R.B.Misra, J. - (1.) IN this petition order dated 28-2-1990 (Annexure 4 to the writ petition) passed by U.P. Public Services Tribunal, Lucknow has been challenged whereby the respondent No. 3 was reinstated in the service with all arrears of salary and allowances and seniority etc. Heard Sri C.K. Parekh learned Counsel for the Nagar Mahapalika , Varanasi and Sri S.S. Sharma for the respondent No. 2 as well as Sri M.C. Dwivedi for the respondent No. 3 Smt. Sudha Bharagava.
(2.) IT appears that petitioner appointed respondent No. 3 as a Social Worker in Nagar Mahapalika, Varanasi on 31-7-1967 and she was also given promotion as Extension Educator with effect from 1-8- 1970. She proceeded on causal leave from 3-10-1979 to 6-10-1979 and left Varanasi. Thereafter, she requested for extension of her leave and she was expected to return on 31-3-1980. Subsequently on the ground of ailment she wanted to avail leave from 20-7-1980 to 30-11-1980 and she also requested leave from 31-3-1980 to 12-7-1980, however, considering the absence of the respondent No. 3 as unauthorized and after considering her case under Rule 157-A of Financial Handbook Volume II, Parts II to IV she was terminated from service. According to respondent No. 3 the termination could not be made under the provisions of Financial Handbook as well as provisions of U.P. Palika Centralise Rules are also not applicable and the U.P. Nagar Mahapalika Sewa Niyamavali, 1962, (in short called 'Rule 1962'). According to the respondents the punishment order was passed by the petitioner terminating the service of respondent No. 3 without adopting the proper procedure as laid down under Rules 27 and 31 of Rule 1962 and without affording the proper opportunity of hearing to the respondent No. 3, more so, in derogation to the provisions of Article 311 (2) of the Constitution of India. The order dated 15-1-1981 is by way of an order simplicitor indicating that the service of respondent No. 3 has been terminated treating the respondent No. 3 as a temporary employee w.e.f. 18-12-1979. However, as contended on behalf of the respondent No. 3 that if the circumstances are unveiled the foundation for termination of the respondent No. 3 was to give punishment on the ground of long absence. According to the petitioner respondent No. 3 was a temporary employee and her long absence was not permissible, therefore, under Rule 157-A of Financial Handbook Volume II the service of the respondent No. 3 has rightly been terminated and the order of the Tribunal dated 28-2-1990 reinstating the service of the petitioner (respondent No. 3) with back wages is illegal. Rule 27 of 'Rule 1962' deals with the punishment and Rule 31 deals with the Procedure for disciplinary proceedings. For convenience Rule 31 is provided herewith as below. "31. Procedure for disciplinary proceedings - (1) No order (other than an order based on facts which have led to his conviction on a criminal charge) of dismissed, removal or reduction in rank (which includes reduction to a lower post or time-scale or to a lower stage in a time-scale but excludes the reversion to a lower post of a person who is officiating in a higher post, shall be passed on any servant of the Mahapalika unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be clear and precise as to give sufficient indication to the charged servant of the facts and circumstances against him. He shall be required within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs an oral enquiry shall be held in respect of such of the allegations as are not admitted. At that inquiry such oral evidence will be lead as the inquiring officer considers necessary. The person charged shall be entitled to cross-examine the witnesses called as he may wish provided that the officer conducting the inquiry may for sufficient reason to be recorded in writing refuse to call a witness. Neither the Mahapalika nor the servants of the Mahapalika shall be entitled to be represented by a Counsel. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the enquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged servant. (2) This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may for sufficient reasons to be recorded in writing be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquiring officer be waived without injustice to the person charged. (3) This rule shall also not apply where it is proposed to terminate the employment of either a temporary servant, or of a probationer whether during or at the end of the period of probation. In such cases a simple notice of termination which in the case of temporary servant, must conform to conditions of his service, will be sufficient. In view of the above provisions, it is clear that for disciplinary proceeding an employee permanent or temporary has to be served a definite charge and the documents relied upon and after affording the opportunity of hearing and allowing the employee to defend one case by filing written statement for his defence, by adducing oral and personal hearing and adducing evidence and avail opportunity of cross- examining the witnesses and for conducting proper disciplinary proceeding day, time and place are to be indicated. In my respectful consideration the proper procedure before removing the respondent No. 3 was to be followed in view of Rule 31 of 'Rule 1961' above mentioned. The respondent No. 3 was by virtue of holding a civil post in Nagar Mahapalika was entitled to be given protection of Article 311 (2) of the Constitution when her service was being terminated, however, all these aspects were considered in the impugned order dated 28-2-1990 where the termination of respondent No. 3 was found not legally justified. The Counsel for the respondent No. 3 has referred several judgments of the Supreme Court and this Court in support of his submission for consideration the first decision relied by the respondent No. 3 is AIR 1958 Supreme Court 800, Khem Chand v. Union of India and others. In paragraph 19 of the aforesaid judgment the Supreme Court had laid down as under: "(19). To summarise the reasonable opportunity envisaged by the provision under consideration includes: (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based. (b) An opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence, and finally. (c) An opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government Servant tentatively proposes to inflict one of the three punishments and communicates the same of the Government Servant. In short the substance of the protection provided by rules, like Rule 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in Section 240 (3) of the Government of India Act, 1935 so as to give an statutory protection to the Government Servants and has now been incorporated in Article 311 (2) so as to convert the protection into a constitutional safeguard."
(3.) THE next judgment relied upon by the Counsel of the respondent No. 3 is AIR 1961 Supreme Court 1070, Jagdish Prasad Saxena v. THE State of Madhya Bharat, where the Supreme Court has held that in taking disciplinary action against the public servant, a proper disciplinary enquiry must be held against him after supplying him with the charge-sheet, and allowing him the reasonable opportunity to meet the allegations contained in the charge-sheet. Much emphasis has been given by the Counsel for the respondent No. 3 on Paragraph 5 of the judgment of the Supreme Court in the case of Kulwant Singh Gill v. State of Punjab, reported in 1991 Supreme Court Cases (L & S) 998, where the Supreme Court has observed in paragraph 5 as under: "5. The further contention of Shri Nayar that the procedure under Rule 8 was followed by issuance of the show cause notice and consideration of the explanation given by the appellant would meet the test of Rules 8 and 9 of the Rules is devoid of any substance. Conducting an enquiry, de hors the rules is not enquiry in the eye of law. It cannot be countenanced that the pretence of an enquiry without reasonable opportunity of adducing evidence both by the department as well as by the appellant in rebuttal, examination and cross-examination of the witnesses, if examined, to be an enquiry within the meaning of Rules 8 and 9 of the Rules. Those rules admittedly envisage, on denial of the charge by the delinquent officer, to conduct an enquiry giving reasonable opportunity to the presenting officer as well as the delinquent officer to lead evidence in support of the charge and in rebuttal thereof, giving adequate opportunity to the delinquent officer to cross-examine the witnesses produced by the department and to examine witnesses if intended on his behalf and to place his version, consideration thereof by the Enquiry Officer, if the Disciplinary Authority himself is not the Enquiry Officer. A report of the enquiry in that behalf to be placed before the disciplinary Authority who than is to consider it in the manner prescribed and to pass an appropriate order as for the procedure to vogue under the Rules.";