Preeti Gupta vs State of U.P. and Others

Akhtar Husain Khan, J.—We have heard Shri Satya Narain Shukla, learned counsel for petitioner as well as Shri H.P. Srivastava, learned Additional Chief Standing Counsel and Shri Rajnish Kumar, learned counsel for opposite party No. 2.

Petitioner Dr. Preeti Gupta was Medical Officer in Uttar Pradesh Provincial Medical and Health Services. She has been terminated from service vide punishment order dated 22.1.2007, Annexure-1 to the writ petition, passed by Principal Secretary, Medical Health and Family Welfare, U.P. Government. Feeling aggrieved with the punishment order passed by Principal Secretary, Medical Health and Family Welfare, U.P. Government, she has filed this writ petition under Article 226 of the Constitution of India with following prayers:--

(i) to issue a writ, direction or order in the nature of certiorari quashing the order of punishment dated 22.1.2007 (Annexure-1) removing the petitioner from service on the post of Medical Officer, Provincial Medical and Health Services after summoning the record.

(ii) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to reinstate the petitioner in service with all consequential benefits including payment of salary and arrears.

(iii) To issue such other order or direction deemed just and proper in the facts and circumstances of the case.

(iv) To award cost of the writ petition."

Affidavits have been exchanged between the parties.

In brief, relevant facts as alleged by petitioner are that the petitioner was selected by U.P. Public Service Commission, Allahabad for appointment to the post of Medical Officer in Provincial Medical Services and she joined Provincial Medical Service in Uttar Pradesh. During her tenure of service while she was posted as Medical Officer in District Women Hospital, Hamirpur, she received undated chargesheet through letter of Chief Medical Officer, Hamirpur dated 12.3.1997 (annexure-2 to the petition) in which three charges were levelled against her.

Petitioner submitted her reply and participated in enquiry. Later on, vide letter dated 18.2.1998 (annexure-3 to the petition) issued by Secretary, Medical Health, U.P. Government, enquiry was dropped. Thereafter during her posting in District Women Hospital, Hamirpur, she was suspended in contemplation of enquiry vide order dated 22.12.1998 (annexure-4 to the writ petition) issued by Principal Secretary, Medical and Health, whereas undated chargesheet (annexure-5 to the petition) was served on her on 9.2.1999 containing sole charge that she had been absent for various dates unauthoritatively and was carrying nursing home in Indira Nagar, Lucknow with her husband Dr. R.A. Gupta. Petitioner submitted her reply to the Enquiry Officer vide registered letter dated 20.2.1999 (annexure-6 to the petition) and denied the charges levelled against her with prayer to supply certain documents and to provide personal hearing. Thereafter on 7.8.1999 petitioner appeared before the Enquiry Officer and replied six questions asked by the Enquiry Officer (annexure-7 to the petition), but no opportunity of hearing was given to petitioner by Enquiry Officer nor she was supplied copy of documents prayed for. She was not allowed opportunity to examine witnesses also. In the meantime, petitioner filed writ petition No. 1403 (SB) of 2000 against her suspension order dated 22.12.1998 in which vide order dated 30.8.2000 (annexure-9 to the petition), this court directed that disciplinary proceedings against petitioner shall be conducted and concluded in accordance with law within a period of three months and Enquiry Officer shall submit his enquiry report on expiry of three months. Thereafter, the disciplinary authority shall take necessary steps and pass appropriate orders within a period of next two months. Thereafter, petitioner received a show-cause-notice dated 4.9.2000 (annexure-10 to the petition) from the Secretary, Medical Section-11, U.P. Government indicating that the enquiry report has been submitted against her and on the basis of enquiry report charge levelled against her has been found proved, therefore, the government had decided to take action against her, if she wants to make any submission in the matter, she may furnish her written reply by 15.9.2000. Thereafter, vide letter dated 20.9.2000 (annexure-11 to the petition), petitioner submitted her reply to show-cause-notice. Petitioner again sent registered letter dated 20.10.2000 (annexure-12 to the petition) to Secretary, Medical Section-11, U.P. Government annexing certificates and other documentary evidence regarding her treatment and surgery at Lucknow. Thereafter, suspension order of petitioner was revoked. Revocation order was communicated to her vide order dated 21.12.2000 passed by Chief Medical Officer (annexure-13 to the petition) and she was transferred and posted under Chief Medical Officer, Sitapur. Petitioner again sent registered letter dated 11.3.2002 (annexure-14 to the petition) to the Principal Secretary, Medical and Health, U.P. Government, Lucknow and prayed to supply enquiry report, whereupon petitioner was served with copy of enquiry report dated 5.10.1999 through letter of Special Secretary, Medical Section-11 dated 31.8.2002 (annexure-15 to the petition) and petitioner was directed to submit reply to the enquiry report within 15 days. Petitioner submitted detailed reply through letter dated 18.10.2002 (annexure-16 to the petition). Thereafter impugned punishment order (annexure-1 to the petition) was passed on 22.1.2007 by Principal Secretary, Medical Section-11 of U.P. Government, whereby services of petitioner have been terminated.

Learned counsel for petitioner has contended that impugned order dated 22.1.2007 passed by Principal Secretary, Medical Section-11, U.P. Government is arbitrary and illegal. Petitioner has not been given proper opportunity of hearing and defence by Enquiry Officer as well as disciplinary authority. He has not been furnished copies of relevant documents demanded by her. He has not been given opportunity of cross examination also.

Learned counsel for petitioner has further contended that procedure prescribed in U.P. Government Servant (Discipline and Appeal) Rules, 1999 has not been followed. The charges levelled against her were vague and finding recorded by Enquiry Officer is perverse and without evidence.

Learned counsel for petitioner has contended that petitioner was not given copy of enquiry report along with show-cause-notice in which punishment against petitioner was proposed. It has also resulted in grave miscarriage of justice.

Learned counsel for petitioner has contended that finding recorded by Enquiry Officer regarding petitioner''s absence from duty from 26.12.1996 to 29.12.1996 is contrary to the letter dated 2.12.1997 sent by Chief Medical Superintendent, Women Hospital, Hamirpur referred in chargesheet.

Learned counsel for petitioner has contended that finding of Enquiry Officer that the petitioner deliberately did not join her duties after being declared fit on 14.10.1997 by the Regional Medical Board is totally perverse. The enquiry officer has not considered medical certificate furnished by the petitioner along with her reply to the chargesheet.

Learned counsel for petitioner has contended that Enquiry Officer as well as Disciplinary authority have not considered petitioner''s reply as well as documentary evidence submitted by petitioner in support of her version. Disciplinary authority has not considered reply of enquiry report dated 18.10.2002 submitted by petitioner after receipt of copy of enquiry report.

Learned counsel for petitioner has referred following judicial pronouncements in support of his contentions:

"(i) Baroda Uttar Pradesh Gramin Bank and Others Vs. Ashok Kumar Srivastava and Another,

(ii) Vinod Kumar Koul Vs. State of Jammu & Kashmir and Others,

(iii) Mohd. Yunus Khan Vs. State of U.P. and Others,

(iv) G. T. Lad and Others Vs. Chemical and Fibres of India Ltd.,

(v) Md. Masaud Alam Vs. State of Bihar and Others,

(vi) Maharaja Sayajirao University of Baroda and Others Vs. R.S. Thakar,

Learned Additional Chief Standing Counsel as well as Shri Rajnish Kumar, learned counsel appearing for opposite party No. 2 have contended that enquiry has been conducted in accordance with rules and law. Chargesheet was served on petitioner. Petitioner filed her reply. Thereafter, enquiry was concluded by Enquiry Officer in accordance with law after giving full opportunity of hearing to the petitioner. After receiving enquiry report, disciplinary authority issued show-cause-notice to petitioner and furnished her copy of enquiry report. Thereafter, disciplinary authority has passed impugned order dated 22.1.2007 after consultation with Public Service Commission.

Learned Additional Chief Standing Counsel as well as Shri Rajnish Kumar, learned counsel appearing for opposite party No. 2 have further contended that findings recorded by Enquiry Officer as well as Disciplinary Authority are based on evidence as well as admission of petitioner and punishment awarded to the petitioner is quite appropriate to the charge levelled against her. There is no sufficient ground to justify interference of this Court under Article 226 of the Constitution of India.

Learned Additional Chief Standing Counsel as well as Shri Rajnish Kumar, learned counsel appearing for opposite party No. 2 have further contended that alternative statutory remedy was available to the petitioner, hence writ petition under Article 226 of the Constitution of India is not maintainable.

Learned Additional Chief Standing Counsel has referred following judicial pronouncements:--

"(I) Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc.,

(II) Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and others; (2002) 10 SCC 293

(III) U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another,

(IV)N. Selvaraj v. Kumbakonan City Union Bank of India Ltd. and another; (2006) 9 SCC 172

(V) Union of India (UOI) Vs. Y.S. Sadhu, Ex-Inspector,

(VI) Chairman, LIC of India and Others Vs. A. Masilamani, "

We have considered the submissions of learned counsel for the parties.

First of all, we shall decide issue of maintainability of writ petition raised by opposite parties.

In the case of U.P. State Spinning Company Ltd. versus R.S. Pandey and another, Hon''ble Apex Court has held in Paragraph 11 as follows:

"Normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction."

In the above case, Hon''ble Apex Court has further held in paragraph 24 as follows:--

"Usually when writ petition is entertained notwithstanding availability of alternative remedy and issues are decided on merits, this Court is slow to interfere merely on the ground of availability of alternative remedy. But the facts of the present case have special features, which warrant interference."

Present writ petition was filed in year 2007. Now, claim petition provided under UP Public Services (Tribunal) Act, 1976 is time barred due to efflux of time. Petitioner has now no alternative remedy.

In view of above, considering all facts and circumstances of the present writ petition, we are of the view that now writ petition cannot be dismissed on the ground of alternative remedy.

Annexure-5 of the writ petition is chargesheet served on petitioner. Relevant part of chargesheet is extracted below:

Perusal of chargesheet shows that specific charge has been framed against petitioner and the charge framed against her contains dates and period of alleged unauthorized absence of petitioner along with place of posting where such absence has taken place. Petitioner has submitted his reply against chargesheet to Enquiry Officer, copy of said reply is Annnexure-6 to the writ petition.

The enquiry officer has recorded oral statement of petitioner in which she has stated that after performing her duties at District Women Hospital, Hamirpur till 30th December, 1996, she went after getting her application for CL noted by Dr. Reeta Sinha and thereafter she fell ill and sent information regarding her illness through registered letter dated 3.1.1997. She sent subsequent letters on 7.1.1997, 16.1.1997, 2.2.1997, 8.2.1997, 5.3.1997 in this respect, and ultimately on 22.3.1997 she joined her duties and presented her joining report but she was not given receipt of joining report. She has further stated that on that date she attended patients and did other indoor works but she was not given any receipt of paper.

Petitioner has been personally examined by Enquiry Officer on 7.8.1999. Questions No. 5 and 6 of her examination are relevant. Said questions No. 5 and 6 as well as their answers are extracted below:

Statement of petitioner made before Enquiry Officer establishes indisputably that on 14.10.1997, petitioner appeared before Divisional Medical Board, Jhanshi, and Divisional Medical Board, Jhanshi after examination declared her fit to join duties. In spite of the fact that the petitioner was declared fit by Medical Board to join duty, the petitioner did not join duty nor she preferred appeal to State Medical Board against decision of Divisional Medical Board. It is also apparent from the statement of petitioner that after 14.10.1997 she did not send any medical certificate again to his supervisory and controlling authorities.

Indisputably, after 14.10.1997, the petitioner had not joined her duty till date of suspension order dated 22.12.1998.

As mentioned above, on medical examination the Divisional Medical Board has declared petitioner fit for joining her duties and even after fitness certificate of medical board, petitioner has not joined her duties for such a long time without making any appeal to state medical board and did not submit any medical report before her superior authorities. It shows that whole version about her ailment and illness is false and fabricated. She has not faced Medical Board for medical leave at initial stage. She remained absent for a long time and when she was examined by Medical Board, she was found fit and even then she did not join duty and remained absent without any appeal to state medical board. There is nothing on record to show that petitioner was hospitalised and was unable to move and join her duties for such a long time. In such a situation, we are of the considered opinion that the petitioner has acted in an indisciplined way and deliberately remained absent from duty for a considerable long time in an unauthoritative manner.

In view of above, considering all facts and circumstances of the case and reply of petitioner as well as her statement before Enquiry Officer, we are of the view that the finding recorded by Enquiry Officer regarding unauthorized absence of petitioner cannot be said to be against law or perverse.

Finding of enquiry officer regarding private practice of petitioner at Divya Maternity and Health Centre, Indira Nagar, Lucknow with her husband is not based on evidence. It is only opinion of enquiry officer. It is not sustainable in the eyes of law.

Petitioner has been given copy of chargesheet. Thereafter, enquiry has been conducted by enquiry officer after submission of reply of petitioner. Enquiry Officer has examined petitioner personally and has placed reliance on admission of petitioner. After submission of enquiry report, disciplinary authority has given show-cause-notice to petitioner and petitioner has filed his reply. Thereafter, Disciplinary authority has passed impugned punishment order after consultation with U.P. Public Service Commission and has considered reply of petitioner.

Disciplinary authority has upheld finding recorded by enquiry officer and in view of conclusion drawn above, it is apparent that finding of enquiry officer regarding unauthorized absence of petitioner from duty can not be said to be against law or perverse.

In view of above, it cannot be said that enquiry has been conducted against Rules.

Deliberate absence of petitioner from duty in such unauthoritative manner for such a long time even after having been declared fit to join duty by competent medical board is indiscipline and misconduct of serious nature. As such, punishment of termination of service awarded to petitioner cannot be said to be excessive and disproportionate to the charge proved.

After receipt of enquiry report, disciplinary authority issued show-cause-notice to petitioner on 4.9.2000. Petitioner filed reply vide letter dated 20.9.2000 (annexure-11 to the petition). Thereafter, she again sent letter dated 20.10.2000 (annexure-12 to the petition) to disciplinary authority. Last paragraph of this letter is extracted below:

It is apparent from last paragraph of letter dated 20.10.2000 that petitioner herself stated that all facts have been mentioned in her reply dated 20.9.2000 and he had no need of copy of enquiry report. But subsequently vide letter dated 11.3.2002 she demanded copy of enquiry report whereupon she was furnished copy of enquiry report vide letter dated 31.8.2002 (annexure-15 to the petition) with direction to petitioner to file reply within 15 days. Thereafter, petitioner again filed her reply dated 18.10.2002 (annexure-16 to the petition). In impugned punishment order, disciplinary authority has not mentioned this reply. In impugned punishment order, disciplinary authority has mentioned that he has examined reply of petitioner dated 20.9.2000. Reply dated 20.9.2000 as well as reply dated 18.10.2002 are substantially same. Therefore, non-mentioning of reply dated 18.10.2002 in punishment order does not mean that objection raised by petitioner against enquiry report was not considered by disciplinary authority. It is only an accidental slip and cannot vitiate punishment order.

We have gone through judicial pronouncements referred by the parties.

In the case of Baroda Uttar Pradesh Gramin Bank and others v. Ashok Kumar Srivastava and another (Supra), referred by learned counsel for petitioner, Hon''ble Apex Court has held as under:

"..... The order passed by the appellate authority is a non-speaking order of dismissal of the appeal unsupported by any reasons. Although the learned counsel for the appellant Bank sought to place on record the reasoned order also, we do not think it is possible to do so at this stage. ...."

In the case of Mohd. Yunus Khan v. State of Uttar Pradesh and others (Supra) referred by learned counsel for petitioner, Hon''ble Apex Court has held as under:

"16..... Though the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of nature justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. ...."

The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment."

In the case of G.T. Lad and others v. Chemical and Fibers of India Limited (Supra), referred by learned counsel for petitioner, Hon''ble Apex Court has considered the issue ''as to whether the appellant had voluntarily abandoned the service'' and has placed reliance on its earlier judgment rendered in the case of Express Newspapers (P) Ltd. Vs. Michael Mark and Another, , wherein it has been held that "if the employees absent themselves from the work because of strike in enforcement of their demands, there can be no question of abandonment of employment by them. In the present case also the appellants'' absence from duty was because of their peaceful strike to enforce their demand."

In the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others (Supra), referred by learned Additional Chief Standing Counsel, Hon''ble Apex Court has held as follows:

".... Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case...."

In the above pronouncement, Hon''ble Apex Court has further held that "It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."

As it is apparent from oral statements of petitioner herself that she was declared fit to join duty by competent medical board on 14.10.1997 but did not join duty till date of suspension i.e. 22.12.1998 and neither made appeal to State Medical Board nor submitted any medical certificate to her superior authorities till date of suspension, therefore, facts admitted by petitioner are sufficient to hold her guilty for deliberate and unauthorized absence for such a long time.

In view of her own statement, petitioner is not entitled to get benefit of above judicial pronouncements on the facts of present case.

In the case of G.T. Lad and others v. Chemical and Fibers of India Limited (Supra), referred by learned counsel for petitioner, Hon''ble Apex Court has held as follows:

" .... The rule in such cases is that where reinstatement has been directed by the Court, the entire back wages must follow as a matter of course. Of course there is a discretion in the Court having regard to special circumstances if any to modify this normal rule. ...."

In the case of Mohd. Masaud Alam v. State of Bihar and others (Supra), referred by learned counsel for petitioner, Hon''ble Apex Court has passed following order regarding payment of back wages:

" .... We further direct the respondents to reinstate the appellant into service as a constable within three months'' time from the date of receipt of a copy of this order. We make it clear that the appellant will not be entitled to back wages from the date of the termination of his service till his reinstatement into service. However, the period between the date of termination and the date of reinstatement will be considered for the purpose of computing the qualifying service for payment of the pensionary benefits only."

In the case of Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and others (Supra), referred by learned Additional Chief Standing Counsel, Hon''ble Apex Court has passed following order:

"... The termination order already passed will remain, but subject to the result of the fresh consideration as directed above. ....."

In the case of N. Selvaraj v. Kumbakonam City Union Bank Limited and another (Supra), referred by learned Additional Chief Standing Counsel, Hon''ble Apex Court has passed following order in respect of payment of back wages:

" ....... We hold that the payment of back wages, if any, shall be subject to the final outcome of the decision of the disciplinary authority on the basis of the second inquiry report. ...."

In the case of Union of India v. Y.S. Sadhu, Ex-Inspector (Supra), referred by learned Additional Chief Standing Counsel, Hon''ble Apex Court has placed reliance on its earlier judgments rendered in the case of U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, as well as in the case of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., .

Paragraph 26 of the judgment rendered by Hon''ble Apex Court in the case of U.P. State Spinning Company Ltd. v. R.S. Pandey and another has been referred by Hon''ble Apex Court in its judgment rendered in the case of Union of India v. Y.S. Sadhu, Ex-Inspector (Supra). Same is extracted below:

"26. In view of the above, we set aside the order of learned Single Judge as affirmed by the Division Bench by the impugned judgment and direct that within a period of four months the enquiry shall be completed by starting from the stage of service of show-cause notice and consideration of the reply, if any, filed in accordance with the standing orders holding the field. The respondent No. 1 shall be reinstated to service but without any back wages and other service benefits and his reinstatement shall be solely for the purpose of completing the departmental proceedings. His entitlements, if any, would be adjudicated by the authorities depending upon the result of the disciplinary proceedings."

In the case of Union of India v. Y.S. Sadhu, Ex-Inspector (Supra) placing reliance on its above two earlier judgments Hon''ble Apex Court has drawn conclusion in paragraph 7 of judgment. Same is extracted below:

"7. Keeping in view the aforesaid position of law indicated in the aforesaid decisions, we are of the view that the course adopted in the two cases above, is to be followed. There shall not be any reinstatement, but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced."

In the case of Chairman, Life Insurance Corporation of India and others v. A. Masilamani (Supra), referred by learned Additional Chief Standing Counsel, Hon''ble Apex Court has held that "It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar, Hiran Mayee Bhattacharyya v. S.M. School for Girls, U.P. State Spg. Co. Ltd. v. R.S. Pandey and Union of India v. Y.S. Sadhu)"

For reasons recorded above, we are not inclined to interfere into impugned punishment order as well as enquiry report, therefore, no question of reinstatement or backwage arises.

In view of conclusion drawn above, petition is dismissed with cost.