High Court · 2025

Judgment

1. This appeal is directed against order dated 03.07.2023 passed by learned Single Judge in Writ-A No. 3916 of 2014 whereby the writ petition filed by the appellant has been dismissed.

2. The appellant was appointed on the post of Tractor Cleaner vide order dated 21.01.2007 by way of compassionate appointment on account of death of his father Jameel Ahmad.

3. The In-charge, Sahgawa Division-II, Hardoi informed vide letter dated 20.10.2010 that the appellant had absented from duty without intimation w.e.f. 01.10.2010, a letter was sent to the appellant by Complex Superintendent Class-II, Mohammadpur, Hardoi asking him to join his duties, as the appellant did not join, the In-charge, Sahgawa Division-II, Hardoi on 10.11.2010 relieved him from his place of posting and required him to join at the Headquarter. The appellant joined the office of Complex Superintendent Class-II, Mohammadpur, Hardoi and thereafter went on casual leave on

04.01.2011, after which he did not join his duties and again letter dated 21.01.2011 was sent to the appellant but he failed to join.

4. After sending several communications, a letter dated

16.03.2011 was sent to the appellant giving him opportunity to join back, which was received by the appellant on 24.03.2011. The appellant sent an application that due to illness, he was unable to attend the office from 04.01.2011 to 31.03.2011.

5. The appellant was required to send medical certificate countersigned by the Chief Medical Officer with regard to his illness, however, the said letter was returned back and no papers were submitted by the appellant.

6. A show cause notice dated 02.07.2011 was issued to the appellant giving him one week’s time to join, however, he did not join. A press notice was published on 15.06.2012 calling the appellant to join the duty otherwise disciplinary proceedings would be initiated against him which may entail dismissal from service. However, despite the publication of press notice, when the appellant did not join, the respondents, by order impugned dated 22.08.2012,

terminated his services. Feeling aggrieved, the writ petition was filed.

7. Learned Single Judge, by the order impugned, after narrating the facts as noticed herein before, came to the conclusion that the appellant had abandoned his services and despite publication of press notice, he chose not to join back and, therefore, the order impugned did not call for any interference and consequently dismissed the writ petition.

8. Learned counsel for the appellant made vehement submissions that the action of the respondents in terminating the services of the appellant without following the procedure prescribed in the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for short, ‘the Rules of 1999’) is ex-facie illegal and, therefore, the orders impugned passed by the respondents and the learned Single Judge deserve to be set aside.

9. Submissions were made that the appellant was accorded appointment under the provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (for short, ‘the Rules of 1974’), wherein there is no provision for appointment on temporary basis and, therefore, the respondents were bound to follow the procedure as prescribed in the Rules of 1999 and on failure thereof, which is writ large on record, the order impugned cannot be sustained. Reliance was placed on Krushnakant B. Parmar Vs. Union of India and another : (2012) 3 SCC 178. 2

10. Learned counsel for the respondents attempted to support the order impugned. Submissions were made that despite repeated notices and publication of press notice in the daily newspaper across Uttar Pradesh, the appellant chose not to join back his services, which clearly indicated that he had abandoned his services and once abandonment is apparent, there was no necessity of undertaking the procedure as prescribed in the Rules of 1999.

11. Attempt was also made to claim that as the order of appointment of the appellant clearly indicated that appointment was temporary and the services could be put to an end at any time on one month’s notice, on account of the conduct of the appellant, the passing of the order impugned cannot be faulted and, therefore, appeal deserves dismissal.

12. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

13. A perusal of the order dated 20.01.2007, whereby the appellant was accorded appointment, would reveal that the appointment was accorded on compassionate basis and the only governing Rules for appointment on compassionate basis are the Rules of 1974, which do not envisage any temporary appointment.

14. Besides the above, the order dated 20.01.2007 also indicated that on satisfactory service of one year, the services can be regularized. Though, the indication about temporary service and regularization are dehors the rules, even under the said order, admittedly, the appellant had served continuously for more than three years and this is not the case of the respondents that the period of temporary service was ever extended.

15. Be that as it may, the submissions made based on the nature of order passed at the time of appointment which is dehors the Rules of 1974, cannot be countenanced.

16. Coming to the fact that the conduct of the appellant showed abandonment of service and, therefore, the enquiry as envisaged under 3 the Rules of 1999 was not contemplated, has also no basis inasmuch as the respondents were well aware of the fact that disciplinary proceedings have to be undertaken which fact was reflected in the press notice indicating that on his failure to report on duty, proceedings for termination of service would be undertaken.

17. Rule 7 of the Rules of 1999 provides a complete mechanism for holding inquiry against a delinquent employee which essentially underlines the principles of natural justice. Admittedly, the procedure, which is mandatory in nature, has not been adopted and by one line order, by indicating the absence of the appellant without permission, his services have been terminated.

18. The Hon’ble Supreme Court in the case of Krushnakant B. Parmar (supra), laid down that for sustaining allegations regarding unauthorized absence, it must be proved that the same was wilful and if the absence is due to compelling circumstances under which it is not possible to report or perform duty, such absence cannot be held to be wilful and an employee cannot be held guilty of misconduct. As such, it is apparent that the employee has to be provided an opportunity to indicate the reasons for his absence and that inquiry can only be conducted under the provisions of Rule 7 of the Rules of

19. Consequently, as the respondents have failed to comply with the mandatory requirements of the Rules of 1999, passing of the order dated 21.08.2012 cannot be sustained.

20. Consequently, the special appeal is allowed. The orders dated

22.08.2012 passed by the respondents and 03.07.2023 passed by learned Single Judge are quashed and set aside. The appellant is directed to be reinstated in service with all consequential benefits.

21. However, respondents would be free to initiate appropriate proceedings in accordance with law in case they propose to do so. In case fresh proceedings are initiated within a period of 3 months from 4 the date of this order, only the payment of back wages would follow the outcome of the enquiry.

22. Needful be done within a period of three months from the date of this order. Order Date :- 25.04.2025 Sandeep (Jaspreet Singh, J) (Arun Bhansali, CJ) SANDEEP KUMAR High Court of Judicature at Allahabad, Lucknow Bench 5

terminated his services. Feeling aggrieved, the writ petition was filed.

7. Learned Single Judge, by the order impugned, after narrating the facts as noticed herein before, came to the conclusion that the appellant had abandoned his services and despite publication of press notice, he chose not to join back and, therefore, the order impugned did not call for any interference and consequently dismissed the writ petition.

8. Learned counsel for the appellant made vehement submissions that the action of the respondents in terminating the services of the appellant without following the procedure prescribed in the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for short, ‘the Rules of 1999’) is ex-facie illegal and, therefore, the orders impugned passed by the respondents and the learned Single Judge deserve to be set aside.

9. Submissions were made that the appellant was accorded appointment under the provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (for short, ‘the Rules of 1974’), wherein there is no provision for appointment on temporary basis and, therefore, the respondents were bound to follow the procedure as prescribed in the Rules of 1999 and on failure thereof, which is writ large on record, the order impugned cannot be sustained. Reliance was placed on Krushnakant B. Parmar Vs. Union of India and another : (2012) 3 SCC 178. 2

10. Learned counsel for the respondents attempted to support the order impugned. Submissions were made that despite repeated notices and publication of press notice in the daily newspaper across Uttar Pradesh, the appellant chose not to join back his services, which clearly indicated that he had abandoned his services and once abandonment is apparent, there was no necessity of undertaking the procedure as prescribed in the Rules of 1999.

11. Attempt was also made to claim that as the order of appointment of the appellant clearly indicated that appointment was temporary and the services could be put to an end at any time on one month’s notice, on account of the conduct of the appellant, the passing of the order impugned cannot be faulted and, therefore, appeal deserves dismissal.

12. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

13. A perusal of the order dated 20.01.2007, whereby the appellant was accorded appointment, would reveal that the appointment was accorded on compassionate basis and the only governing Rules for appointment on compassionate basis are the Rules of 1974, which do not envisage any temporary appointment.

14. Besides the above, the order dated 20.01.2007 also indicated that on satisfactory service of one year, the services can be regularized. Though, the indication about temporary service and regularization are dehors the rules, even under the said order, admittedly, the appellant had served continuously for more than three years and this is not the case of the respondents that the period of temporary service was ever extended.

15. Be that as it may, the submissions made based on the nature of order passed at the time of appointment which is dehors the Rules of 1974, cannot be countenanced.

16. Coming to the fact that the conduct of the appellant showed abandonment of service and, therefore, the enquiry as envisaged under 3 the Rules of 1999 was not contemplated, has also no basis inasmuch as the respondents were well aware of the fact that disciplinary proceedings have to be undertaken which fact was reflected in the press notice indicating that on his failure to report on duty, proceedings for termination of service would be undertaken.

17. Rule 7 of the Rules of 1999 provides a complete mechanism for holding inquiry against a delinquent employee which essentially underlines the principles of natural justice. Admittedly, the procedure, which is mandatory in nature, has not been adopted and by one line order, by indicating the absence of the appellant without permission, his services have been terminated.

18. The Hon’ble Supreme Court in the case of Krushnakant B. Parmar (supra), laid down that for sustaining allegations regarding unauthorized absence, it must be proved that the same was wilful and if the absence is due to compelling circumstances under which it is not possible to report or perform duty, such absence cannot be held to be wilful and an employee cannot be held guilty of misconduct. As such, it is apparent that the employee has to be provided an opportunity to indicate the reasons for his absence and that inquiry can only be conducted under the provisions of Rule 7 of the Rules of

19. Consequently, as the respondents have failed to comply with the mandatory requirements of the Rules of 1999, passing of the order dated 21.08.2012 cannot be sustained.

20. Consequently, the special appeal is allowed. The orders dated

22.08.2012 passed by the respondents and 03.07.2023 passed by learned Single Judge are quashed and set aside. The appellant is directed to be reinstated in service with all consequential benefits.

21. However, respondents would be free to initiate appropriate proceedings in accordance with law in case they propose to do so. In case fresh proceedings are initiated within a period of 3 months from 4 the date of this order, only the payment of back wages would follow the outcome of the enquiry.

22. Needful be done within a period of three months from the date of this order. Order Date :- 25.04.2025 Sandeep (Jaspreet Singh, J) (Arun Bhansali, CJ) SANDEEP KUMAR High Court of Judicature at Allahabad, Lucknow Bench 5