IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 673 (SS) of 2010 Nand Kishore Gupta …Petitioner Versus State of Uttarakhand and others …Respondents Mr. Subhash Upadhyay, Advocate present for the petitioner. Mr. N.P. Sah, learned Standing Counsel present for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. Subhash Upadhyay, Advocate for the petitioner and Mr. N.P. Sah, learned Standing Counsel for the State of Uttarakhand. 2. According to the petitioner, he was appointed as Assistant Teacher L.T. Grade in the year 1991 on ad hoc basis and thereafter he was regularized on 1.4.2002. The petitioner further states that he belongs to district Banda (State of Uttar Pradesh) and due to matrimonial dispute with his wife he had to frequently visit Banda. Thereafter he left this school in the year 2004 and never returned. The Principal of the college though written several letters to the petitioner that he has to deposit certain amount relating to computer fee etc., which he should deposit. Thereafter an order was passed by the Additional Director of Education, Garhwal Mandal, Pauri (Annexure- 5 to the writ petition) in which the name of the petitioner also finds mention. It is a list of such teachers (including petitioner) who remained absent for a considerable length of time (the petitioner remain absent for five years) and therefore the authorities demanded as to why they should not be terminated from service under The Uttaranchal Temporary Government Servants (Termination of Service) Rules, 2003. 2 3. According to the petitioner, this letter of the concerned authority was received by the petitioner on 4.5.2010. Immediately thereafter the petitioner gave his joining on 6.5.2010 (Annexure-7 to the writ petition). On the application of the petitioner by which he gave joining an endorsement was made by the Principal of this effect expressing inability to give joining to the petitioner as another teacher had already started working in place of the petitioner. 4. In the counter affidavit, there is no specific denial to this effect that the petitioner had actually reached his school on 6.5.2010 consequent to the notice dated 7.4.2010. All the same, the impugned order has been passed on 5.6.2010 by which the same Additional Director of Education dispensed the services of the petitioner on the ground that the petitioner has remained absent for more than five years by referring provisions of the fundamental rules including the present amendment in which he admits that in case of a long absence there is no automatic termination of service but disciplinary proceeding must be initiated yet he justifies by saying that principles of natural justice and fair play has not been violated inasmuch as a notice was given on 1.4.2010 under the Uttaranchal Temporary Government Servants (Termination of Service) Rules, 2003. 5. This Court is of the considered view that the notice which was given to the petitioner was not a notice in the eyes of law. Since it is an admitted case that the impugned order contemplates that even after long absence there is no automatic termination but services can only be terminated after initiation of disciplinary proceedings. In this case neither any notice nor any initiation of disciplinary proceedings was done. Even 3 though the petitioner presented himself in the college prior to the impugned order dated 5.6.2010. Therefore, the principles of natural justice and fair play inter alia demand that the impugned order dated 5.6.2010 is liable to be set aside and is hereby set aside. 6. Having set aside the aforesaid impugned order, the writ petition stands disposed of with the following orders: The petitioner shall be treated to be under suspension from the date he remained absent in the year 2004. He shall now move a representation before the Additional Director of Education, Garhwal within three weeks from today. The Additional Director of Education, Garhwal thereafter shall initiate a disciplinary proceedings against the petitioner in accordance with law and thereafter shall pass appropriate order. 7. It is made clear that the petitioner shall co-operate in the disciplinary proceeding and in case the Additional Director of Education feels that the petitioner is not co- operating, he would be at liberty to proceed ex-parte against the petitioner, though after making such observations in writing. 8. The writ petition is disposed of with the aforesaid directions. 9. No order as to costs. (Sudhanshu Dhulia, J.) Dated: 17.11.2011 VKG