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Nand Lal v. State Of U.P. Thru' Director Agriculture Up & Anr. - WRIT - A No. 30865 of 2002 [2007] RD-AH 5721 (30 March 2007)


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Civil Misc. Writ Petition No. 30865 of 2002

Nand Lal


State of U.P & Ors.

Hon'ble Pankaj Mithal, J.

The impugned order dated 20.4.2002 (Annexure 9 to the writ petition) terminates the services of the petitioner as a class-IV employee on the ground of continued unauthorised absence from duty.

The petitioner was appointed as a class-IV employee on 21.2.1974 and had been discharging his duties efficiently and diligently to the satisfaction of the authorities concerned. However, his services were terminated by the impugned order. Hence the writ petition.

The first and foremost argument of the learned counsel for the petitioner is that the services of the petitioner have been terminated by way of punishment without holding any departmental inquiry and as such is violative of the principles of natural justice. He further contends that the petitioner had never absented himself without any information and the recital to this effect in the termination order is incorrect.

Learned standing counsel has supported the impugned order by placing reliance upon the decision of the Supreme Court reported in (2006) 1 SCC 589 State of Rajashthan and another Vs. Mohd. Ayub Naz wherein on the ground of misconduct due to absence an order of punishment was passed directing the removal from service of the delinquent employee.

In paragraphs 20 and 21 of the writ petition, it has been clearly averred by the petitioner that no departmental inquiry was instituted against him before passing the impugned order of termination holding him guilty for unauthorized absence from duty. The petitioner was neither issued any charge-sheet nor a show cause notice or any opportunity of hearing was given to him before terminating his services on the aforesaid ground of unauthorized absence. The counter affidavit filed on behalf of the respondents is completely silent on the above aspects and the averments of the above paragraphs have not been denied. It only states that the petitioner was given notice to resume duties and when he failed a publication was also made in the newspaper.  However, the petitioner continued to remain absent and, therefore, his services have been terminated.

In view of the above, the averments of the petitioner made in paragraphs 20 and 21 of the writ petition have remained uncontroverted. Accordingly it is clear that the services of the petitioner have been terminated without holding any departmental inquiry.

The decision of the Supreme Court in the case of State of Rajashthan and another (Supra) relied upon by the learned Standing counsel is not at all applicable on the facts and circumstances of the present case. In this case before the Supreme Court the order of punishment of removal from services on the ground of absence was passed after a regular departmental inquiry, which is not the case in the present writ petition.

It is settled principle of law that before passing a dismissal order an inquiry should be held intimating the accused employee the charges, date, time and place of inquiry. No order of punishment can be passed without holding the accused employee guilty in the departmental inquiry and without affording him opportunity of hearing thereof. An order of termination has serious civil consequences therefore, it has to be passed only after complying with the rules of natural justice. Since in the present case no inquiry was held against the petitioner and he was not given any opportunity to defend himself before passing the impugned order of termination which is ex facie an order of punishment, the same is unsustainable under law.

Learned counsel for the petitioner has supported the above view by the decision of this Court reported in 2002 (2) AWC 1550 Neeraj Bharadwaj Vs. Marathwada Institute of Technology and others. In the said case also the services of an employee were terminated in gross violation of principles of natural justice as no inquiry was conducted against him. Thus, the Court disapproved of action of punishment against the employee in the absence of a disciplinary inquiry. Similar view was expressed by the Apex Court in Deokinandan Prasad Vs. The State of Bihar and others, AIR 1971 SC 1409 (Pr. 25) where order of termination passed on the basis of continuous absence of 5 years was held to be bad as it was passed without giving opportunity of  hearing to the employee. Thus, in view of the aforesaid factual and legal position as the petitioner was not subjected to any disciplinary inquiry before terminating his services as a measure of punishment, the impugned order dated 20.4.2002 is held to be patently, illegal and erroneous under law. It is accordingly quashed.

The writ petition is allowed. No order as to costs.

Dt. 30.3.2007



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