JUDGMENT
Sudhir Agarwal, J.
1. This writ petition is directed against order of termination dated 7.10.1994 whereby the petitioner has been terminated on the ground of continuous absent since 13.2.1987.
2. The brief relevant facts as stated in the writ petition are that the petitioner was initially employed as unpaid Apprentice Overseer vide order dated 5.3.1962 (Annexure-2 to the writ petition). He was thereafter engaged on temporary post and with effect from 1.4.1972 was confirmed on the post of Junior Engineer (Civil) Irrigation Department, U.P., Lucknow. A copy of the office memorandum dated 7.2.1974, communicating the order of confirmation has been placed on record as Annexure-4 to the writ petition. It is further submitted that the petitioner fell ill some time in February, 1987 and had to go to Bombay for his treatment on account whereof he could not attend his duties. It is also claimed that he sent several applications dated 10.4.1987, 2.12.1987, 15.1.1988, 21.11.1988 and 11.10.1989, seeking leave on medical ground. He also claimed that the Executive Engineer neither communicated rejection of leave applications or non-sanction of leave nor issued any other directions and all of sudden when the petitioner went to join his duties on 11.1.1996, he wars handed over the impugned order of termination passed on 7.10.1994.
3. A counter-affidavit has been filed on behalf of the respondents stating that the petitioner kept absent himself for a span of five years and more and therefore, his service has been terminated on account of continuous absence from duty in accordance with Rules. It is also stated that no application of the petitioner seeking leave has been received by the respondents and the factum that the said letters have been sent under Certificate of Posting shows that the same are not reliable.
4. The petitioner has also filed a rejoinder-affidavit wherein the averments made in the writ petition have been reiterated.
5. Learned Counsel for the petitioner submits that termination on the ground of continuous absence amounts to an order of removal due to alleged misconduct and the petitioner being a confirmed employee could not have been terminated without holding any departmental inquiry and the impugned order has been passed in violation of Article 311(2) of the Constitution of India.
6. On the other hand the learned standing counsel placed reliance on Fundamental Rule 18 and contended that since the petitioner was absent for more than 5 years, he was rightly terminated and there was no necessity to hold regular inquiry under Article 311(2) of the Constitution of India.
7. The short question for consideration is whether the petitioner in the present case could have been terminated in accordance with Fundamental Rule 18 without holding any departmental inquiry or the impugned order of termination is vitiated infringing Article 311(2) of the Constitution of India. The issue is no more res Integra since it has already been considered by the Apex Court as well as this Court in a catena of cases. However, before proceeding to consider the aforesaid question it would be appropriate to reproduce the Fundamental Rule 18 and Article 311(2) of the Constitution of India are quoted herein as under:
Fundamental Rule:
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.
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.–(1) …
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
Provided further that this clause shall not apply:
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
Fundamental Rule 18 is a preconstitutional provision and has continued, thereafter by virtue of Articles 313 and 371 of the Constitution, but has to be read alongwith the protection available to a Government servant under Article 311(2) of the Constitution of India, otherwise it would be inconsistent with the provision of the Constitution. Regulation 13 of Jodhpur Service Regulations was pari materia to Fundamental Rule 18. The Apex Court had an occasion to consider Regulation 13 of Jodhpur Service Regulations in post constitutional era in the light of protection under Article 311 in Jai Shankar v. State of Rqjasthan and a Constitution Bench of the Apex Court held as under:
It is admitted on behalf of the State Government that discharge from service of an incumbent by way of punishment amounts to removal from service. It is, however, contended that under the Regulations all that Government does, is not to allow the person to be reinstated. Government does not order his removal because the incumbent himself gives up the employment. We do not think that the constitutional protection can be taken away in this manner by a side wind. While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other, a person is entitled to continue in service if he wants until his service is terminated in accordance with law. One circumstance deserving removal may be over staying one’s leave. This is a fault, which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made it is necessary that Government should give the person an opportunity of showing cause why he should not be removed. During the hearing of this case we questioned the Advocate General what would happen if a person owing to reasons wholly beyond his control or for which he was in no way responsible or blamable, was unable to return to duty for over a month, and if later on he wished to join as soon as the said reasons disappeared? Would in such a case Government remove him without any hearing, relying on the regulations? The learned Advocate General said that the question would not be one of removal but of reinstatement and Government might reinstate him. We cannot accept this as a sufficient answer. The Regulation, no doubt, speaks of reinstatement but it really comes to this that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying one’s leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one’s leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here.
Again a similar provision was existing In Rule 46 of Bihar Civil Service Rules which came for consideration before another Constitution Bench of the Apex Court in the case of Devkinandan v. State of Bihar , and the Apex Court held as under:
In the case before us even according to the respondents a continuous absence from duty for over five years, apart from resulting in the forfeiture of the office also amounts to misconduct under Rule 46 of the Pension Rules disentitling the said officer to receive pension. It is admitted by the respondents that no opportunity was given to the petitioner to show cause against the order proposed. Hence, there is a clear violation of Article 311. Therefore, it follows even on this ground the order has to be quashed.
8. Fundamental Rule 18 itself came up for consideration before the Apex Court in the case of State of Assam v. Akshay Kumar , in paras 13 and 17 held as under:
(13) From a reading of F.R. 18, it is discernible that it regards continuous absence of an employee, whether with or without leave, for a period of five years or more, as conduct which must normally entail “cessation” or termination of his service. Although not in so many words, but by necessary intendment, the Rule regards such conduct of the employee, as a fault or blameworthy behaviour which renders him unfit to be continued in service. In this context, the “cessation” of service pursuant to this Rule would, in substance and effect, stand on the same footing as his ‘removal’ from service within the contemplation of Article 311(2) of the Constitution, particularly when it is against the will of the employee who is willing to serve, or who had never lost the animus to rejoin duly on the expiry of his leave. Another reason for equating cessation’ of service under this Rule with removal within the meaning of Article 311(2) is that it proceeds on a ground personal to the employee involving an imputation which may conceivably be explained by him in the circumstances of a particular case. Cases are not unknown where the absence of a Government servant, even for prolonged periods, has been due to circumstances beyond his control. The case of the Japanese soldier who remained cut off and stranded in the jungles of remote Pacific island for three decades after the termination of World War II, is a recent instance of this Kind.
(17) From the Constitutional standpoint, therefore, the impugned termination of service will not cease to be ‘removal’ from service merely because it is described or declared in the phraseology of F.R. 18 as a ‘cessation’ of service. The constitutional protection guaranteed by Article 311(2) cannot be taken away “in this manner by a side wind.
9. The principles laid down in the aforesaid judgments have been followed by a Division Bench of this Court also in State of U.P. and Ors. v. Jai Prakash Rai decided on 12.1.2006, wherein this Court has observed as under:
in our view Fundamental Rule 18 should be read alongwith the protection available to the Government servants under Article 311(2) of the Constitution of India.
10. In State of Madhya Pradesh and Ors. v. Sanjay Kumar Sharma. (2005) 11 SCC 513, also the Apex Court has upheld the order of Madhya Pradesh State Administrative Tribural whereby termination of an employee on the ground of continuous absence without proper inquiry was quashed.
11. Learned Counsel for the petitioner placed reliance on the following Judgments also:
1. Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. 1999 (1) UPLBEC 265 : 1998 (4)AWC 201 (SC):
2. D.K. Yadav v. J.M.A. Industries ;
3. Jagdish Prasad u. State of U.P. 1999 (3) UPLBEC 1901 : 1999 (3) AWC 1926;
4. Sanjay Prasad Tewari v. Zila Commander Home Guards 1998 (2) UPLBEC 1484; and
5. Uptron India Ltd. v. Shammi Bhan and Ors. 1999 (1) UPLBEC 778.
12. I have considered the aforesaid judgments. In Radhey Shyam Gupta (supra) the employee was served with a letter dated 12.1.1976, containing certain allegations and requiring him to offer his explanation. He denied the allegation and without holding any oral enquiry at all the inquiry report was submitted by the G.M. (Fertilizer) whereby the simple order of termination was passed terminating the services of Sri Radhey Shyam Gupta. The said order was set aside by the Administrative Tribunal, Lucknow being violative of principle of natural justice, since the foundation was misconduct but the High Court reversed the order of the Administrative Tribural. The Apex Court allowing the appeal of the employee held that the termination although simpliciter founded on misconduct and therefore, without holding a proper inquiry, the said termination was illegal. The aforesaid judgment is not strictly applicable to the issue in question since in the present case admittedly no inquiry has been conducted against the petitioner and on account of long absence the service of the petitioner has been terminated in purported exercise of power under Fundamental Rule 18.
13. In D.K. Yadav (supra) a similar exposition of law was accepted. The Apex Court held that denying the right to earn livelihood in violation of principle of natural justice is bad. The termination of an employee on the allegation of the absence would be illegal if it is not preceded by an inquiry giving opportunity of defence to such an employee. In para 14 it was held:
It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of Jeopardizing not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress 1991 Supp (1) SCC 600, the Constitution Bench, per majority, held that termination of the service of a workman giving one month’s notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside.
14. In Uptron India Ltd. (supra) also a similar view was taken by the Apex Court and this judgment also support the case of the petitioner. In para 20 it is held:
There is another angle of looking at the problem. Clause 17(g), which has been extracted above, significantly does not say that the services of a workman who overstays the leave for more than seven days shall stand automatically terminated. What it says is that “the services are liable to automatic termination.” This provision, therefore, confers a discretion upon the management to terminate or not to terminate the services of an employee who overstays the leave. It is obvious that this discretion cannot be exercised, or permitted to be exercised, capriciously. The discretion has to be based on an objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compelled the employee to proceed on leave, why he overstayed the leave; was there any Just and reasonable cause for overstaying the leave; whether he gave any further application for extension of leave, whether any medical certificate was sent if he had, In the meantime fallen ill? These are questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. Who would answer these questions and who would furnish the material to enable the management to decide whether to terminate or not to terminate the services are again questions which have an answer inherent in the provision itself, namely, that the employee against whom action on the basis of this provision is proposed to be taken must be given an opportunity of hearing. The principles of natural justice, which have to be read into the offending clause, must be complied with and the employee must be informed of the grounds for which action was proposed to be taken against him for overstaying the leave.
15. In view of the discussions made above, this writ petition succeeds and is allowed. The impugned order dated 7.10.1984, terminating the services of the petitioner (Annexure-1 to the writ petition) is accordingly set aside. The petitioner shall be entitled for all consequential benefits in accordance with law. However, the respondents are at liberty to hold departmental inquiry and pass a fresh order in accordance with law if so advised and In such case the question of arrears of salary shall be considered and decided by the respondents as per Rules and the ultimate decision in respect of salary may be taken pursuant to such inquiry. No order as to costs.