WPSS/1490/2020
2023 Latest Caselaw 1038 UK

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                                  WPSS No.1490 of 2020
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. P.C. Petshali, Advocate for the petitioner.

Mr. Narain Dutt, Brief Holder for the State of Uttarakhand.

Mr. Rajesh Sharma, Standing Counsel for Union of India.

Heard learned counsel for the parties.

Petitioner was appointed as Ward Boy in Medical Department of the State Government and was posted in Community Health Centre, Jaspur w.e.f. 31.12.1983 and his services were regularized on 24.05.1989.

According to petitioner, in the year 2015, while he was posted at L.D. Bhatt Government Hospital, Kashipur, he suffered from mental illness, consequently, he remained absent from duties between 30.03.2015 to 29.05.2019. It is further his case that he reported for duties on 30.05.2019, however, he was not permitted to resume duties, as he was not having any medical certificate nor any certificate of fitness.

Petitioner completed age of superannuation on 30.06.2019.

Since petitioner was not paid salary for the period of his unauthorised absence and he was also denied post retiral benefits, including pension, therefore, he filed this writ petition seeking the following reliefs:

"(i) Issue a writ, order or direction in the nature of mandamus directing the respondents to make immediate payment of the post retiral dues of petitioner likeas GPF, Gratuity, Pension, Leave encashment etc.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to make immediate payment of unpaid salary since April 2015 till the date of retirement along with interest."

After filing of writ petition, petitioner passed away on 01.04.2021, and his legal representatives were substituted, pursuant to order of this Court dated 20.10.2021.

It is not in dispute that petitioner did not apply for any kind of leave for the aforesaid period, during which he remained absent from duties, however, it is a fact that neither disciplinary proceedings were initiated against him for the charge of unauthorised absence nor any order of termination, removal or dismissal was passed against petitioner, which may have severed his relation with his employer. His status as permanent employee of Medical Department is also not in dispute.

Rule 18 of U.P. Fundamental Rules (Financial Hand Book Volume II Part II to IV), after amendment made in 1989, reads 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.]"

From the aforesaid provision, it is apparent that in case a Government Employee remains absent from duty for a period of more than five years, then also, his services cannot be terminated without holding disciplinary enquiry.

It is admitted position that petitioner's absence from duties is for a period of less than five years.

Unauthorised absence from duty is a misconduct, and before imposing any penalty, it will be incumbent upon Appointing Authority to initiate disciplinary proceedings.

Petitioner was a Government employee, and in the absence of any order of termination, removal or dismissal from service passed against him, the relationship of employer and employee between Medical Department and petitioner was not snapped. Thus, petitioner continued to be a Government Employee on the date he attained age of superannuation.

It is settled position in law that there cannot be automatic termination of service due to unauthorised absence from duty, as held by Hon'ble Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Ltd., reported in (1993) 3 SCC

259. Paragraph nos. 13, 14 & 15 of the said judgment are extracted below:- "13. In Delhi Transport Corpn. v. D.T.C. Mazdoor Congress this Court held that right to public employment and its concomitant right to livelihood received protective umbrella under the canopy of Articles 14 and 21 etc. All matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution and the rules made under proviso to Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour. They must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees right to life which includes right to livelihood, the deprivation thereof must be in accordance with just and fair procedure prescribed by law conformable to Articles 14 and 21 so as to be just, fair and reasonable and not fanciful, oppressive or at vagary. The principles of natural justice are an integral part of the guarantee of equality assured by Article 14. Any law made or action taken by an employer must be fair, just and reasonable. The power to terminate the service of an employee/workman in accordance with just, fair and reasonable procedure is an essential inbuilt of natural justice. Article 14 strikes at arbitrary action. It is not the form of the action but the substance of the order that is to be looked into. It is open to the Court to lift the veil and gauge the effect of the impugned action to find whether it is the foundation to impose punishment or is only a motive. Fair play is to secure justice, procedural as well as substantive. The substance of the order is the soul and the effect thereof is the end result.

14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside.

15. In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. Therefore, we hold that the principles of natural justice must be read into the Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is violative of the principles of natural justice."

In view of the legal position, as discussed above, this Court has no hesitation in holding that legal representatives of petitioner are entitled to terminal dues of petitioner, including Family Pension, GPF, Gratuity etc., however, they shall not be entitled to arrears of salary for the period of unauthorised absence of petitioner on the principle of 'No Work No Pay'. It shall be open to the Competent Authority to sanction extraordinary leave for the period of unauthorised absence of petitioner.

Accordingly, writ petition is allowed in the aforesaid terms and respondent no. 3 is directed to release the retiral dues of petitioner to his legal representatives within three months from the date of production of certified copy of this order. However, they shall not be entitled to interest on the delayed payment of retiral dues.

(Manoj Kumar Tiwari, J.) 19.04.2023 Arpan