Vinod Kumar vs State Of U.P. And 2 Others
2021 Latest Caselaw 7260 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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Court No. - 4
 

 
Case :- WRIT - A No. - 2039 of 2021
 

 
Petitioner :- Vinod Kumar
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- S.K. Srivastava,Sr. Advocate Sri Ashok Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Chaudhary,J.

1. The case is taken up through Video Conferencing.

2. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri S.K. Srivastava, learned counsel for petitioner and learned Standing Counsel for the State.

3. By means of present writ petition, petitioner has challenged the order dated 18.12.2019 whereby petitioner was punished for participating in a strike w.e.f. 10.12.2019 to 16.12.2019. Learned counsel for petitioner submits that large number of Lekhpals, similarly situated as petitioner, had gone on the said strike and similar punishment orders were also passed against them. All the other Lekhpals had challenged the punishment orders and their writ petitions were allowed one of such writ petition being Writ-A No.6655 of 2020; 'Ram Murat Yadav Vs. State of U.P. and Others. The judgment and order passed on 20.01.2021 in the aforesaid writ petition reads as under:-

"Heard Sri Ashok Khare learned Senior Advocate assisted by Sri S.K. Srivastava learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

Learned counsel for the petitioner at the outset states that no rejoinder affidavit is to be filed, the Court, therefore, proceed for hearing of the present petition.

By means of the present petition, the petitioner seeks for quashing of the order dated 16.12.2019 passed by respondent No.3 whereby the petitioner has been removed from service on the ground that he remained absent from duty unauthorizedly from 10.12.2019 to 16.12.2019 (the date of passing of the order impugned). It further refers to two notices dated 10.12.2019 and 13.12.2019 which had been issued to the petitioner and that no reply to the same was furnished by the petitioner.

As per the narration in the order impugned, the petitioner had participated in a strike of Lekhpals of the revenue department in the State of U.P. from 10.12.2019 despite the same being declared illegal. The said act was treated as misconduct in terms of the U.P. Government Servant's Conduct Rules' 1956. The submission of learned Senior Advocate of the petitioner is that the strike of Lekhpals had continued from 10.12.209 till 28.12.2019, when it was called off unconditionally. During the period of strike, action was taken against 199 Lekhpals who were terminated from services and 2350 Lekhpals were suspended.

Considering the said situation, the Government order dated 28.12.2019 was issued to state that since the strike was called off, the disciplinary proceeding initiated against the Lekhpals be brought to an end by giving sympathetic consideration.

In light of the said fact, the orders of punishment against 197 Lekhpals were revoked and they were reinstated in service giving a warning that they would not indulge in any such activity in future.

As far as the period of absence is concerned, decision was taken to consider the same for sanction of appropriate leave on the applications moved by the concerned employees. One such decision dated 01.02.2020 in respect of 10 terminated Lekhpals of District Sonbhadra has been brought on record as Annexure No.'11' (page 66 ) of the paper book.

The contention, thus, is that the petitioner has been discriminated as the decision to remove him from service is too harsh and is contrary to the spirit of the Government order dated 28.12.2019 wherein State Government had directed to deal sympathetically. Even otherwise, for any action of unauthorized absence of the petitioner from service on account of his participation in an illegal strike, disciplinary proceeding were required to be initiated before dispensation of his services. As this has not been done, the order impugned cannot be sustained.

Learned Standing Counsel referring to the notices dated 10.12.2019 and 13.12.2019 appended with the counter affidavit submits that the petitioner was given notice during the course of strike to explain as to why disciplinary action be not taken against him, but he had refused to receive the same. The denial on the part of the petitioner to join his duties and participation in the illegal strike was an act of misconduct. As no explanation much less a plausible explanation was offered by the petitioner though notices were sought to be served on him, he cannot claim any indulgence.

It is then submitted that the decisions to reinstate other similarly situated employees was taken on the representations moved by them by the appellate authority/District Magistrate, Sonbhadra. As far as the petitioner is concerned, his representation was rejected by an order dated 10.04.2020 treating it as appeal against the order of dismissal, in as much as, no infirmity was found in the decision of the disciplinary authority.

Considering the facts and circumstances of the case and the submissions of learned counsel for the parties, it is evident that the petitioner remained absent from duty from 10.12.2019 till 16.12.2019, when the order of dismissal was passed, on account of the State-wise strike of Lekhpals of the Revenue Department. It is admitted that action against the erring Lekhpals were taken on account of participation in the strike and 199 Lekhpals were terminated from service in view of the notification dated 13.12.2019 issued by the State Government whereby the said strike was declared illegal. However, out of 199 Lekhpal, 197 have been reinstated in services over the period of time on the representations/requests made by them for revocation of the orders of their termination. One such order dated 01.02.2020 passed by the appellate authority/District Magistrate Sonbhadra, in the case of 10 Lekhpals of District Sonbhadra has been placed before the Court.

A perusal thereof indicates that the decision to reinstate the terminated Lekhpals was taken in light of the Government order dated 28.12.2019 wherein the State Government had expressed its concern regarding disciplinary action taken against the Lekhpal in the State of U.P. on mass scale. It was directed that the matter be considered sympathetically.

As far as the present petitioner is concerned, the order impugned dated 16.12.2019 only records that the petitioner had committed misconduct by remaining absent while participating in an illegal strike. There is no further reference to any other act or misconduct committed by the petitioner during his participation in the on-going strike from 10.12.2019.

Having considered the allegations in the order impugned dated 16.12.2019 and the order dated 10.04.2020 of rejecting of representation of the petitioner treating it as appeal as also the order dated 01.02.2020 passed in respect of similarly situated Lekhpals, this Court is of the considered view that the petitioner has been discriminated. The decision to reject his representation seeking reinstatement in services has been taken in a discriminatory manner. No proper consideration has been given to the Government order dated 28.12.2019 and the decision taken by the competent authorities in case of the similarly situated Lekhpals in the entire State of U.P.

This apart, the decision to dispense with the services of the petitioner on account of participation in the illegal strike had been passed without conducting any enquiry. The notices dated 10.12.2019 and 13.12.2019 though were issued to the petitioner during the course of on going strike but no disciplinary proceeding had been initiated on the charges of unauthorized absence from duty or participation in an illegal strike.

In the considered opinion of the Court, the act of an employee having remained absent from duty while participating in an illegal strike can at the most be treated as an act of 'misconduct' within the meaning of the U.P. Government Servant's Conduct Rules' 1956. The proper disciplinary enquiry was, therefore, required to be conducted by the competent disciplinary authority after appointment of an enquiry officer, once it was opined that the petitioner had committed as act of misconduct. No such procedure was adopted. The order impugned dated 16.12.2019 dismissing the petitioner from services, and the order of rejection of representation of the petitioner dated 10.04.2020 therefore, are found arbitrary, illegal and discriminatory in nature and are, therefore, quashed.

The petitioner is held entitled to be reinstated in service with immediate effect.

All other consequential benefits as admissible to the petitioner shall be available to him in accordance with law.

However, for the period of absence of the petitioner from 10.12.2019 till 16.12.2019 on account of participation in the strike which was declared illegal vide notification dated 13.12.2019 issued by the State Government, it is kept open for the respondents to take fresh appropriate action in accordance with law.

With the above observations and directions, the writ petition is allowed.

4. Learned Senior Advocate submits that case of petitioner is squarely covered by the aforesaid judgment being of similarly situated person.

5. Learned Standing Counsel could not dispute the applicability of the aforesaid judgment to the facts of the present case.

6. In view thereof, present writ petition is allowed.

7. The punishment order dated 18.12.2019 is set aside.

8. The petitioner is held entitled to be reinstated in service with immediate effect.

9. All other consequential benefits as admissible to the petitioner shall be available to him in accordance with law.

10. However, for the period of absence of the petitioner from 10.12.2019 till 16.12.2019 on account of participation in the strike which was declared illegal vide notification dated 13.12.2019 issued by the State Government, it is kept open for the respondents to take fresh appropriate action in accordance with law.

Order Date :- 8.7.2021

Arti/-

(Vivek Chaudhary, J.)