# Lakhan Singh v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 749
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-31
- **Case number:** Writ-A No. 30661 of 2007
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-singh-v-state-of-u-p-ors-44471
- **Pages:** 7

## Headnote

A. Constitution of India Article 226-
Article 311 of the Constitution - U.P.
Government
Servant
(Discipline
and
Appeal)
Rules,
1991-Termination-
directly without following the procedure
as provided under Rule 7 of the Rules

## Text

1 All. Lakhan Singh Vs. State of U.P. & Ors.
749
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 30661 of 2007

Lakhan Singh ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Bhushan, Sri Adarsh Bhushan,
Miss Rashmi Tripathi, Sri Amit Srivastava

Counsel for the Respondents:
C.S.C., Sri P.C. Shukla

A. Constitution of India Article 226-
Article 311 of the Constitution - U.P.
Government
Servant
(Discipline
and
Appeal)
Rules,
1991-Termination-
directly without following the procedure
as provided under Rule 7 of the Rules
1991. No enquiry contemplated nor
charges framed - major penalty of
termination imposed straight away was
not permissible under the Rules.
The services of the petitioner came to be
terminated by the impugned order, without
conducting
any
inquiry
or
framing
any
charges, for the reason that the petitioner had
not
reported
at
the
place
of
posting/attachment at Mainpuri. (Para 7,13)

B. Provisions of rule 7 and 9 of the Rules,
for imposition of major penalty are
mandatory. Where the statute provides
to do a thing in a particular manner that
thing has to be done in that manner.
(Para 12)

C. Even if it is a question of automatic
termination
of
service
for
being
continuously absent over a period of five
years, Article 311 applies to such cases
where
the
authority
chooses
to
terminate the services of the employer.
Impugned order stands vitiated and
hence quashed, Petitioner entitled for his
post-retiral dues along with 7% interest.
(Para 18,19,20 and 21)

Case law relied upon/discussed: -
1. Smt. Parmi Maurya vs. State of U.P. and
others, (2014) 2 UPLBEC 1060

2. Union of India vs. K.V. Jankiraman, AIR
1991 SC 2010

3. Union of India V. Anil Kumar Sarkar 2013
(4) SCC161

4. State of Andhra Pradesh v. C.H. Gandhi,
2013 (5) SCC 111

5. Mathura Prasad v. Union of India and
others,(2007) 1 SCC (L&S) 292

6. Dr. Subhash Chandra Gupta v. State of U.P.
& ors, 2012(1) ESC 279 (ALL) (DB)

7. Jeewanlal (1929) Ltd, Calcutta v. Its
Workmen, AIR 1961 SC 1567

8. Jai Shankar Vs. State of Rajsthan, AIR SC
492

9. Deokinandan Prasad Vs. State of Bihar, AIR
1971 SC 1409

10. B.N. Tripathi Vs. State of U.P, AIR 1971
ALL 346 (E-3)

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Anil Bhushan, Senior
Counsel assisted by Sri Amit Srivastava,
learned counsel for the petitioners and
learned Standing Counsel for the Staterespondents.

2. Petitioner came to be appointed
Stenographer in 1982. By the instant writ
petition, petitioner is assailing the order of
termination dated 14 May 2007, passed
by the fourth respondent, Executive
Engineer,
Minor
Irrigation
Division,
District Firozabad. It is noted in the
750 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order that petitioner vide order
dated 18 November 2006, came to be
attached to the office of Assistant
Engineer, Mainpuri, and was relieved on
9 January 2007 for the place of
posting/attachment.
Petitioner
neither
reported at Mainpuri nor did he furnish
any application for his absence. It appears
that the petitioner was engaged in the
electioneering of his wife who was
contesting
from
Samta
Party,
consequently,
the
fourth
respondent
terminated the services of the petitioner.

3. Learned counsel for the petitioner
makes two fold submission: (i) that the
petitioner being a permanent government
employee could not have been terminated
by order simpliciter; (ii) provisions of
U.P. Government Servant (Discipline and
Appeal) Rules, 19991, was not followed;
(iii) the principle of abandonment of
service enshrined in Fundamental Rule 18
is not applicable in the instant case.

4. Learned Standing Counsel
submits that (i) the petitioner abandoned
his service, consequently, the service of
the petitioner came to be terminated; (ii)
the procedure under Rules 1999, was not
required to be followed.

5. Rival submissions fall for
consideration.

6. Facts, inter se, parties are not in
dispute.

7. It is admitted by the respondents
that
the
petitioner
was
permanent
employee of the State Government and
the provisions of Article 311 of the
Constitution is applicable. The services of
the petitioner came to be dispensed with
by the impugned order for the reason that
the petitioner had not reported at the place
of
posting/attachment
at
Mainpuri.
Admittedly, the procedure prescribed
under Rule 7 of Rules, 1999 was not
followed while terminating the services of
the petitioner. The services of the
petitioner was terminated without framing
the charges disclosing the imputation of
the allegations against him. Rule 7 of
Rules, 1999, reads thus:

"7. Procedure for imposing major
penalties. - Before imposing any major
penalty on a Government servant, an
inquiry shall be held in the following
manner :

(i) The disciplinary authority may
himself inquire into the charges or
appoint an authority subordinate to him
as Inquiry Officer to inquire into the
charges.
(ii) The facts constituting the misconduct
on which it is proposed to take action
shall be reduced in the form of definite
charge or charges to be called chargesheet. The charge-sheet shall be approved
by the disciplinary authority :

Provided that where the appointing
authority is Governor, the charge-sheet
may be approved by the Principal
Secretary or the Secretary; as the case
may be, of the concerned department.

(iii) The charges framed shall be so
precise and clear as to give sufficient
indication to the charged Government
servant of the facts and circumstances
against him. The proposed documentary
evidence and the name of the witnesses
proposed to prove the same alongwith
oral evidence, if any, shall be mentioned
in the charge-sheet.

(iv) The charged Government servant
shall be required to put in a written
statement of his defence in person on a
specified date which shall not be less than
1 All. Lakhan Singh Vs. State of U.P. & Ors.
751
15 days from the date of issue of chargesheet and to state whether he desires to
cross-examine any witness mentioned in
the charge-sheet and whether desires to
give or produce evidence in his defence.
He shall also be informed that in case he
does not appear or file the written
statement on the specified date, it will be
presumed that he has none to furnish and
Inquiry Officer shall proceed to complete
the
inquiry
ex
parte.

(v) The charge-sheet, alongwith the
copy of the documentary evidences
mentioned therein and list of witnesses
and their statements, if any shall be
served on the charged Government
servant personally or by registered post at
the address mentioned in the official
records. In case the charge-sheet could
not be served in aforesaid manner, the
charge-sheet
shall
be
served
by
publication in a daily newspaper having
wide circulation :

Provided
that
where
the
documentary evidence is voluminous,
instead of furnishing its copy with chargesheet, the charged Government servant
shall be permitted to inspect the same
before the Inquiry Officer.

(vi) Where the charged Government
servant appears and admits the charges,
the Inquiry Officer shall submit his report
to the disciplinary authority on the basis
of such admission.

(vii) Where the charged Government
servant denies the charges, the Inquiry
Officer shall proceed to call the witnesses
proposed in the charge-sheet and record
their oral evidence in presence of the
charged Government servant who shall be
given opportunity to cross-examine such
witnesses. After recording the aforesaid
evidence, the Inquiry Officer shall call
and record the oral evidence which the
charged Government servant desired in
his written statement to be produced in
his defence :

Provided that the Inquiry Officer
may for reasons to be recorded in writing
refuse to call a witness.

(viii) The Inquiry Officer may
summon any witness to give evidence or
require any person to produce documents
before him in accordance with the
provisions
of
the
Uttar
Pradesh
Departmental Inquiries (Enforcement of
Attendance of Witnesses and Production
of Documents) Act, 1976.

(ix) The Inquiry Officer may ask any
question he pleases, at any time of any
witness or from person charged with a
view to discover the truth or to obtain
proper proof of facts relevant to charges.

(x) Where the charged Government
servant does not appear on the date fixed
in the inquiry or at any stage of the
proceeding inspite of the service of the
notice on him or having knowledge of the
date, the Inquiry Officer shall proceed
with the inquiry ex parte. In such a case
the Inquiry Officer shall record the
statement of witnesses mentioned in the
charge-sheet in absence of the charged
Government servant.

(xi) The disciplinary authority, if it
considers it necessary to do so, may, by
an order appoint a Government servant
or a legal practitioner, to be known as
"Presenting Officer" to present on its
behalf the case in support of the charge.

(xii) The Government servant may
take
the
assistance
of
any
other
Government servant to present the case
on his behalf but not engage a legal
practitioner for the purpose unless the
Presenting Officer appointed by the
disciplinary
authority
is
a
legal
practitioner of the disciplinary authority
752 INDIAN LAW REPORTS ALLAHABAD SERIES
having regard to the circumstances of the
case so permits :

Provided that this rule shall not
apply in following cases :

(i) Where any major penalty is
imposed on a person on the ground of
conduct which has led to his conviction
on a criminal charge; or

(ii) Where the disciplinary authority
is satisfied that for reason to be recorded
by it in writing, that it is not reasonably
practicable to hold an inquiry in the
manner provided in these rules; or

(iii) Where the Governor is satisfied
that, in the interest of the security of the
State, it is not expedient to hold an
inquiry in the manner provided in these
rules."

8. The Division Bench of this Court
in Smt. Parmi Maurya vs. State of U.P.
and others held that the provisions of
Rule 7 of the U.P. Government Servant
(Discipline and Appeal) Rules 1999 is
mandatory and it is obligatory for the
employer
to
frame
charge/conduct
disciplinary enquiry by applying the
principles of natural justice and prove the
allegations,
without
adopting
such
procedure order passed terminating the
delinquent employee is illegal. Paragraph
7 is as follows:-

"7. On these facts, the learned Single
Judge, in our view, was clearly in error in
arrogating to the Court the task of
determining whether the certificate and
mark sheets submitted by the appellant
were genuine or otherwise. This, with
respect, was no part of the jurisdiction of
the writ Court under Article 226 of the
Constitution. When a substantive charge
of misconduct is levied against an
employee of the State, the misconduct has
to be proved in the course of a
disciplinary inquiry. This is not one of
those cases where a departmental inquiry
was dispensed with or that the ground for
dispensing with such an inquiry was made
out. The U.P. Government Servants
(Discipline and Appeal) Rules, 1999 lays
down a detailed procedure in Rule 7 for
imposing a major penalty. Admittedly, no
procedure of that kind was followed since
no disciplinary inquiry was convened or
held."

9. Rule 2(d) defines departmental
enquiry and means "departmental inquiry"
under Rule 7 of the rules. Rule 7 provides
the procedure for imposing major penalty
which states that before imposing major
penalty an enquiry shall be held in the
manner provided in the rule. Sub-rule (ii)
provides
the
fact
constituting
the
misconduct on which it is proposed to
take action shall be reduced in the form of
definite charge or charges.

10. The Supreme Court in Union of
India vs. K.V. Jankiraman, Union of
India V. Anil Kumar Sarkar4 and State
of Andhra Pradesh v. C.H. Gandhi,
held that the enquiry commences from the
date of issue of charge-sheet. Framing of
the charge-sheet is the first step taken for
holding enquiry into the allegations on the
decision taken to initiate disciplinary
proceedings. Service of charge-sheet on
the Government servant follows decision
to initiate disciplinary proceedings and it
does not precede and coincide with that
decision.
(Vide
Delhi
Development
Authority v. H.C. Khurana6).

11. The Supreme Court in
Mathura Prasad v. Union of India
and others7, held that when an
employee is sought to be deprived of
his livelihood for alleged misconduct,
1 All. Lakhan Singh Vs. State of U.P. & Ors.
753
the procedure laid down under the rules
are required to be strictly complied
with:

"When an employee, by reason of an
alleged act of misconduct, is sought to be
deprived of his livelihood, the procedure laid
down under the sub-rules are required to be
strictly followed: It is now well settled that a
judicial review would lie even if there is an
error of law apparent on the face of the
record. If statutory authority uses its power
in the manner not provided for in the statute
or passes an order without application of
mind, judicial review would be maintainable.
Even an error of fact, for sufficient reasons
may attract the principles of judicial review."

12. The Division Bench of this
Court in Dr. Subhash Chandra Gupta v.
State of U.P. and others8 while dealing
with the provision of rule 7 and 9 of the
Rules, held that the procedure for
imposition of major penalty is mandatory
and where the statute provides to do a
thing in a particular manner that thing has
to be done in that manner. Paras 15 and
16 is as follows:-

"15. It is well settled that when the
statute provides to do a thing in a
particular manner that thing has to be
done in that very manner. We are of the
considered opinion that any punishment
awarded on the basis of an enquiry not
conducted in accordance with the enquiry
rules meant for that very purposes is
unsustainable in the eye of law. We are
further of the view that the procedure
prescribed under the inquiry rules for
imposing major penalty is mandatory in
nature and unless those procedures are
followed, any out come inferred thereon
will be of no avail unless the charges are
so glaring and unrefutable which does not
require any proof. The view taken by us
find support from the judgment of the
Apex Court in State of U.P. and another
v. T.P. Lal Srivastava, 1997 (1) LLJ 831,
as well as by a Division bench of this
Court in Subash Chandra Sharma v.
Managing Director and another, 2000(1)
UPLBEC 541.

16. A Division Bench decision of this
Court in the case of Salahuddin Ansari v.
State of U.P. and others, 2008(3) ESC
1667 (All)(DB), held that non holding of
oral inquiry is a serious flaw which can
vitiate
the
order
of
disciplinary
proceedings including the order of
punishment has observed as under:

"10..........Non holding of oral inquiry
in such a case, is a serious matter and
goes to the root of the case.

11. A Division Bench of this Court in
Subash Chandra Sharma v. Managing
Director and another, 2000(1) UPLBEC
541, considering the question as to whether
holding of an oral inquiry is necessary or
not, held that if no oral inquiry is held, it
amounts to denial of principles of natural
justice to the delinquent employee. The
aforesaid view was reiterated in Subash
Chandra Sharma v. U.P. Cooperative
Spinning Mills and others, 2001(2) UPLBEC
1475 and Laturi Singh v. U.P. Public Service
Trinunal and others, Writ Petition No. 12939
of 2001, decided on 6.5.2005."

13. Applying the law, stated herein
above, on the facts of the case at hand, it
is admitted by the respondents that the
petitioner was terminated directly without
following the procedure as provided
under rule 7 of the Rules. Enquiry against
the petitioner was never contemplated nor
charges was framed, major penalty of
termination was imposed straight away
which was not permissible under the
Rules.
754 INDIAN LAW REPORTS ALLAHABAD SERIES

14. It is not a case of abandonment
of service in terms of Fundamental Rule
18 as is being urged by the learned
counsel for the respondents. Fundamental
Rule 18 reads thus:

"18. Unless the Government, in view
of the special circumstances of the case,
shall otherwise determine, after five
years' continuous absence from duty
elsewhere than on foreign service in
India, whether with or without leave, a
government servant ceases to be in
Government employ."

15. It is settled law that a
Government servant 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 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.

16.
In
Jeewanlal
(1929)
Ltd,
Calcutta v. Its Workmen9, the Apex
Court held:

"........if an employee continues to
be absent from duty without obtaining
leave and in an unauthorised manner
for such a long period of time that an
inference may reasonably be drawn
from such absence that by his absence
he has abandoned service, then such
long
unauthorised
absence
may
legitimately be held to cast a break in
continuity of service..... We would like
to make it clear that..... there would be
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."

17. 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 of the employee and the employer
has no role in it.

18. The discharge from service of an
individual by way of punishment amounts
to
removal
from
service
and
the
constitutional protection cannot be taken
away in any manner without affording
opportunity and show cause to the
incumbent. Even if it is a question of
automatic termination of service for being
continuously absent over a period of five
years, Article 311 applies to such cases
where the authority chooses to terminate
the services of the employer. (Refer: Jai
Shankar Vs. State of Rajsthan10;
Deokinandan Prasad Vs. State of
Bihar11 and B.N. Tripathi Vs. State of
U.P12)

19. In the facts of the case in hand,
Fundamental Right 18 would not apply. It
is not a case of unilateral abandonment of
service. Petitioner admittedly came to be
terminated
for
misconduct
i.e.
unauthorized absence without following
the prescribed statutory procedure. The
impugned order stands vitiated.

20. During the pendency of the writ
petition,
petitioner
retired
on
31
December 2016 on attaining the age of
superannuation. It is informed by the
respective counsels that the impugned
order of termination came to be stayed by
1 All. Chandra Kali Vs. The State of U.P. & Ors.
755
this Court on 20 November 2007.
Petitioner pursuant thereof, continued in
service, however, has not been paid post
retiral dues due to the pendency of the
instant writ petition.

21. Having due regard to the facts and
circumstances of the case, the impugned
order dated 14 May 2007, passed by the
fourth respondent is set aside and quashed.
The writ petition is allowed. Petitioner is
entitled to post retiral benefits, to be released
by the fourth respondent within three months
from the date of filing of certified copy of
this order, failing which, petitioner shall be
entitled to interest @ 7% on the entire
amount from the due date.

22. No cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 3288 of 2017

Chandra Kali ...Petitioner
Versus
The State of U.P.&Ors. ...Respondents

Counsel for the Petitioner:
Sri Jitendra Prasad Mishra, Sri Santosh
Kumar
Upadhyay,
Sri
Vinod
Kumar
Upadhyay

Counsel for the Respondents:
C.S.C., Sri Mahadeo Singh Chandel, Sri
V.S. Chauhan

A. Hindu Marriage Act, 1956 - Civil
Service Regulations- U.P. Retirement
Benefit Rules, 1961- U.P. Government
Servant Conduct Rules, 1956 - The
second wife, not being a member of the
family, is not eligible to family pension,
as long as, the first wife survives. Second
marriage with the eighth respondent
after the commencement of the Hindu
Marriage Act, was void and a nullity in
the eye of law.
Second wife would have no right of being a
legally wedded wife and would not fall within
the definition of ''family' of the employee. The
sixth and seventh respondent being nephews
of the deceased employee are also not family
of the employee within the definition of
''family' under the Rules, 1961. Release of
family pension to the first wife of deceased
employee refused due to pending litigations
between the petitioner and nephews and
second wife of the deceased employee. (Para
20,24,25,26,27)

Writ Petition allowed.

Case Law discussed/relied upon:-
1. Nutan Kumar versus IInd Additional District
Judge, Banda and others, AIR 1994 ALL 298

2. Shubham Shukla and others vs. State of
U.P.) 2018 (8) ADJ 709

3. Shakuntala Devi (Smt.) Versus Executive
Engineer, Electricity Transmission Ist U.P.
Electricity Board, Allahabad and another,
(2001) 1 UPLBEC 869

4. Rameshwari Devi Versus State of Bihar and
others, 2000(1) ESC 577 (SC)

5. Manno Singh vs. State of U.P. and others,
2014 (9) ADJ 701 (E-3)

(Delivered by Hon'ble Suneet Kumar, J.)

1.

Heard
Sri
Vinod
Kumar
Upadhyay,
learned
counsel
for
the
petitioner, learned standing counsel for
the State-respondents, Sri V.S. Chauhan,
learned counsel appearing for the sixth,
seventh and eighth respondent.

2. The husband of the petitioner, Sri
Baijnath Gupta was appointed Assistant
Teacher in an Intermediate Institution in