Court No. - 2
Case :- WRIT - A No. - 5584 of 2016 Petitioner :- Gayasi Lal Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rama Shanker Mishra Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
1. Heard learned counsel for the parties and perused the record.
2. Petitioner came to be appointed as Gauge Reader on 17 July 1976 and continued until 11 March 1980, thereafter, he was posted as Mate.
3. It appears that petitioner absented unauthorizedly from 23 March 1985 to 8 September 1986 due to family problem. Consequently, the services of the petitioner came to be terminated by order dated 25 April 1986 under Sub Rule 4(iv) 2B of the Financial Hand Book, Volume II. Aggrieved petitioner assailed the order of termination by filing a petition being Claim Petition No. 29/F/IV/1988 before the State Public Services Tribunal, Indira Bhawan, Lucknow (for short 'Tribunal'). The petition came to be allowed by judgment and order dated 1 January 1997. The operative portion of the order reads thus:
"This claim petition is allowed. The impugned order of termination dated 25 April 1986, and rejection of representation against it dated 5.5.1987 are hereby quashed. Petitioner shall be deemed to be in continue service with consequential benefits of pay and allowance etc. Arrear of pay for the above reason should be paid to the petitioner within three months from today.
No order is made as to costs."
4. The judgment of the Tribunal was assailed by the State Government before the Division Bench of this Court in a petition being Service Bench No. 2802 of 1997 (State of U.P. through Secretary Versus Gayasi Lal). The writ petition was partly allowed and the judgment and order of the Tribunal came to be modified to the extent that it will be open to the respondents to initiate enquiry afresh by issuing charge sheet and the backwages shall abide the outcome of the departmental enquiry, however, the petitioner is entitled to be reinstated. The operative portion of the order reads thus:
"In view of above, we are of the view that the Tribunal has rightly allowed the claim petition, but opportunity should have been given to State to proceed afresh in accordance to law by holding an enquiry in accordance to Rules, instead of directing the petitioners to pay entire salary of the claimant-respondent with restoration in service.
Accordingly, we modify the order passed by the learned Tribunal to the extent that it shall be open to the petitioners to hold a regular enquiry in accordance to law and thereafter pass afresh order on the basis of findings recorded by the enquiry officer. The order is further modified that the claimant- respondent shall be restored in service forthwith, but without any back wages. The payment of back wages shall be subject to regular enquiry conducted by the disciplinary authority in accordance to law.
In case the petitioners take a decision to hold an enquiry afresh in terms of present order, a charge-sheet will be served to the claimant-respondent within one month. The claimant- respondent may submit his reply within next one month and the enquiry officer will conclude the enquiry within a period of four months. After receipt of report, the disciplinary authority shall pass appropriate orders within two weeks.
Let the entire exercise be done expeditiously, preferably within a period of eight months.
The writ petition is allowed in part. The Tribunal's order dated 1.1.1997 stands modified accordingly.
No costs."
5. Pursuant thereof, petitioner came to be reinstated on 15 April 2011. The charge sheet dated 14 May 2011 came to be issued by the fourth respondent, Executive Engineer, Maudaha Bandh Nirman Khand, Hamirpur, alleging therein that the petitioner while working on the post of Mate absented from 2 January 1983 until 23 March 1985 without prior information, hence, committed misconduct under Rule 3(i) of the Government Servant's Conduct Rules, 1956. Petitioner replied to the charge sheet on 12 July 2011. During pendency of the enquiry, petitioner retired on attaining the age of superannuation on 30 November 2013. After retirement, petitioner approached this Court by filing a petition being Service Single No. 3693 of 2014 (Gayasi Lal Versus State of U.P. and others), wherein, following order came to be passed on 25 August 2014:
"The petitioner has been charge-sheeted on the account of his absence from duty for the certain periods. The petitioner admits his absence but has submitted that he sent prior intimation to the concerned authority but the same has not been acknowledged. Thus, the matter is under inquiry, however, due to pendency of the said inquiry, the petitioner has not been released the pension. Since the matter is under inquiry, I hereby observe for the respondents to conclude the same with the cooperation of the petitioner, expeditiously.
Meanwhile, the respondents shall release the pensionary benefits to the petitioner on the basis of pay scale drawn by him on the date of his retirement. The respondents are permitted to withhold the amount for the period of his absence as aforesaid, which shall be subject to further order of this Court.
As prayed by learned Standing Counsel, four weeks' time is allowed to file counter affidavit.
List thereafter."
6. On specific query, learned counsel for the petitioner submits that the said writ petition is pending, however, has rendered infructuous after passing of the impugned order which is subject matter of the instant writ petition. It is urged by learned counsel for the petitioner that the writ court order was not complied, therefore, the petitioner was constrained to again approach this Court by filing a contempt petition. During the pendency of the contempt petition, the impugned order dated 11 August 2015 came to be passed by the fourth respondent.
7. It is noted in the impugned order that since petitioner had not submitted reply to the charge sheet within the stipulated time provided therein, an assumption has been drawn that the petitioner has nothing to submit to the charge, consequently, the charge was taken to be correct and proved. It was ordered that petitioner is not entitled for computation of pension for the period from the date of his dismissal to the date of his reinstatement i.e. 15 April 2011. The date of reinstatement of the petitioner w.e.f. 15 April 2011 would be taken to be a new appointment and since petitioner retired on 30 November 2013 and has not rendered 10 years of continuous service he is not entitled to family pension and other post retiral dues.
8. Learned counsel for the petitioner submits that the impugned order is illegal and against the provision of law. The claim petition of the petitioner came to be allowed with all consequential benefits including backwages by setting aside the termination order. The order of the Tribunal came to be modified by this Court to the extent that it will be open to the authorities to conduct the departmental enquiry against the petitioner and the backwages shall abide the outcome of the enquiry. The period since termination was neither modified nor set aside by the Division Bench. Pursuant thereof, petitioner came to be served a charge sheet to which petitioner replied, however, the respondents failed to follow the procedure for imposition of major penalty mandated under Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 (for short 'Rules, 1999'), nor any punishment came to be imposed except that the appointment of the petitioner on reinstatement was taken to be afresh appointment, meaning thereby, arrears of salary and the other consequential benefits was deprived to the petitioner by way of punishment which was not permissible. It is hence urged that petitioner is entitled to arrears of salary and pension upon computing the entire service rendered by him pursuant to the order of the Tribunal.
9. Learned Standing Counsel does not dispute the facts and submits that the impugned order came to be passed in compliance of the order passed by the writ court. The General Provident Fund (GPF), leave encashment, group insurance and the gratuity has been paid, however, since petitioner had not rendered 10 years of qualifying service he is not entitled to pension. The reply to the charge sheet was not considered as it was not replied within the stipulated time. In the circumstances, it was assumed by the authority that the charge levelled against the petitioner was taken to be proved.
10. Rival submission falls for consideration.
11. It is not in dispute that the termination order was set aside by the Tribunal with all consequential benefits including backwages. The writ court modified the order only to the extent that it will be open to the respondent to initiate departmental enquiry after issuing charge sheet, and backwages shall abide the out come of the departmental enquiry. Admittedly, the departmental enquiry commenced after issue of the charge sheet, however, it was not concluded until retirement of the petitioner nor continued thereafter. In the impugned order, it is noted that since petitioner had not replied to the charge sheet, therefore, charge against the petitioner has been proved on assuming that he had nothing to say in the matter, consequently, by way of punishment his past service was declared dies non, and was not computed towards pension and arrears of salary.
12. It is not in dispute that the disciplinary proceedings came to be initiated under Rules, 1999 for imposition of major penalty. Rule 7 provides the procedure for imposition of major penalty. In the event the procedure mandated by the rules is not followed the enquiry vitiates. It is not open for the respondents to deprive a class IV employee of livelihood and pension without following the mandatory procedure prescribed under Rules, 1999.
13. The impugned order also to the extent that it takes date of reinstatement of petitioner i.e. 15 April 2011 as the date of fresh appointment is in teeth of the decision rendered by the Tribunal and the Division Bench. The respondents were entitled to initiate disciplinary proceedings and impose the penalty, however, without following the procedure petitioner has been deprived of past wages.
14. Having due regard to the facts and circumstances of the case, the writ petition is allowed. The impugned order dated 11 August 2015 passed by the fourth respondent, Executive Engineer, Maudaha Bandh Nirman Khand, Hamirpur, is set aside and quashed. Petitioner is entitled to pension and other post retiral dues upon computing his service from the date of his appointment to the date of his retirement i.e. 30 November 2013. The petitioner is also entitled to backwages as directed by the Tribunal. The pension and the arrears of salary shall be released by the fourth respondent within three months from the date of filing of certified copy of this order, failing which, petitioner shall be entitled to interest at the rate of 6.5% on the entire sum due.
Order Date :- 26.9.2019 K.K. Maurya