Allowed

Indrapal Vishwakarma v. State of U.P.through Secy. Home Lucknow

Allahabad HC26 May 2023WRIA/5273/2002

Case brief

AI extract

What is this about?

In a writ petition challenging termination from service, the Allahabad High Court held that the dismissal order was illegal as it was passed without holding a disciplinary enquiry or issuing a show-cause notice. The court found a violation of natural justice and constitutional provisions regarding temporary government servants and accordingly quashed the termination order.

What did the court decide?

The order of termination dated 20th July, 2002 issued by the respondent no.2 is quashed.

Indrapal Vishwakarma Vs State of U.P.through Secy… — Service and Employment | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:37804

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Court No. - 5

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Case :- WRIT - A No. - 5273 of 2002

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Petitioner :- Indrapal Vishwakarma Respondent :- State Of U.P.Through Secy. Home Lucknow Counsel for Petitioner :- Akhilesh Kalra,Jyotiresh Pandey,Narendra Shanker Shukla,Pooja Singh Counsel for Respondent :- C.S.C.

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Hon'ble Irshad Ali,J.

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Heard learned counsel for the petitioner and learned Standing Counsel for the respondent-State.

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By means of the present writ petition, the petitioner has prayed for the following reliefs:

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(i) issue a writ, order or direction or writ in the nature of certiorari quashing the order of termination dated 20th July, 2002 issued by the respondent no.2, as contained in Annexure No.1 to the writ petition.

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(ii) issue a writ, order or direction or writ in the nature of mandamus commanding the respondents to treat the petitioner in service and pay him salary regularly and other consequential benefits of pay and allowances.

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(iii) issue any other appropriate writ, order or direction in favour of the petitioners as the Hon'ble Court may deem fit in the circumstances of the case.

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(iv) award the costs of the petitioner to the petitioner.

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Facts of the case are that the petitioner was appointed as Chowkidar against temporary post on 3rd June, 1993 by the respondent no.3 in the office of Prosecution, Maharajganj but was attached to the office of the Directorate of Prosecution, U.P., Lucknow. Since petitioner was selected by the Selection Committee constituted for selection of Group-D Employees Service (First Amendment) Rules, 1986 against clear and vacant post, so reference made of temporary appointment was arbitary and depriving the petitioner from claiming permanent status. Thereafter, the petitioner was attached at Siddharthnagar on the post of Peon, vide order dated 15th June, 1995 by the respondent no.3, after the attachment of the petitioner at Maharajganj was cancelled.

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The petitioner continued on the same post and remained attached at the Directorate of Prosecution, U.P., Lucknow till 20th July, 2002 and performed his duties to the entire satisfaction of his superiors. The work of the petitioner has been appreciated by his superiors from time to time. The petitioner was terminated earlier on 7th August, 1996 but was reinstated, vide order dated 9th August, 1996 on the representation dated 8th August, 1996 preferred by the petitioner before the competent authority. Thereafter, the petitioner continued in service and performed his duties to the entire satisfaction of his superiors and was issued various appreciation letters and cash awards further by his superiors.

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In the meantime, the petitioner was transferred to Mahoba on his request due to the personal reasons of the petitioner but was continued to be attached at the Lucknow office which in itself shows that the request of the petitioner for transfer at Mahoba was merely meted out in the paper only and thus, he was continued to be attached at the Directorate of Prosecution. The petitioner requested for relieving from Lucknow office and to resume his duties at Mahoba due to personal reasons vide representations dated 25th June, 1999, 29th May, 2000, 22nd December, 2000, 15th June 2001, 4th February, 2002 and 30th June, 2002, but no action was taken by the respondents on his representation.

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The petitioner was directed to perform his duties at the residence of Additional Director General (Prosecution), LUcknow vide order dated 28th November, 2000. Subsequently, the petitioner was directed to perform his duties at the residence of Director General (Prosecution), Lucknow vide order dated 16th April, 2001. The petitioner was given additional increment vide order dated 23th August, 2001 in recognition of completion of eight years of continuous satisfactory service. The petitioner was again directed vide order dated 7th November, 2001 to continue to perform his duties at the residence of Director General (Prosecution), Lucknow.

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The petitioner had to undergo an operation of Hernia in December, 2001 for which medical leave was also sanctioned to the petitioner vide order dated 14th January, 2002. The petitioner was reimbursed the expenses incurred by him towards his medical treatment vide order dated 12th June, 2002 on representation dated 6th June, 2002. By order dated 25th Feburary, 2002 was directed to perform his duties at the residence of respondent no.2. The petitioner was again sanctioned medical leave for 16 days.

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Despite ill-heath the petitioner was compelled to perform his duties from 7.00a.m. to 10.00p.m. at the residence of the respondent no.2 whereupon the petitioner requested to perform his duties from 8.00a.m. to 8.00p.m. and expressed his inability to perform duties beyond these hours as the petitioner has not recovered completely after his operation of Hernia but no consideration was being given to the petitioner's request as the petitioner was forced to perform his duties from 7a.m. to 10p.m. by the respondent no.2.

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Owing to his being indisposed the petitioner applied for one day's causal leave on 12th July, 2002 for the said date due to sudden pain in stomach and went for his treatment in Ram Manohar Lohia Hospital, Gomti Nagar, Lucknow which is nearest to the petitioner's residence. Since 13th July, 2002 was second Saturday and 14th July, 2002 was Sunday being Government holidays, the petitioner reported for duty on 15th July, 2002.

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The petitioner resumed his duties on 15th July, 2002 before the respondent no.2 and performed his duties from 7.00a.m. to 10.00p.m. as per the directions of respondent no.2, but as the condition of the petitioner deteriorated further due to already illness and heavy strain of work but upon him, he further applied for medical leave from 16th July, 2002 for two weeks and annexed therewith the medical prescription to the Administrative Officers, Directorate of Prosecution.

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The application of the petitioner for casual leave on 12th July, 2002 has not been taken into account by the Administrative Officer and the petitioner was served with an order dated 16th July, 2002 at his residence by the Administrative Officer of the Directorate of Prosecution, Lucknow whereby the petitioner was required to give his explaination for absence from his duty on 12th, 13th, 14th and 16th July, 2002. Pursuant to the aforesaid order, the petitioner sent his reply dated 17th July, 2002 by speed post as the petitioner was unable to submit the same in person owing to his being unwell. The petitioner alongwith reply also sent application for leave dated 17th July, 2002 and medical prescription. Perusal of the medical certificate clears that the petitioner was advised complete bed rest for two weeks, whereupon the petitioner submitted his letter dated 17th July, 2002 for sanction of medical leave for two weeks. All of a sudden the repetition received an order of termination dated 20th July, 2002 at the residence of the petitioner itself on the same day in the night.

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Learned counsel for the petitioner has submitted that no enquiry has been held by the respondents of charge levelled in

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termination order, nor any show cause notice was issued to the petitioner to reply the charge alleged in the order, therefore the impugned order is absolutely illegal, arbitrary and issued with malafide intention against the petitioner.

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Learned counsel for the petitioner next submitted that the impugned order has been passed by the respondent no.2 having no jurisdiction as the appointing authority of the petitioner is respondent no.3 so the impugned order is void-ab-initio being passed not by the appointing authority.

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Learned counsel for the petitioner next submitted that the petitioner has not been afforded any opportunity of defence as the petitioner has not been served upon any charge sheet, nor any proceedings have been initiated with regard to his alleged indifferent behaviour and further no show cause notice has been issued to the petitioner.

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Learned counsel for the petitioner next submitted that the order passed relying upon temporary Government Servants (Termination of Service) Rules, 1975 is wholly illegal passing straightaway termination when the order itself speaks of the charge for termination amounts to punitive in nature so the order is not simpliciter and as such, could not be passed without giving any notice or opportunity and without holding an enquiry to ascertain the truthiness of the charge.

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Learned counsel for the petitioner next submitted that neither any notice has been given or any opportunity has been given, nor any charge sheet has been given indicating any charge, nor any enquiry has been held, so the order is punitive in nature and the same is violative of principles of natural justice.

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Learned counsel for the petitioner next submitted that the petitioner being appointee duly selected by the Selection Committee under the Group-D Rules, 1986, so he could not be treated as temporary government servant in any case working since 1993 could not be treated as temporary after such a long time and by mentioning in the appointment order of word 'temporary' could not mean that for all times he will be treated temporary.

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Learned counsel for the petitioner next submitted that even the temporary government servant if terminated for the reason of misconduct or the charge like such leveled against the petitioner, then they are also protected under Article 311 (2) of the Constitution of India and there is clear violation of the aforesaid Article as well as Article 14 & 16 of the Constitution of India.

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In support of his submission, learned counsel for the petitioner has placed reliance upon judgment rendered by the Hon'ble Supreme Court in the case of Kanhialal v. District Judge and others reported in (1983) 3 Supreme Court Cases 32 .

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Learned counsel for the petitioner next submitted that in spite of the application for leave submitted by the petitioner along with medical prescription then until and unless the same is rejected or any adverse order is passed, the petitioner's absence could not be said to be unauthorized absence and if unauthorized absence is the basis then that would amount to misconduct and then enquiry after opportunity should be made.

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Per contra, learned Standing Counsel has submitted that no arbitrariness and illegality has been committed while passing the impugned order of termination of petitioner's services rather principle of natural justice has been following in the case of the petitioner and in lieu of notice the petitioner has been paid amount which was admissible to him for a period of one month as per terms and conditions of services mentioned in the order of appointment.

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Learned Standing Counsel has next submitted that the petitioner was never directed to work at the residence of respondents rather he was directed to perform his duties at the residential camp office, Buller Palace, Lucknow.

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Learned Standing Counsel has next submitted that due to negligence of petitioner, government functions were being affected and, therefore, in the interest of justice services of the petitioner were terminated for administrative reasons and the impugned order has been passed in accordance with law and the same does not call for any interference by this Court.

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Learned Standing Counsel has lastly submitted that earlier also services of the petitioner were terminated, however, he was reinstated in service taking sympathetic view against the petitioner only in anticipation that the petitioner will improve his work and conduct but that was not to be and as such no charge-sheet was needed to be served upon the petitioner nor any proceedings were needed to be initiated against the petitioner prior to terminating the service.

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I have considered the submissions advanced by learned counsel for the parties and perused the material available on record.

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To resolve the controversy involved in the present writ petition, relevant portion of judgment passed in the case of

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Kanhialal (supra) relied upon by learned counsel for the petitioner is extracted hereinbelow:

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" 2. It is clear on the facts of the present case and particularly from the order passed by the Administrative Judge on November 20, 1980 while disposing of the representation of the appellant that the only reason why he was discharged from service was that he was "'prima facie' responsible for the loss of some document from the judicial record on account of his negligence and carelessness". The order of discharge passed against the appellant was, therefore, clearly penal in character and there can be no doubt that even if he was a temporary servant, he was entitled to the protection of Article 311(2) of the Constitution and hence no penal order could be passed against him without complying with the requirements of that Article. Since admittedly the requirements of Article 311(2) were not satisfied in the case of the appellant before terminating his service, we are of the view that the order passed by the learned District Judge terminating the service of the appellant must be held to be void. We accordingly allow the appeal and set aside the order terminating the service of the appellant. But while doing so, we may make it clear that it will be open to the District Judge or any other appropriate authority to take disciplinary action against the appellant, if thought fit and nothing that has been said in this judgment will act as a bar against their doing so. "

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Perusal of the above-extracted judgment clearly shows that even if the appellant was a temporary servant, he was entitled to the protection of Article 311(2) of the Constitution and hence no penal order could be passed against him without complying with the requirements of that Article.

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In the case in hand, the petitioner was appointed as Chowkidar against temporary post and during service period, he was issued various appreciation letters and cash awards. The petitioner was directed to perform his duties at the residence of Additional Director General (Prosecution), Lucknow vide order dated 28th November, 2000 and thereafter at the residence of Director General (Prosecution), Lucknow. The petitioner had to undergo an operation of Hernia in December, 2001 for which medical leave was also sanctioned to the petitioner vide order dated 14.1.2002 and also he was reimbursed the expenses incurred towards medical treatment. The petitioner was again sanctioned medical leave for 16 days. Thereafter, the petitioner applied for one day's causal leave on 12th July, 2002 for the said date due to sudden pain in stomach and went for his treatment. Due to ill-health, the petitioner further applied for for two weeks.

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The application of the petitioner for casual leave on 12th July, 2002 has not been taken into account by the Administrative Officer and the petitioner was served with an order dated 16th July, 2002 at his residence by the Administrative Officer of the Directorate of Prosecution, Lucknow whereby the petitioner was required to give his explanation for absence from his duty on 12th, 13th, 14th and 16th July, 2002. Pursuant to the aforesaid order, the petitioner sent reply dated 17th July, 2002 by speed post as the petitioner was unable to submit the same in person owing to his being unwell. The petitioner along with reply also sent application for leave dated 17th July, 2002 and medical prescription showing that the petitioner was advised to complete bed rest for two weeks. Vide order dated 20th July, 2002 services of the petitioner has been terminated.

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In this view of the matter, this Court is of the opinion that in spite of application for leave submitted by the petitioner along with medical prescription, then until and unless the same is rejected or any adverse order is passed on it, the petitioner's absence could not be said to be unauthorized absence and if unauthorized absence is the basis then that would amount to misconduct and the enquiry after opportunity should be made. This Court is also of the opinion that even the temporary government servant if terminated for the reason of misconduct or the charge like such leveled against the petitioner, then they are protected under Article 311(2) of the Constitution of India and there is clear violation of the aforesaid Article as well as Article 14 & 15 of the Constitution of India. The judgment relied upon by learned counsel for the petitioner is fully applicable to the case of the petitioner.

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Considering in totality of facts and circumstances of the case as well as law-report cited by learned counsel for the petitioner, this writ petition is allowed . order of termination dated 20th July, 2002 issued by the respondent no.2, as contained in Annexure No.1 to the writ petition is hereby quashed. Consequence to follow.

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Order Date :- 26.5.2023 GK Sinha

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Digitally signed by :- GAUTAM KUMAR SINHA High Court of Judicature at Allahabad, Lucknow Bench

Indrapal Vishwakarma v. State of U.P.through Secy. Home Lucknow

Case brief

What is this about?

What did the court decide?

Indrapal Vishwakarma v. State of U.P.through Secy. Home Lucknow

Case brief

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