- (1.) Heard learned counsel for the parties.
(2.) This Court has passed order dated 14.1.2020 as under : "Heard Sri Mahendra Pratap Singh, learned counsel for the petitioner and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents. The case set-forth by learned counsel for the petitioner is that the petitioner applied for the child care leave for three months with effect from 11.07.2019 as application dated 10.07.2019 to that effect has been preferred by the petitioner to her Appointing Authority i.e. the District Homeopathy Medical Officer, Sultanpur. On earlier occasion, the petitioner had proceeded for maternity leave with effect from 07.05.2018 to 13.12.2018 and the said leave has not been sanctioned. The District Homeopathy Medical Officer, Sultanpur has called an explanation from the petitioner that was duly replied vide explanation dated 20.11.2019. In the said explanation, the petitioner has cited the decision of the Division Bench of this Court in re: Dr. Rachna Chaurasiya vs. State of U.P. and others reported in [2017 (11) ADJ 399 (DB)], which categorically provides that the maternity leave and child care leave are admissible to all the lady employees irrespective of her nature of appointment whether it be permanent, temporary and contractual. After receiving the aforesaid explanation of the petitioner dated 20.11.2019, the Appointing Authority has issued two letters, one letter dated 22.11.2019 to the petitioner and second one to the Mission Director, Uttar Pradesh Rajya Ayush Society, Lucknow. Letter dated 22.11.2019, which was addressed to the petitioner, says that her entire issue including her explanation has been forwarded to the Mission Director for necessary orders. By means of the impugned order dated 17.12.2019, the Mission Director, Uttar Pradesh Rajya Ayush Society, Lucknow has directed the District Homeopathy Medical Officer, Sultanpur to terminate the services of the petitioner for the reason that she has absented again and again without permission and the leave i.e. the maternity and the child care leave are not admissible to the contract employees, therefore, the said leave may not be exceeded to the petitioner. The maternity leave as well as the child care leave is admissible to the contract employees also in view of the decision of the Division Bench of this Court rendered in re: Dr. Rachna Chaurasiya vs. State of U.P. and others (supra), therefore, recital to that effect in the impugned order is prima facie unwarranted. So far as recital to the effect that the petitioner has absented again and again without permission is concerned, the question would be as to whether the petitioner has absented without informing the Competent Authority by preferring an application and as to whether she has sought such relief which can not be granted to her. If any employee has sought such relief which may be granted strictly in accordance with law and the circumstances at that point of time compels the employee to proceed on leave otherwise she shall suffer irreparable loss, whether that conduct of an employee may be treated as misconduct. Not only the above, whether in a given circumstances the services of an employee may be dispensed with without following the principles of natural justice inasmuch as in the present case the services of the petitioner have been dispensed with without affording an opportunity of hearing. One more question crops up i.e. as to whether any punishment order against an employee can be passed at the behest of the Superior Authority inasmuch as in the present case admittedly Appointing Authority of the petitioner is District Homeopathy Medical Officer but the services of the petitioner have been dispensed with pursuant to the direction being issued by the Mission Director, Uttar Pradesh Rajya Ayush Society, Lucknow, however, the termination order has been passed by the Appointing Authority. The law is settled on this point that the punishment order can only be passed by the Disciplinary Authority applying his judicious mind independently appreciating the legal provisions to that effect. Therefore, the matter requires consideration. List/ put up this case on 18.01.2020 in the additional cause list to enable the learned Additional Chief Standing Counsel to seek instructions in the matter. Till the next date of listing, no third party interest shall be created."
(3.) In compliance of the aforesaid order Sri Ran Vijay Singh, learned Addl. C.S.C. has produced the copy of the instruction letter dated 17.1.2020 preferred by the Director, Homeopathy, U.P. addressing the C.S.C., High Court, Lucknow Bench, Lucknow enclosing therewith some correspondences and letters. Along with the instruction letter one letter dated 17.1.2020 has been enclosed which has been preferred by the District Medical Officer, Homeopathy, Sultanpur addressing to Director, Homeopathy, U.P. The perusal of the aforesaid letter dated 17.1.2020 of the District Medical Officer, Homeopathy, Sultanpur reveals that initially the petitioner absented for three days w.e.f. 7.5.2018 to 10.5.2018 without preferring any application to that effect and she further proceeded on leave in continuation of earlier authorized leave by preferring an application seeking maternity leave. It has further been indicated that after the aforesaid maternity leave which was not sanctioned by the competent authority till date the petitioner again proceeded on leave on 10.7.2019 for care of her child as Child Care Leave for three months i.e. w.e.f. 11.7.2019 to 10.10.2019. Admittedly, the petitioner has submitted her joining on 1.11.2019 but her joining was subject to the necessary orders being passed by the Mission Director, U.P. As per Sri Ran Vijay Singh the Mission Director considering the entire facts and circumstances relating to the petitioner directed the District Medical Officer, Homeopathy, Sultanpur to dispense with the services of the petitioner as she is habitual absentee and the leave sought by the petitioner are not admissible for the contract employees.;