# Yamuna Prasad Rai v. State of U.P. and others

- **Citation:** (2006) 2 ILRA 920
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-01
- **Case number:** Civil Misc. Writ Petition No. 19431 of 2003
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yamuna-prasad-rai-v-state-of-u-p-and-others-40619
- **Pages:** 5

## Headnote

Constitution of India, Art. 311 (2)-
readwith-U.P. Financial Hand Book-Vol.
II Part II to VI-Rule 18-Dismissal of
Service-provision of automatic dismissalFive year or more absence dispite of final
direction-No
disciplinary
proceeding
initiated for long period of 4 years-nor
challenged in special Appeal-nor availed
the opportunity even on direction of the
court by order dated 6.5.2003-it would
be futile exercise-if respondents are
permitted
to
hold
a
disciplinary
proceeding-direction for reinstatement
by forthwith given-in absence of specific
pleading
about
no
where
gainfully
employment-held of the salary treating
the disputed period-as spent on leave.

Held: Para 14 and 15

Now more than four years have passed
since
this
Court
directed
the
respondents, while quashing the orders
dated 4.9.1998 to initiate disciplinary
proceedings against the petitioner, and
to
take
appropriate
decision
in
accordance with law. No such decision
has been taken so far. Further the
respondents
did
not
avail
the
opportunity given by this Court all over
again
dated
6.5.2003,
to
consider
petitioner's leave application, along with
fitness certificate dated 5.1.1989. It will
now be a futile exercise now to allow the
respondents
to
hold
a
disciplinary
enquiry after four and half years as the
respondents have failed to avail the
opportunity.

In
view
of
the
special
facts
and
circumstances of the case, the writ
petition is allowed. The respondents are
directed to reinstate the petitioner in
service forthwith without any further
delay. The entire absence shall be
treated as spent on leave. The petitioner
has not stated anywhere that he was not
gainfully employed during the period of
his absence and as such he will only be
entitled to half of the back wages. The
petitioner shall also be entitled cost of
Rs.25,000/- from the respondents as
costs of litigation. The order shall be
complied with within six weeks of its
communication to Respondent Nos. 1 &

## Text

920 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appeal filed by the opposite party is
defective and the stay application does not
exist in the eyes of law. Consequently,
deferring the heariJ:!L0f the contempt
application cannot be granted to the
Opposite party.

10. In the present case, the
judgement of the Court is with regard to
the payment of post retirement benefits.
The applicant has served the opposite
party and it is his right to get the post
retirement benefits.

11. In view of the aforesaid, in the
interest of justice, and as a last resort I
grant six weeks further time to the
opposite party Nos. 1 and 2 to comply
with the order and judgment of the Court
passed in the writ petition, failing which,
the opposite party Nos. 1 and 2 would
appear in person for the framing of the
charge/ charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 19431 of 2003

Yamuna Prasad Rai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Arun Kumar

Counsel for the Respondents:
Sri Upendra Misra
S.C.

Constitution of India, Art. 311 (2)-
readwith-U.P. Financial Hand Book-Vol.
II Part II to VI-Rule 18-Dismissal of
Service-provision of automatic dismissalFive year or more absence dispite of final
direction-No
disciplinary
proceeding
initiated for long period of 4 years-nor
challenged in special Appeal-nor availed
the opportunity even on direction of the
court by order dated 6.5.2003-it would
be futile exercise-if respondents are
permitted
to
hold
a
disciplinary
proceeding-direction for reinstatement
by forthwith given-in absence of specific
pleading
about
no
where
gainfully
employment-held of the salary treating
the disputed period-as spent on leave.

Held: Para 14 and 15

Now more than four years have passed
since
this
Court
directed
the
respondents, while quashing the orders
dated 4.9.1998 to initiate disciplinary
proceedings against the petitioner, and
to
take
appropriate
decision
in
accordance with law. No such decision
has been taken so far. Further the
respondents
did
not
avail
the
opportunity given by this Court all over
again
dated
6.5.2003,
to
consider
petitioner's leave application, along with
fitness certificate dated 5.1.1989. It will
now be a futile exercise now to allow the
respondents
to
hold
a
disciplinary
enquiry after four and half years as the
respondents have failed to avail the
opportunity.

In
view
of
the
special
facts
and
circumstances of the case, the writ
petition is allowed. The respondents are
directed to reinstate the petitioner in
service forthwith without any further
delay. The entire absence shall be
treated as spent on leave. The petitioner
has not stated anywhere that he was not
gainfully employed during the period of
his absence and as such he will only be
entitled to half of the back wages. The
petitioner shall also be entitled cost of
Rs.25,000/- from the respondents as
costs of litigation. The order shall be
complied with within six weeks of its
communication to Respondent Nos. 1 &
2.
2 All] Yamuna Prasad Rai V. State of U.P. and others
921
Case law discussed:
AIR 1961 SC-1457
AIR 1965 SC-1153
AIR 1990 SC-1607
1991 (1) SCC-243
AIR 1966 SC-492
1975 (3) SCC-108

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri Arun Kumar, learned
counsel for the petitioner, and learned
Standing Counsel. The parties have
exchanged pleadings and with their
consent the writ petition has been heard at
the admission stage.

2. On 6.5.2003, following orders
was passed issuing interim mandamus to
the State Government to consider and
decide petitioner's leave application dated
5.1.1998 along with Chief Medical
Officer's fitness certificate.

"This is the fifth writ petition filed
by the petitioner praying for joining and
for arrears of salary. Petitioner was
appointed as Junior Engineer in 1974 in
Public Works Department. On 17.1.1981
he joined his duty at Azamgarh. On
8.2.1981 he fell ill, vomitted blood and
suffered from dysentery. He was admitted
in the Government Hospital and was
subsequently shifted to Ballia. It is
alleged that he sent several leave
applications. On 5.1.1989, after 8 years he
made
an
application
to
Executive
Engineer to join along with a fitness
certificate from Chief Medical Officer
who certified that petitioner was suffering
from 'Ulcerative Colitis associated with
Haemorrhoids
with
Anaemia'.
The
Executive Engineer referred the matter to
Chief Engineer. In first writ petition
decided on 10.5.1994, the Chief Engineer
was directed to look into the matter and
take appropriate decision. A contempt
petition was filed and after bailable
warrants
an
order
was
passed
on
26.4.1995 rejecting his application. In
second writ petition, on 26.4.1995, the
order was quashed on the ground that no
reasons have been given. The third writ
petition was disposed of on 28.5.1998 to
comply with the order passed in the
second writ petition. This time the
Engineer-in-Chief by is order dated
2.12.1998 rejected the application on the
ground of his absence from duty on
account of which his services stood
automatically terminated after 5 years
under the Fundamental Rule 18 Financial
Hand Book, Volume 2, Part II to IV. The
fourth
writ
petition
was
filed
on
19.1.2001.
The
Court
found
that
Fundamental Rule 18 has been amended
in 1989 with the result that leave for more
than 5 years can only be sanctioned by the
State Government; and that the absence
for more than 5 years attracts for
disciplinary action. The writ petition was
allowed
quashing
the
order
dated
2.12.1998 and leaving it open to the
respondents to initiate disciplinary action.

3. Now the complain is that no one
has acted upon the orders of this Court
and that neither leave has been granted
nor any disciplinary action has been
initiated.

4. This Court does not want to again
decide this writ petition without calling
for counter affidavit. Let learned Standing
Counsel file a counter affidavit within six
weeks. Petitioner shall have two weeks
thereafter to file rejoinder affidavit. List
in the third week of August, 2003.

5. In the meantime, having regard to
the facts and circumstances of the case, an
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
interim mandamus is issued to the State
Government to consider and decide
petitioner's
leave
application.
The
application dated 5.1.1989 along with
Chief Medical Officer's fitness certificate
shall
be
treated
to
be
the
leave
application. An interim mandamus is also
issued to the Chief Engineer, Public
Works Department, Azamgarh Region,
Azamgarh
to
consider
and
initiate
proceedings against petitioner in view of
the order dated 19.1.2001 in writ petition
No. 8318 of 1999. Both the parties will
carry out interim mandamus within two
months or show cause by filing counter
affidavit within the same period. In case
the interim mandamus is not carried out,
the
Court
shall
consider
to
allow
petitioner to join on the next date of
hearing."

6. On 23.8.2005 a last opportunity
was given to the Chief Engineer Public
Works Department to carry out order
dated 6.5.2003 failing which it was
directed that he shall be held personally
responsible for arrears of wages to be paid
to the petitioner.

7. In the counter affidavit of Kunwar
Satya
Narain
Singh
Chandramani,
Assistant Engineer, Nirman Khand-2
(S.R.P.-2) PWD, Azamgarh was filed on
11.8.2003 it is stated that the High Court
has incorrectly interpreted the provisions
of Fundamental Rule 18 of the Financial
Hand Book Vol. 2 Part II to IV. The
petitioner's services came to an end, and h
ceased to be an employee of the State
Government at the end of five years of his
absence on 9.2.1986, and thus the
Amendment to Rule 18, by notification
dated 12.9.1989 was not applicable to the
petitioner's case. In para 3 of the Counter
affidavit he states that the judgment of
this Court dated 19.1.2001 in Writ
Petition No. 8318 of 1999 is incorrect. In
para 4 of the counter affidavit it is stated
that steps were taken to file special appeal
against the judgment dated 19.1.2001 and
that the Law Department had given its
consent but since considerable time was
lost in the procedure for filing appeal. In
the meantime the present writ petition was
filed, in which the matter is under
consideration.

8.

Learned
Standing
Counsel
submits that now since the matter is being
considered in this fifth 'Writ Petition, he
may be permitted to submit that the
interpretation given by this Court to Rule
18 is incorrect. In the alternative he
submits that the department may be
permitted
to
draw
disciplinary
proceedings in compliance with the
provisions of the Rules.

9. Sri Arun Kumar, learned counsel
for the petitioner submits that the
judgment dated 19.1.2001 in fourth Writ
Petition No. 8318 of 1999 filed by the
petitioner has become final between the
parties. The principles of rejudicatea are
applicable to the present case. The matter
cannot be re-agitated in this writ petition.
The State Government did not chose to
challenge the judgment and thus the
petitioner cannot be deprived to the
benefit of judgment between the parties
by the court of competent jurisdiction, on
the same issue. He submits that now more
than five years have passed but the
respondents have failed to initiate any
disciplinary proceeding. The have not
considered petitioner's leave application
in pursuance of interim mandamus issued
on 6.5.2003 and thus the respondents be
directed to reinstate the petitioner with all
2 All] Yamuna Prasad Rai V. State of U.P. and others
923
consequential benefits including arrears of
salary with interest.

10. The issue that the petitioner's
services came to an end and he ceased to
an employee of the State Government at
the end of five years of his absence was
directly involved between the petitioner
and the State Government and further
Writ Petition No. 8318 of 1999 was
decided in his favour by judgment dated
19.1.2001. The State Government did not
challenge the judgment and thus allowed
the issue to become final between the
parties by the court of competent
jurisdiction. The principle of res judicata
applies to the writ petitions. In Dharao
Vs. State of U.P. AIR 1961 SC 1457, the
Supreme Court held that it is in the
interest of public at large that a finality
should attach to the binding decisions
pronounced by courts of competent
jurisdiction, and it is also in public
interest that individual should not be
vexed twice over with the similar kind of
litigations. These two principles form the
foundation of the general rule of res
judicata and is equally relevant in dealing
with the fundamental rights under Article
32 Constitution of India. These principles
were made applicable to proceedings
under Article 226 of Constitution of India.
In Gulab Chandra Vs. State of Gujarat
AIR
1965
SC
1153;
the
Direct
Recruitment
Class
II
Engineering
Officers Associations
vs.
State of
Maharashtra AIR 1990 SC 1607 and
Durg Raj Nandgaon Gramin Bank vs.
Suresh Kumar (1991) 1 SCC 243. The
belief of the learned standing counsel as
such to assail the finding recorded in Writ
Petition No. 8318 of 1999 decided dated
19.1.2001 cannot be permitted.

11. The un-amended fundamental
rule 18 of the financial hand book V. II to
IV Chapter IV before its amendment
provided for automatic cessation of
service without giving any opportunity of
hearing to such persons have remained
absent for more than five years. The rule
was declared ultra vires Article 14, 16 and
311 of Constitution of India and was
subsequently amended by Notification
dated 12.9.1989 which reads as follows:

"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".

12. In Jai Shanker vs. State of
Rajasthan AIR 1966 SC 492 the
Supreme Court set aside the order of
removal from service for setting aside
leave without giving opportunity of show
cause
as
violative
of
Article
111
Constitution of India, even though the
service regulations provide that there is
automatic termination of services for
overstaying leave. In Shahoodul Huq vs.
Registrar, Cooperative Societies (1975)
3 SCC 108 the appellant applied for leave
to go on pilgrimage to Muqqa. He left
without grant of any leave. He applied for
extension of leave for Muqqa which was
never granted. He came back after a year
and fell ill. He was removed from service.
The order was challenged as contrary to
constitutional guaranteed under Article
311 of Constitution of India inasmuch as
he was dismissed without giving him any
opportunity to show cause. The Supreme
924 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Court did not doubt that Article 311 will
apply and that the employee cannot be
dismissed
without
giving
him
an
opportunity of hearing. In that case,
however, since show cause notice was
given to the petitioner, the Supreme Court
did not interfere.

13. The submission that Rule 18 was
amended on 12.9.1989 and that under the
un-amended Rule 18 the petitioner's
services came to an end, after five years
of his absence from 9.2.1986, ignores the
fact that such termination of services will
be violative of Article 14, and 311 (2) of
Constitution of India. The continuous
absence beyond five years amounts to
misconduct. In law a person may explain
even such circumstances which normally
a person may not be realised. The case of
a Japanese Soldier who went in hiding
and came out after 18 years without
having knowledge that the war have
ended long ago is one of such example. A
person may be mentally incapacitated or
may be suffering from such ailment which
may not allow him to apply or for
extension of leave. In service matters
there
is
nothing
which
happens
automatically. Where an employer is
required to give an opportunity to the
person to explain the circumstances in
which he remained absent, the period of
absence is not material.

14. Now more than four years have
passed since this Court directed the
respondents, while quashing the orders
dated 4.9.1998 to initiate disciplinary
proceedings against the petitioner, and to
take appropriate decision in accordance
with law. No such decision has been taken
so far. Further the respondents did not
avail the opportunity given by this Court
all over again dated 6.5.2003, to consider
petitioner's leave application, along with
fitness certificate dated 5.1.1989. It will
now be a futile exercise now to allow the
respondents to hold a disciplinary enquiry
after
four
and
half
years
as
the
respondents have failed to avail the
opportunity.

15. In view of the special facts and
circumstances of the case, the writ
petition is allowed. The respondents are
directed to reinstate the petitioner in
service forthwith without any further
delay. The entire absence shall be treated
as spent on leave. The petitioner has not
stated anywhere that he was not gainfully
employed during the period of his absence
and as such he will only be entitled to half
of the back wages. The petitioner shall
also be entitled cost of Rs.25,000/- from
the respondents as costs of litigation. The
order shall be complied with within six
weeks
of
its
communication
to
Respondent Nos. 1 & 2.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2006

BEFORE
THE HON'BLE G.P. SRIVASTAVA, J.

Criminal Misc. Bail Application No. 1859 of
2006

Rahul Kumar Yadav ...Applicant/Accused
 (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri R.K. Ojha
Sri Virendra Srivastava

Counsel for the Opposite Party:
A.G.A.