Dr.Vishwas Verma vs State Of U.P. Thru. Prin.Secy. ...
2022 Latest Caselaw 7863 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- WRIT - A No. - 6492 of 2018
 

 
Petitioner :- Dr.Vishwas Verma
 
Respondent :- State Of U.P. Thru. Prin.Secy. Medical And Health And 2 Others
 
Counsel for Petitioner :- Pradeep Kumar Rai,Hari Prasad Gupta,Praveen Kumar Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri H.P. Guprta, learned counsel for petitioner as well as learned Standing Counsel for the respondents.

2. The petitioner is a doctor and was working in the provincial medical services has approached this Court assailing the order of termination dated 03.05.2010 which has been communicated to him by a response sought through Right to Information Act.

3. The facts in brief are that petitioner was duly selected by the U.P. Public Service Commission and was appointed on the post of Medical Officer vide order dated 26.06.1998. In pursuance to which, he joined on 23.07.1998 under the Chief Medical Officer, Basti. The petitioner continued to work and discharge his duties till 06.12.1998 when on certain urgent work in family, he took leave duly sanctioned by Senior Incharge, Medical Officer, Primary Health Centra, Bahadurpur. Due to the illness in the family, he could not joined on the expiry of the said leave and further in the meanwhile, the petitioner also fell ill and hence was compelled to take rest.

4. When returned from his leave, he was not allowed to join stating that he had sought leave only for one week while he joined after 15 days and hence permission of the Senior Officers is required. It is stated that the petitioner met the higher officers but he was not allowed to resume his duties. He also made several representations to the Director General, Medical and Health seeking permission to join but no such permission was granted.

5. It is stated that petitioner got an opportunity to meet Principal Secretary, Medical and Health on 11.10.2021 and submitted a representation to him which has been annexed along with the writ petition. On the same day, the principal Secretary, Medical and Health acknowledged the said representation.

6. Despite the aforesaid, no action was taken but the petitioner pursued the issue of his resumption of duties without any success. It is only when he made an application under Right to Information Act know that by means of order dated 14.10.2015 the Under Secretary, Medical Section -8, Government Uttar Pradesh informed the petitioner that his services have been terminated vide memorandum dated 03.05.2010.

7. A perusal of the impugned order of termination dated 03.05.2010 indicates that services of 531 doctors have been terminated by the single order. It is stated that a notice was published in Dainik Jagran at Allahabad, Varanasi and Lucknow on 22.07.2009 requiring the absentee medical officers to rejoin the services but despite the said notice, the petitioner did not join and it was assumed that he was not interested in serving in the provincial medial services.

8. It has further been recorded that it is not possible to conduct any inquiry under the Uttar Pradesh Government Servant (Disciplinary and Appeal) Rules, 1999 and hence the said inquiry is dispensed with and the services was terminated.

9. Learned counsel for petitioner while assailing the said order has stated that said order is illegal and arbitrary inasmuch as the petitioner was never given opportunity of hearing prior to passing of the said order despite the fact that the respondents were well aware of his address apart from he has been repeatedly making representations and meeting the concerned officials with regard to his grievance.

10. Thus, it has been submitted that the impugned order is violative of Article 14, 16 and 311 of Constitution of India.

11. Learned counsel for petitioner submits that the impugned order dated 03.05.2010 was also assailed by other doctors before a Division Bench of this Court in a bunch of writ petitions leading being Writ A No. 34928 of 2010 which was allowed on 06.07.2015 and the order dated 03.05.2010 was set aside on the ground that the same has been passed without any opportunity of hearing and also it is in violation of Article 311 sub-clause (2) Second Proviso to Sub-clause (b) of the Constitution of India. Relevant portion is quoted as under:-

"8. The common ground to assail impugned order of termination/removal is that absence, even if is taken to be unauthorized and illegal, it amounts to misconduct under the Rules, and, hence, removal for such misconduct is punitive and stigmatic amounting either to removal or dismissal and not permissible without holding a departmental enquiry against the petitioners in accordance with procedure prescribed in Rules. Respondents have illegally resorted to Article 311 (2) Second Proviso by observing that petitioners are unauthorizedly absent since long and their whereabouts are not known though their whereabouts as also the Home Town Address was with respondents but no attempt was made to serve a charge-sheet or communicate any order etc., hence the power exercised by respondents in dispensing with departmental enquiry is wholly illegal and in the teeth of law laid down in this regard and the impugned order is clearly violative of Article 311(2) of Constitution.

9. Per contra, learned Standing Counsel, in brief, submitted that since these Medical Officers were not discharging duties for long period and public interest was suffering, therefore, impugned order was passed and this Court may not find it expedient to interfere in discretionary equitable jurisdiction under Article 226 of the Constitution.

10. The only question need be decided in these writ petitions is the validity of impugned order whether it attracted Article 311(2) Second Proviso. In other words, we have to examine whether dispensation of requirement of disciplinary inquiry against petitioners by resorting to power contained in Article 311 (2) Second Proviso has been availed by respondents rightly satisfying the requirements therein or not.

11. Article 311(2) reads as under:

"(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"

12. A perusal of Article 311(2) makes it clear that a Government Servant has a constitutional protection against major penalty of dismissal, removal or reduction in rank unless he is given an adequate opportunity of defense. An exception has been provided in certain circumstances for which there are some conditions precedent which are provided in Article 311(2) second proviso.

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

14. 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)

15. 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.

16. In the case in hand, the only reason assigned is that petitioners are continuously absent and their whereabouts are not known. Both these facts are factually incorrect and non-est inasmuch whereabouts as also the Home Town Address of petitioners were with the Government and no attempt was made to serve a charge-sheet or communicate any order etc. to them. In the circumstances, it cannot be said that departmental enquiry has been dispensed with validly and the constitutional protection available to petitioners 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 petitioners. The correct way would have been to initiate a departmental enquiry against petitioners, serve charge-sheet upon them 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.

17. From the facts stated hereinabove, however, it is very clear that petitioners have been abstaining from duty, and, that too, for years together. We, therefore, find no justification to pass any order entitling the petitioners for arrears of salary, and, instead leave it to the competent authority to pass appropriate order in this regard in accordance with rules.

18. In the result, all the writ petitions are allowed. Impugned order dated 03.05.2010, insofar as it relates to petitioners, is hereby set aside."

12. Learned Standing counsel does not dispute that the order impugned in the present writ petition is subject matter of challenge before the Division Bench of this Court in the aforesaid Writ A No. 34928 of 2010 where the order of termination has been set aside with regard to petitioners. No other fact could be stated by the respondents for not extending the benefit of the judgment dated 06.07.2015.

13. Having heard learned counsel for parties and perused the record.

14. This Court also approves the findings of the Division Bench and hence the benefit granted by the Division Bench is extended to the petitioner also.

15. From the facts stated hereinabove, however, it is very clear that petitioners have been abstaining from duty, and, that too, for years together. We, therefore, find no justification to pass any order entitling the petitioners for arrears of salary, and, instead leave it to the competent authority to pass appropriate order in this regard in accordance with rules.

16. In the result, all the writ petition is allowed. Impugned order dated 03.05.2010, insofar as it relates to petitioner, is hereby set aside.

(Alok Mathur, J.)

Order Date :- 25.7.2022

Ravi/