Sunday, November 27, 2022

Allahabad High Court upholds dismissal of employee

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The Lucknow Bench of Allahabad High Court has upheld the dismissal of an employee, while ruling on three petitions related to the service of the employee.

A Single-Judge Bench of Justice Dinesh Kumar Singh passed this order, while hearing a petition filed by Santosh Kumar Khare.

The petitioner had filed the petition for quashing of the order dated May 21, 2001 passed by the President, Zila Panchayat, Shravasti terminating the services of the petitioner as well as notice dated 14th June, 2001, which was published in the newspaper stating therein that the petitioner was given three months’ salary Cheque dated 21st May 2001 for an amount of Rs 9,657/-, which the petitioner refused to accept and thus the petitioner was informed to take three months’ salary from the office of Zila Panchayat, Shravasti.

The petitioner was initially appointed as Clerk in the erstwhile District Board, Bahraich, now named as Zila Panchayat, Bahraich with effect from 22nd October, 1975.

The petitioner has claimed in the petition that he was promoted to the post of Accounts Clerk with effect from 2nd March, 1997 and, thereafter with effect from 19th September, 1978, he was further promoted to the post of Assistant Accountant and on 13th November, 1990 he was made In-charge Accountant.

On 26th February, 1991, he was promoted to the post of Accountant but was paid the salary of the post of Accountant (Unqualified).

The Court observed that the State Government had disapproved the proposal for regular appointment of the petitioner on the post of Accountant vide order dated 17th March, 1997 on the ground that petitioner’s promotions to the post of Assistant Accountant and, thereafter to the post of Accountant (Unqualified), were against the service rules.

The petitioner was not being paid salary to the post of Accountant. The petitioner was suspended and he filed a Petition challenging his suspension order dated 4th July, 1994. The petitioner also claimed relief for payment of salary to the post of Accountant (Unqualified).

The Court further observed that the then President of the District Panchayat wrote to the Government on 10th September, 1996 recommending payment of salary to the petitioner for the post of Accountant and, it was further requested that the petitioner should be granted exemption under Rule 27(3) of the U.P. Zila Panchayat Service Rules, 1970.

A new District namely Shravasti was carved out from District Bahraich vide Government Order dated 28th June, 1997 and, the staff of the Zila Panchayat was bifurcated into two Zila panchayats.

The petitioner was transferred to the newly created Zila Panchayat, Shravasti vide order dated 22nd October, 1997 by the Additional Chief Executive Officer, Zila Panchayat, Bahraich. However, vide Office Memorandum dated 15th June, 1998, the petitioner was shown to have been allotted District Panchayat, Shravasti and his post was mentioned as Clerk Grade-I. One Surendra Kumar Dubey working as Assistant Accountant in District Panchayat Bahraich was transferred to District Panchayat, Shravasti for execution of the work of Accountant as there was no qualified Accountant posted at newly created Zila Panchayat, Shravasti.

After the Government disapproved petitioner’s appointment and promotion to the post of Assistant Accountant vide order dated 17th March, 1997, the petitioner was given charge of Audit and Antyodaya Clerk and work of Accountant was given to one Gopal Narayan Srivastava which had been challenged by the petitioner.

The petitioner alleged that despite the order dated 3rd November, 1999 passed by the Court in the Petition, he was neither allowed to work on the post of Accountant (Unqualified) nor paid salary, despite various requests having been made by him for compliance of the order dated 3rd November, 1999.

The petitioner thereafter filed a Contempt Petition alleging non-compliance of the interim order dated 3th November, 1999 by the concerned authorities. Thereafter, the petitioner also moved a clarification/modification application in Petition seeking clarification/modification of the order dated 3rd November, 1999.

Zila Panchayat, Shravasti under the signature of its Apar Mukhya Adhikari issued a notice dated 30th September, 2000 through publication in local newspaper, Hindustan dated 7th October, 2000 requiring the petitioner to show cause as to why, he was not attending the office of Zila Panchayat, Shravasti as Clerk.

In response to the said notice, the petitioner had submitted a reply dated 9th October, 2000 stating that the petitioner stood already relieved from Zila Panchayat, Shravasti.

In pursuance to the order dated 6th February, 1999, the petitioner has submitted his joining at Zila Panchayat, Bahraich on 10th February, 1999. Thereafter, notice/order dated 14th June, 2000 had been published in Rashtriya Sahara newspaper dated 16th June, 2001 by Apar Mukhya Adhikari, Zila Panchayat, Shravasti stating therein that the petitioner’s services have been terminated vide order dated 21st May, 2001 by the President, Zila Panchayat, Shravasti.

Counsel appearing for the petitioner submitted that after the Court passed interim order dated 8th October, 1998 in the Petition to the extent that in the garb of transfer of the petitioner from Bahraich to Shravasti, the petitioner should not be reduced in rank and should be permitted to work as Accountant (Unqualified), if he was legally entitled to for the same.

The petitioner was relieved by the Apar Mukhya Adhikari, Zila Panchayat, Shravasti on 6th February, 1999 and repatriated to Zila Panchayat, Bahraich and, thereafter the petitioner had given his joining at Zila Panchayat, Bahraich on 10th February, 1999. In view of the aforesaid fact the petitioner could not be said to be an employee of Zila Panchayat, Shravasti and, therefore, the order passed by Zila Panchayat, Shravasti dated 21st May, 2001 terminating his services is without jurisdiction, illegal and arbitrary.

It has been further submitted that the petitioner was promoted to the post of Accountant and not Accountant (Unqualified). There was only one sanctioned post of Accountant in Zila Panchayat, Bahraich. There was no post of Accountant (Unqualified) in the Zila Panchayat. It has been further submitted that in view of the Government Order dated 9th June, 1997, no such post of Accountant (Unqualified) would exist in the establishment of Zila Panchayat, Shravasti.

On the other hand, Additional Chief Standing Counsel and counsels representing Zila Panchayat, Bahraich and Shravasti have submitted that the petitioner was initially appointed in the year 1975 on the Post of Clerk Grade-II, however, his services came to be terminated on 23rd February, 1979 on the ground of his unauthorized absence from duties.

Thereafter, the petitioner filed a representation on 25th May, 1979 against the order of his termination and another representation was filed by him on 14th November, 1981 before the Divisional Commissioner. The Divisional Commissioner considering the case of the petitioner sympathetically vide order dated 21st March, 1983 restored the services of the petitioner from the date of his absence from duty, but the petitioner was not paid salary for the period he did not work.

The petitioner was never promoted to the post of Assistant Accountant and his claim that he was working from 1978 to 1986 on the post of Assistant Accountant is wholly incorrect and against the record itself.

It has been further submitted that the then President of Zila Panchayat vide order dated 26th February, 1991 promoted the petitioner to the post of Accountant (Unqualified) in the pay scale of Rs 975-1660/-, however, this promotion was against the Rules, 1970 and, therefore, the Government order dated 17th March, 1997 cancelled his promotion after it was referred to the Government on the ground that the petitioner’s promotion to the post of Accountant (Unqualified) was against the services Rules, 1970.

The Court held that,

Service conditions of the petitioner are governed under Rules, 1970. Rule 132 of the Rules, 1970 provides that all the employees of the Zila Panchayat barring those comprising the central transferable cadre shall be subject to transfer from one Zila Panchayat to another within the division by the respective Commissioner of the Division. As a result of bifurcation of District Bahraich, a new district and Zila Panchayat Shravasti were created in the year 1997.

The petitioner, who was posted as Clerk Grade-I, was allotted Zila Panchayat, Shrawasti vide order dated 15th June,1998. From District Shrawasti to District Bahraich, only the Commissioner could have transferred him back and Zila Panchayat Shravasti had no power or jurisdiction to transfer him back to Zila Panchayat, Bahraich.

Be that as it may, the petitioner was not performing the duties and responsibilities of his post at Shravasti and, it appears that out of frustration, the President of Zila Panchayat, Shravasti relieved him from Shravasti and asked him to go back to Zila Panchayat, Bahraich order dated 6th February, 1999.

The Court noted that,

This order, however, was cancelled by the Commissioner, Devi Patan, Mandal order dated 19th January, 2000. Notice to the petitioner, intimating him about the order dated 19th January, 2000 and for his joining at Shravasti, was sent through registered post and he was required to join by 2nd February, 2000.

Apar Mukhya Adhikari, Shravasti on 4th May, 2000 wrote to the Commissioner that the petitioner was not joining on the post of Clerk Grade-I at Shravasti and the Zila Panchayat was not getting the benefit of services of the petitioner. Zila Panchayat, Shravasti again sent him notice through registered post and a copy of the same was also sent to the Commissioner.

Post Messenger, Raj Kishore Srivastava went with notice to the petitioner’s residence, however, after reading the notice, he returned it and he refused to join at Shravasti. Show cause notice was issued to him by registered post by Apar Mukhya Adhikari, Shrawasti on 15th September, 2000. Last notice to the petitioner was published in Hindustan daily newspaper on 13th July, 2000.

The Commissioner also directed the petitioner to join the Shravasti letter dated 23rd October, 2000. Despite several notices and letters asking him to join at Shravasti, the petitioner did not comply with the direction issued by the competent authority including the Commissioner and, therefore, on 21st May, 2001, Apar Mukhya Adhikari wrote in his note-sheet recommending petitioner’s termination from services. In view thereof, the President passed the order terminating his services.

The Court stated that, an employee cannot remain absent from service on the spacious ground that he has challenged his transfer before the Court. It appears that the petitioner was not serious with his service, duties and responsibilities. He is a habitual absentee. Initially also, he remained absent and for that reason, his services were terminated.

The Court said that the Petitioner’s absence from duty as Clerk Grade-I in District Panchayat Shravasti was deliberate and intentional. The Divisional Commissioner vide order dated 25th January, 2000 cancelled the order dated 6th February, 1999 passed by the President, District Panchayat Shravasti transferring him to District Panchayat, Bahraich and, therefore, in absence of any order from the Court staying the operation of the order of the Commissioner dated 25th January, 2000, he ought to have joined the post of Clerk Grade-I at Shravasti. However, despite intimation of the order dated 25th January, 2000 and several notices issued to him, he did not join his post intentionally and, thus abandoned his services.

The Court said that it did not find any merit and substance in these writ petitions, accordingly, the petition is dismissed.

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