproduced as under:-

"9. That due opportunity has been afforded to her for resuming her services but she continued to remain absent from the duties unauthorisedly.

11. That the termination of the petitioner from her services is just and reasonable as she failed to join at her place of posting despite of the publication of notice on 22.7.2009 in various newspapers and continued to remain unauthorisedly absent from her duties and as a consequence of which her services have been terminated in accordance with law and there is no illegality or infirmity on part of the opposite parties in terminating the petitioner from service."

10. While filing counter affidavit, State Government has not denied with regard to inquiry report submitted by the inquiry officer, reply submitted by the petitioner in response to show cause notice and decision taken by the State Government to punish the petitioner with stoppage of two increment and approval accorded thereon by the U.P. Public Service Commission. It shall be appropriate to reproduce para 13 of the counter affidavit filed by the State Government which is as under:-

"13. Regarding Paragraph No.2 and 3:-

That in reply to the contents of these paragraphs, it is submitted that in compliance of the judgment and order dated 21.10.2009 passed by this Hon'ble Court in writ petition No.138 (S/B) of 2009, the decision of the disciplinary proceedings initiated against the petitioner was sent to the Public Service Commission for its approval. But as the petitioner remained absent from her duties unauthorisedly, therefore, her services came to an end vide office memorandum dated 3.5.2010 and now no question arises for giving voluntary retirement to the petitioner."

11. The counter affidavit has been filed on the basis of personal knowledge. The affidavit has been filed by Sri Sanjay Agarwal, Principal Secretary, Medical and Health Services. Since it has been sworn on the basis of personal knowledge, there appears to be no reason to disbelieve that the Principal Secretary was aware with regard to pendency of disciplinary proceeding and punishment proposed, approval granted by the U.P. Public Service Commission.

12. The Government itself sent its letter to U.P. Public Service Commission on 12.3.2010 for grant of approval to proposed punishment followed by reminder dated 7.4.2010. In such a situation, no man of common prudence will believe that the petitioner was unauthorisedly absent from duty and the Government was not aware with regard to pending disciplinary proceeding and the application moved by the petitioner for voluntary retirement. The factual position recorded in the impugned order dated 3.5.2010 while exercising power conferred by Article 311 (2) (3) of the Constitution at the face of record, seems to be not correct. The defence set up by the State that during the period when inquiry proceeding was going on, since the petitioner was absent from duty impugned order was passed, seems to be a cooked up case.

FUNDAMENTAL RULE--56

13. Even if by office memo dated 26.12.2008 disciplinary proceeding was initiated against the petitioner and she submitted application for voluntary retirement on 7.1.2009 in ignorance of disciplinary proceeding or for any reason whatever, it was incumbent on the State Government to inform the petitioner in pursuance of the statutory mandate contained in Rule 56 of the Financial Hand Book, which seems to have not been done. The relevant portion of Rule 56 of Financial Hand Book of Chapter IX is reproduced as under:-

"(c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time by notice to any Government servant (whether permanent or temporary), without assigning any reason, require him to retire after he attains the age of fifty years or such Government 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.

(d) The period of such notice shall be three months:

Provided that--

(i) any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith any any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement;

(ii) it shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice:

Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted:

Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority."

14. From the pleading on record, and argument advanced by the counsel, there appears to be no room of doubt that the State Government has not informed the petitioner in pursuance of statutory mandate required under the proviso (supra) that in view of disciplinary proceeding, the petitioner's application for voluntary retirement has not been accepted before the expiry of notice. The petitioner came to know with regard to disciplinary proceeding through counter affidavit filed in the writ petition.

15. In case a Government servant serves a notice under Rule 56 (supra) for voluntary retirement, it shall be incumbent on the Government to inform him in writing before the expiry of statutory period of three months in lieu of notice that the application has not been accepted for some reason including pendency of disciplinary proceeding.

16. In a case reported in 1978 (2) SCC 202 B.J. Shelat Vs. State of Gujrat & others, their lordships of Hon'ble Supreme Court held that permission to retire an employee may be withheld by the appointing authority either when the Government servant is under suspension or against him departmental proceeding are pending or contemplated. Their lordship further held that actual knowledge by the Government servant of an order of dismissal becomes necessary because of consequence which the decision in the State of Punjab Vs. Amar Singh Harhar contemplated but an order of suspension when once issued and sent out to the concerned Government servant must be held to have been communicated, no matter when he actually received it. Their lordships further held that it shall be incumbent on the State Government to communicate decision with regard to withholding of permission to retire, to quote relevant para-10 of the judgment in the case of B.J. Shelat (supra):-

"10. ... Under Fundamental Rule 56 (k) the Government servant is entitled to retire from service after he has attained the age of fifty-five years by giving notice of not less than three months in writing to the appropriate authority on attaining the age specified. But proviso (b) to sub-rule 56 (k) states that it is open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause. Thus under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso whereunder the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of Rule 161 (2) (ii) and the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso."

Their lordship further proceeded to observe as under:-

"11. ... In the view we have taken that the appointing authority has no jurisdiction to take disciplinary proceedings against a Government servant who had effectively retired, the question as LO whether the High Court was right in holding that the disciplinary authority had sufficient grounds for dismissing the appellant does not arise."

17. In the case reported in 1995 Supp (1) SCC 76: Union of India and others. Vs. Sayed Muzaffar Mir, their lordship has reiterated the aforesaid proposition and held as under:-

"4. There are two answers to this submission. The first is that both the provisions relied upon by the learned counsel would require, according to us, passing of appropriate order, when the government servant is under suspension (as was the respondent), either of withholding permission to retire or retaining of the incumbent in service. It is an admitted fact that no such order had been passed in the present case. So, despite the right given to the appropriate/competent authority in this regard, the same is of no avail in the present case as the right had not come to be exercised. We do not know the reason(s) thereof. May be, for some reason the authority concerned thought that it would be better to see off the respondent by allowing him to retire.

5. The second aspect of the matter is that it has been held by a three-Judge Bench of this Court in Dinesh Chandra Sangma v. State of Assam, 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- Judge Bench in B.J. Shelat v. State of Gujarat.

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 est in the eye of law."

18. Apart from the above cases, petitioner's counsel also relied upon the cases reported in [1999 (17) LCD 24] P.N. Srivastava Vs. State of U.P. and others, Judgment of this Court passed on 16.9.2999 in Writ Petition No.5 (S/B) of 2010: Luxmi Kant Shukla. Vs. State of U.P., to give strength to his argument that after stipulated period of four months, it was not open to respondents to proceed with the inquiry or pass impugned order.

19. However, the fact remains that the petitioner submitted his application for voluntary retirement on 6.10.2008. Though inquiry was pending and things were processed in the disciplinary proceeding but the Government has not communicated its decision with regard to withholding of voluntary retirement in pursuance of mandate of proviso of Fundamental Rule 56 (supra) hence, the impugned order dated 3.5.2010 seems to suffer from vice of arbitrariness and hit by Article 14 of the Constitution.

ARTICLE 311 (2) (3) OF THE CONSTITUTION

20. Article 311 of the Constitution of India imposes restriction on the dismissal, removal or reduction in rank of persons employed in civil capacities under the Union and State Government. It prohibits dismissal or removal by authority subordinate to that by which he was appointed. It also imposes restriction on dismissal or removal or reduction in rank except in pursuance of inquiry with due information of charges followed by reasonable opportunity of hearing with regard to charges. Under the proviso of clause (2), inquiry may be dispensed with in certain circumstances. For convenience, Article 311 of the Constitution, is reproduced as under:-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-

(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

21. State has exercised power conferred by Article 311 (2) (3) of the Constitution which empowers the State Government to dismiss a Government employee, if for some reason to be recorded by the authority in writing that it is not reasonably practicable to hold such inquiry or where the President or Governor as the case may be, is satisfied that in the interest of security of State, it is not expedient to hold such inquiry. The decision taken with regard to dispensing with the inquiry and satisfaction recorded thereon, shall be final in view of Article 311 (3).

22. The Legislature to their wisdom has used the word, "some reasons to be recorded" followed by word, "not reasonably practicable to hold inquiry." While interpreting the clause (b) of Article 311 (2) it seems that it shall be obligatory for the State to record satisfaction showing the reason followed by the conditions under which it is not reasonably practicable to hold such inquiry. In case either of these twin conditions are not fulfilled, such order shall be bad in law and unconstitutional.

23. The expression, "reasonable", is a relative term and while considering reasonability of an order or State action, the facts of particular controversy, must be considered. The very life of law is the reason and the law ceases when reason lacks. Reason is foundation of all our laws. Reason is the heartbeat of every conclusion and without it, the same becomes lifeless, vide (2003) 11 SCC 519: Raj Kishore Jhan . Vs. State of Bihar; (2004) 5 SCC 568: State of Orissa. Vs. Dhani Ram Luhar.

24 The word, "reason", in expression would mean to cause or justification of passing of order vide, (2008) 14 SCC 208: Assistant Commissioner of Income Tax Vs. Jhaveri Stock Brokers Pvt. Ltd.

The word, "reason", signifies, "in accordance with reasons" in the ultimate analysis, it is question of fact, whether a particular act is reasonable or not, depends on a circumstances in a given situation. Vide (1962) 3 SCR 49 the Corporation of Calcutta Vs. Smt. Padma Devi and others, (2003) 6 SCC 315 Municipal Corporation of Greater Mumbai. Vs. Kamla Mills Ltd.

25. The word, "reasonable", as in law, the prima facie meaning of reasonable in regard to those circumstances of which the actor is called to act reasonably, knows or ought to know, AIR 1987 SC 2316 Delhi Municipal Corporation Vs. Jagannath. Vs. Ashok Kumar; AIR 1989 SC 973 Gujarat Water Supply and Sewerage Board. Vs. Unique Eractors (Gujarat) Pvt. Ltd.

26. Hon'ble Supreme Court of India, in(2003) 4 SCC 488 Collector Vs. P. Mangamma and others, observed that it would be hard to give exact definition of word, "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and circumstances in which he thinks but frequently reasonableness belongs to the knowledge of law and signifies the reason.

The principle has been followed in (2007) 7 SCC 798 Union of India Vs. Shiv Shanker Kesari.

27. In 1985 (3) SCC 398 UOI Vs. Tulsiram Patel, the Constitution bench of Hon'ble Supreme Court held that 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 of the Constitution. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable".

Their lordships held that in case Court finds that reasons are irrelevant, then the recording of satisfaction by the disciplinary authority or the Government would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order penalty would stand invalidate. Hon'ble Supreme Court further held that in order to decide the reason germane within clause (b), the Court must put itself in the place of the disciplinary authority and consider what in the then prevailing situation a reasonable man acting in a reasonable manner would have done. The matter should be just in the light of then prevailing situation and not as if disciplinary authority taking a decision in a cool and detached atmosphere of Court room removed in time from the situation in question.

28. In AIR 986 SC 555 Satyavir Singh and others. Vs. Union of India and others, the order of dismissal of employee under Article 311 (2) was held to be valid where power was exercised in a situation where because of violence and indiscipline and insubordination prevailed, inquiry was reasonably not possible. The factual matrix of the case of Satyavir Singh (supra) seems to be entirely different than the present one.

29. In AIR 1996 SC 3152 Chandigarh Administration Union Territory, Chandigarh and others. Vs. Ajay Manchanda, etc., their lordships upheld the power exercised under Article 311 (2) (a) and witnesses were terrorised by giving threats by the delinquent that they have expressed their involvement to pursue the matter in a Court of law or in any inquiry against them.

In the present case, inquiry was concluded and punishment was approved by the Public Service Commission hence there appears to be no good ground to affirm the impugned order.

30. Aforesaid proposition of law has been reiterated in AIR 2003 SC 1843 Indian Railway Construction Co. Ltd., Vs. Ajay Kumar, Hon'ble Supreme Court reiterated the ratio emerges from the case of Tulsi Ram Patel (supra) but held that in such a situation, authority should be directed to hold an inquiry, to quote para 24 and 25 as under:-

"24. The approach of the High Court, therefore, was not proper. But at the same time, the reasons which weighed with the disciplinary authority to dispense with enquiry equally do not appear to be proper.

25. Normally in such cases the proper course would be to direct authorities to hold an enquiry, if they so desire. But two significant factors need to be considered. One is long passage of time and the other alleged loss of confidence."

31. In a case reported in (1991) 1 SCC 362 Jaswant Singh. Vs. State of Punjab and others, Hon'ble Supreme Court held that clause (b) of Article 311 (2) of the Constitution can be invoked only when the authority satisfies from the material placed before him that it is not reasonably practicable to hold departmental inquiry. The disciplinary authority is not expected to dispense with the inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department's case against the Government servant is weak and must fail.

32. In (2008) 2 SCC (L&S) 140: Tarsem Singh. Vs. State of Punjab and others, Hon'ble Supreme Court held that subjective satisfaction of authority while recording finding with regard to reasonable practicability of inquiry proceeding, based on objective criteria, is must. The reason for denial of inquiry must be supported by document and other related material.

33. In (1992) 1 SCC 729: Chief Security Officer. Vs. Singasan Rabi Das, Hon'ble Supreme Court ruled that in absence of sufficient material or good ground, the dispensation of inquiry cannot be adopted under Article 311 (2) of the Constitution.

34. In (2008) 2 SCC (L&S) 135: Prithi Pal Singh. Vs. State of Punjab, Hon'ble Supreme Court held that holding of departmental proceeding is the Rule. Existence of such an exceptional situation must be shown to exist on the basis of relevant materials, to quote relevant portion of para 9 as under:-

"9. Holding of a departmental proceeding is the rule. The second proviso appended to Article 311 (2) of the Constitution of India provides for an exception. It is a trite law that existence of such an exceptional situation must be shown to exist on the basis of relevant materials. In this case, even such a question did not arise as a departmental proceeding had been held and the appellant was not found guilty therein. Once he was exonerated of the charges, the question of issuing an order of dismissal against him and that too, upon dispensation of a formal inquiry, did not arise. The judgment of the High Court as also of the first appellate court are set aside and that of the trial court is restored. In the peculiar facts and circumstances of the case the appellant shall be entitled to the costs, which is quantified at Rs.10,000."

35. A Full Bench judgment of this Court in the case reported in SLR 1981 (2) 451: Maksudan Pathak Vs. The Security Officer Eastern Railways Mughalsarai, followed by a Division bench judgment in a case reported in [2011 (29) LCD 2667]: State of U.P. Vs. State Public Services Tribunal and others, held that inquiry may be dispensed with only in case it is reasonably not practicable.

36. A Division Bench of Allahabad High Court at Lucknow Bench in a case reported in (2008) (26) LCD 93: Motilal Vs. State of U.P. and others, after considering catena of justments of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, while interpreting Rule 8 (2) (b) (a pari materia provision) of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991, held as under:

" 12. It has been settled by the catena of decisions of judgments of Hon'ble Supreme Court that denial of opportunity provided by the statute or non-compliance of statutory provisions falls in the category of exception. Ordinarily, the authority should adopt the recourse of departmental proceedings in accordance with Rules before awarding major penalty. The order for dismissal from service which takes away the right of livelihood of an employee should be passed only with due compliance of principles of natural justice and the service rules. The provisions contained in rule 8 (2) (b) of the rules, is an exception to the general rule which requires compliance of principles of natural justice. The recourse of Rule 8 (2) (b) of the Rules, should be adopted only in exceptional cases and justified grounds where the departmental inquiry against the delinquent is not possible or in case departmental inquiry his held, it shall affect the national integrity, security or alike matters. "

37. From the factual matrix on record and proposition of law discussed hereinabove, there appears to be flagrant violation of law by the State Government and its authorities while passing the impugned order. Inquiry has been dispensed with adopting the recourse of Article 311 (2) (b) of Constitution. In a situation when already inquiry was held and punishment with regard to stoppage of two annual increments for the period of two years, was approved by the U.P. State Public Services Commission, then only final order should have been passed and communicated by the State Government. In such a situation, the impugned order to the extent it relates to the petitioner, seems to be an instance of non-application of mind and abuse of process of law. The Principal Secretary filed counter affidavit with personal knowledge. While passing the impugned order, he was not aware with the circumstances that inquiry against the petitioner has already been concluded, shall not be believed by a man of common prudence.

Only option open to State Government was to award punishment in pursuance of approval granted by the U.P. Public Service Commission with regard to stoppage of two increments and thereafter, a decision should have been taken with regard to voluntary retirement in pursuance of judgment and order dated 21.10.2009 passed in Writ Petition No.138 (S/B) of 2009 (supra).

38. State and its authorities have not only blatantly abused their power conferred by Article 311 (2) (b) but also flagrantly violated the judgment and order dated 21.10.2009. Either it is an intentional and deliberate act of the State to persecute the petitioner for some unforeseen reason or the State Government does not intend to follow the law on the point. It is a fit case where exemplary cost be imposed in view of case reported in (2005) 6 Supreme Court Cases 344, Salem Advocate Bar Association (II), Vs. Union of India.

39. In view of the above, the writ petition is allowed with cost. A writ in the nature of certiorari is issued quashing the impugned order dated 3.5.2010 contained in Annexure No.5 to the writ petition to the extent it relates to the petitioner, with all consequential benefits. A writ in the nature of mandamus is issued commanding the respondents to take decision on petitioner's application with regard to voluntary retirement in accordance with Rules expeditiously say, within two months in compliance of judgment and order dated 21.10.2009 passed in Writ Petition No.138 (S/B) of 2009 and communicate the same to the petitioner. State may also pass order of punishment in pursuance to sanction granted by the U.P. Public Service Commission (supra).

The cost is quantified to Rs.1,00,000.00 (one lakh) out of which, the petitioner shall be entitled to withdraw an amount of Rs.50,000/- and rest amount of Rs.50,000/- shall be remitted to the Mediation and Conciliation Centre, High Court, Lucknow Bench, Lucknow. Let the cost be deposited within two months. In case not deposited, it shall be recovered as arrears of land revenue. Registry to take follow up action.

                          [Justice Devi Prasad Singh]     [Justice Abdul Mateen]  
 
Order Date :- 18.09.2013
 
Rajneesh DR-PS)