Dr. Devendra Kumar Katiyar vs State Of U.P. And Others
2015 Latest Caselaw 1025 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 34
 

 
Case :- WRIT - A No. - 52243 of 2010
 
Petitioner :- Dr. Devendra Kumar Katiyar
 
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. He drew attention of this Court to para-22 of writ petition and stated that for a 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. Rajendra Singh, Medical Officer, District Kanshiram Nagar, wherein, it is stated that petitioner was continuously absent from his official duty from 01.05.2009 without any information or application.

5. It is also stated that petitioner has never submitted any application for grant of leave, hence no question would arise for sanction of leave on the ground of medical or marriage. In para-16 of the counter affidavit the respondents have said that the petitioner did not submit his joining to C.M.O. Kanshi Ram Nagar on 15.04.2010, However, he had submitted an application before the Additional Director, Medical Health and Family Welfare, Aligarh Region, Aligarh on 26.04.2010.

6. Thereafter in para-17 of counter affidavit it is said that information regarding petitioner's continuous absence was already communicated to office of Director General as well as State Government, but thereafter he was not allowed to join without permission of competent authority. Accordingly, Additional Director, Medical Health and Family Welfare, Aligarh wrote a letter to the Director (Administration), Medical and Health Services dated 24.04.2010, seeking instructions, but no instructions could be received till the impugned order of termination was passed.

7. From the counter affidavit it is, thus, evident that before passing order dated 03.05.2010 petitioner had submitted his joining in Department, but that was not accepted and, instead, Additional Director, Aligarh sent a letter to Director (Administration), Medical and Health Services, seeking his instructions and, in meantime, petitioner was terminated.  In these circumstances, it is difficult to hold that petitioner was continuously absent and his whereabouts were not known. Order of termination in purported exercise of power under Article 311 (2) has been passed by observing that petitioner was continuously absent and his whereabouts were not known and since all the above facts stated therein are non-est, patently false and incorrect, impugned order cannot sustain.

8. Even otherwise this Court is satisfied that impugned order does not conform the requirement of Article 311 (2) second proviso so as to justify dismissal or removal by dispensing with departmental enquiry.

9. From the facts above, it is clear that 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.

10. Another question is, whether Article 311(2) second proviso read with 3, was resorted validly in passing the impugned order.

11. 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".

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 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.

14. 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.

15. 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 except period of absent.

16. 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 :- 7.7.2015

MVS Chauhan/-