# Smt. Shasya Singh v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1190
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-18
- **Case number:** Service Single No. 854 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shasya-singh-v-state-of-u-p-ors-45643
- **Pages:** 7

## Headnote

C.S.C.

A. Service - Termination - It is a settled
principle that the maternity leave shall be
available to all female employees irrespective
of
her
nature
of
appointment,
be
it
temporary, permanent, casual, contractual
etc. Therefore, the competent authority i.e.
Mission Director in the present case, cannot
indicate in his order that such leave is not
admissible to the petitioner. (Para 7, 13)

B. If any punishment order is stigmatic or
based on some allegations, the services of an
employee may not be dispensed with without
following the due procedure of law. (Para 6,
11)

C. The punishment order can only be passed
by the disciplinary authority applying its
judicious and independent mind appreciating the
facts of eth issue and the legal provisions to that
effect. (Para 9)

D. Discretion exercised under the direction or
in compliance with some higher authority's
instruction, will be a case of failure to
exercise discretion altogether. (Para 10)

E. Constitution of India: Art. 14, 226 - The
action of terminating the contractual services is not
precluded from scrutiny and can be tested on the
touchstone of Art. 14. (Para 12)

Writ Petition allowed.

Precedent followed:

## Text

1190 INDIAN LAW REPORTS ALLAHABAD SERIES
and
Mallamala
Venkateswara
Rao
(supra) as relied by the learned counsel for
the applicant, would also have no
applicability in the present case.

16. Taking into consideration the
aforesaid discussion, this Court clearly
finds that the present application is hit by
delay and is accordingly dismissed.
----------
(2020)02ILR A1190

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.01.2020

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 854 of 2020

Smt. Shasya Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mahendra Pratap Singh, Abhishek Dwivedi

Counsel for the Respondents:
C.S.C.

A. Service - Termination - It is a settled
principle that the maternity leave shall be
available to all female employees irrespective
of
her
nature
of
appointment,
be
it
temporary, permanent, casual, contractual
etc. Therefore, the competent authority i.e.
Mission Director in the present case, cannot
indicate in his order that such leave is not
admissible to the petitioner. (Para 7, 13)

B. If any punishment order is stigmatic or
based on some allegations, the services of an
employee may not be dispensed with without
following the due procedure of law. (Para 6,
11)

C. The punishment order can only be passed
by the disciplinary authority applying its
judicious and independent mind appreciating the
facts of eth issue and the legal provisions to that
effect. (Para 9)

D. Discretion exercised under the direction or
in compliance with some higher authority's
instruction, will be a case of failure to
exercise discretion altogether. (Para 10)

E. Constitution of India: Art. 14, 226 - The
action of terminating the contractual services is not
precluded from scrutiny and can be tested on the
touchstone of Art. 14. (Para 12)

Writ Petition allowed.

Precedent followed:

1. Dr. Rachna Chaurasiya Vs. State of U.P. &
others, [2017 (11) ADJ 399 (DB)] (Para 2, 7, 8,
13)

2. Nagraj Shivarao Karjagi Vs. Syndicate Bank,
Head Officer, Manipal and another, (1991) 3
SCC 219 (Para 5, 10)

3.
Anirudhsinhji
Karansinhji
Jadeja
and
another, (1995) 5 SCC 302 (Para 5, 10)

4. Commissioner of Income Tax, Shimla Vs.
Greenworld Corporation Parwanoo, (2009) 7
SCC 69 (Para 5, 10)

5. Parshotam Lal Dhingra Vs. Union of India,
1958 AIR 36; 1958 SCR 828 (Para 11)

6. High Court of Gujarat Vs. Jayshree
Chamanlal Budhhabhatt, (2013) 16 SCC 59
(Para 11)

7. SBI Vs. Palak Modi, (2013) 3 SCC 607 (Para
11)

8. Faraz Hameed Ansari Vs. Life Insurance
Corporation of India Through Chairman &
others, 2018 (36) LCD 2062 (Para 12)

9. GRIDCO Ltd. and another Vs. Sadananda
Doloi and others, (2011) 15 SCC 16 (Para 12)

Precedent distinguished:

1. Rajesh Bhardwaj Vs. Union of India, (Writ-A
No. 5484/2013) (Para 4, 5)
2 All. Smt. Shasya Singh Vs. State of U.P. & Ors.
1191
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard learned counsel for the
parties.

2. This Court has passed order dated
14.1.2020 as under :

"Heard Sri Mahendra Pratap
Singh, learned counsel for the petitioner
and
Sri
Ran
Vijay
Singh,
learned
Additional Chief Standing Counsel for the
State-respondents.

The case set-forth by learned
counsel for the petitioner is that the
petitioner applied for the child care leave
for
three
months
with
effect
from
11.07.2019
as
application
dated
10.07.2019 to that effect has been
preferred
by
the
petitioner
to
her
Appointing Authority i.e. the District
Homeopathy Medical Officer, Sultanpur.
On earlier occasion, the petitioner had
proceeded for maternity leave with effect
from 07.05.2018 to 13.12.2018 and the
said leave has not been sanctioned.

The
District
Homeopathy
Medical Officer, Sultanpur has called an
explanation from the petitioner that was
duly replied vide explanation dated
20.11.2019. In the said explanation, the
petitioner has cited the decision of the
Division Bench of this Court in re: Dr.
Rachna Chaurasiya vs. State of U.P. &
others reported in [2017 (11) ADJ 399
(DB)], which categorically provides that
the maternity leave and child care leave
are admissible to all the lady employees
irrespective of her nature of appointment
whether it be permanent, temporary and
contractual. After receiving the aforesaid
explanation
of
the
petitioner
dated
20.11.2019, the Appointing Authority has
issued two letters, one letter dated
22.11.2019 to the petitioner and second
one to the Mission Director, Uttar
Pradesh Rajya Ayush Society, Lucknow.
Letter dated 22.11.2019, which was
addressed to the petitioner, says that her
entire issue including her explanation has
been forwarded to the Mission Director
for necessary orders.

By means of the impugned order
dated 17.12.2019, the Mission Director,
Uttar Pradesh Rajya Ayush Society,
Lucknow
has
directed
the
District
Homeopathy Medical Officer, Sultanpur to
terminate the services of the petitioner for
the reason that she has absented again
and again without permission and the
leave i.e. the maternity and the child care
leave are not admissible to the contract
employees, therefore, the said leave may
not be exceeded to the petitioner.

The maternity leave as well as
the child care leave is admissible to the
contract employees also in view of the
decision of the Division Bench of this
Court rendered in re: Dr. Rachna
Chaurasiya vs. State of U.P. & others
(supra), therefore, recital to that effect in
the impugned order is prima facie
unwarranted.

So far as recital to the effect that
the petitioner has absented again and
again without permission is concerned, the
question would be as to whether the
petitioner has absented without informing
the Competent Authority by preferring an
application and as to whether she has
sought such relief which can not be
granted to her. If any employee has sought
such relief which may be granted strictly
in
accordance
with
law
and
the
circumstances at that point of time
compels the employee to proceed on leave
otherwise she shall suffer irreparable loss,
whether that conduct of an employee may
be treated as misconduct.
1192 INDIAN LAW REPORTS ALLAHABAD SERIES

Not only the above, whether in a
given circumstances the services of an
employee may be dispensed with without
following the principles of natural justice
inasmuch as in the present case the
services of the petitioner have been
dispensed with without affording an
opportunity of hearing.

One more question crops up i.e.
as to whether any punishment order
against an employee can be passed at the
behest of the Superior Authority inasmuch
as
in
the
present
case
admittedly
Appointing Authority of the petitioner is
District Homeopathy Medical Officer but
the services of the petitioner have been
dispensed with pursuant to the direction
being issued by the Mission Director,
Uttar Pradesh Rajya Ayush Society,
Lucknow, however, the termination order
has been passed by the Appointing
Authority.

The law is settled on this point
that the punishment order can only be
passed by the Disciplinary Authority
applying his judicious mind independently
appreciating the legal provisions to that
effect.

Therefore, the matter requires
consideration.

List/ put up this case on
18.01.2020 in the additional cause list to
enable the learned Additional Chief
Standing Counsel to seek instructions in
the matter.

Till the next date of listing, no
third party interest shall be created."

3. In compliance of the aforesaid
order Sri Ran Vijay Singh, learned Addl.
C.S.C. has produced the copy of the
instruction letter dated 17.1.2020 preferred
by
the
Director,
Homeopathy,
U.P.
addressing
the
C.S.C.,
High
Court,
Lucknow Bench, Lucknow enclosing
therewith
some
correspondences
and
letters. Along with the instruction letter
one letter dated 17.1.2020 has been
enclosed which has been preferred by the
District Medical Officer, Homeopathy,
Sultanpur
addressing
to
Director,
Homeopathy, U.P. The perusal of the
aforesaid letter dated 17.1.2020 of the
District Medical Officer, Homeopathy,
Sultanpur
reveals
that
initially
the
petitioner absented for three days w.e.f.
7.5.2018 to 10.5.2018 without preferring
any application to that effect and she
further proceeded on leave in continuation
of earlier authorized leave by preferring an
application seeking maternity leave. It has
further been indicated that after the
aforesaid maternity leave which was not
sanctioned by the competent authority till
date the petitioner again proceeded on
leave on 10.7.2019 for care of her child as
Child Care Leave for three months i.e.
w.e.f.
11.7.2019
to
10.10.2019.
Admittedly, the petitioner has submitted
her joining on 1.11.2019 but her joining
was subject to the necessary orders being
passed by the Mission Director, U.P. As
per Sri Ran Vijay Singh the Mission
Director considering the entire facts and
circumstances relating to the petitioner
directed the District Medical Officer,
Homeopathy, Sultanpur to dispense with
the services of the petitioner as she is
habitual absentee and the leave sought by
the petitioner are not admissible for the
contract employees.

4. Besides, Sri Ran Vijay Singh has
placed reliance on the judgment dated
20.11.2018 of Division Bench of this
Court in re: Rajesh Bhardwaj vs. Union
of India (Writ-A No. 5484/2013 along
with one connected writ petition) by
submitting that since the petitioner was
appointed on the post 'Yog Assistant' on
2 All. Smt. Shasya Singh Vs. State of U.P. & Ors.
1193
contract basis, therefore, being a contract
employee her writ petition may not be
maintained before this Court.

5. It would be apt to indicate here
that the petitioner is taking recourse of the
various pronouncements of the Hon'ble
Apex Court which provides that if the
order
of
termination
is
stigmatic,
irrespective of nature of appointment, be it
ad-hoc, contractual or regular, a full
fledged inquiry would be required to be
conducted, therefore, in view of the fact
that the facts and circumstances of in re:
Rajesh Bhardwaj (supra) would not be
applicable in the present case as the facts
and circumstances of the present case are
different. Further, the petitioner has also
challenged the impugned order on the
ground that the punishment order has not
been passed by the appointing authority
but the same has been passed at the dictate
of superior authority, therefore, in view of
the settled propositions of law by the
Hon'ble Apex Court in re: (1991) 3 SCC
219,
Nagraj
Shivarao
Karjagi
vs.
Syndicate Bank, Head Office, Manipal
and
another,
(1995)
5
SCC
302,
Anirudhsinhji Karansinhji Jadeja and
another
and
(2009)
7
SCC
69,
Commissioner of Income Tax, Shimla vs.
Greenworld Corporation Parwanoo the
punishment order is liable to be set aside.
Therefore, the judgment in re: Rajesh
Bhardwaj (supra) shall not be applicable in
the present case inasmuch as the facts and
circumstances of both the cases are
different.

6. So far as the leave of the petitioner is
concerned be that authorized or unauthorized
the instructions have been received but so far
as the two other questions framed in the order
dated 14.1.2020 have not been received as
those questions are as to whether the services
of an employee can be dispensed with without
following the due procedure of law or in
violation of principles of natural justice and as
to whether the punishment order can be passed
other than the appointing authority. The law is
trite on the point that if any punishment order
is stigmatic or based on some allegations, the
services of an employee may not be dispensed
with without following the due procedure of
law. Had the order impugned been simplicitor,
such type of protection could have been
avoided but in the present case the Mission
Director vide order dated 17.12.2019 has
levelled allegations against the petitioner that
she is habitual absentee and the leave sought
by her is not admissible, therefore, her services
should be dispensed with.

7. Considering the tone and tenor of the
letter dated 17.12.2019, I feel that an ample
opportunity should have been provided to the
petitioner, particularly for the reason that in her
explanation dated 20.11.2019 the petitioner has
cited the judgment of Division Bench of this
Court in re: Dr. Rachna Chaurasiya (supra)
wherein this Court has categorically provided
that the maternity leave is admissible to all the
employees irrespective of her nature of
appointment, therefore, before passing the
order dated 17.12.2019 the Mission Director
must have considered such legal point as the
explanation of the petitioner to that effect has
been sent to him by the District Homoeopathy
Medical Officer.

8. The Division Bench of this Court
in re: Dr. Rachna Chaurasiya (supra)
vide para 25 & 27 has held as under :

"25. Maternity benefit is a social
insurance and the Maternity Leave is
given for maternal and child health and
family support. On a perusal of different
provisions of the Act, 1961 as well as the
policy of the Central Government to grant
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
Child Care Leave and the Government
Orders issued by the State of U.P.
adopting
the
same
for
its
female
employees, we do not find anything
contained therein which may entitle only
to women employees appointed on regular
basis to the benefit of Maternity Leave or
Child Care Leave and not those, who are
engaged on casual basis or on muster roll
on daily wage basis."

"27.We are of the considered
opinion that the benefit under the Act as
well as the Rules of the Government
Orders providing for grant of Maternity
benefits and Child Care leave are
applicable to all female employees,
irrespective of their nature of employment
whether
permanent,
temporary
or
contractual."

9. So far as the second question
regarding the competence of the authority
to pass punishment order is concerned, the
law is settled on this point that the
punishment order can only be passed by
the disciplinary authority applying its
judicious
and
independent
mind
appreciating the facts of the issue and the
legal provisions to that effect. In the
present case the punishment order has,
however, been passed by the appointing
authority but the appointing authority has
not applied his own judicious mind
independently as he followed the direction
being issued by the Mission Director vide
letter dated 17.12.2019, therefore, in that
count
the
punishment
order
dated
26.12.2019 is not sustainable in the eyes of
law.

10. The Hon'ble Apex Court in re:
Nagraj
Shivarao
Karjagi
(supra),
Anirudhsinhji Karansinhji Jadeja and
another (supra) and Commissioner of
Income Tax, Shimla (supra) it has been
held that if the statutory authority has been
vested with the jurisdiction, the authority
has to exercise it according to its own
discretion. If the discretion is exercised
under the direction or in compliance with
some higher authority's instruction, then it
will be case of failure to exercise
discretion altogether.

11. The Hon'ble Apex Court in re:
Parshotam Lal Dhingra vs Union Of
India reported in 1958 AIR 36, 1958 SCR
828 has held the stigmatic termination
order may not be passed without affording
an opportunity of hearing to an employee
if the order entails civil consequences
could not have been passed without
affording an opportunity of hearing to an
employee. Apex Court in the case of High
Court
of
Gujarat
Vs.
Jayshree
Chamanlal Budhhabhatt, 2013 (16) SCC
59, has taken the view that once any
allegations are made against the incumbent
concerned, which results in stigma, the
minimum requirement is to inform the
concern person, the charge against him,
and to give him reasonable opportunity of
being heard. Apex Court in the case of
SBI Vs. Palak Modi, 2013 (3) SCC 607,
has considered the issue of termination
simplicitor
or
punitive
termination.
Mention
has
been
made
that
if
misconduct/misdemeanor constitutes the
basis of final decision taken by competent
authority to dispense with the services of
an incumbent albeit by a non-stigmatic
order, the Court can lift the veil and
declare that in the garb of termination
simplicitor, the employer has punished the
employee for misconduct.

12. This Court in re: Faraz Hameed
Ansari vs. Life Insurance Corporation Of
India
Thru
Chairmann
&
Others
reported in 2018(36) LCD 2062 has held
2 All. Smt. Shasya Singh Vs. State of U.P. & Ors.
1195
in para 15, while considering various
decisions of the Hon'ble Apex Court, para
15 is as under :

"15. Thus, even if the impugned
action terminating the services of the
petitioners is in the realm of a contract,
the same would not be precluded from
scrutiny in exercise of its powers of
judicial review by this Court available to it
under Article 226 of the Constitution of
India. I am of the considered opinion that
every action of the Corporation, whether
statutory
or
non-statutory
or
administrative in nature, has to be
necessarily
in
consonance
with
the
constitutional mandate and the impugned
order, thus, can be tested on the
touchstone of Article 14 of the Constitution
of India. In case, the impugned action is
found to be unreasonable, irrational,
illegal, perverse or unfair, the same can be
interfered with in view of the law laid
down by Hon'ble Supreme Court in the
case of GRIDCO1 Ltd. (supra).

13. If on account of the fact that the
petitioner was habitual absentee and the
leave sought by the petitioner was not
admissible
to
her,
the
full-fledged
departmental inquiry should have been
conducted against the petitioner seeking
her explanation to that effect and after
providing her opportunity of hearing any
appropriate order could have been passed
by the disciplinary authority. It might be
possible that the petitioner could have
defended herself placing on record, some
relevant case laws of this Court and
Hon'ble Apex Court justifying her conduct
and if she fails to justify her conduct the
appropriate order could have been passed,
but such exercise has not been carried out
in the present case. If the Division Bench
of
this
Court
in
re:
Dr.
Rachna
Chaurasiya (supra) has observed that the
maternity leave shall be available to all
female employees irrespective of her
nature of appointment, be it temporary,
permanent, casual, contractual etc., then
how the competent authority i.e. Mission
Director has indicated in his order that
such leave is not admissible to the
petitioner, therefore, it appears that such
observation is in derogation of the
direction being issued by the Division
Bench of this Court in re: Dr. Rachna
Chaurasiya (supra). It might be possible
that the authority concerned i.e. Mission
Director was having some judgment of
Hon'ble Supreme Court or having some
relevant material that may authorise him to
disagree with the direction of the Division
Bench in re: Dr. Rachana Chaurasiya
(supra) but such material must have been
indicated in the order dated 17.12.2019
otherwise that order shall suffer from vice
of perversity.

14. Be that as it may, since the
appointing authority are not satisfied with
the conduct of the petitioner as being
reflected in the impugned orders and the
instruction letter and the recital to that
effect has also been given in the impugned
order, therefore, a proper departmental
inquiry strictly in accordance with law
should
have
been
conducted
and
concluded against the petitioner to that
effect if it is so warranted and after
providing an opportunity of hearing to the
petitioner any appropriate order can be
passed. Any appropriate order can be
passed only by the disciplinary authority
independently and such order may not be
passed pursuant to the direction being
passed by the superior authority.

15. In any case if the departmental
inquiry is conducted against the petitioner,
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
the same can be conducted and concluded
with promptness preferably within a
period of three months and any appropriate
order can be passed strictly in accordance
with law within one month thereafter. It is
needless to say that the petitioner shall
cooperate
with
the
departmental
proceedings, if the same is initiated
inasmuch as this is sole prerogative of the
disciplinary
authority
to
initiate
the
departmental inquiry against the petitioner.
It is being clarified that this Court is not
directing to conduct the departmental
inquiry against the petitioner..

16. In view of the above, I am of the
considered opinion that the impugned
order dated 17.12.2019 and 26.12.2019 are
not sustainable in the eyes of law,
therefore, both the orders are hereby
quashed.

17. The disciplinary authority is
directed to reinstate the petitioner in
service and pay her regular salary and
other emoluments as and when the same
falls due.

18. It is also directed that the
appropriate orders regarding earlier leave
of the petitioner may be passed strictly in
accordance with law.

19. In view of above, writ petition is
allowed.
----------
(2020)02ILR A1196

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2020

BEFORE
THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 5994 of 2000
Ajai Kumar ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
G.S.L. Varma, Kaushal Kishore

Counsel for the Respondent:
C.S.C.

A. Service Law- Application for Execution
of decree for payment of salary -
Allahabad High Court Rules, 1952: Rule
1(viii) of Chapter-II read with Rule 6 of
Chapter VII; Limitation Act, 1963: Article
136, 137 - Maintainability - Application
held to be not maintainable being barred by
limitation.

Writ Petition rejected. (E-4)

Present application prays for decree for
execution of judgment dated 01.04.2005,
passed by this Court in the present writ
petition.

(Delivered by Hon'ble Saurabh Lavania, J.)

C.M. Application No. 8686 of 2020
(Application for Execution).

1. Heard Sri G.S.L. Varma,
learned counsel for the petitioner and
Sri Manish Pandey, learned State
counsel.

2. The present application has
been filed under Rule 1 (viii) of
Chapter-II read with Rule 6 of Chapter
VII of the Allahabad High Court Rules,
1952. It is for preparation of decree for
execution
of
the
judgment
dated
01.04.2005, passed by this Court in the
present writ petition.

3.

The
application,
under
consideration, was presented in the
Registry of this Court on 21.01.2020.