# Smt. Kamla Devi v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-27
- **Case number:** Service Single No. 3162 of 2010
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamla-devi-v-state-of-u-p-ors-47211
- **Pages:** 7

## Headnote

A. Service Law - UP Basic Education
(Staff) Service Rules, 1973 - Rules 2 and
3 - Financial Handbook Part II - Rule 18 -
Notification dated 12.09.1989 to amend
Rule 18 - Permanent teacher - Automatic
termination - Validity - Charge of absence
beyond period of five years - Service has
been dispensed with by only issuing a
show cause notice - No Disciplinary
proceeding - Effect - Held, disciplinary
proceedings are sine-qua-non prior to
imposition of any penalty against an
employee for his absence from duty
beyond five years with effect from 1989 -
Impugned
action
on
the
part
of
respondents would run foul to the settled
provision of law. (Para 10, 11, 15 and 16)
Writ Petition partly allowed. (E-1)
Cases relied on :-

## Text

488 INDIAN LAW REPORTS ALLAHABAD SERIES
of Writ Petition No. 2562 (S/B now S/S) of
2016 and order dated 25.04.2016 contained
at Annexure 1 of Writ Petition No. 7624
(S/B now S/S) of 2017 are hereby quashed.
A writ of mandamus is also issued directing
the respondents to reinstate the petitioner in
service with all consequential service
benefits, however, the petitioner is not
entitled for any back wages on the principle
of "No Work No Pay". The entire exercise
shall be completed within a period of six
weeks from the date production of a copy
of this order. However, the department is
not precluded to initiate inquiry strictly as
per the procedure prescribed in accordance
with law.

63. The Writ Petition No. 2562 (S/B
now S/S) of 2016 and Writ Petition No.
7624 (S/B now S/S) of 2017 are allowed.
No costs. Pending applications, if any,
stands disposed of.
----------
(2021)07ILR A488
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE ABDUL MOIN, J.

Service Single No. 3162 of 2010

Smt. Kamla Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Namit Sharma, Avinash Chandra, Ritesh Kumar
Srivastava,

Counsel for the Respondents:
C.S.C, D.R. Misra, J.P. Maurya, Rahul Shukla

A. Service Law - UP Basic Education
(Staff) Service Rules, 1973 - Rules 2 and
3 - Financial Handbook Part II - Rule 18 -
Notification dated 12.09.1989 to amend
Rule 18 - Permanent teacher - Automatic
termination - Validity - Charge of absence
beyond period of five years - Service has
been dispensed with by only issuing a
show cause notice - No Disciplinary
proceeding - Effect - Held, disciplinary
proceedings are sine-qua-non prior to
imposition of any penalty against an
employee for his absence from duty
beyond five years with effect from 1989 -
Impugned
action
on
the
part
of
respondents would run foul to the settled
provision of law. (Para 10, 11, 15 and 16)
Writ Petition partly allowed. (E-1)
Cases relied on :-
1. Basic Shiksha Parishad Vs Ram Kishore
2014(10)ADJ153

(Delivered by Hon'ble Abdul Moin, J.)

1.

Heard
learned
counsel
for
petitioner, learned Standing Counsel for
State as well as Shri Rahul Shukla, learned
counsel appearing for respondent no. 4.

2. The short question of law which
arises before the Court is whether the
services of a permanent teacher can be
dispensed with on the ground of being
absent from duty for a sufficiently long
time under the provisions of Rule 18 of
Financial Handbook Part II (Volume 2 to 4)
Chapter III without resorting to disciplinary
proceedings under the disciplinary rule.

3. Admittedly, the services of the
petitioner,
an
Assistant
Teacher,
are
governed by the Uttar Pradesh Basic
Education (Staff) Service Rules, 1973. As
per the said rules in question, Rule 2 deals
with
appointing
authority,
declaring
appointing authority of posts mentioned in
Column 2 of the schedule. Rule 3
authorizes appointing authority to impose
7 All. Smt. Kamla Devi Vs. State of U.P. & Ors.
489
penalties provided for, for good and
sufficient reason. Penalties provided therein
are as follows:

(i) Censure;

(ii) withholding of the increments
including stoppage at an efficiency bar;

(iii) reduction to a lower post on
time-scale, or to a lower stage in a time
scale;

(iv) recovery from pay of the
whole or part of any pecuniary loss caused
to the Board by negligence or breach of
orders;

(v) removal from the service of
the Board which does not disqualify him
from future employment;

(vi) dismissal from the service of
the Board which ordinarily disqualifies him
from future employment.

4. Rule 4 authorize appointing
authority to place under suspension, such
person against whose conduct an enquiry is
contemplated or is proceeding, pending
conclusion of enquiry, and such person is
entitled for suspension allowance during
his suspension period at the rate applicable
to Government servant. Rule 5 provides for
forum of appeal against the order of
appointing authority.

5. Six categories of penalties have
been specified in Rule 3, out of which three
penalties specified in Rule 5(1) could be
the subject-matter of an appeal. The
remaining penalties could be challenged
under Rule 5(2) by means of a statutory
representation to the Director or the officer
specified by him. Rule 5(2) empowers
the employees to file a representation
against those punishments which are not
specified in Rule 5(1). Rule 5(3) clearly
provides that procedure laid down in CCS
Rules, as applicable to the servants of U.P.
Government shall as far as possible, be
followed
in
disciplinary
proceedings,
appeals and representation under these
Rules.

6. The instant petition has been filed
challenging the order dated 26.12.2007 passed
by the respondent no. 4 i.e. District Basic
Education Officer, Barabanki whereby the
services of the petitioner, an Assistant Teacher,
has been terminated on ground of being
unauthorisedly absent for sufficiently long time.
The period of absence may not detain the Court,
the details of which have been given in
paragraphs 11 to 13 of the counter afffidavit,
however what is relevant is that the services of
the petitioner have been dispensed with in terms
of Rule 18 of Financial Handbook Part II
(Volume 2 to 4) Chapter III (hereinafter
referred to as 'Rule 18').

7. For the sake of convenience Rule
18 of Financial Handbook Part II (Volume
2 to 4) Chapter III is reproduced as under:

"18. Unless the Government, in
view of the special circumstances of the
case, otherwise determine, after five years'
continuous absence from duty elsewhere
than on foreign service in India, whether
with or without leave, no Government
servant shall be granted leave of any kind.
Absence beyond five years will attract the
provisions of rules relating to disciplinary
proceedings."

8. A perusal of the aforesaid provision
would indicate that no government servant
490 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be granted leave of any kind except in
special circumstances and absence beyond
five years will attract the provisions of
rules relating to disciplinary proceedings
meaning
thereby
that
in
case
the
government servant is absent beyond five
years the same would entail disciplinary
proceedings against him.

9. In the instant case the services of
the petitioner have been dispensed with on
the ground of having been absent for a
period beyond five years without informing
the department and without any leave
having been sanctioned.

10. Once 'Rule 18' specifically
provides that where an employee is absent
beyond a period of five years the absence
would attract disciplinary proceedings thus
merely because the petitioner was absent
beyond the period of five years the same
would not entail the automatic termination
of the services rather prior to terminating
the services of the petitioner disciplinary
proceedings were required to be held.

11. Upon a pointed query made to
Shri Rahul Shukla, learned counsel for
respondent no. 2 as to whether any
disciplinary
proceedings
have
been
initiated prior to dispensing with the
services of the petitioner through the
impugned order dated 26.12.2012, Shri
Shukla candidly admits that no disciplinary
proceedings were initiated although show
cause notice had been issued to the
petitioner which was also published in the
daily newspaper.

12. Be that as it may, the fact of the
matter
remains
that
no
disciplinary
proceedings were initiated against the
petitioner prior to terminating her services,
which a sine-qua-non as per the provisions
of 'Rule 2018'.

13. The question of law, as has
arisen in the instant case, has already
been answered by a Division Bench of
this Court in the case of Basic Shiksha
Parishad
vs
Ram
Kishore
2014(10)ADJ153 by a Bench presided by
Justice D. Y. Chandrachud (as his
Lordship then was) in which considering
the unamended provision of Rule 18 of
the Financial Handbook the Division
Bench held as under:

"8. The service condition of
claimant opposite party No. 1 was
governed by U.P. Basic Education (Staff)
Service Rules 1973 framed in exercise of
powers conferred by Sub-section (1) of
Section 19 of U.P. Basic Education Act,
1972. As per the said Rules in question,
Rule 2 deals with appointing authority,
declaring appointing authority of posts
mentioned in Column 2 of the schedule.
Rule 3 authorizes appointing authority to
impose penalties provided for, for good
and sufficient reason. Penalties provided
therein are as follows:

(i) Censure;

(ii)
withholding
of
the
increments including stoppage at an
efficiency bar;

(iii) reduction to a lower post on
time-scale, or to a lower stage in a time
scale;

(iv) recovery from pay of the
whole or part of any pecuniary loss caused
to the Board by negligence or breach of
orders;
7 All. Smt. Kamla Devi Vs. State of U.P. & Ors.
491

(v) removal from the service of
the Board which does not disqualify him
from future employment;

(vi) dismissal from the service of
the Board which ordinarily disqualifies him
from future employment.

9. Rule 4 authorize appointing
authority to place under suspension, such
person against whose conduct an enquiry is
contemplated or is proceeding, pending
conclusion of enquiry, and such person is
entitled for suspension allowance during
his suspension period at the rate applicable
to Government servant. Rule 5 provides for
forum of appeal against the order of
appointing authority.

10. Six categories of penalties
have been specified in Rule 3, out of which
three penalties specified in Rule 5(1) could
be the subject-matter of an appeal. The
remaining penalties could be challenged
under Rule 5(2) by means of a statutory
representation to the Director or the officer
specified by him. Rule 5(2) empowers the
employees to file a representation against
those punishments which are not specified
in Rule 5(1). Rule 5(3) clearly provides that
procedure laid down in CCS Rules, as
applicable
to
the
servants
of
U.P.
Government shall as far as possible, be
followed
in
disciplinary
proceedings,
appeals and representation under these
Rules.

11. Once such are the statutory
provisions holding the field in the matter of
punishment to be awarded by appointing
authority, for good and sufficient reason,
after following the procedure laid down in
CCS Rules, as applicable to the servants of
Uttar Pradesh Government, and admittedly
said procedure has not been adhered to,
rather the route that has been taken for
dispensing with the services of claimant
opposite party No. 1 is that on account of
absence from duty his service stands
terminated, can the said action taken be
justified in the facts of the present case.

12. There cannot be any doubt to
this
proposition
that
absence
from
duty/unauthorized
absence/absenteeism
constitutes misconduct in itself as same
clearly tantamounts to failure of devotion
to duty or behavior unbecoming of
Government servant and, accordingly, on
such misconduct being substantiated on the
basis of evidence adduced, for good and
sufficient reason, appropriate punishment
commensurate to the charge can always be
awarded. The authority at the point of time
when it proceeds to take decision in such
matter has to keep in mind as to whether
absence has been willful or same has been
because of compelling circumstances. Apex
Court in the case of Krushnakant B.
Parmar
v.
Union
of
India,
MANU/SC/0118/2012MANU/SC/0118/201
2 : 2012 (3) SCC 178, while dealing with
the matter of absence from duty has held as
follows:

"17. If the absence is the result of
compelling circumstances under which it
was not possible to report or perform duty,
such absence cannot be held to be willful.
Absence from duty without any application
or prior permission may amount to
unauthorised absence, but it does not
always mean willful. 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
492 INDIAN LAW REPORTS ALLAHABAD SERIES
employee cannot be held guilty of failure of
devotion to duty or behavior 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 willful, in absence of such
finding, the absence will not amount to
misconduct.

19. In the present case the
Inquiry Officer on appreciation of evidence
though held that the appellant was
unauthorisedly absent from duty but failed
to hold the absence is willful; the
disciplinary authority as also the Appellate
Authority, failed to appreciate the same
and wrongly held the appellant guilty."

13. Apex Court in the case of
Vijay S. Sathaye v. Indian Airlines Limited
and
others,
MANU/SC/0923/2013MANU/SC/0923/201
3 : 2013 (10) SCC 253, while considering
the issue of termination of service vis-a-vis
abandonment
of
service,
stated
that
termination entails positive action on the
part of employer, while abandonment is
unilateral action of employee and in the
said context, has held as follows:

"12. It is a settled law that an
employee 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 a 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.

13. In M/s. Jeewanlal (1929) Ltd.,
Calcutta
v.
Its
Workmen,
MANU/SC/0232/1961MANU/SC/0232/196
1 : AIR 1961 SC 1557, this Court held as
under:

"......there would be the 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."

(See also: Shahoodul Haque v.
The Registrar, Co-operative Societies,
Bihar
and
another,
MANU/SC/0444/1974MANU/SC/0444/197
4 : AIR 1974 SC 1896).

14.
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 on behalf of the
employee and the employer has no role in
it. Such an act cannot be termed as
'retrenchment' from service. (See: State of
Haryana v. Om Prakash and another,
MANU/SC/1371/1998MANU/SC/1371/199
8 : (1998) 8 SCC 733).

15. In Buckingham and Carnatic
Co. Ltd. v. Venkatiah and another,
MANU/SC/0163/1963MANU/SC/0163/196
3 : AIR 1964 SC 1272, while dealing with a
similar case, this Court observed:

"5..........Abandonment
or
relinquishment of service is always a
question of intention, and normally, such an
intention cannot be attributed to an employee
without adequate evidence in that behalf."
7 All. Smt. Kamla Devi Vs. State of U.P. & Ors.
493

A
similar
view
has
been
reiterated in G.T. Lad and others v.
Chemicals
and
Fibres
India
Ltd.,
MANU/SC/0264/1978MANU/SC/0264/197
8 : AIR 1979 SC 582.

16. In Syndicate Bank v. General
Secretary, Syndicate Bank Staff Association
and
another,
MANU/SC/0307/2000MANU/SC/0307/200
0 : AIR 2000 SC 2198; and Aligarh
Muslim. University and others v. Mansoor
Ali
Khan,
MANU/SC/0533/2000MANU/SC/0533/200
0 : AIR 2000 SC 2783, this Court ruled that
if a person is absent beyond the prescribed
period for which leave of any kind can be
granted, he should be treated to have
resigned and ceases to be in service. In
such a case, there is no need to hold an
enquiry or to give any notice as it would
amount to useless formalities.

A
similar
view
has
been
reiterated
in
V.C.
Banaras
Hindu
University
and
others
v.
Shrikant,
MANU/SC/8170/2006MANU/SC/8170/200
6 : AIR 2006 SC 2304; Chief Engineer
(Construction) v. Keshava Rao (dead) by
Lrs.,
MANU/SC/0215/2005MANU/SC/0215/200
5 : (2005) 11 SCC 229; and Regional
Manager, Bank of Baroda v. Anita
Nandrajog,
MANU/SC/1587/2009MANU/SC/1587/200
9 : (2009) 9 SCC 462."

14.
Abandonment
or
relinquishment of service is always a
question of intention, and such an intention
can be attributed to employee when there is
adequate evidence in that behalf. Absence
from duty is a misconduct and if the
authority chooses to initiate action for
according punishment for the said
misconduct then he would have to adhere
to the provisions of CCS Rules as
applicable in the State of U.P. by holding
regular departmental enquiry and only in
cases where an incumbent is absent beyond
the prescribed period for which leave of
any kind be granted, then he has to be
accepted as having abandoned his service,
and in such a situation there is no need to
hold enquiry or to give any notice.

15. In the State of U.P. the
Government servants in various matters
such as abandonment of service and leave
etc. are governed by Financial Handbook
i.e. U.P. Fundamental Rules, and same set
of Rules are applicable to the employees of
Board also.

Fundamental Rule 18 runs as
follows:

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

16.
The
aforementioned
Fundamental
Rule
provides
for
abandonment
of
service/cessation
of
service after five years continuous absence
from duty, whether with or without leave.
Once five year continuous absence from
duty is there, then leave or no leave will not
make any difference, the abandonment of
service/cessation of employment has to be
accepted and prior to expiry of period of
five years, if there is absence from duty, the
same has to be accepted as misconduct and
494 INDIAN LAW REPORTS ALLAHABAD SERIES
for the same disciplinary proceedings will
have to be initiated by holding regular
departmental enquiry. Here the shortcut
method that has been adhered to cannot at
all be subscribed by law. "

14. When the facts of the instant case
are seen in the light of Division Bench
judgement in the case of Ram Kishore
(Supra) what is apparent that the Division
Bench while considering the unamended
Rule 18 of the Financial Handbook held
that there cannot be any automatic
termination of the services of an employee
and in case of absence from duty, the same
has to be treated as misconduct and for the
said misconduct disciplinary proceedings
will have to be initiated by holding regular
departmental inquiry and the shortcut of
Rule 18 cannot be subscribed by law.

15. Rule 18 has been amended vide
notification dated 12.09.1989 wherein absence
beyond 5 years has been indicated to attract the
provisions of rules relating to disciplinary
proceedings meaning thereby that with effect
from 1989 disciplinary proceedings are sinequa-non prior to imposition of any penalty
against an employee for his absence from duty
beyond five years.

16. Admittedly, in this case, the
disciplinary proceedings have not been
initiated against the petitioner rather her
services have been dispensed with by only
issuing a show cause notice and thus the
impugned action on the part of respondents
would run foul to the settled provision of
law in this regard.

17. Accordingly, the writ petition is
partly allowed. The impugned order dated
26.12.2007, a copy of which is annexure 1
to the petitioner, passed by respondent no.
4 is quashed.

18. The court is of the view that
disciplinary proceedings should be initiated
against the petitioner but learned counsel
for petitioner contends that the petitioner is
now aged about 71 years and would not be
able to face disciplinary proceedings at her
advanced age.

19. Considering the aforesaid it is
provided that no back wages shall be
payable to the petitioner on the principle of
"no work no pay". However the period of
service rendered by the petitioner shall be
counted as service for all purposes so as to
enable the petitioner to receive pension and
other retiral dues. The arrears of pension
would be payable to the petitioner with
effect from the date of her retirement. The
action in this regard will be taken by the
respondents within three months.
----------
(2021)07ILR A494
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 3458 of 2009

U.P. Senior Shiksha Sangh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
C,B, Pandey, Dr. Lalta Prasad Mishra, Girish
Chandra Verma, Rohit Tripathi

Counsel for the Respondent:
C.S.C.

A. Civil Law - UP Basic Education Act, 1972
-
Pension
-
Entitlement
thereof
-
Teachers and non-teaching staff in Basic
Schools - Appointment made prior to
enforcement of New Pension Scheme
(NPS) i.e. 01.04.2005 - Applicability of Old