# Dr. S.C. Asthana v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 1350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Writ A No. 2000264 of 2000
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-s-c-asthana-v-state-of-u-p-anr-50382
- **Pages:** 9

## Headnote

Service Law - Foreign Assignment -
Unauthorized Absence - Disciplinary
Proceedings
-
Censure
Entry
-
Promotion Denied - Regularization of
Service - Quashing of Punishment
The petitioner, a Medical Officer in the
Provincial
Medical
and
Health
Services
(PMHS), went on a foreign assignment to
Nigeria
after
obtaining
a
no-objection
certificate
and
earned
leave.
The
St.
Government later regularized the period of
foreign
assignment
(16.04.1981
to
09.01.1985) and directed him to deposit
GPF, insurance, and pension contributions,
which he complied with. Despite this,
disciplinary
proceedings
were
initiated
against
him
for
alleged
unauthorized
absence, resulting in the award of a censure
entry and stoppage of one increment. The
petitioner was also denied promotion and
leave benefits. Held, once the foreign
assignment was regularized by the St.
Government, initiation of disciplinary action
and awarding of censure entry was arbitrary
and illegal. No finding of willful absence was
recorded, and thus, the absence could not
be treated as misconduct. The disciplinary
authority failed to adhere to principles of
natural justice and the U.P. Government
Servant (Discipline and Appeal) Rules, 1999.
Consequently, the impugned orders dated
25.04.1996 (censure and punishment) and
09.12.1998
(rejection
of
leave)
were
quashed. The petitioner was held entitled to
consequential service benefits.

Writ Petition Allowed.

List of Cases cited:

## Text

1350 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 7 ILRA 1350
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J

Writ A No. 2000264 of 2000

Dr. S.C. Asthana ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
S.K.
Kalia,
Chinmay
Mishra,
Gaurav
Mehrotra, S.E. Chitambar, Shikha Sinha

Counsel for the Respondents:
C.S.C.

Service Law - Foreign Assignment -
Unauthorized Absence - Disciplinary
Proceedings
-
Censure
Entry
-
Promotion Denied - Regularization of
Service - Quashing of Punishment
The petitioner, a Medical Officer in the
Provincial
Medical
and
Health
Services
(PMHS), went on a foreign assignment to
Nigeria
after
obtaining
a
no-objection
certificate
and
earned
leave.
The
St.
Government later regularized the period of
foreign
assignment
(16.04.1981
to
09.01.1985) and directed him to deposit
GPF, insurance, and pension contributions,
which he complied with. Despite this,
disciplinary
proceedings
were
initiated
against
him
for
alleged
unauthorized
absence, resulting in the award of a censure
entry and stoppage of one increment. The
petitioner was also denied promotion and
leave benefits. Held, once the foreign
assignment was regularized by the St.
Government, initiation of disciplinary action
and awarding of censure entry was arbitrary
and illegal. No finding of willful absence was
recorded, and thus, the absence could not
be treated as misconduct. The disciplinary
authority failed to adhere to principles of
natural justice and the U.P. Government
Servant (Discipline and Appeal) Rules, 1999.
Consequently, the impugned orders dated
25.04.1996 (censure and punishment) and
09.12.1998
(rejection
of
leave)
were
quashed. The petitioner was held entitled to
consequential service benefits.

Writ Petition Allowed.

List of Cases cited:

1. Dinesh Kumar Verma Vs St. of U.P. & ors.

2. U.O.I. & anr.Vs S.C. Parashar Citation: (2006)
3 SCC 167

3. Krushnakant B. Parmar Vs U.O.I. & anr.
(2012) 3 SCC 178

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Gaurav Mehrtora,
learned counsel for the petitioner and
learned
Additional
C.S.C.
for
the
respondent - State.

2. By means of present writ petition,
the petitioner has prayed for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents to
release the senior scale of Rs.3000-4500/-
to the petitioner with effect from 1984, time
scale of Rs.3700-5000/- w.e.f. 1990 after
completing 16 years of service with a
further prayer to release all promotions of
the petitioner upto the post of Joint Director
with effect from his juniors have been
promoted. A further prayer has been made
to issue a writ, order or direction in the
nature of certiorari quashing the order
dated 25.04.1996 awarding censure entry
and punishment to the petitioner and order
dated 09.12.1998, whereby leave of the
petitioner has been rejected.

3. Brief facts giving rise to the present
writ petition are as under:
7 All. Dr. S.C. Asthana Vs. State of U.P. & Anr.
1351
Sr.
No.
Relevant Facts of the Case
a.
The petitioner was appointed on the post of
Medical Officer on 21.08.1974 in Provincial
Medical and Health Services on ad-hoc basis.
b.
In the year 1975, the petitioner appeared before the
U.P.
Public
Service
Commission
and
his
appointment was approved by the Commission.
c.
The petitioner moved a representation in the year
1976 to the Government for being enrolled /
registered in the panel of experts of Foreign
Assignments Scheme of Govt. of India.
d.
On 29.06.1978, the petitioner's candidature for
being impaneled in the panel of experts in Foreign
Assignment Scheme was accepted and he was
registered as an Expert and an agreement between
the petitioner and authorities of Gongola, State of
Nigeria was entered into.
e.
On 27.01.1981, a no-objection certificate was
issued by the Additional Director (Administration)
for the purpose of passport relating to the
petitioner's stay in Nigeria.
f.
On 11.02.1981, the petitioner was sanctioned
earned leave for 15 days.
g.
On 16.02.1981, the petitioner was relieved from
Unnao.
h.
On 18.03.1981, the petitioner proceeded to Nigeria
after informing the Director.
i.
On 16.10.1984, a letter was issued to the
Superintendent of Hospital at Unnao by the State
Government stating that the petitioner should
submit his joining in PHMS within one month.
j.
On 09.11.1984, family of the petitioner received
the letter dated 16.10.1984.
k.
On 17.11.1984, wife of the petitioner sent a letter to
the petitioner at Nigeria informing about the said
letter and requested to the Joint Director for grant
of time.
l.
On 10.01.1985, the petitioner on receipt of
information, returned back from Nigeria and
submitted his joining, which was accepted but he
was not given posting.
m.
On 20.03.1985, the State Government wrote a letter
to the Director stating that the petitioner may be
posted as Medical Officer in any district.
n.
On 12.04.1985, the petitioner was posted in Health
Directorate at Lucknow as Medical Officer
(Reserved Duty).
o.
On 15.04.1985, the petitioner joined his posting
place at Directorate.
p.
On 07.07.1988, the State Government directed the
Director (Administration) that since the period of
petitioner's stay in Nigeria has been regularized, the
amount of GPF, Insurance and Pension contribution
for the said period be got deposited from the
petitioner.
q.
On 07.10.1989, the Joint Director informed the
Government that the petitioner had deposited the
amount of GPF & GIS.
r.
On 31.08.1990, the petitioner was served with a
charge - sheet.
s.
On 10.09.1990, the petitioner submitted his reply to
the said charge - sheet.
t.
On 28.10.1991, the petitioner was served a show
cause notice to explain his unauthorized absence.
u.
On 26.11.1991, the petitioner filed a writ petition
bearing No.7628 (S/B) of 1991 against the said
show cause notice. The writ petition was dismissed
as pre-mature.
v.
On 22.11.1993, the petitioner was provided inquiry
report.
w.
On 16.06.1995, the petitioner submitted detailed
reply to the charges levelled against him in the
charge sheet / show cause notice.
x.
On 25.04.1996, an adverse entry was awarded to
the petitioner.
y.
In the month of May, 1996, the petitioner made
representation against the said adverse remark.
z.
On 04.07.1996, the petitioner's representation was
rejected.
aa.
On 09.07.1997, petitioner's juniors were promoted
but his name was not considered for the promotion.
ab.
On 24.10.1997, the State Government directed the
Director General, Medical Health and Family
Welfare to provide Annual Confidential Reports
(ACR) from 1989 - 90 & 1994-95.
ac.
On 25.10.1997, the said ACR was made available
to the Government.
ad.
On 29.01.1998, a decision for giving the petitioner
time scale of Rs.3700-5000/- was communicated to
the petitioner.
ae.
In May, 1998, the petitioner made representation
for his promotion and other service benefits.
af.
On 09.07.1998, the petitioner's juniors were
granted notional promotion to the post of Joint
Director.
ag.

On 09.12.1998, the petitioner was informed that it
was not possible to sanction the leave between the
period 16.01.1981 to 09.04.1985.
ah.
Being aggrieved by the act and action of the
respondents in not sanctioning the said leave and
not granting promotion to the petitioner, the present
writ petition has been filed before this Court.
1352 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Submission of learned counsel for
the petitioner is that in compliance of
Government Order dated 09.11.1984, the
petitioner came back from Nigeria and
joined his duties and the State Government
vide
order
dated
07.07.1988
had
regularized the foreign assignment period
of the petitioner, therefore, the petitioner
should not be punished.

5. He next submitted that the
respondents in arbitrary and illegal manner
instituted a disciplinary proceeding against
the petitioner for the charge of unlawful
absence from duties during his foreign
assignment period and a censure entry was
awarded to the petitioner in pursuance of
the disciplinary proceeding.

6. He further submitted that the
DGME has erred in law while awarding
censure entry to the petitioner in view of
the fact that on the one hand the State
Government has regularized the foreign
assignment period of the petitioner and on
the other hand censure entry was awarded
to him in pursuance to the disciplinary
proceeding.

7. He next submitted that while
awarding
the
punishment
to
the
petitioner of censure entry, the year to
which the entry relates has not been
mentioned and arbitrarily one increment
of the petitioner has been stopped
without clarifying that whether it is
permanent or temporary.

8. He further submitted that the
petitioner was entitled to promotion in
senior scale after completing 10 years
service i.e. Rs.3000-4500/- and time scale
of Rs.3700-5000/- after completing 16
years of service but the same has not been
provided to him.

9. He next submitted that character
roll of the petitioner for the year 1989 -
1995
has
not
been
submitted
and
subsequently all the annual character roll
entries upto year 1997 were made available
to the State Government due to which
promotion of the petitioner for higher post
could not be considered.

10. He lastly submitted that the
respondents are under legal obligation to
consider the promotion of the petitioner
and to provide the other benefits to him and
the order dated 09.12.1998 refusing to
grant the leave is absolutely arbitrary as the
said leave was applied by the petitioner
before
leaving
for
Nigeria
and
the
petitioner has also deposited the amount
pension and gratuity etc. as was calculated
by the respondents in May, 1998. In
support of his submissions, he placed
reliance upon the judgments in the case of
Dinesh Kumar Verma Vs. State of U.P.
and others; Writ A No.20837 of 2020
decided vide judgment and order dated
24.03.2022, Union of India and another
Vs. S.C. Parashar; (2006) 3 SCC 167 and
Krushnakant B. Parmar vs. Union of
India and another; (2012) 3 SCC 178.

11. On the other hand, learned
Additional CSC submitted that petitioner's
application was forwarded to Ministry of
Home, Government of India vide letter
dated 21.06.1978 with the rider that in case
of selection, he has to resign from his
original position and there will be no lien
available to him. He submitted that the
petitioner
was
granted
no
objection
certificate for arranging the passport for
Nigeria with the condition that before
moving to Nigeria, he will get necessary
instruction in regard to relieving, however,
he, without resigning from his original
position
and
without
permission,
he
7 All. Dr. S.C. Asthana Vs. State of U.P. & Anr.
1353
departed for Nigeria and no sanction of
leave was available to petitioner to depart
for Nigeria, therefore, he was directed to
re-join his duties under PMHS cadre within
one month.

12. He next submitted that a show
cause notice was issued to the petitioner for
unauthorized absence from duties in view
of the fact that the petitioner went to
Nigeria will his own will ignoring the
instructions / directions issued to him.

13. He further submitted that
petitioner's application to regularize the
unauthorized absence from duty has been
rejected by the State Government vide
Government Order dated 09.12.1998 and
on being found guilty of unauthorized
absence orders, adverse entry was made in
his service book.

14. He next submitted that petitioner's
candidature for promotion from Class-II to
Class-I post was forwarded to the State
Government, wherein, his name found
place
at
Sr.
No.890,
however,
the
departmental selection committee did not
find him suitable due to pendency of
departmental inquiry, therefore, his case
was not considered for grant of promotion.

15. He further submitted that for
petitioner's foreign service i.e. 16.04.1981
to 09.01.1985 no leave was granted and
there being no reason to relax the leave
rules, it was not possible to sanction his
leave. He submitted that pay scale of
Rs.3700-5000/- was wrongly granted to the
petitioner vide order dated 29.01.1998,
which was cancelled vide order dated
30.10.2002.

16. He next submitted that the
petitioner did not fulfill 10 year's regular
and continuous service, as required by the
Government Orders issued from time to
time, therefore, time scale of Rs.30004500/- was not sanctioned to him. He
submitted that petitioner is not liable to get
any relief from this Hon'ble Court and the
writ petition is liable to the dismissed.

17. In reply, learned counsel for the
petitioner submitted that letter dated
21.06.1978 was never communicated to the
petitioner and he was not informed about
the said condition that on joining to
Nigeria, there will be no lien available to
him. He submitted that order dated
11.02.1981 has not been denied by the
respondents, whereby earned leave was
sanctioned to the petitioner. He also
submitted
that
the
application
dated
18.03.1981, moved by the petitioner has
also not been denied by the respondents,
whereby he informed to the respondents
about his joining at Nigeria.

18. He next submitted that the
petitioner was duly relieved from service
from the post of Physician, District
Hospital, Unnao, as he handed over the
charge vide letter dated 16.02.1981 before
proceeding to Nigeria.

19. He submitted that petitioner's
service at Nigeria is deemed to have been
regularized and continued in view of the
fact that the State Government vide order
dated 07.07.1988 has regularized the period
of 16.04.1981 to 09.01.1985 - the period
during which the petitioner remained on
foreign assignment, as vide order dated
07.07.1988, the petitioner was required to
deposit the amount of GPF, insurance and
Pension Contribution for the said period,
which has been duly deposited by the
petitioner and the said fact has not been
denied by the petitioner, therefore, there
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
was no occasion for issuing charge sheet
dated 31.08.1990.

20. He further submitted that the
petitioner has never been communicated
any order to the effect that he was not
found suitable for promotion from Class -
II to Class - I post.

21. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well
as the case laws cited by learned counsel
for the petitioner.

22. To resolve the controversy
involved in the matter, relevant paragraphs
of the judgments relied upon by learned
counsel for the petitioner are being quoted
below:

a)
Dinesh
Kumar
Verma
(Supra):
s

"
9.
As
noted
above,
the
punishments, major and minor, both have
been inflicted upon the petitioner and this,
according to learned counsel for the
petitioner, is held to be impermissible by
the Apex Court in the case of Union of
India and another vs. S.C. Parashar
(Supra). Paragraph 12, in this regard, has
specifically been placed reliance upon, of
which the relevant extract is reproduced
hereunder :-

"12...................................Whereas
reduction
of
timescale
of
pay
with
cumulative effect is a major penalty within
the meaning of clause (v) of Rule 11 of the
CCS Rules, loss of seniority and recovery
of amount would come within the purview
of minor penalty, as envisaged by clauses
(iii) and (iii)(a) thereof. The disciplinary
authority, therefore, in our opinion acted
illegally
and
without
jurisdiction
in
imposing both minor and major penalties
by the same order. Such a course of action
could not have been taken in law."

b) Union of India and another
(Supra):

"12. The penalty imposed upon
the respondent is an amalgam of minor
penalty and major penalty. The respondent
has been inflicted with three penalties : (1)
reduction to the minimum of the time-scale
of pay for a period of three years with
cumulative effect; (2) loss of seniority; and
(3) recovery of 25% of the loss incurred by
the
Government
to
the
tune
of
Rs.74,341.89p., i.e., Rs.18,585.47p. on
account of damage to the Gypsy in 18
(eighteen)
equal
monthly
instalments.
Whereas reduction of time-scale of pay with
cumulative effect is a major penalty within
the meaning of clause (v) of Rule 11 of the
CCS Rules, loss of seniority and recovery
of amount would come within the purview
of minor penalty, as envisaged by clause
(iii) and (iii)(a) thereof. The Disciplinary
Authority, therefore, in our opinion acted
illegally
and
without
jurisdiction
in
imposing both minor and major penalties
by the same order. Such a course of action
could not have been taken in law. "

c)
Krushnakant
B.
Parmar
(Supra):

"16. In the case of appellant
referring to unauthorised absence the
disciplinary authority alleged that he failed
to maintain devotion of duty and his
behaviour
was
unbecoming
of
a
Government servant. The question whether
`unauthorised absence from duty' amounts
to failure of devotion to duty or behaviour
unbecoming of a Government servant
cannot be decided without deciding the
question whether absence is wilful or
because of compelling circumstances.

17. If the absence is the result of
compelling circumstances under which it
was not possible to report or perform duty,
7 All. Dr. S.C. Asthana Vs. State of U.P. & Anr.
1355
such absence can not be held to be wilful.
Absence from duty without any application
or prior permission may amount to
unauthorised absence, but it does not
always mean wilful. 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 behaviour 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 wilful, in absence of such
finding, the absence will not amount to
misconduct."

23. In the case of Dinesh Kumar
Verma (Supra), the claim petition was
filed assailing the order of punishment
dated
23.01.2019,
whereby
three
punishments were imposed upon the
petitioner. First punishment was related to
withholding
of
03
increments
with
cumulative effect. A censure entry was
imposed by way of second punishment and
thirdly, the integrity of the petitioner was
also withheld. Learned tribunal, upon
exchange of pleadings and after hearing
learned counsel for the parties, allowed the
claim petition only to the extent of striking
down the punishment of withholding the
integrity. In the said case, Division Bench
of this Court recorded the finding that
disciplinary proceedings held by the State
authorities by and large do not adhere to the
well settled principles of law in the matter
of holding inquiry. The Court held that this
amounts to a dereliction of duty embodied
under U.P. Government Servant (Discipline
and Appeal) Rules, 1999. The irregularities
in the enquiry leave enough scope for
indiscipline and the guilty go unpunished in
all those cases, where the procedural
violations shield their misconduct. The
discrepancies also prolong the disciplinary
action contrary to the objects of service
jurisprudence. The dormant role on the part
of the State not to have a trained staff for
disciplinary enquiry cannot be viewed
lightly in every case. The disciplinary
action must culminate into reformation and
discipline and for the reasons recorded
above, the writ petition was allowed and
the punishment order dated 23.01.2019 was
set aside. However, liberty was granted to
the disciplinary authority to proceed with
the inquiry from the stage of reply
submitted by the petitioner in response to
the charge sheet issued to him.

24. In the case of Union of India and
another (Supra), it has been held that the
penalty imposed upon the respondent is an
amalgam of minor penalty and major
penalty. The respondent has been inflicted
with three penalties: (1) reduction to the
minimum of the timescale of pay for a
period of three years with cumulative
effect; (2) loss of seniority; and (3)
recovery of 25% of the lost incurred by the
Government to the tune of Rs.74,341.89p.
i.e. Rs.18,585.47p. on account of damage
to the Gypsy in 18 (eighteen) equal
monthly installments. Whereas reduction of
timescale of pay with cumulative effect is a
major penalty within the meaning of clause
(v) of Rule 11 of the CCS Rules, loss of
seniority and recovery of amount would
come within the purview of minor penalty,
as envisaged by clauses (iii) and (iii)(a)
thereof.
The
disciplinary
authority,
therefore, in our opinion acted illegally and
without jurisdiction in imposing both minor
and major penalties by the same order.
Such a course of action could not have
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
been taken in law. In the result, the appeal
was allowed and direction was issued for
modification of the order of High Court
holding that the punishment, which could
have been imposed upon the respondent
herein was reduction of pay for a period of
three years with cumulative effect and,
thus, if his case is considered for promotion
after the said period, no further direction is
required to be issued and the directions
issued by the High Court were set aside to
the effect:

"The petitioner shall be entitled
to the seniority on the basis of DPC which
was held on 7-4-1997 when his immediate
junior was promoted to the rank of SecondIn-Command. The petitioner shall also be
entitled to all consequential benefits which
stood denied due to punishment of loss of
seniority", and direction was issued that the
punishment shall be reduction of pay to the
minimum of the timescale of pay for a
period of three years with cumulative effect.

25. In the case of Krushnakant B.
Parmar (Supra), the appellant, who was
working
as
Security
Assistant,
was
proceeded departmentally on 02.09.1996.
On receipt of charge sheet, the appellant
denied the allegation by his reply dated
07.10.1996 and also alleged bias against his
controlling officer - Mr. P. Venkateswarlu
with specific stand that he was prevented
by him from signing the attendance register
and to attend the office. He also explained
the reasons of his absence for certain period
for which he had applied for leave. During
pendency of departmental proceedings, the
appellant was transferred to another place,
which was challenged by him before
Central Administrative Tribunal alleging
bias against his superior officer. The CAT
vide order dated 15.11.2000 set aside the
order by holding that "the order of transfer
is vitiated due to malice in law and fact",
which was affirmed by the Gujarat High
Court on 17.08.2001. After about seven
years the inquiry officer submitted a report
on 28.04.2003 and held that the charge has
been proved against the appellant beyond
all reasonable doubt holding him guilty of
violating Rules 3(1)(ii) and 3(1)(iii) of the
Central Civil Service (Conduct) Rules,
1964.

The appellant challenged the
order of dismissal before the CAT, which
by its order dated 04.05.2004 refused to
entertain the application and allowed the
appellant to avail alternative remedy of
appeal. Accordingly, the appellant preferred
an appeal on 17.05.2004 before the
Director, Intelligence Bureau highlighting
the lapses committed by the inquiry officer,
and also alleged bias against the controlling
officer who prevented him from performing
the duty and to sign the attendance register.
The appellate authority without discussing
the aforesaid objections rejected the appeal
by order dated 30.11.2011 and observed
that "the undersigned has come to the same
conclusion that the appellant should have
been discharged from service under the
Temporary Service Rules when the first
instance of indiscipline on his part was
noticed" and held that the charge against
the appellant - Sri K.P. Parmar that he
remained absent unauthorizedly has been
established beyond doubt and therefore,
directed that "the undersigned, being the
competent
appellate
authority
hereby
rejects
the
appeal
dated
17.05.2004
submitted by Shri K.B. Parmar against
order of the disciplinary authority dated
02.12.2003 both on account of being time -
barred as well as having no merit and
confirms the penalty of removal from
service on the said Sri K.B. Parmar vide
order dated 02.12.2003".
7 All. Dr. S.C. Asthana Vs. State of U.P. & Anr.
1357

The order of punishment and the
appellate order in Original Application
No.619 of 2004 before the Central
Administrative
Tribunal,
which
was
dismissed by the order and judgment dated
28.09.2005 and affirmed by the Gujarat
High Court. In the said case, Hon'ble Apex
Court allowed the appeal and the impugned
orders
of
dismissal
passed
by
the
disciplinary authority, affirmed by the
appellate
authority;
the
Central
Administrative Tribunal and the High Court
were set aside. The appellant was directed
to be reinstated in service and taking into
consideration the fact that the charged
officer has suffered a lot since the
proceeding was drawn in 1996 for absence
from duty for a certain period, the
disciplinary proceeding was not remitted to
the disciplinary authority for any further
action and keeping in view the fact that the
appellant has not worked for a long time, it
was directed that the appellant be paid 50%
of back wages.

26. In the case in hand, the petitioner
was appointed on the post of Medical
Officer on 21.08.1974. He moved a
representation in the year 1976 to the
Government for being enrolled / registered
in the panel of experts of Foreign
Assignments Scheme of Govt. of India and
the petitioner's candidature for being
impaneled in the panel of experts in
Foreign Assignment Scheme was accepted.
On 27.01.1981, a no-objection certificate
was issued by the Additional Director
(Administration)
for
the
purpose
of
passport relating to the petitioner's stay in
Nigeria. On 11.02.1981, the petitioner was
sanctioned earned leave for 15 days. On
18.03.1981, the petitioner proceeded to
Nigeria after informing the Director. On
16.10.1984, a letter was issued to the
Superintendent of Hospital at Unnao by the
State Government stating that the petitioner
should submit his joining in PHMS within
one month. In pursuance thereof, on
10.01.1985, the petitioner, on receipt of
information, returned back from Nigeria
and submitted his joining, which was
accepted but he was not given posting.
Subsequently, on 07.07.1988, the State
Government
directed
the
Director
(Administration) that since the period of
petitioner's stay in Nigeria has been
regularized, the amount of GPF, Insurance
and Pension contribution for the said period
be got deposited from him and in pursuance
thereof,
the
petitioner
Joint
Director
informed the State Government that the
petitioner had deposited the amount of GPF
and GIS.

27. Subsequently, on 31.08.1990, the
petitioner was served with a charge sheet to
which reply was submitted by him on
10.09.1990. On 28.10.1991, the petitioner
was served with a show cause notice to
explain his unauthorized absence. Copy of
inquiry
report
was provided
to
the
petitioner on 22.11.1993 and he submitted
reply to the charges levelled against him in
the charge sheet / show cause notice on
16.06.1995. On 25.04.1996, an adverse
entry was awarded to the petitioner against
which a representation was moved in May,
1996, which was rejected on 04.07.1996.
On 09.07.1997, petitioner's juniors were
promoted but his name was not considered
for promotion. On 09.07.1998, juniors to
the
petitioner
were
granted
notional
promotion to the post of Joint Director and
on 09.12.1998, the petitioner was informed
that it was not possible to sanction the
leave between the period 16.01.1981 to
09.04.1985.

28. A disciplinary proceeding was
initiated against the petitioner for the charge
1358 INDIAN LAW REPORTS ALLAHABAD SERIES
of unlawful absence from duties during his
foreign assignment period and a censure entry
was awarded to him in pursuance of the
disciplinary proceeding and while awarding the
punishment to the petitioner of censure entry,
one increment of the petitioner has been
stopped without clarifying that whether it is
permanent or temporary.

29. The petitioner was relieved from
service from the post of Physician, District
Hospital, Unnao and he handed over the charge
vide letter dated 16.02.1981 before proceeding
to Nigeria. Petitioner's service at Nigeria is
deemed to have been regularized and continued
in view of the fact that the State Government
vide order dated 07.07.1988 has regularized the
period of 16.04.1981 to 09.01.1985 - the period
during which the petitioner remained on foreign
assignment, as vide order dated 07.07.1988, he
was required to deposit the amount of GPF,
insurance and Pension Contribution for the said
period, which has been duly deposited by him
and the said fact has not been denied by the
respondents, therefore, there was no occasion
for issuing charge sheet dated 31.08.1990.

30. The respondents erred in law while
awarding censure entry to the petitioner in view
of the fact that on the one hand the State
Government has regularized the foreign
assignment period of the petitioner and on the
other hand censure entry was awarded to him in
pursuance to the disciplinary proceeding.

31. The disciplinary proceedings held by
the State authorities by and large do not adhere
to the well settled principles of law in the matter
of holding inquiry. This amounts to a dereliction
of duty embodied under U.P. Government
Servant (Discipline and Appeal) Rules, 1999.
The irregularities in the enquiry leave enough
scope for indiscipline and the guilty go
unpunished in all those cases, where the
procedural violations shield their misconduct.
The
discrepancies
also
prolong
the
disciplinary action contrary to the objects of
service jurisprudence. The dormant role on
the part of the State not to have a trained staff
for disciplinary enquiry cannot be viewed
lightly in every case. The disciplinary action
must
culminate
into
reformation
and
discipline.

32. In a departmental proceeding, if
allegation of unauthorized absence from duty is
made, the disciplinary authority is required to
prove that the absence is wilful and in absence
of such finding, the absence will not amount to
misconduct.

33. In view of reasons recorded above
and judgments relied upon by learned counsel
for the petitioner, the impugned orders dated
25.04.1996 awarding censure entry and
punishment to the petitioner and order dated
09.12.1998, whereby leave of the petitioner has
been rejected, are hereby quashed.

34. The writ petition succeeds and is
allowed.

35. Consequences to follow.

36. No order as to costs.
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(2023) 7 ILRA 1358
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 902 of 2011
connected with other cases

Anoop Kumar Saxena & Ors. ...Petitioners
Versus
State of U.P. ...Respondent