Satya Narain Tripathi vs State Of U.P. Through Prin. Secy. ...
2015 Latest Caselaw 5520 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Court No. - 5
 

 
Case :- SERVICE SINGLE No. - 3633 of 2012
 
Petitioner :- Satya Narain Tripathi
 
Respondent :- State Of U.P. Through Prin. Secy. Deptt. Of Rural Developmen
 
Counsel for Petitioner :- Chandra Bhushan Pandey,Rohit Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

The petitioner in this writ petition is seeking quashing of the order dated 18.5.2012 and 19.5.2012 whereby his claim for payment for arrears of salary, gratuity, pension and G.P.F. has been rejected as not admissible in view of the provisions of Rule 18 of U.P. Financial Hand Book, Volume 2, Part 2.

The impugned order dated 19.5.2012 mentions that G.P.F. was never deducted from the salary of the petitioner, therefore, payment of the same does not arise. In the impugned order dated 18.5.2012 all that has been stated is that a decision for payment of arrears of salary, pension, gratuity and G.P.F. has to be taken by the District Development Officer, Gorakhpur. It is in pursuance thereof that the District Development Officer, Gorakhpur has passed the second impugned order dated 19.5.2012 already referred to above.

Briefly stated the facts of the case are that the petitioner is stated to have been selected by the Selection Committee on the post of Village Level Worker in 1958-59 (now re-designated as Gram Vikas Adhikari) and was appointed in the year 1960 and joined his service on 14.10.1960. In September, 1979 while he was posted in the Development Block Bhathat, District Gorakhpur, he fell ill and took four days casual leave vide application dated 21.9.1979. After leaving Head Quarter at the development block Bhathat he fell seriously ill and he was diagnosed with Tuberculosis. He is stated to have informed the B.D.O., Bhathat about his illness and thereafter underwent a prolonged treatment till 1984 and he was ultimately declared medically fit in 1984 and submitted his joining report on 25.9.1984 to the Chief Development Officer, Gorakhpur but his joining was not accepted on the ground that he had joined his duty after a lapse of five and four days. It is also stated that no order of termination was passed and on 31.7.1993 the petitioner attained the age of superannuation. Now his claim is for arrears of salary, pension, gratuity, G.P.F. etc.

The contention of the petitioner is that he had submitted his joining report with his medical report but the same has not been considered.

A counter affidavit has been filed on behalf of the department and it has been stated that the petitioner remained unauthorizedly absent from duty from 21.09.1979 upto 24.9.1984, therefore, in terms of the Rule 18 of U.P. Financial Hand Book, Volume 2, Part 2 the petitioner will be deemed to have abandoned service. In para-19 of the counter affidavit it is stated that earlier also the petitioner was unauthorizedly absent from duty from 11.12.1975 to 24.6.1976 for which he was placed under suspension by the order dated 24.6.1976 and thereafter departmental proceedings were initiated against him and on 27.10.1978 an order was passed directing that he will be entitled to subsistence allowance and his punishment has been confined only to the subsistence allowance, which has already been paid to him.

I have heard Sri Chandra Bhushan Pandey, learned counsel for the petitioner and Sri Badrul Hasan, learned Addtitional Chief Standing Counsel for the respondents.

The submission of the learned counsel for the petitioner is that the petitioner had valid reasons for being absent from duty as he was suffering from Tuberculosis and he had also informed the Block Development Officer about this fact. It is further stated and it was only after he was declared medically fit in 1984 that he reported for joining on 25.9.1984 before the Chief Development Officer, Gorakhpur but he was not allowed joining. Neither his services have been terminated nor dismissed nor any departmental enquiry has been held.

Reliance has been placed by the petitioner on judgment of learned Single Judge of this Court reported in (1994) 3 UPLBEC 1877, Dinesh Kumar Gandhi vs. Director, Family Planning/Family Welfare U.P. And others.

Paras 9 and 10 of the aforesaid judgment reads as under:-

"9. It has been averred in Paras 29, 30 and 33 of the writ petition that the petitioner was never given information or notice or opportunity of hearing before passing the order dated 21.4.1999. It has also been averred that no chargesheet was ever served upon him. Therefore, it is clear that the order terminating the service has been passed in violation of Article 311 (2) of the Constitution and the same cannot be sustained and has to be quashed.

10. The next question to be considered is as to whether the petitioner is entitled to salary for the past period. The allegation in Para 7 of the writ petition as well as various documents annexed alognwith the writ petition show that a copy of the order dated 19.9.1980, transferring the petitioner from Moradabad to Tehri-Garhwal, was served on 25.10.1980. On the own showing of the petitioner he never went to Tehri-Garhwal and did not report for duty at the place where he was directed to join. It is not a case where the petitioner has been prevented by any authority of the State Government from joining the duty at the place of his posting. The petitioner has himself not complied with the transfer order and has not made any attempt to join duty. As the petitioner has not done any work on account of his own inaction, he is not entitled to any salary subsequent to the date when he was relieved from Moradabad. The principle 'no work no pay' will also be applicable. The problem can also be looked in from another angle. It is stated in Para 11 of the writ petition that he was appointed in July, 1962. If the order dated 21.4.1990 (Annexure 7 to the writ petition) had not been passed and things were allowed to remain as they were the petitioner would have attained the age of superannuation after sometime. Obviously in such a situation he could not have claimed salary for the period subsequent to the date on which he was relieved from Moradabad. It is true that the C.M.O. Moradabad has recommended to the authority at Lucknow on 15.11.1980 for adjusting the petitioner at Moradabad itself but unless the transfer order was cancelled, the petitioner was bound to comply with the same and work at the place where he had been transferred. Since the transfer order was never cancelled or rescinded the petitioner has committed a misconduct and he cannot claim salary for the past period."

Learned Additional Standing Counsel on the other hand submits that the petitioner admittedly was absent from duty from 21.9.1979 upto 24.9.1984 which is more than five years four days. Therefore, in view of the clear provisions of Rule 18 of U.P. Financial Hand Book, Volume 2, Part 2 his services shall be deemed to be ceased as a government employee.

The Rule 18 of U.P. Financial Hand Book, Volume 2, Part 2 be read as under:-

"18. Unless the Government, in view of the special circumstances of the case, otherwise determine, after five years' continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, no Government servant shall be granted leave of any kind. Absence beyond five years will attract the provisions of rules relating to disciplinary proceedings."

In para-9 of the writ petition the petitioner has stated that he was diagnosed with Tuberculosis and was under treatment and he had informed about his illness to the BDO, Bhathat.

However, in Annexures-4, 5, 6 and 7 which are the medical reports there is nothing on record to show that the petitioner had ever submitted any application in writing to the B.D.O. Bhathat informing him about his illness. The Medical reports also do not show that during this period the petitioner was physically incapacitated for attending duty and that he was advised to be confined to bed. If it is assumed that the petitioner was indeed suffering from Tuberculosis he could have informed his Superior Officer about the same through application in writing, which has not been done.

Besides there is a specific averment in paragraph 19 of the counter affidavit that earlier also the petitioner was unauthorizedly absent from duty from 11.12.1975 upto 24.6.1976 and he had not given any information about this absence from duty to his Superior Officer. He was also placed under suspension by the order dated 24.6.1976 and departmental proceedings were initiated against him. Thereafter by the order dated 27.10.1978 it was ordered that he would be entitled only to his subsistence allowance and would not be entitled to any salary. The averments of the 19 of the counter affidavit have simply been denied in para 16 of the rejoinder affidavit.

Para 16 of the rejoinder affidavit reads as under:-

"16. That the contents of paragraph-19 of the counter affidavit are false and misleading, hence, denied and the contents of paragrph-19 of the writ petition are hereby reitereated to be true."

This shows that the petitioner has been habitual in remaining unauthorizedly absent from duty.

The respondents have placed reliance upon a judgment of the Supreme Court in AIR 1961 SC 1567, M/s. Jeevan Lal (1929) Ltc. Calcutta vs. Its Workman has held as under:-

"22...........if an employee continues to be absent from duty without obtaining leave and in an unauthorized manner for such a long period of time that an interference any reasonably by drawn from such absence that by his absence he has abandoned service, then such long unauthorized absence may legitimately be held to cast a break in continuity of service.......... We would like to make it clear that ........there would be the class of cases where long unauthorized absence may reasonably give rise to an interference that such service is intended to be abandoned by the employee"

In AIR 1974, SC 1896 Shahoodul Haque vs. The Registrar, Co-operative Societies, Bihar and another the Supreme Court has held as under:-

"The undenied and undeniable fact that the appellant had actually abandoned his post or duty for an exceedingly long period, without sufficient grounds for his absence, is so glaring that giving him further opportunity to disprove what he practically admits, could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. It would only prolong his agony. On the view we have adopted on the facts of this case, it is not necessary to consider the further question whether any notice for termination of services was necessary or duly given on the assumption that he was not punished. We do not think that there is any question involved in this case which could justify an interference by us."

In (2004) 5 SCC 263, Dr. Gurjeewan (Mrs.) vs. Dr. Sumitra Dash (Mrs.) and others the Supreme Court while considering a case of abandonment of services has held that non-joining after expiry of the sanctioned leave period will amount to abandonment of service.

A Division Bench of the High Court in 2004 (1) ESC 138, K.S. Kashyap vs. Union of India and others has held that absence from service without leave for long period amounts abandonment of service.

In (2005) 11 SCC 229, Chief Engineer (Construction) vs. Keshava Rao the Supreme Court has held long absence from service amounts to abandonment and no notice or chargesheet was required to be given.

In 2003 (2) AWC 1040, Union of India and others vs. Roshan Lal Madhok and another it has been held that absence from duty without leave is a case of abandonment of service and therefore opportunity of hearing is not required

In C. Jacob V. Director of Geology and Mining and another (2008) 10 SCC 115 the Supreme Court has held in para 12 as under :-

"12. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for purpose of pension. That will be a travesty of justice. "

Thus on conspectus facts and law laid down by the Supreme Court I do not find any illegality or infirmity in the impugned order.

The writ petition lacks merit and is accordingly dismissed.

Order Date : 17th December, 2015

Asha