Accusation Of "Absconding" From Duty Casts Stigma On Employee; Cannot Be Levelled Without Giving Proper Opportunity Of Hearing: Allahabad HC

The Court stated that such a remark could have serious repercussions for the employee’s reputation and cannot be made without giving the employee a fair opportunity to present their side.

The case involved a petitioner who had applied for the position of Dental Surgeon in the Uttar Pradesh Department of Medical Health and Child Welfare. After being selected, the petitioner enrolled in a post-graduate course in Nagpur in 2019 and requested study leave from the Department, which was denied. The petitioner then filed a Writ Petition challenging the denial, which was disposed of by the Court, directing the respondents to consider the petitioner’s representation. However, the Department rejected the request, arguing that the petitioner, being on probation, was not entitled to study leave.

While this matter was pending, the petitioner attempted to join his posting in December 2021 but was informed that his services had been terminated in November 2021. The termination order cited the petitioner’s “absconding” from duty, claiming that he had joined and then proceeded on unauthorized leave the following day.

A Bench of Justice Alok Mathur said, “Any person who is said to have "absconded" meaning thereby he has deliberately fled from his duty without obtaining proper action, reflects adversely on the conduct of any comment servant and hence casting an implication that the petitioner has absconded his cast stigma, and such an importation could not have been levelled without giving him proper opportunity of hearing.,”

The Court stated that the respondents had failed to properly determine whether the petitioner’s services were of a temporary nature before passing the termination order. Since the petitioner had been appointed to a permanent post, the Court ruled that his service could not be considered temporary and therefore, was not subject to the termination provisions under the 1975 Rules. As a result, the termination order was deemed “illegal and arbitrary” and was set aside.

Advocate Sachin Upadhyay appeared for the Petitioner and Advocate Ashok Shukla appeared for the Respondents.

The petitioner contested the termination, arguing that he was not a temporary employee and thus not subject to the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975. He further argued that the reference to him as having “absconded” was stigmatic and that he had not been given an opportunity to be heard, violating his constitutional rights under Articles 14 and 16.

The respondents, on the other hand, contended that the petitioner had absconded during his probationary period, justifying his termination under Rule 3 of the 1975 Rules. They argued that the petitioner’s conduct amounted to misconduct, and the termination order was legitimate.

The Court also emphasized the importance of due process when making decisions that carry a stigma, such as accusing an employee of “absconding.” It cited earlier judgments that required an opportunity for the employee to defend themselves before such allegations were made. The Court held, “In the present case no show cause notice nor any opportunity was given to the petitioner, and accordingly such an order casting stigma on him could not have been passed and hence the same is illegal and arbitrary and libel[sic] to be set aside,” .

In light of these findings, the High Court directed the respondents to reinstate the petitioner’s services with all benefits, thereby allowing the writ petition in favor of the petitioner.

Cause Title: Dr. Prabhanshu Shrivastava v. State of U.P. & Ors., [2024:AHC-LKO:75519]

Appearance:

Petitioner: Advocates Sachin Upadhyay, Shivendra S Singh Rathore, Shivendra Shivam Singh Ra

Respondents: Advocates Ashok Shukla, Raj Kumar Upadhyaya