# Virendra Pratap Singh v. U.P. State Bridge Corp. Ltd

- **Citation:** (2022) 5 ILRA 988
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-27
- **Case number:** Writ-A No. 718 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-pratap-singh-v-u-p-state-bridge-corp-ltd-48619
- **Pages:** 21

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 - UP Uttar Pradesh St. Bridge
Corp. Ltd. Service Rules - Rule 40,
40(13)(3), Model Conduct, Discipline
And Appeal Rules, 1991 - Rule 33, 35 -
Termination - petitioner's services - on the
ground of wilful absence from duty which is a
matter of misconduct - petitioner's case is
that due to suffering from sciatica, spondylitis
followed by Paralysis as well as his wife's
long-illness he did not discharge his duties -
even though during said period he applied for
all kinds of leaves - as such absence is
neither deliberate nor intentional - it is not a
case of abandonment of employment or
deemed resignation under the corporation
rules - order of termination is unsustainable
and quashed - petitioner would be entitle to
benefits
of
his
post
until
age
of
superannuation
thereafter
whatever
consequential benefits would be follow - he
would not entitled to any pecuniary benefit
for the absence period - writ petition allowed
with directions accordingly. (Para - 32, 33,
35, 38, 39)

Writ Petition Allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,815 of 72,419. This is a partial read: ask again with offset=39815 for what follows._

988 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate must possess according to the
needs of the employer and the nature of
work. The court cannot lay down the
conditions of eligibility, much less can it
delve into the issue with regard to desirable
qualifications being on a par with the
essential eligibility by an interpretive rewriting of the advertisement. Questions of
equivalence will also fall outside the
domain of judicial review. If the language
of the advertisement and the rules are
clear, the court cannot sit in judgment over
the same. If there is an ambiguity in the
advertisement or it is contrary to any rules
or law the matter has to go back to the
appointing authority after appropriate
orders, to proceed in accordance with law.
In no case can the court, in the garb of
judicial review, sit in the chair of the
appointing authority to decide what is best
for
the
employer
and
interpret
the
conditions of the advertisement contrary to
the plain language of the same."

9. The Full Bench of the Apex Court
in the case of Punjab National Bank Vs.
Anit Kumar Das, 2020 SCC Online SC
897 has observed as under:-

"21.Thus, as held by this Court
in the aforesaid decisions, it is for the
employer to determine and decide the
relevancy
and
suitability
of
the
qualifications for any post and it is not
for the Courts to consider and assess. A
greater latitude is permitted by the
Courts for the employer to prescribe
qualifications for any post. There is a
rationale behind it. Qualifications are
prescribed keeping in view the need and
interest of an Institution or an Industry or
an establishment as the case may be. The
Courts are not fit instruments to assess
expediency or advisability or utility of
such prescription of qualifications......"

10.

The
recruitment/selection
process should be made strictly in
accordance
with
terms
of
the
advertisement and the recruitment rules
as has been held by the Apex Court in the
case of Yogesh Kumar And Others vs
Government Of NTC Delhi reported in
(2003) 3 SCC 548.

11. In view of the aforesaid
discussion, the Court is of the considered
view that the petitioner possess the DCA
Certificate, which is not equivalent "O"
Level
certificate
awarded
by
the
DOEACC society or a qualification
equivalent thereto, therefore, he is not
eligible or qualified for the post of
Assistant Review Officer as per the
prescribed qualification mentioned in the
advertisement,
hence
it
would
be
impermissible to consider the petitioner
as being eligible for the said post and
relief as prayed has also not been granted.

12. Accordingly, this writ petition
lacks merits and is dismissed.
----------
(2022)05ILR A988
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.04.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 718 of 2014

Virendra Pratap Singh ...Petitioner
Versus
U.P. State Bridge Corp. Ltd. ...Respondent

Counsel for the Petitioner:
Ram Singh 'Paliwal', Ramesh Pandey

Counsel for the Respondents:
Shishir Jain, Ram Ratan
5 All. Virendra Pratap Singh Vs. U.P. State Bridge Corp. Ltd.
989
Civil Law - Constitution of India,1950 -
Article 226 - UP Uttar Pradesh St. Bridge
Corp. Ltd. Service Rules - Rule 40,
40(13)(3), Model Conduct, Discipline
And Appeal Rules, 1991 - Rule 33, 35 -
Termination - petitioner's services - on the
ground of wilful absence from duty which is a
matter of misconduct - petitioner's case is
that due to suffering from sciatica, spondylitis
followed by Paralysis as well as his wife's
long-illness he did not discharge his duties -
even though during said period he applied for
all kinds of leaves - as such absence is
neither deliberate nor intentional - it is not a
case of abandonment of employment or
deemed resignation under the corporation
rules - order of termination is unsustainable
and quashed - petitioner would be entitle to
benefits
of
his
post
until
age
of
superannuation
thereafter
whatever
consequential benefits would be follow - he
would not entitled to any pecuniary benefit
for the absence period - writ petition allowed
with directions accordingly. (Para - 32, 33,
35, 38, 39)

Writ Petition Allowed. (E-11)

List of Cases cited: -

1. Aligarh Muslim University Vs Mansoor Ali
Khan [(2000) 7 SCC 529 : 2002 SCC (L&S) 965 :
AIR 2000 SC 2783]

2. Buckingham and Carnatic Co. Ltd. Vs
Venkatiah & anr., AIR 1964 SC 1272

3. Delhi Transport Corporation Vs D.T.C.
Mazdoor Congress & ors., 1991 Supp1 SCC
600

4. Jeewanlal (1929) Ltd., Calcutta Vs Workmen,
AIR 1961 SC 1567

5. G.T. Lad Vs Chemical and Fibres of India Ltd.
[(1979) 1 SCC 590 : 1979 SCC (L&S) 76 : AIR
1979 SC 582]

6. Vijay S. Sathaye Vs Indian Airlines Ltd. &
ors., (2013) 10 SCC 253

(Delivered by Hon'ble J.J. Munir, J.)

1. The petitioner is an ex-employee of
the Uttar Pradesh State Bridge Corporation
Limited. His services were terminated by
an order dated 31.12.2012 on the ground of
wilful absence from duty. It is this order
that the petitioner has impugned in the
present writ petition.

2. Heard Mr. Ram Singh Paliwal,
learned Counsel for the petitioner and Mr.
Ram Ratan, learned Counsel for all the
respondents.

3. The petitioner was appointed on the
post of a Junior Engineer with the Uttar
Pradesh State Bridge Corporation Limited
(for
short,
'the
Corporation')
w.e.f.
18.03.1981 vide a letter of appointment
dated 09.03.1981. He joined service on
18.03.1981 at Allahabad (now Prayagraj).
Until the date of the impugned order
terminating his services, the petitioner had
rendered 31 years service. It is the
petitioner's case that he suffered from
spondylitis followed by paralysis and
sciatica during the period 04.05.2008 to
18.05.2012. This long spell of ailment of
the petitioner was followed by his wife's
illness. It is not in dispute that during the
period 04.05.2008 to 18.05.2012, the
petitioner did not discharge his duties,
which the Corporation have termed as
unauthorized absence.

4. It is the petitioner's case that
during the aforesaid period of time, he
had applied for sanction of all kinds of
leave available, including medical leave,
through applications made on various
dates. Some of these leave applications
were granted. The petitioner says that his
absence from duty is neither deliberate
nor intentional. It was caused by his own
sickness, followed by that of his wife.
The petitioner was under treatment for his
990 INDIAN LAW REPORTS ALLAHABAD SERIES
spondylitis at Gorakhpur. The petitioner
submitted
his
joining
report
on
19.05.2012 to the Office of the Deputy
`Project Manager of the Corporation at its
Pratapgarh unit. The petitioner was not
allowed to join, though he submitted
repeat
representations
before
the
Corporation through their competent
Authorities. The petitioner says that the
impugned order of termination dated
31.12.2012 was sent to his local address,
whereas he was residing at Gorakhpur in
connection with his treatment. For the
said reason, he could not come to know
of the order in good time. It is the
petitioner's case that his services have
been terminated without issuing him a
show-cause
notice
or
initiating
disciplinary proceedings on ground of
misconduct, in accordance with the
provisions of Rules 33 and 35 of the
Model Conduct, Discipline and Appeal
Rules, 1991 (amended in the year 1998,
as applicable to the Corporation) (for
short, ''the 1991 Rules).

5. A counter affidavit on behalf of the
Corporation has been filed on 07.08.2014,
to which the petitioner filed a rejoinder on
1st of November, 2014. The stand of the
Corporation in the counter affidavit, briefly
put, is that the petitioner remained
unauthorizedly absent from duty since
04.05.2008 for a period of more than four
years. It is their case that the petitioner
unauthorizedly absented himself from duty
for a long period of time and did not join
for a single day during this period of four
years. The petitioner was, therefore, held to
have abandoned employment with the
Corporation
and
his
services
were
terminated as such by the order impugned
dated 31.12.2012. Dilating more upon the
petitioner's conduct during the period of his
unauthorized absence, it is averred in the
counter affidavit that he was sanctioned
earned leave for the period 21.04.2008 to
03.05.2008, but after 03.05.2008, the
petitioner did not join duty. The Deputy
Project Manager of the Corporation's unit
at Pratapgarh, under whom the petitioner
was posted, vide a letter dated 08.05.2008,
directed the petitioner to join duty. He also
sent a telegram.

6. It is the Corporation's case that the
petitioner did not join his duties but
submitted a leave application through
another person, that was answered by the
Deputy Project Manager vide his letter
dated 03.06.2008. The petitioner then
requested for extension of leave due to his
illness,
that
was
placed
before
the
Corporation Headquarters. The Corporation
Headquarters
issued
a
letter
dated
18.07.2008, directing the Deputy Project
Manager of the Pratapgarh unit to ensure
the petitioner's medical examination. In
compliance, the Deputy Project Manager of
the Corporation at the Pratapgarh unit vide
his
letters
dated
29.07.2008
and
14.08.2008, directed the petitioner to
appear before the Chief Medical Officer,
Pratapgarh for his medical examination, but
the said letters were returned by the postal
agency with the remark: "भलन्धखत पते पर
कोई नहीूं रहता है". It is then said that the
petitioner did not get himself medically
examined and continued to send leave
applications on the ground of his illness
and subsequently that of his wife. In this
manner,
the
petitioner
remained
unauthorizedly absent without sanction of
leave for more than four years.

7. It is pleaded that consequently,
the
Corporation
inferred
that
the
petitioner was not interested in serving
them, but somehow to maintain his lien,
he would send leave applications, without
receiving letters sent to him by the
5 All. Virendra Pratap Singh Vs. U.P. State Bridge Corp. Ltd.
991
Corporation. He was, in the Corporation's
submission, trying to avoid resuming
duties on one pretext or the other. The
Corporation, therefore, say that the
impugned order dated 31.12.2012 is just,
legal and valid. The medical certificate
dated 10.01.2010 relied upon by the
petitioner, a copy of which is annexed as
Annexure No.4 to the writ petition, has
been castigated as one not issued by any
Government Hospital. It is further said
that by the said certificate, the petitioner
was declared fit to join, but he did not
join duties after the date of the said
certificate and remained unauthorizedly
absent for about two and a half years
thereafter.

8. In paragraph No.9 of the counter
affidavit, the Corporation have referred to
a certain Rule 40 of the Uttar Pradesh
State Bridge Corporation Limited Service
Rules (hereinafter referred to as, 'the
Service Rules'), which inter-alia governs
the right to leave. The Rule says that
leave cannot be claimed as a matter of
right. It is also provided that "when the
exigencies
of
service
so
require,
discretion to refuse or revoke leave of
any description, is reserved to the
Authority empowered to grant it", to
quote the words of the Rule. The
Corporation have taken a stand that as
leave could not be claimed as a matter of
right and no leave in point of fact was
sanctioned beyond 3rd of May, 2008, the
petitioner
remained
unauthorizedly
absent from duty for more than four
years. As such, his services have rightly
been terminated in accordance with the
Rules by the order impugned.

9. The petition was not formally
admitted to hearing when it came up before
this Court on 25.10.2021, but since parties
had exchanged affidavits, it was formally
admitted.
The
Court
formulated
the
following question for consideration at the
hearing, while admitting the writ petition:

'Whether the petitioner's services for
wilful absence from duty were terminated
as a matter of misconduct or in the exercise
of
some
power
of
abandonment
of
employment exercised (sic) by the employer
under the relevant leave rules?'

10. Since in the counter affidavit, and
otherwise too no Rule was placed before
the Court, indicating the nature and the
source of the power that was exercised to
terminate the petitioner's services, the
Court required the Managing Director of
the Corporation to file his personal
affidavit, adjourning hearing to 28.10.2021.
The Managing Director of the Corporation
filed his personal affidavit on 28.10.2021 in
Court. The Managing Director has come
out with a more informed stand on behalf
of the Corporation. The source of power to
terminate the petitioner's services has been
clearly indicated to be Rule 40.13 (referred
to in the Managing Director's affidavit as
''paragraph 13') of the Service Rules, more
particularly, Rule 40.13.3. It is stated by the
Managing Director in paragraph No.11 of
the counter affidavit that vide letter No.
1376/2E/08-09
dated
24.09.2001,
the
petitioner was informed that a disciplinary
inquiry had been instituted against him vide
Memo No. 1921 ESB/2429 SBC/08 dated
08.09.2008, but the inquiry could not be
completed against him because of his noncooperation.

11. The stand of the Corporation
would, therefore, show that initially they
decided to initiate disciplinary proceedings
in the year 2008, but gave up the same midway and chose to fall back upon their
power under Rule 40.13.3 of the Service
992 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules to terminate the petitioner's services
simplicitor, on account of his long absence,
without holding disciplinary proceedings. It
is, thus, evident that the petitioner's
services have been terminated, according to
the Corporation, by the order impugned
simplicitor on account of his long absence,
which could have been dealt with as a
misconduct,
but
was
not.
In
fact,
disciplinary proceedings were initiated, but
not pursued to their logical conclusion. The
power under Rule 40.13.3 of the Service
Rules was exercised by the Corporation
after the petitioner submitted his joining
report on 09.05.2012. It was done by the
impugned order dated 31.12.2012 with
effect from the date of the said order.

12. The question posed hereinabove
is, therefore, required to be carefully
examined.

13. Learned Counsel for the petitioner
has strenously argued that the petitioner's
services could not have been dispensed
with by an order simplicitor even if he had
absented from duty, as he was a permanent
employee. Absenting from duty is also a
kind of misconduct, on the basis of which
the petitioner could have been proceeded
with against by the Corporation in their
disciplinary jurisdiction and dealt with
according to law, but the Corporation could
not
have
terminated
the
petitioner's
services, where, under the statutory Rules,
he holds a lien on the post, simply on
account of long absence. It is emphasized
that the petitioner is not a temporary
employee or a probationer, but the holder
of a post under the Corporation, who are a
State establishment and his conditions of
service are governed by statutory Service
Rules.
Therefore,
for
the
claimed
misconduct, the petitioner ought to have
been
proceeded
with
departmentally,
affording
him
due
opportunity
in
disciplinary
proceedings,
where
the
Corporation would have to establish charge
against the petitioner to the effect that he
remained not only absent, but did so
intentionally
and deliberately,
without
justification. At the inquiry, the petitioner
would be entitled to show that his absence
was not intentional or deliberate, and
further, that he had a justification to offer
on
account
of
his
ill-health.
The
Corporation have deprived him of a civil
post held under them, protected by Statute,
without following the procedure prescribed
for holding disciplinary proceedings in
such
matters.
The
impugned
order,
according to the learned Counsel for the
petitioner, is, therefore, bad in law.

14. The learned Counsel for the
petitioner, in support of his contention, has
placed reliance upon the decision of the
Constitution Bench of the Supreme Court
in Delhi Transport Corporation v. D.T.C.
Mazdoor Congress and others, 1991
Supp (1) SCC 600, where it has been held:

"Nature of the power of statutory
authority to terminate the services of its
employees

264. In Sukhdev Singh v. Bhagatram
[(1975) 1 SCC 421 : 1975 SCC (L&S) 101
: (1975) 3 SCR 619] the Constitution
Bench of this Court put a nail in the coffin
of the play of the private master's power to
hire and fire his employees and held that
Regulations or Rules made under a statute
apply uniformly to everyone or to all
members of the same group or class. They
impose
obligations
on
the
statutory
authorities who cannot deviate from the
conditions of service and any deviation will
be enforced through legal sanction of
declaration by courts to invalidate the
actions in violation of the Rules or
5 All. Virendra Pratap Singh Vs. U.P. State Bridge Corp. Ltd.
993
Regulations. The statutory bodies have no
free hand in framing the terms or
conditions of service of their employees.
The Regulations bind both the authorities
and also the public. The powers of the
statutory bodies are derived, controlled and
restricted by the statutes which create them
and the Rules and Regulations framed
thereunder. The statute, thereby, fetters the
freedom
of
contract.
Accordingly
declaration was granted that dismissal or
removal of an employee by statutory
corporation in contravention of statutory
provision as void. Mathew, J. in a separate
but concurring judgment held that a Public
Corporation being the creation of a statute
is subject to statutory limitation as a State
itself. The preconditions of this Part II viz.
that the corporation is created by statute
and, the existence of power in the
corporation is to invade a statutory right of
the individual. Therefore, the governing
power must be subject to fundamental
statutory limitations. The need to subject
the power centres to the control of the
Constitution requires an expansion of
concept of State action. The duty of State is
affirmative duty seeing that all essentials of
life are made available to all persons. The
task of State today is to make the
achievement of good life both by removing
obstacles in the path of such achievement
and by assisting individual in realising his
ideal of self-perfection. The employment
under public corporation is a public
employment and, therefore, the employee
should
have
the
protection
which
appertains
to
public
employment.
(emphasis supplied) The court must,
therefore, adopt the attitude that declaration
is a normal remedy for a wrongful
dismissal in case of public employees
which can be refused in exceptional
circumstances. The remedy of declaration
should be a remedy made an instrument to
provide reinstatement in public sector. This
principle was
extended to numerous
instances where the termination of services
of the employees of a statutory corporation
was affected in violation of the principles
of natural justice or in transgression of the
statutory rules etc. In Managing Director,
U.P. State Warehousing Corporation v.
Vinay Narayan Vajpayee [(1980) 3 SCC
459 : 1980 SCC (L&S) 453 : (1980) 2 SCR
773] (SCR pp. 780-F to G and 783-C to
784-A (sic): SCC p. 466, para 14 and pp.
467-68, para 18) this Court held that
statutory
body
cannot
terminate
the
services of its employees without due
enquiry held in accordance with the
principles of natural justice. The persons in
public employment are entitled to the
protection of Articles 14 and 16 of the
Constitution,
when
the
service
was
arbitrarily
terminated.
The
question,
therefore,
is
whether
the
statutory
corporations are entitled to be invested with
absolute freedom to terminate the services
of its employees in terms of the contract of
service.

265. In Ramana Dayaram Shetty v.
International Airport Authority of India
[(1979) 3 SCC 489 : (1979) 3 SCR 1014 :
AIR 1979 SC 1628] this Court held that
expression of welfare and social service
functions necessitate the State to assume
control
over
natural
and
economic
resources and large scale natural and
commercial activities. For the attainment of
socio-economic justice, there is vast and
notable increase of frequency with which
ordinary citizens come into relationship of
direct encounters with the State. The
government in a welfare State is the
regulator and dispenser of social services
and provider of large number of benefits,
including jobs etc. Thousands of people are
employed in Central/State Government
Services and also under local authorities.
994 INDIAN LAW REPORTS ALLAHABAD SERIES
The government, therefore, cannot act
arbitrarily. It does not stand in the same
position as a private individual. In a
democratic government by rule of law, the
executive government or any of its officers
cannot be held to be possessed of arbitrary
power over the interests of the individuals.
Every action of the government must be
informed with reason and should be free
from arbitrariness. That is the very essence
of rule of law. It was further held: (SCC p.
506, para 12)

"It must, therefore, be taken to be the
law that where the government is dealing
with the public, whether by way of giving
jobs or entering into contracts ... the
government cannot act arbitrarily at its
sweet will and, like a private individual,
deal with any person it pleases, but its
action must be in conformity with standard
of norm which, is not arbitrary, irrational or
irrelevant. The power of discretion of the
government in the matter of grant of
largesse including award of jobs, ... must be
conditioned and structured by rational,
relevant and non-discriminatory standard or
norm and if the government departs from
such standard or norm in any particular
case or cases, the action or the government
would be liable to be struck down, unless it
can be shown by the government that the
departure was not arbitrary, but was based
on some valid principle which in itself was
not
irrational,
unreasonable
or
discriminatory."

266. This statement of law, though
was made in the context of contractual
relations, it is a general law with width and
amplitude which permeates the entire
spectrum of actions, legislative as well as
executive.

The position of the public employee
whether is status

271. The distinguishing feature of
public employment is status. In Roshanlal
Tandon v. Union of India [(1968) 1 SCR
185, 195 D-E : AIR 1967 SC 1889 : (1968)
1 LLJ 576] the Constitution Bench held
that the legal position of a government
servant is more one of status than of
contract. The hallmark of status is the
attachment to a legal relationship of rights
and duties imposed by the public law and
not by mere agreement of the parties. The
employment of the government servant and
his terms of service are governed by statute
or statutory rules. Once he is appointed to
the post or office, the government servant
acquires a status and his rights and
obligations are no longer determined by
consent of both parties but by statute or
statutory rules. The relationship between
the government and its servants is not like
an ordinary contract of service between a
master and servant. The legal relationship
is in the nature of status. The duties of
statute (sic status) are fixed by the law and
in the enforcement of the duties society has
an interest. Status is a condition of
membership of a group of which powers
and duties are exclusively determined by
law and not by agreement between the
parties concerned. In Calcutta Dock Labour
Board v. Jaffar Imam [(1965) 3 SCR 453 :
AIR 1966 SC 282 : (1965) 2 LLJ 112] it
was held that the statutory scheme of
employment confers on the worker a status.
An unlawful act is an interference with
status. This view was followed in Sirsi
Municipality v. Cecelia Kom Francis Tellis
[(1973) 1 SCC 409 : 1973 SCC (L&S) 207
: (1973) 3 SCR 348] . Beg, J. (as he then
was) held that the principles applicable to
the relation of a private master and servant
unregulated by statute, could not apply to
the cases of a public statutory body
exercising powers of punishment fettered
or limited by statute and relevant rules of
procedure. This Court in a recent decision
extended all the benefits of pay scales to all
5 All. Virendra Pratap Singh Vs. U.P. State Bridge Corp. Ltd.
995
the Central Government corporate sector
employees. It is, thus, I hold that the
employees of the corporations, statutory
authority or instrumentality under Article
12 have statutory status as a member of its
employees. The rights and obligations are
governed
by
the
relevant
statutory
provisions and the employer and employee
are equally bound by those statutory
provisions.

Nature of the right of a permanent
employee to a post

272. In Parshotam Lal Dhingra v.
Union of India [1958 SCR 828 : AIR 1958
SC 36 : (1958) 1 LLJ 544] it was held that
the appointment to a permanent post may
be substantive or on probation or on
officiating basis. A substantive appointment
to a permanent post in a public service
covers normally substantive right to the
post and he becomes entitled to hold a lien
on the post. He is entitled to continue in
office
till
he
attains
the
age
of
superannuation as per rules or is dismissed
or removed from service for inefficiency,
misconduct or negligence or any other
disqualification in accordance with the
procedure prescribed in the rules, and fair
and reasonable opportunity of being heard
or on compulsory retirement or in certain
circumstances, subject to the conditions
like re-employment on abolition of post. In
Moti Ram Deka v. General Manager
[(1964) 5 SCR 683 : AIR 1964 SC 600 :
(1964) 2 LLJ 467] a majority of seven
Judges' bench held that a permanent post
carries a definite rate of pay without a limit
of time and a servant who substantively
holds a permanent post has a title to hold
the post to which he is substantively
appointed, and that in terms, means that a
permanent servant has a right to hold the
post
until,
of
course,
he
reaches
superannuation or until he is compulsorily
retired under the relevant rule. If for any
other reason that right is invaded and he is
asked to leave the service the termination
of his service must inevitably mean the
defeat of his right to continue in service
and as such, it is in the nature of penalty
and amounts to removal. In other words,
termination of service of a permanent
servant, otherwise than on superannuation
of compulsory retirement, must per se
amount to his removal and so, by Rule
148(3)
or
Rule
149(3)
of
Railway
Establishment Rules if such a termination
is
brought
about,
the
rule
clearly
contravenes Article 311(2) and must be
held
to
be
invalid.
A
permanent
employment assures security of tenure
which is essential for the efficiency and
incorruptibility of public administration. In
Gurudev Singh Sidhu v. State of Punjab
[(1964) 7 SCR 587, 592-93 : AIR 1964 SC
1585 : (1965) 1 LLJ 323] another
Constitution Bench held that for efficient
administration of the State, it is absolutely
essential that permanent public servant
should enjoy a sense of security of tenure.
The safeguard which Article 311(2) affords
is no more than this that in case it is
intended to dismiss or remove or reduce
them in rank, a reasonable opportunity
should be given to them of showing cause
against the action proposed to be taken in
regard to them. In Moti Ram Deka case
[(1964) 5 SCR 683 : AIR 1964 SC 600 :
(1964) 2 LLJ 467] it was further held that
in
a
modern
democratic
State,
the
efficiency and incorruptibility of public
administration is of such importance that it
is essential to afford to civil servants
adequate protection against capricious
action from their superior authority. If a
permanent civil servant is guilty of
misconduct, he should no doubt be
proceeded against promptly under the
relevant disciplinary rules, subject, of
course, to the safeguard prescribed by
996 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 311(2); but in regard to honest,
straightforward and efficient permanent
civil servants, it is of utmost importance,
even from the point of view of the State,
that they should enjoy a sense of security
which alone can make them independent
and truly efficient. The sword of Damocles
hanging over the heads of permanent
railway servants in the form of Rule 148(3)
or Rule 149(3) would inevitably create a
sense of insecurity in the minds of such
servants and would invest appropriate
authorities with very wide powers which
may conceivably be abused. Thereby this
Court laid emphasis that a permanent
employee has a right or lien on the post he
holds until his tenure of service reaches
superannuation so as to earn pension at the
evening of his life unless it is determined as
per law. An assurance of security of service
to a public employee is an essential
requisite for efficiency and incorruptibility
of public administration. It is also an
assurance to take independent drive and
initiative in the discharge of the public
duties to alongate (sic actuate) the goals of
social justice set down in the Constitution.

273. This Court in Daily Rated Casual
Labour v. Union of India [(1988) 1 SCC 122 :
1988 SCC (L&S) 138 : (1987) 5 ATC 228]
(SCC pp. 130-31) further held that the right
to work, the right to free choice of
employment, the right to just and favourable
conditions of work, the right to protection
against unemployment etc. and the right to
security of work are some of the rights which
have to be ensured by appropriate legislative
and executive measures. It is true that all
these
rights
cannot
be
extended
simultaneously. But they do indicate the
socialist goal. The degree of achievement in
this direction depends upon the economic
resources, willingness of the people to
produce and more than all the existence of
industrial peace throughout the country. Of
those rights the question of security of work
is of most importance. If a person does not
have the feeling that he belongs to an
organisation engaged in production he will
not put forward his best effort to produce
more (emphasis supplied). That sense of
belonging arises only when he feels that he
will not be turned out of employment the next
day at the whim of the management. It is for
this reason it is being repeatedly observed by
those who are in charge of economic affairs
of the countries in different parts of the world
that as far as possible security of work should
be assured to the employees so that they may
contribute to the maximisation of production.

274. It must, therefore, be held that a
permanent employee of a statutory authority,
corporation or instrumentality under Article
12 has a lien on the post till he attains
superannuation or is compulsorily retired or
service is duly terminated in accordance with
the procedure established by law. Security of
tenure enures the benefit of pension on
retirement. Dismissal, removal or termination
of his/her service for inefficiency, corruption
or other misconduct is by way of penalty.
He/she has a right to security of tenure which
is essential to inculcate a sense of belonging
to
the
service
or
organisation
and
involvement for maximum production or
efficient service. It is also a valuable right
which is to be duly put an end to only as per
valid law."

15. The learned Counsel for the
Corporation, on the other hand, has
submitted that Rule 40.13.3 is as much a
statutory rule as any other, and prescribes a
valid mode by which the services of a
permanent employee may come to an end.
He submits that for long and unauthorized
absence that cannot be adjusted or
regularized against any class of leave
available to an employee, it has to be
presumed that the employee concerned has
5 All. Virendra Pratap Singh Vs. U.P. State Bridge Corp. Ltd.
997
resigned his position and abandoned
employment.

16.

This
Court
has
carefully
considered the rival submissions, perused
the impugned order, the provisions of the
Service Rules and the stand taken by the
Authorities in their affidavits, particularly,
the personal affidavit filed by the Managing
Director of the Corporation.

17. In order to understand the nature of
the power exercised by the Corporation,
reference must be made to Chapter VII of the
Service Rules. This is so because the
Corporation's stand appears to be that they
have chosen not to proceed against the
petitioner for his long and unauthorized
absence as an act of misconduct, but an act of
abandonment of employment under sub-Rule
13.3 of Rule 40 of the Service Rules. It must
be clarified here that the Corporation in their
affidavit have seemingly, by error of
nomenclature, referred to sub-Rule 13 of
Rule 40 as Paragraph 13 of the Service Rules.
The scheme of Chapter VII shows that it
carries a single Rule 40, which has 23 subRules and their clauses. It would be gainful to
quote sub-Rules 1 to 13 of Rule 40 of the
Service Rules:

अध्याय - सात

अवकार् भनयम

अवकार् का अभधकार :40. 1 अवकार् का
दावा अभधकार के रूप में नहीूं भकया जा सकता है।
जब सेवा की अत्यावश्यकता के कारण ऐसा करना
अपेभक्षत हो तो भकसी िी प्रकार के अवकार् को
अस्वीकृत या प्रभतसूंहृत (रद्द) करने का भववेक,
अवकार् स्वीकताश प्राभधकारी का होगा।

अवकार् का अजशन : 2 कायश करने के पिात
ही अवकार् अभजशत भकया जाता है अवकार् की
समान्धप् के पिात िी जानब झकर कायश से
अनुपन्धस्थत रहने को दुराचार माना जा सकता है।

अवकार् स्वीकताश प्राभधकारी : 3 अन्यथा
रूप से स्पष्टतः भवभहत प्राभवधान भसवाय, ऐसे
अवकार् को छोडकर जो सेवाभनवृभत्त की भतभथ से
आगे तक का हो, अन्य अवकार् भनगम के ऐसे
प्रभधकाररयोूं द्वारा स्वीकृत भकया जा सकता है
भजन्हे बोडश भनयमोूं अथवा आदेर्ोूं द्वारा भवभनभद्रशष्ट
करें।

अवकार् का प्रारूंि और समापनः 4
अवकार्, साधारणतया, उस भदनाूंक से र्ुरू होता
है भजस भदनाूंक को कायशिार हस्ताूंतररत भकया गया
हो और उस भदनाूंक से ठीक प वश के भदनाूंक को
समाप् होता हैं भजस भदनाूंक को कायशिार पुनः
ग्रहण भकया
गया हो। अवकार् या कायशिार
ग्रहण के समय प वश या पिात में पडने वाले रभववार
या अन्य मान्य अवकार् भदवसोूं को ऐसी र्तो और
ऐसी पररन्धस्थभतयोूं के अधीन रहते हुए, भजन्हें बोडश
द्वारा भवभहत भकया जाय, जोडा जा सकता है।

अवकार् को सूंयुक्त करना : 5 भनयमावली में
उपबूंभधत के भसवाय इस भनयमावली के अधीन
भकसी िी प्रकार के अवकार् को भकसी अन्य

प्रकार के अवकार् की भनरन्तरता में अथवा
उस के साथ सूंयुक्त करके स्वीकृत भकया जा
सकता।

अवकार् की अवभध में सेवायोजन :
6अवकार् पर रहते हुए कोई कमशचारी, सक्षम
प्राभधकारी की प वश स्वीकृभत प्राप् भकए भबना
कोई सेवायोजन नही प्राप् करेगा।

अवकार्
से
वापस
बुलाया
जानाः7
1भकसी कमशचारी को उसके अवकार् की
समान्धप् के प वश कायश पर बुलाये जाने के सिी
आदेर्ोूं में बताया जाना चाभहए भक कतशव्य
(ड्य टी) पर आना ऐन्धच्छक है या अभनवायश है।
998 INDIAN LAW REPORTS ALLAHABAD SERIES

2 यभद यह अभनवायश है तो वह उस
भदनाूंक से जब वह उस स्टेर्न के भलए यात्रा
र्ुरू करता है भजसपर पहुाँचने के भलए उसे
आदेर् भदया गया है, ड्य टी पर समझे जाने का
और अपनी यात्रा के भलए यात्रा ित्ता आहररत
करने का हकदार होगा।

अवकार् की समान्धप् पर कायश पर वापसीः
8 जब तक भक अवकार् स्वीकृत करने वाला
प्राभधकारी उसे अनुमभत न दे दे अवकार् पर
गया हुआ कोई कमशचारी उसे स्वीकृत भकए गये
अवकार् की अवभध की समान्धप् के प वश कायश पर
वापस नही आ सकेगा।

आकन्धस्मक अवकार्ः 9 कोई िी कमशचारी
एक कैलेण्डर वषश में 14 भदन से अनभधक और
भकसी एक समय में 10 भदन से अनभधक
आकन्धस्मक अवकार् लेने का हकदार होगा।
प्रभतबि यह है भक यभद कोई कमशचारी भनगम
की सेवा कैलेण्डर वषश के बीच में ग्रहण करता है
तो स्वीकताश प्राभधकारी स्वभववेक से आनुपाभतक
रूप में आकन्धस्मक अवकार् प्रदान कर सकता
है।

आकन्धस्मक/ भवर्ेष अवकार् को भकसी
अन्य अवकार् के साथ सूंयुन्धक्तकरण पर
प्रभतबिः 10 आकन्धस्मक अवकार् को भकसी
अन्य अवकार् को भकसी अन्य अवकार् के साथ
सूंयुक्त नहीूं भकया जायेगा और वह कैलेण्डर वषश
की समान्धप् के साथ व्यपगत हो जायेगा।

अभजशत अवकार्ः 11 भकसी कमशचारी द्वारा
उसके सेवाकाल की अवभध में अभजशत अवकार्
की दर, आगामी सूंचयन व्यपगत होने के प वश
सूंभचत होने वाले अवकार् की अभधकतम सूंख्या
तथा भकसी कमशचारी को एक समय में स्वीकृत
की जा सकने वाले अवकार् की सूंख्या राज्य
सरकार के कमशचाररयोूं पर लाग भनयमोूं एवूं
भवभनयमोूं के समान होगी। भफर िी, भवभनभदशष्ट
मामलोूं में, जहााँ बोडश इन भनयमोूं को सूंर्ोभधत
करने का भनणशय ले तो वह राज्य सरकार के
प वाशनुमोदन से ऐसा कर सकता है। प्रभतभनयुन्धक्त
पर कायशरत कमशचारी और सूंभवदा पर कायशरत
कमशचारी िी भनगम में प्रवृत्त अवकार् भनयगोूं से
र्ाभसत होूंगें जबतक भक उनकी भनयुन्धक्त/
प्रभतभनयुन्धक्त के समय अन्यथा रूप से उपबूंभधत
न भकया गया हो।

भनजी कायश पर अधश औसत वेतन पर
अवकार्ः 12 भकसी कमशचारी को, भजस पर यह
भनयम लाग होते है, उसकी सम्प णश सेवा की
अवभध में भनजी मामलो में अधश औसत वेतन पर
कुल 180 (एक सौ अस्सी) भदन से अनभधक का
अवकार् िी प्रदान भकया जा सकता है। ऐसा
अवकार् उसके द्वारा कतशव्य पर व्यतीत अवभध
के 1/11 की दर से अभजशत भकया जायेगा और
भकसी एक अवसर पर 90 से अनभधक भदनोूं के
भलए प्रदान नही भकया जायेगा।

परन्तु इस भनयम के अधीन कोई अवकार्
तब तक न भकया जाय, जब तक भक अवकार्
स्वीकृत करने के भलए सक्षम प्राभधकारी के पास
यह भवश्वास करने के पयाशप् कारण न होूं भक
कमशचारी उसकी समान्धप् पर अपने कतशव्य
(ड्य टी) पर वापस लौट आएगा।

असाधारण अवकार्ः 13 1 जहााँ
भनयमोूं के अधीन कोई अन्य अवकार् अनुमन्य
न हो, भकसी कमशचारी को असाधारण अवकार्
प्रदान भकया जा सकता है, भजसकी गणना सेवा
के प्रत्येक प णश वषश के भलये 15 भदन की दर से की
जाएगी और जो साधारणतया भकसी एक अवसर
पर 120 भदनोूं से अभधक न होगा और उसकी
सम्प णश सेवा की अवभध के दौरान 365 भदनोूं से
अभधक नहीूं होगा।

2 प्राभधकारी भजसे अवकार्
स्वीकृत करने का अभधकार है, वह इस भनयम के
अधीन भकसी ऐसे अवकार् के साथ में या
5 All. Virendra Pratap Singh Vs. U.P. State Bridge Corp. Ltd.
999
भनरूंतरता में जो भक अनुमन्य हो असाधारण
अवकार् प्रदान कर सकता है और भबना
अवकार् के अनुपन्धस्थभत की अवभध को प वशगामी
प्रिाव से असाधारण अवकार् के रूप में
पररवभतशत कर सकता है।

3 जहााँ कोई कमशचारी, भजस पर
यह भनयम लाग होते होूं, इन भनयमोूं के अन्तगशत
उसको स्वीकृत असाधारण अवकार् की
समान्धप् पर कायश पुनग्रशहण करने में भवफल
रहता है या जहााँ ऐसा कमशचारी भजसको
अभधकतम अनुमन्य अवभध से कम अवभध का
अवकार् स्वीकृत भकया गया हो, भकसी ऐसी
अवभध, जो स्वीकृत असाधारण अवकार् सभहत
उस सीमा से अभधक हो जाय जो इस भनयमावली
के अधीन उसे स्वीकृत भकया जा सकता हो, के
भलए भनरन्तर कायश से अनुपन्धस्थत रहे तो जब तक
भक सक्षम प्राभधकारी मामले की आपवाभदक
पररन्धस्थभतयोूं को ध्यान में रखते हुए अन्यथा
भनणशय न करे, यह समझा जायगा भक उसने
अपनी भनयुन्धक्त से त्याग पत्र दे भदया है और वह
भनगम की सेवाूं में तदनुसार नहीूं रह जायगा।
प्रभतबि यह है भक ऐसे सिी मामलोूं में, जहााँ उप
भनयम (3) के अधीन भकसी कमशचारी की सेवाओूं
को समाप् हुआ प्रस्ताभवत समझा जाय, सक्षम
प्राभधकारी उक्त कमशचारी को भलन्धखत रूप में
उस आर्य की एक स चना देगा।

18. This Court must remark that in
keeping with the question formulated on
25.10.2021, there are indeed two distinct
and different modes through which, on
account of wilful absence from duty, the
services of a permanent employee of the
Corporation may come to an end. One is by
treating the unauthorized absence as an act
of misconduct and proceeding against the
employee concerned in the disciplinary
jurisdiction. If that option is elected by the
Corporation, they have to proceed in
accordance with the provisions of Rules 33
and 35 of the 1991 Rules. That is the usual
option pursued by an employer to punish a
recalcitrant employee, who unauthorizedly
absents from duty. The other option that the
Corporation have under the Service Rules
in the Chapter dealing with leave for
employees, is a special provision about
abandonment of service. This mode of
determination of the employer-employee
relationship
is
known
to
service
jurisprudence and rests on the principle that
an employee, who absents himself from
service without leave or without extension
of leave for an unduly long period of time,
can be deemed to have abandoned
employment. If a rule provides for
cessation
of
service
on
account
of
abandonment, the status of a permanent
employee, whose tenure is governed by
statutory rules, can validly come to an end.

19.