Heard learned counsel for petitioner, learned Standing Counsel for State as well as Shri Rahul Shukla, learned counsel appearing for respondent no. 4.
The short question of law which arises before the Court is whether the services of a permanent teacher can be dispensed with on the ground of being absent from duty for a sufficiently long time under the provisions of Rule 18 of Financial Handbook Part II (Volume 2 to 4) Chapter III without resorting to disciplinary proceedings under the disciplinary rule.
Admittedly, the services of the petitioner, an Assistant Teacher, are governed by the Uttar Pradesh Basic Education (Staff) Service Rules, 1973. As per the said rules in question, Rule 2 deals with appointing authority, declaring appointing authority of posts mentioned in Column 2 of the schedule. Rule 3 authorizes appointing authority to impose penalties provided for, for good and sufficient reason. Penalties provided therein are as follows:
(i) Censure;
(ii) withholding of the increments including stoppage at an efficiency bar;
(iii) reduction to a lower post on time-scale, or to a lower stage in a time scale;
(iv) recovery from pay of the whole or part of any pecuniary loss caused to the Board by negligence or breach of orders;
(v) removal from the service of the Board which does not disqualify him from future employment;
(vi) dismissal from the service of the Board which ordinarily disqualifies him from future employment.
Rule 4 authorize appointing authority to place under suspension, such person against whose conduct an enquiry is contemplated or is proceeding, pending conclusion of enquiry, and such person is entitled for suspension allowance during his suspension period at the rate applicable to Government servant. Rule 5 provides for forum of appeal against the order of appointing authority.
Six categories of penalties have been specified in Rule 3, out of which three penalties specified in Rule 5(1) could be the subject-matter of an appeal. The remaining penalties could be challenged under Rule 5(2) by means of a statutory representation to the Director or the officer specified by him. Rule 5(2) empowers the employees to file a representation against those punishments which are not specified in Rule 5(1). Rule 5(3) clearly provides that procedure laid down in CCS Rules, as applicable to the servants of U.P. Government shall as far as possible, be followed in disciplinary proceedings, appeals and representation under these Rules.
The instant petition has been filed challenging the order dated 26.12.2007 passed by the respondent no. 4 i.e. District Basic Education Officer, Barabanki whereby the services of the petitioner, an Assistant Teacher, has been terminated on ground of being unauthorisedly absent for sufficiently long time. The period of absence may not detain the Court, the details of which have been given in paragraphs 11 to 13 of the counter afffidavit, however what is relevant is that the services of the petitioner have been dispensed with in terms of Rule 18 of Financial Handbook Part II (Volume 2 to 4) Chapter III (hereinafter referred to as 'Rule 18').
For the sake of convenience Rule 18 of Financial Handbook Part II (Volume 2 to 4) Chapter III is reproduced 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."
A perusal of the aforesaid provision would indicate that no government servant shall be granted leave of any kind except in special circumstances and absence beyond five years will attract the provisions of rules relating to disciplinary proceedings meaning thereby that in case the government servant is absent beyond five years the same would entail disciplinary proceedings against him.
In the instant case the services of the petitioner have been dispensed with on the ground of having been absent for a period beyond five years without informing the department and without any leave having been sanctioned.
Once 'Rule 18' specifically provides that where an employee is absent beyond a period of five years the absence would attract disciplinary proceedings thus merely because the petitioner was absent beyond the period of five years the same would not entail the automatic termination of the services rather prior to terminating the services of the petitioner disciplinary proceedings were required to be held.
Upon a pointed query made to Shri Rahul Shukla, learned counsel for respondent no. 2 as to whether any disciplinary proceedings have been initiated prior to dispensing with the services of the petitioner through the impugned order dated 26.12.2012, Shri Shukla candidly admits that no disciplinary proceedings were initiated although show cause notice had been issued to the petitioner which was also published in the daily newspaper.
Be that as it may, the fact of the matter remains that no disciplinary proceedings were initiated against the petitioner prior to terminating her services, which a sine-qua-non as per the provisions of 'Rule 2018'.
The question of law, as has arisen in the instant case, has already been answered by a Division Bench of this Court in the case of Basic Shiksha Parishad vs Ram Kishore 2014(10)ADJ153 by a Bench presided by Justice D. Y. Chandrachud (as his Lordship then was) in which considering the unamended provision of Rule 18 of the Financial Handbook the Division Bench held as under:
"8. The service condition of claimant opposite party No. 1 was governed by U.P. Basic Education (Staff) Service Rules 1973 framed in exercise of powers conferred by Sub-section (1) of Section 19 of U.P. Basic Education Act, 1972. As per the said Rules in question, Rule 2 deals with appointing authority, declaring appointing authority of posts mentioned in Column 2 of the schedule. Rule 3 authorizes appointing authority to impose penalties provided for, for good and sufficient reason. Penalties provided therein are as follows:
(i) Censure;
(ii) withholding of the increments including stoppage at an efficiency bar;
(iii) reduction to a lower post on time-scale, or to a lower stage in a time scale;
(iv) recovery from pay of the whole or part of any pecuniary loss caused to the Board by negligence or breach of orders;
(v) removal from the service of the Board which does not disqualify him from future employment;
(vi) dismissal from the service of the Board which ordinarily disqualifies him from future employment.
9. Rule 4 authorize appointing authority to place under suspension, such person against whose conduct an enquiry is contemplated or is proceeding, pending conclusion of enquiry, and such person is entitled for suspension allowance during his suspension period at the rate applicable to Government servant. Rule 5 provides for forum of appeal against the order of appointing authority.
10. Six categories of penalties have been specified in Rule 3, out of which three penalties specified in Rule 5(1) could be the subject-matter of an appeal. The remaining penalties could be challenged under Rule 5(2) by means of a statutory representation to the Director or the officer specified by him. Rule 5(2) empowers the employees to file a representation against those punishments which are not specified in Rule 5(1). Rule 5(3) clearly provides that procedure laid down in CCS Rules, as applicable to the servants of U.P. Government shall as far as possible, be followed in disciplinary proceedings, appeals and representation under these Rules.
11. Once such are the statutory provisions holding the field in the matter of punishment to be awarded by appointing authority, for good and sufficient reason, after following the procedure laid down in CCS Rules, as applicable to the servants of Uttar Pradesh Government, and admittedly said procedure has not been adhered to, rather the route that has been taken for dispensing with the services of claimant opposite party No. 1 is that on account of absence from duty his service stands terminated, can the said action taken be justified in the facts of the present case.
12. There cannot be any doubt to this proposition that absence from duty/unauthorized absence/absenteeism constitutes misconduct in itself as same clearly tantamounts to failure of devotion to duty or behavior unbecoming of Government servant and, accordingly, on such misconduct being substantiated on the basis of evidence adduced, for good and sufficient reason, appropriate punishment commensurate to the charge can always be awarded. The authority at the point of time when it proceeds to take decision in such matter has to keep in mind as to whether absence has been willful or same has been because of compelling circumstances. Apex Court in the case of Krushnakant B. Parmar v. Union of India, MANU/SC/0118/2012MANU/SC/0118/2012 : 2012 (3) SCC 178, while dealing with the matter of absence from duty has held as follows:
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a Government servant.
18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.
19. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty."
13. Apex Court in the case of Vijay S. Sathaye v. Indian Airlines Limited and others, MANU/SC/0923/2013MANU/SC/0923/2013 : 2013 (10) SCC 253, while considering the issue of termination of service vis-a-vis abandonment of service, stated that termination entails positive action on the part of employer, while abandonment is unilateral action of employee and in the said context, has held as follows:
"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer.
13. In M/s. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, MANU/SC/0232/1961MANU/SC/0232/1961 : AIR 1961 SC 1557, this Court held as under:
"......there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee."
(See also: Shahoodul Haque v. The Registrar, Co-operative Societies, Bihar and another, MANU/SC/0444/1974MANU/SC/0444/1974 : AIR 1974 SC 1896).
14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as 'retrenchment' from service. (See: State of Haryana v. Om Prakash and another, MANU/SC/1371/1998MANU/SC/1371/1998 : (1998) 8 SCC 733).
15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah and another, MANU/SC/0163/1963MANU/SC/0163/1963 : AIR 1964 SC 1272, while dealing with a similar case, this Court observed:
"5..........Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."
A similar view has been reiterated in G.T. Lad and others v. Chemicals and Fibres India Ltd., MANU/SC/0264/1978MANU/SC/0264/1978 : AIR 1979 SC 582.
16. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another, MANU/SC/0307/2000MANU/SC/0307/2000 : AIR 2000 SC 2198; and Aligarh Muslim. University and others v. Mansoor Ali Khan, MANU/SC/0533/2000MANU/SC/0533/2000 : AIR 2000 SC 2783, this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities.
A similar view has been reiterated in V.C. Banaras Hindu University and others v. Shrikant, MANU/SC/8170/2006MANU/SC/8170/2006 : AIR 2006 SC 2304; Chief Engineer (Construction) v. Keshava Rao (dead) by Lrs., MANU/SC/0215/2005MANU/SC/0215/2005 : (2005) 11 SCC 229; and Regional Manager, Bank of Baroda v. Anita Nandrajog, MANU/SC/1587/2009MANU/SC/1587/2009 : (2009) 9 SCC 462."
14. Abandonment or relinquishment of service is always a question of intention, and such an intention can be attributed to employee when there is adequate evidence in that behalf. Absence from duty is a misconduct and if the authority chooses to initiate action for according punishment for the said misconduct then he would have to adhere to the provisions of CCS Rules as applicable in the State of U.P. by holding regular departmental enquiry and only in cases where an incumbent is absent beyond the prescribed period for which leave of any kind be granted, then he has to be accepted as having abandoned his service, and in such a situation there is no need to hold enquiry or to give any notice.
15. In the State of U.P. the Government servants in various matters such as abandonment of service and leave etc. are governed by Financial Handbook i.e. U.P. Fundamental Rules, and same set of Rules are applicable to the employees of Board also.
Fundamental Rule 18 runs as follows:
"18. Unless the Government in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty elsewhere then on foreign service in India whether with or without leave, a Government servant ceases to be in Government employee"
16. The aforementioned Fundamental Rule provides for abandonment of service/cessation of service after five years continuous absence from duty, whether with or without leave. Once five year continuous absence from duty is there, then leave or no leave will not make any difference, the abandonment of service/cessation of employment has to be accepted and prior to expiry of period of five years, if there is absence from duty, the same has to be accepted as misconduct and for the same disciplinary proceedings will have to be initiated by holding regular departmental enquiry. Here the shortcut method that has been adhered to cannot at all be subscribed by law. "
When the facts of the instant case are seen in the light of Division Bench judgement in the case of Ram Kishore (Supra) what is apparent that the Division Bench while considering the unamended Rule 18 of the Financial Handbook held that there cannot be any automatic termination of the services of an employee and in case of absence from duty, the same has to be treated as misconduct and for the said misconduct disciplinary proceedings will have to be initiated by holding regular departmental inquiry and the shortcut of Rule 18 cannot be subscribed by law.
Rule 18 has been amended vide notification dated 12.09.1989 wherein absence beyond 5 years has been indicated to attract the provisions of rules relating to disciplinary proceedings meaning thereby that with effect from 1989 disciplinary proceedings are sine-qua-non prior to imposition of any penalty against an employee for his absence from duty beyond five years.
Admittedly, in this case, the disciplinary proceedings have not been initiated against the petitioner rather her services have been dispensed with by only issuing a show cause notice and thus the impugned action on the part of respondents would run foul to the settled provision of law in this regard.
Accordingly, the writ petition is partly allowed. The impugned order dated 26.12.2007, a copy of which is annexure 1 to the petitioner, passed by respondent no. 4 is quashed.
The court is of the view that disciplinary proceedings should be initiated against the petitioner but learned counsel for petitioner contends that the petitioner is now aged about 71 years and would not be able to face disciplinary proceedings at her advanced age.
Considering the aforesaid it is provided that no back wages shall be payable to the petitioner on the principle of "no work no pay". However the period of service rendered by the petitioner shall be counted as service for all purposes so as to enable the petitioner to receive pension and other retiral dues. The arrears of pension would be payable to the petitioner with effect from the date of her retirement. The action in this regard will be taken by the respondents within three months.
Order Date :- 27.7.2021 J.K. Dinkar