Point of Law: Terminate from service - Unauthorisedly absent from duty - Rule 18 of Financial Handbook held that there cannot be any automatic termination of services of employee, in case of absence from duty, same has to be treated as misconduct and for misconduct disciplinary proceedings will have to be initiated by holding regular departmental inquiry and shortcut of Rule 18 cannot be subscribed by law.

JUDGMENT :

ABDUL MOIN, J.

1. Heard learned counsel for petitioner, learned Standing Counsel for State as well as Shri Rahul Shukla, learned counsel appearing for respondent no. 4.

2. The short question of law which arises before the Court is whether the services of a permanent teacher can be dispensed with on the ground of being absent from duty for a sufficiently long time under the provisions of Rule 18 of Financial Handbook Part II (Volume 2 to 4) Chapter III without resorting to disciplinary proceedings under the disciplinary rule.

3. Admittedly, the services of the petitioner, an Assistant Teacher, are governed by the Uttar Pradesh Basic Education (Staff) Service Rules, 1973. As per the said rules in question, Rule 2 deals with appointing authority, declaring appointing authority of posts mentioned in Column 2 of the schedule. Rule 3 authorizes appointing authority to impose penalties provided for, for good and sufficient reason. Penalties provided therein are as follows:

(i) censure.

(ii) withholding of the increments including stoppage at an efficiency bar.

(iii) reduction to a lower post on time-scale, or to a lower stage in a time scale.

(iv) recovery from pay of the whole or part of any pecuniary loss caused to the Board by negligence or breach of orders.

(v) removal from the service of the Board which does not disqualify him from future employment.

(vi) dismissal from the service of the Board which ordinarily disqualifies him from future employment.

4. Rule 4 authorize appointing authority to place under suspension, such person against whose conduct an enquiry is contemplated or is proceeding, pending conclusion of enquiry, and such person is entitled for suspension allowance during his suspension period at the rate applicable to Government servant. Rule 5 provides for forum of appeal against the order of appointing authority.

5. Six categories of penalties have been specified in Rule 3, out of which three penalties specified in Rule 5(1) could be the subject-matter of an appeal. The remaining penalties could be challenged under Rule 5(2) by means of a statutory representation to the Director or the officer specified by him. Rule 5(2) empowers the employees to file a representation against those punishments which are not specified in Rule 5(1). Rule 5(3) clearly provides that procedure laid down in CCS Rules, as applicable to the servants of U.P. Government shall as far as possible, be followed in disciplinary proceedings, appeals and representation under these Rules.

6. The instant petition has been filed challenging the order dated 26.12.2007 passed by the respondent no. 4 i.e. District Basic Education Officer, Barabanki whereby the services of the petitioner, an Assistant Teacher, has been terminated on ground of being unauthorisedly absent for sufficiently long time. The period of absence may not detain the Court, the details of which have been given in paragraphs 11 to 13 of the counter affidavit, however what is relevant is that the services of the petitioner have been dispensed with in terms of Rule 18 of Financial Handbook Part II (Volume 2 to 4) Chapter III (hereinafter referred to as ‘Rule 18’).

7. For the sake of convenience Rule 18 of Financial Handbook Part II (Volume 2 to 4) Chapter III is reproduced as under:

“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.”

8. A perusal of the aforesaid provision would indicate that no government servant shall be granted leave of any kind except in special circumstances and absence beyond five years will attract the provisions of rules relating to disciplinary proceedings meaning thereby that in case the government servant is absent beyond five years the sam