Smt. Urmila Vs State of U.P. Thru. Addl. Chief Secy. Medical Health Family Welfare Lko and 3 Others

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Neutral Citation No. - 2025:AHC-LKO:9239

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Court No. - 6

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Case :- WRIT - A No. - 3941 of 2024

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Petitioner :- Smt. Urmila

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Respondent :- State Of U.P. Thru. Addl. Chief Secy. Medical Health Family Welfare Lko And 3 Others Counsel for Petitioner :- Vijay Kumar Srivastava Counsel for Respondent :- C.S.C.

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Hon'ble Alok Mathur,J.

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Counter affidavit filed by learned Standing Counsel is taken on record.

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Heard Shri V.K. Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State and perused the record.

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The present petitioner has been filed with the following prayer:

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"1- Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties, to pay all retiral dues of the petitioner including Pension, Commutation of Pension, amount of Gratuity, Leave Encashment and amount of General Insurance.

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2- Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to make payment of arrears of Pension w.e.f. 1-1-2023 till date and arrears of other retiral dues including Gratuity and Leave Encashment along with interest at the rate of 12% p.a. w.e.f. 1-1-2023 till the date of actual payment.

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3- Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to make payment of arrears of salary to the petitioner w.e.f. Navember-2007 till the date of retirement i.e. 31-12-2022, after making due fixation of her salary, along with the interest at the rate of 12% p.a. w.e.f. November-2007 till the date of actual payment.

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4- Issue any other order or direction which this Hon'ble Court may deem, fit and proper in the circumstances of the case, may also be passed in favour of the petitioner.

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5- Award the cost of the petition in favour of the petitioner."

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Learned counsel for the petitioner has submitted that the petitioner was appointed against a substantive vacancy on the post of Ward Aaya on 04.05.1987 and was posted at Primary Health Centre, Tilhar, Shahjahanpur (for short "P.H.C., Tilhar Shahjahapur). Thereafter, she was promoted to the post of Operation Theatre Attendant (hereinafter referred to as "OT Attendant") and was transferred to Community Health Centre, Mohanlalganj, Lucknow (for short "C.H.C., Mohanlalganj, Lucknow). Subsequently, vide order dated 23.10.2007 passed by Chief Medical Officer, Lucknow (for short "C.M.O., Lucknow), petitioner was transferred from C.H.C. Mohanlalganj, Lucknow to C.H.C., Mall, Lucknow on the administrative ground but when she went to join at her transferred place of posting i.e. C.H.C., Mall Lucknow, she was not permitted to join on the ground that there was no post of OT Attendant and was further directed to go back to her previous place of posting. When the petitioner went to C.H.C., Mohanlalganj, Lucknow, there also, she was not allowed to join on the ground that she has already been transferred and relieved from the said place. After the aforesaid incident, the petitioner made several requests to the C.M.O., Lucknow and also moved several representations requesting him to allow her to join at either of the places but no order was passed by C.M.O.., Lucknow. Accordingly, the petitioner preferred a writ petition being Writ Petition (S/S) No.5125 of 2008 assailing the transfer order dated 23.10.2007. The said petition was disposed of by this Court by means of the order dated 27.08.2008, directing the C.M.O., Lucknow to decide the said controversy in accordance with law by a reasoned and speaking order. In compliance of the direction of this Court, Director General, Family Welfare, Lucknow by means of order dated 17.09.2008 further directed the C.M.O., Lucknow to consider the case of the petitioner and pass necessary orders. Despite the order of this Court as well as that of Director General, Family Welfare, Lucknow, C.M.O., Lucknow did not pass any order. It is for the aforesaid reason that neither the petitioner was allowed to join at either of the places nor was she paid salary since November, 2007 but continued to move representations to all the authorities for redressal of her grievance.

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It is in the aforesaid circumstance that the petitioner again knocked the doors of this Court by filing a writ petition being Writ Petition (S/S) No.17177 of 2017 seeking the direction of the Court to the respondents to allow the petitioner to work on the post of OT Attendant and also be paid salary. The Court had directed the learned Standing Counsel to seek instructions on the said matter and on the basis of instruction, learned Standing Counsel had informed to the Court that petitioner has been

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placed under suspension vide order dated 25.04.2014 and the C.M.O., Lucknow has passed an order dated 27.03.2018 addressing to Superintendent, C.H.C., Sarojini Nagar, Lucknow mentioning therein that the petitioner was suspended vide order dated 25.04.2014 and in case, she appears before him, her joining may be accepted and she may be attached to the P.H.C., Haroni, Sarojini Nagar, Lucknow. Accordingly, the petitioner submitted her joining at C.H.C., Sarojini Nagar, Lucknow on 28.03.2018 herself and she was permitted to join at P.H.C., Haroni, Sarojini Nagar, Lucknow on the post of O.T. Attendant.

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Learned counsel for the petitioner has submitted that the petitioner was subsequently served with the charge sheet on 01.11.2019, wherein four charges were leveled against her pertaining to: (a) unauthorized absence from duty, (b) not obeying the orders of higher officials, (c) not vacating government accommodation and (d) communicating with higher officials without proper channel. The petitioner submitted her reply on 14.11.2019 denying all the allegations leveled against her in the aforesaid charge sheet. He has further submitted that neither any date, time or place was fixed by the Enquiry Officer nor was the petitioner ever given any opportunity to produce oral or documentary evidence in her support but the Enquiry Officer submitted his report on 07.12.2019 holding that all the charges leveled against the petitioner have been stood proved. Subsequently, the petitioner was served with a show-cause notice dated 30.12.2019 containing a copy of the enquiry report. The petitioner submitted her response on 17.12.2020 mentioning therein that neither has she been given any transfer order after 2007 nor has she been permitted to join at any place despite repeated requests as well as during the said period, she has not been paid any salary or arrears of the salary. After submitting the reply to the show-cause notice, by means of order dated 13.03.2020, the petitioner was reinstated in service and posted at C.H.C., Mohanlalganj, Lucknow with the condition that the decision on the matter pertaining to the salary for the period the petitioner was absent/suspended shall be taken in terms of the provisions of U.P. Government Servant (Discipline and Appeal) Rules, 1999. He has next submitted that there is no dispute with regard to the fact that from 13.03.2020, the petitioner continued to work at C.H.C., Mohanlalganj, Lucknow till her superannuation dated 31.12.2022. He has further submitted that despite her superannuation, the petitioner was not paid salary and other service dues, and accordingly, the present petition has been preferred seeking direction of this Court to be issued to the respondents to pay all post-retiral dues including pension, commutation of pension, amount of gratuity, GIS, leave

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encashment along with interest and also pay salary from 2007 onward till superannuation of the petitioner dated 31.12.2022.

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Learned counsel for the petitioner has submitted that from the facts mentioned hereinabove, it is clear that the disciplinary proceeding, which was initiated by the respondents by issuance of a charge sheet dated 01.11.2019, remained pending despite the fact that the enquiry report was submitted and the showcause notice was served upon the petitioner to which she had responded. It is also clear that the respondents in the meanwhile had considered the representation of the petitioner and passed an order dated 13.03.2020 reinstating the petitioner in service, where again from the perusal of the said order, it is clear that till passing of the said order, the disciplinary proceeding were under-wait and had not attained finality.

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Learned counsel for the petitioner has drawn attention of this Court on the order dated 23.07.2024 passed by the committee consisting of Medical Superintendent, C.H.S. Mohanlalganj, Lucknow, District Officer-in-Charge/ Disbursing Officer, Office of C.M.O. Lucknow, Senior Finance and Accounts Officer, Office of C.M.O., Lucknow and Deputy Chief Medical Officer, Lucknow annexed at CA-17 to the counter affidavit filed today. From the perusal of the said order, it seems that the said committee was appointed to look into the allegations pertaining to the absence of petitioner from duty from the period of 23.10.2007 to 28.03.2018. The said committee served showcause notice to the petitioner which according to the petitioner was never received by her and consequently, no response was submitted to the same and in absence of any reply from the petitioner, the enquiry report was submitted by the committee on 23.07.2024 giving its finding that: (a) salary for the period of 23.10.2007 to 31.10.2007 has been drawn, (b) the petitioner has been on unauthorized absence from duty from 01.11.2007 to 24.04.2014 and (c) from 25.04.2014 to 28.03.2018, she was under suspension and substantive allowance for the said period and the balance amount for the said period after reinstatement in service has also been drawn.

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On the basis of the recommendations of the committee, C.M.O., Lucknow have passed the order dated 23.07.2024, holding that from 01.11.2007 to 24.04.2014, the petitioner was on unauthorized absence and she would not be entitled to any salary on the principles of "no work, no pay" and the said period would not be counted for the purpose of pension, gratuity, leaving encashment, GIS or any other service dues. Therefore, the order 23.07.2024 has been assailed by the petitioner in the present writ petition as it is illegal and arbitrary and by enforcement of the aforesaid order, the petitioner may

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suffer irreparable loss and injury.

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Learned Standing Counsel, on the other hand, has opposed the writ petition. He has submitted that the petitioner has remained on unauthorized absence from 01.11.2007 when she was transferred from C.H.C., Mohanlalganj, Lucknow to C.H.C., Mall, Lucknow. He has also drawn attention of the Court on the order passed by the C.M.O., Lucknow directing the petitioner to join at C.H.S., Mall, Lucknow, from where, she would be receiving salary and other service benefits.

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Despite direction being given to the petitioner, she did not join at the C.H.C., Mall, Lucknow though it is contended that the said order was never served on the petitioner. It is further brought on record that apart from issuance of the charge sheet and constituting a committee to look into the aspect of unauthorized absence of the petitioner during the said period, enquiry was conducted by the Special District Magistrate, Mohanlalganj, Lucknow, wherein it is stated that the petitioner had already participated in the enquiry and enquiry report was submitted on 20.10.2010 (which has been annexed at Annexure No.CA-8 to the counter affidavit filed today) holding that the petitioner was guilty and had violated rules 3(1), 3(2), 25 and 27 of the Employees Conduct Rules.

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I have heard the rival contention of learned counsel for the parties and perused the record. It is noticed that no orders were passed on the basis of the said enquiry report dated 20.10.2010 whereby a regular disciplinary enquiry was conducted/initiated by submission of a charge sheet against the petitioner. The aspect, as to whether, the petitioner has any justified reasons for remaining absent or not was a question which could have been addressed and determined in the departmental proceeding which was initiated by means of charge sheet dated 01.11.2019. The charges leveled against the petitioner with regard to the unauthorized absence was contested by the petitioner stating that she was directed to join at C.H.C., Mall, Lucknow on the post of OT Attendant where no such post existed. In fact, there is no denial by the respondents of this fact in any of the orders or any of the affidavits, and consequently, there is no reason to disbelieve the version of the petitioner that when she went to join at C.H.C., Mall, Lucknow, she was not allowed to join and she was directed to go back to her previous place of posting i.e. Mohanlalganj, Lucknow, where also, she was not allowed to join considering the fact that she had already been transferred and relieved from the said posting.

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In such circumstances, it was duty of the competent authority to pass orders to rectify the mistake, which was

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committed by transferring the petitioner from C.H.C. Mohanlalganj, Lucknow to C.H.C., Mall, Lucknow. Instead of passing any order, they remained silent spectator and even on interference of this Court, no orders were passed. There is no reason to disbelieve that during this period, the petitioner continued to move repeated representations to all the authorities in order to consider her grievance that she was neither paid salary during the said period nor allowed to join at either of the places. It is a clear case where the petitioner has been denied justice at all levels, despite a facade being created by conducting a regular enquiry which was initiated by giving a charge-sheet to the petitioner but for the reasons best known to the respondents, the said enquiry was never concluded. Even in the counter affidavit, I do not find any order of the Disciplinary Authority either exonerating the petitioner or inflicting any punishment, in case, it was found that she had deliberately not joined at C.H.C., Mall, Lucknow and her absence could not be condoned. Instead, the respondents have devised a novel method of constituting an enquiry committee and merely on the basis of report of the committee which had given notice to the petitioner to which she never responded, have inflicted the petitioner with the punishment of "no work, no pay." for the period of 01.11.2007 to 24.04.2014. But the entire order is silent about the result of the disciplinary proceeding.

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This Court is of the considered view that the procedure adopted by the respondents is not supported by any Government order or rule, therefore, such proceeding cannot be sustained. It was also open for the respondents to have proceeded and passed appropriate order after concluding the disciplinary proceeding but they failed to do so. It is also clear that the procedure which has been initiated by them have been concluded by passing of the order dated 23.07.2024 which is not a procedure in accordance with law and same cannot be sustained. Apart from the above, I find that neither any reason have been given for passing the said order, nor any opportunity of hearing was given to the petitioner prior to passing of the same. Accordingly, the order dated 23.07.2024 is illegal and arbitrary and deserves to be set aside being violative of Article 14 of the Constitution of India.

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Considering the fact that the petitioner has retired after running from pillar to post, it would not be equitable to direct the district authority to pass necessary order and conclude the pending enquiry proceedings after such a long length of time of more than five years.

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At this stage, learned counsel for the petitioner has fairly submitted that justice would be met, in case, the respondents are

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directed to pay 50% of the back pages from 01.11.2007 to 24.04.2014 and other post retiral dues to the petitioner.

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In view of the above, the present writ petition is allowed and order dated 23.07.2024 is hereby set aside with the following directions:

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(i) Petitioner shall be paid 50% of back wages for the period of 01.11.2007 to 24.04.2014 along with the interest of 8% from the date it was due till the date of payment.

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(ii) She shall also be paid all the post-retiral dues including pension, commutation of pension, amount of gratuity, GIS, leave encashment considering the entire service of the petitioner with effect from 04.05.1987 to 31.12.2022 as qualifying service. It is also made clear that the period of absence shall be treated to be period of duty and shall be taken note of while computing her period of service and also for payment of postretiral dues.

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The following directions shall be complied with within a period of two months from the date of production of certified copy of this order.

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(Alok Mathur,J.)

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Order Date :- 12.2.2025 V. Sinha

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

Smt. Urmila v. State of U.P. Thru. Addl. Chief Secy. Medical Health Family Welfare Lko and 3 Others

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Smt. Urmila v. State of U.P. Thru. Addl. Chief Secy. Medical Health Family Welfare Lko and 3 Others

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