Dr. Mukesh Kumar vs State Of U.P. And 5 Ors.
2015 Latest Caselaw 1670 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 20.07.2015
 
Delivered on 07.08.2015
 
Court No. - 34 
 
Case :- WRIT - A No. - 34285 of 2015 
 
Petitioner :- Dr. Mukesh Kumar 
 
Respondent :- State Of U.P. And 5 Ors. 
 
Counsel for Petitioner :- Satish Chandra 'Kashish' 
 
Counsel for Respondent :- C.S.C.,Deepak Seth,Rajnish Kumar 
 

 
Hon'ble Sudhir Agarwal,J. 

Hon'ble Mrs. Ranjana Pandya,J.

(Delivered by Hon'ble Sudhir Agarwal, J)

1. Heard learned counsel 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 medical services are being rendered to needy people, nor any other person can be appointed, nor even departmental inquiry is practicable since petitioner is continuously absent and his whereabouts are not known.

3. Facts in brief, as borne out from record are that the petitioner was selected for U.P. Provincial Medical and Health Services Cadre by U.P. Public Services Commission and vide appointment letter dated 30.04.1994, appointed as "Medical Officer" in the pay scale of Rs. 2200-4000/-. Initially, he was posted under Chief Medical Officer, Mathura, where he joined on 09.06.1994. Therefrom, he was transferred to Hathras (now named as "Mahamaya Nagar") in the year 2000 and then to Etah on 04.08.2004. Vide order dated 10.05.2008, petitioner was again transferred under Chief Medical Officer, Kanshiram Nagar (hereinafter referred to as the "CMO, Kanshiram Nagar).

4. In district Kanshiram Nagar, petitioner was posted as Medical Officer, New Primary Health Centre, Beerpurkala, Amapur. He submitted an application dated 16.12.2008 to the Officer Incharge, Medical Officer, Primary Health Centre, Amapur, Kanshiram Nagar (hereinafter referred to as "I/C, M.O., PHC, Amapur") seeking casual leave for 17.12.2008 and 18.12.2008. Again he sought leave on the ground of pain in backbone for a period of four weeks vide application dated 17.12.2008. Thereafter he remained continuously absent though it is claimed that he regularly submitted leave applications on medical grounds. The applications submitted for medical leave were rejected by CMO, Kanshiram Nagar vide orders dated 22.12.2008 and 21.1.2009 but petitioner remained continuously absent and continued to send applications seeking leave on medical grounds. Ultimately, impugned order dated 03.05.2010 was passed, terminating petitioner from service by dispensing with the departmental inquiry in purported exercise of power under Article 311(2) (b) of the Constitution of India, on the ground that it is not "reasonably practicable".

5. The State of U.P. has contested the matter by filing counter affidavit stating that petitioner was unauthorizely absent from 17.12.2008 and despite repeated letters sent by CMO, Kanshiram Nagar dated 22.12.2008, 21.01.2009, 21.02.2009, 13.03.2009 and 25.03.2009, did not join services at Primary Health Centre where he was posted. Thereafter, in newspapers namely Dainik Jagran, Amar Ujala, Hindustan Times dated 22.07.2009, notice was published intimating petitioner and similar other Medical Officers who were continuously absent for a long time, to join duties within one week but still petitioner failed to join. The matter was then referred to Public Service Commission vide letter dated 03.04.2008 seeking its consultation, who advised that Government is competent to take action against the official concerned under Article 311(2) and (3) of the Constitution of India, pursuant thereto the impugned order was passed, since, it was not "reasonably practicable" to hold departmental inquiry.

6. Why the inquiry was not reasonably practicable has not been elaborated in the counter affidavit but what is suggested is that since petitioner was continuously absent and failed to join his duties despite repeated notices, hence, Government took the view that holding of departmental inquiry in accordance with procedure prescribed under U.P. Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as "Rule, 1999") is not "reasonably practicable" and hence dispensing with the constitutional requirement of giving adequate opportunity of defence to the government servant before imposing punishment of dismissal or removal, the impugned order has been passed holding that departmental inquiry is not "reasonably practicable".

7. The copies of notices sent by CMO, Kanshiram Nagar have been placed on record as Annexure CA-1 to CA-5 to counter affidavit, wherefrom, it is evident that all these letters were addressed to petitioner at his place of posting i.e. New Primary Health Centre, Beenpurkala, Amapur through I/C, M.O., PHC, Amapur. In all these letters, there is endorsement no. 6 requesting Incharge, Medical Officer to ensure communication of aforesaid notices/letters to petitioner at his address mentioned in the service book through registered letters.

8. Sri Satish Chandra 'Kashish', learned counsel for petitioner has urged that from counter affidavit and the documents placed on record, two facts are evident; (i) the petitioner was absent from duty where he was posted i.e. New Primary Health Centre, Beenpurkala, Amapur, Kanshiram Nagar; and, (ii) his address / residential address, as the case may be, was available with respondents, being mentioned in service book. The letters of CMO, Kanshiram Nagar were sought to be served upon petitioner at the aforesaid address by registered post through I/C, M.O., PHC, Amapur, District Kanshiram Nagar. Therefore, whereabouts of petitioner and his place of residence was well known to respondents. In these circumstances, it cannot be said that departmental inquiry against petitioner was not "reasonably practicable" inasmuch as, no charge sheet was ever served upon the petitioner, no attempt was made to hold departmental inquiry and knowing it well that unauthorized absence is a mis-conduct, which, if proved, may entitle employer to punish the erring government official in accordance with rules but, no departmental inquiry as mandated under Article 311 (2) of Constitution of India read with Rules, 1999 was conducted. Merely on the ground that the petitioner was continuously absent, despite rejection of his leave applications, the respondents presumed that departmental inquiry is not reasonably practicable and passed impugned order illegally, abruptly and in a wholly unconstitutional manner. In fact, respondents have used the phrase "inquiry was not reasonably practicable" as a pretext and a cloak to cover up their otherwise illegal action of not holding departmental inquiry in accordance with the Rules, 1999 read with Article 311 (2) of the Constitution of India. It is submitted that for this reason alone the impugned order is patently illegal and is liable to be set aside.

9. Learned Standing Counsel, on the contrary, submitted that since petitioner was absent, therefore, he has rightly been terminated by dispensing with requirement of holding departmental inquiry on the ground that it was not reasonably practicable.

10. The only question up for consideration in this writ petition is, "whether Article 311(2) second proviso read with Article 311(3) was resorted validly in passing the impugned order".

11. Holding of departmental inquiry before dismissal or removal, is mandatory under Article 311(2) read with procedure prescribed under Rules, 1999. This case is sought to be covered by second proviso to Article 311(2). A heavy onus lay upon respondent to show that from all the angles, the case is covered by one of the grounds on which departmental inquiry may not be held or dispensed with i.e. when it is not "reasonably practicable".

12. 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.)

13. Again Court explained circumstances in which departmental inquiry 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 inquiry 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 inquiry, a constitutional protection available to civil servant, cannot be taken away or denied on whims and caprices of appointing authority or the disciplinary authority.

14. In the present case, it is true that the petitioner was continuously absent but it cannot be said that his whereabouts were not known to respondents. The Chief Medical Officer in his notices sent to petitioner asking him to join, has consistently mentioned that Incharge, Medical Officer shall serve said notices upon petitioner at the address mentioned in service book of petitioner, by registered post. In the counter affidavit also it is not stated that petitioner's whereabouts or his residential address was not known to respondents.

15. Unauthorized absence, no doubt, is a mis-conduct and, if proved, in departmental inquiry conducted in accordance with the rules, appropriate punishment can be imposed upon the concerned government servant by appointing authority. Dispensation of departmental inquiry is an exception and cannot be resorted to in a cursory, casual and whimsical manner. The authority, if resorted to this exception, owe a heavy responsibility to show that all circumstances and conditions justifying such recourse are strictly followed and adhered to.

16. In the present case, Article 311(2), proviso, of the Constitution of India, has been resorted to by the respondents, apparently in a most illegal and arbitrary manner. Even the impugned order of termination has been served upon petitioner at his residential address through I/C, M.O., PHC, Amapur, District Kanshiram Nagar under whom, petitioner was posted. In the circumstances, it cannot be said that departmental inquiry has been dispensed with validly and 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, appointing authority has resorted to the said power. In a wholly illegal and unconstitutional manner, it has terminated the petitioner. The correct way would have been to initiate a departmental inquiry against petitioner, serve a charge-sheet upon him for alleged unauthorized absence and thereafter to take appropriate action in the light of findings recorded by inquiry officer in a regular disciplinary proceeding held in accordance with Rules, 1999. Non compliance of aforesaid procedure of holding of departmental inquiry, and, instead, dispensation thereof in an illegal manner renders the impugned order wholly unconstitutional and void-ab-initio.

17. In the result, this Court has no hesitation to hold that the impugned order of termination dated 03.05.2010, insofar as it relates to petitioner, is patently illegal and non-est being unconstitutional and violative of Article 311(2) of the Constitution of India.

18. The writ petition is accordingly allowed. The impugned order dated 03.05.2010, so far as it relates to petitioner, is hereby quashed. However, since the petitioner had admittedly remained absent continuously, despite rejection of his leave applications and has not served the department from 17.12.2008, in our view, ends of justice, justify that he should not be held entitled for arrears of salary for this entire period till he joins his duty pursuant to this judgment. Further, period of absence from 17.12.2008 till the date of termination / removal vide order dated 03.05.2010 shall be dealt with as "dies non" by appropriate competent authority. In respect of subsequent period, when petitioner has remained out of employment, pursuant to the impugned order, the said period would count for all other purposes like fixation of pay, increment, seniority etc. but not for the purposes of entitling petitioner for arrears of salary.

19. No cost.

Order Date :-07.08.2015

sailesh