# Dr. Tarun Rajput v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 958
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-03
- **Case number:** C.M.W.P. No. 2738 of 2011
- **Bench:** Sudhir Agarwal, Brijesh Kumar Srivastavaii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-tarun-rajput-v-state-of-u-p-ors-43323
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.-311(2)(3)-
Dismissal
on
ground
of
unauthorized
absence from duty-denying protection of
holding
departmental
proceeding
not
practicable-on ground due to unauthorized
absence-general public suffering as no fresh
incumbent could be appointed-held-factually
incorrect-in short period absence with
permission of authority cannot be treated
unauthorise
absence-nor
such
ground
available for refusal to hold departmental
enquiry under Rule 1999-dismissal order
quashed.
Held: Para-13
Even impugned order of termination was
served upon him while he was serving at the
aforesaid center. In the circumstances, it
cannot be said that departmental enquiry has
been
dispensed
with
validly
and
the
constitutional
protection
available
to
petitioner has been done away in the manner
permitted under Article 311(2) second proviso
(b). In fact, the aforesaid provision is not at all
attracted in the case in hand and without
application of mind, the appointing authority
has resorted to said power. In a wholly illegal
and
unconstitutional
manner,
it
has
terminated the petitioner. The correct way
would have been to initiate a departmental
enquiry against petitioner, serve a chargesheet upon him for alleged unauthorized
absence, if any, and thereafter to take
appropriate action in the light of findings
recorded by enquiry officer in a regular
disciplinary proceeding held in accordance
with
Rules,

## Text

958
 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Accordingly the revision is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE BRIJESH KUMAR SRIVASTAVAII, J.
C.M.W.P. No. 2738 of 2011
Dr. Tarun Rajput
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare
Counsel for the Respondents:
C.S.C.
Constitution
of
India,
Art.-311(2)(3)-
Dismissal
on
ground
of
unauthorized
absence from duty-denying protection of
holding
departmental
proceeding
not
practicable-on ground due to unauthorized
absence-general public suffering as no fresh
incumbent could be appointed-held-factually
incorrect-in short period absence with
permission of authority cannot be treated
unauthorise
absence-nor
such
ground
available for refusal to hold departmental
enquiry under Rule 1999-dismissal order
quashed.
Held: Para-13
Even impugned order of termination was
served upon him while he was serving at the
aforesaid center. In the circumstances, it
cannot be said that departmental enquiry has
been
dispensed
with
validly
and
the
constitutional
protection
available
to
petitioner has been done away in the manner
permitted under Article 311(2) second proviso
(b). In fact, the aforesaid provision is not at all
attracted in the case in hand and without
application of mind, the appointing authority
has resorted to said power. In a wholly illegal
and
unconstitutional
manner,
it
has
terminated the petitioner. The correct way
would have been to initiate a departmental
enquiry against petitioner, serve a chargesheet upon him for alleged unauthorized
absence, if any, and thereafter to take
appropriate action in the light of findings
recorded by enquiry officer in a regular
disciplinary proceeding held in accordance
with
Rules,
1999.
Non
compliance
of
aforesaid
procedure
of
holding
of
departmental
enquiry,
and,
instead,
dispensation thereof in an illegal manner
renders
the
impugned
order
wholly
unconstitutional and void-ab-initio.
Case Law discussed:
(1985) 2 SCC 398; (1991) 1 SCC 362; AIR
2014 SC 2922
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard learned counsels for parties
and perused the record.
2. This writ petition is directed
against the order dated 03.05.2010
whereby petitioner along with other
officers working in Provincial Medical
and Health Service Cadre (hereinafter
referred to as "PHMS") has been
terminated by exercising power under
Article 311(2) and (3) of the Constitution
of India on the ground that he has been
continuously absent from service and for
this reason, neither the medical services
are being rendered to needy people, nor
any other person can be appointed, nor
even departmental enquiry is practicable
since the petitioner is continuously absent
and his whereabouts are not known.
3. Shri Ashok Khare, learned counsel
appearing for petitioner submitted that the
fact, that petitioner is continuously absent
and his whereabouts were not known is
factually incorrect, as the petitioner was
working and discharging his duties at
2 All] Dr. Tarun Rajput Vs. State of U.P. & Ors.
959
Community Health Center, Patiali, District
Kanshiram Nagar, and when the impugned
order of termination was communicated,
Superintendent of the aforesaid Community
Health Center actually relieved petitioner
vide order dated 22.05.2010. He drew
attention of this Court to para 9 and 10 of
writ petition and stated that for short duration
and from time to time, he had proceeded on
leave which were duly sanctioned in due
course of time. In any case when the
impugned order was passed, he was actually
discharging duties at Community Health
Centre, Patiali, District Kanshiram Nagar. He
further contended that though petitioner was
actually discharging his duties in the
aforesaid Community Health Centre, still in
the
impugned
order,
reason
for
his
termination has been given that departmental
enquiry is not practicable since whereabouts
of the petitioner were not known, which is
contrary to record and non est.
4. A counter affidavit is filed, sworn
by one Dr. Sarvesh Kumar, Medical
Superintendent,
Kanshiram
Nagar,
wherein, it is stated that petitioner was
continuously absent from duty from
15.01.2009 without any information or
application, and in this regard a complaint
was made by Chief Medical Officer,
Kanshiram Nagar to Director (Admin.),
Medical and Health Services, U.P.,
Lucknow vide letter dated 09.03.2009.
Then in para 6 of the aforesaid counter
affidavit, all the details of absence of
petitioner are given, which reads as under:
"In reply thereto it is submitted that
the petitioner was absent from duty from
2.6.2009 to 20.7.2009, 1.10.2009 to
4.10.2009,
9.10.2009
to
13.10.2009,
16.10.2009 to 18.12.2009, 25.12.2009 to
28.12.2009 and 3.1.2010 to 22.1.2010
without any intimation to the department.
Even during the election period, he was
not performing his duties in the election.
In this regard an FIR was lodged against
the petitioner at Police Station Kotwali,
Katiyali, District Kanshiram Nagar."
(Emphasis added.)
5. It is also stated that petitioner has
never submitted any application for grant
of leave, hence no question has arisen for
sanction of leave on the ground of
medical or marriage.
6. Be that as it may, the reply given by
respondents in the counter affidavit, makes it
very clear that after 22.01.2010 and onwards,
petitioner is not absent. It proves the case of
petitioner that he was discharging duties at
Community Health Centre, Patiali, District
Kanshiram Nagar. Moreover, period of
absence of petitioner given in para 6 of the
aforesaid counter affidavit shows that he was
absent intermittently from 02.06.2009 till
January, 2010, for a total 116 days:
Sl. No. Period No. of absence
1
 June-July, 2009 19 days.
2 October, 2009 25 days.
3 November,2009 30 days.
4
 December, 2009 22 days.
5 January, 2010
 20 days.
Total
116days.
But after 22.01.2010, as per own
version of respondents also, the petitioner
came on duty.
7. Thus, it is clear that on
03.05.2010 and even much before thereto
petitioner was actually discharging duties.
Factually it cannot be said that petitioner
was
not
working
at
all
and
his
whereabouts were not known. It is a
different case that petitioner was absent
unauthorizedly and illegally for some
960
 INDIAN LAW REPORTS ALLAHABAD SERIES
times, and hence, appropriate enquiry
could have been conducted under the
Rules.
8. Another question is, whether
Article 311(2) second proviso read with 3,
was resorted validly in passing the
impugned order.
9. Holding of departmental enquiry
before dismissal or removal, is mandatory
under Article 311(2). This case is sought
to be covered by second proviso to Article
311(2) read with procedure prescribed
under
U.P.
Government
Servants
(Discipline and Appeal) Rules, 1999
(hereinafter referred to as "Rules, 1999).
A heavy onus lay upon respondent to
show that from all the angle the case is
covered by one of the grounds on which
departmental enquiry may not be held or
dispense with i.e. when it is not
"reasonably practicable".
10.

Article
311
(2)(b)
was
considered by a Constitution Bench in
Union of India and another Vs. Tulsiram
Patel (1985) 3 SCC 398, and the Court
said:
"130. The condition precedent for the
application
of
Clause
(b)
is
the
satisfaction of the disciplinary authority
that "it is not reasonably practicable to
hold" the inquiry contemplated by Clause
(2) of Article 311. What is pertinent to
note is that the words used are "not
reasonably
practicable"
and
not
"impracticable". According to the Oxford
English Dictionary "practicable" means
"Capable of being put into practice,
carried
out
in
action,
effected,
accomplished,
or
done;
feasible".
Webster's
Third
New
International
Dictionary defines the word "practicable"
inter alia as meaning "possible to
practice or perform: capable of being put
into practice, done or accomplished:
feasible". Further, the words used are not
"not practicable" but "not reasonably
practicable".
Webster's
Third
New
International Dictionary defines the word
"reasonably" as "in a reasonable manner:
to a fairly sufficient extent". Thus,
whether it was practicable to hold the
inquiry or not must be judged in the
context of whether it was reasonably
practicable to do so. It is not a total or
absolute
impracticability
which
is
required by Clause (b). What is requisite
is that the holding of the inquiry is not
practicable in the opinion of a reasonable
man taking a reasonable view of the
prevailing situation."
 (Emphasis added.)
11.

Again
Court
explained
circumstances in which departmental
enquiry can be dispensed with by
resorting to Article 311(2)(b) in Jaswant
Singh Vs. State of Punjab and Ors. (1991)
1 SCC 362. This decision has been
followed very recently in Risal Singh Vs.
State of Haryana and others AIR 2014 SC
2922. Therein following a sting operation
by a Television channel in which
appellant Police Officer was found
indulged in an act of corruption, he was
dismissed from service without any
enquiry by resorting to Article 311 (2)
second proviso (b). The Court held that
before resorting to Article 311(2) second
proviso (b), appropriate and valid reasons
have to be recorded, as contemplated in
the
Constitution.
Dispensation
of
departmental enquiry, a constitutional
protection available to civil servant,
cannot be taken away or denied on whims
and caprices of appointing authority or the
disciplinary
authority.
2 All] Gopal Vs. State of U.P.
961
12. In the case in hand, the only
reason assigned is that petitioner is
continuously absent and his whereabouts
are not known. Both these facts are
factually incorrect and non est. The
petitioner was actually discharging his
duties at Community Health Center,
Patiali, District Kanshiram Nagar as per
the own version of respondents, evident
from para 6 of counter affidavit since,
after 22.01.2010. There was no absence
on the part of petitioner and he was in
actual duty from 23.01.2010 till the date
of termination.
13.
Even
impugned
order
of
termination was served upon him while he
was serving at the aforesaid center. In the
circumstances, it cannot be said that
departmental enquiry has been dispensed
with validly and the constitutional protection
available to petitioner has been done away in
the manner permitted under Article 311(2)
second proviso (b). In fact, the aforesaid
provision is not at all attracted in the case in
hand and without application of mind, the
appointing authority has resorted to said
power.
In
a
wholly
illegal
and
unconstitutional manner, it has terminated
the petitioner. The correct way would have
been to initiate a departmental enquiry
against petitioner, serve a charge-sheet upon
him for alleged unauthorized absence, if any,
and thereafter to take appropriate action in
the light of findings recorded by enquiry
officer in a regular disciplinary proceeding
held in accordance with Rules, 1999. Non
compliance of aforesaid procedure of
holding of departmental enquiry, and,
instead, dispensation thereof in an illegal
manner renders the impugned order wholly
unconstitutional and void-ab-initio.
14.
In the result, the writ petition is
allowed. Impugned order of termination
dated 03.05.2010, insofar as it relates to
petitioner, is hereby quashed. Petitioner shall
be entitled to all consequential benefits.
15. However, this order shall not be
preclude the respondents from taking
action against petitioner for any act of
misconduct,
including
absence
and
misconduct,
by
taking
action
in
accordance with law.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.08.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE PRAMOD KUMAR
SRIVASTAVA, J.
Criminal Appeal No. 3411 of 2006
Gopal
 ...Appellant
Versus
State of U.P.
...Opp. Party
Counsel for the Appellant:
Sri Prakash Dwivedi, Sri I.M. Khan, Sri
Sudeep Dwivedi
Counsel for the Opp. Parties:
A.G.A.
Criminal Appeal-Against conviction of life
imprisonment with fine Rs. 5000/-on
ground-no weapon used upon deceasedinspite of tenancy dispute-no previous
altercation took place-considering weak
mental status appellant may be guilty of
culpable homicide not amounting to murder
under Section 304 IPC-held-punishment of
life imprisonment much excessive and
inappropriate-can not be more than 10
years-while appellant already been under
imprisonment for 24 years-hence sentenced
reduced for the period already undergoneappeal disposed of.
Held: Para-27