Uttarakhand High Court
Ram Singh Alias Ram Lal vs State Of Uttarakhand And Others on 3 March, 2017
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1143 (S/S) of 2016
Ram Singh @ Ram Lal ..........Petitioner
Versus
State of Uttarakhand and others ...........Respondents
Present:- Mr. M.C. Pant, Advocate for the petitioner.
Mr. B.P.S. Mer, Brief Holder for the State/respondents
Hon'ble Sudhanshu Dhulia, J. (Oral)
The petitioner who was a Driver in Rural Engineering Services, Government of Uttarakhand has challenged his termination order dated 21.01.2016 before this Court.
2. Counter affidavit and rejoinder affidavit have been exchanged in the matter.
3. Heard Mr. M.C. Pant, learned counsel for the petitioner and Mr. B.P.S. Mer, Brief Holder for the State/respondents.
4. Learned counsel for the petitioner - Mr. M.C. Pant would first argue that the impugned order dated 21.01.2016 discloses that it has been passed by the concerned authority presuming that the petitioner is a temporary government servant, and therefore, after giving one month notice or one month pay in lieu thereof, the services of the petitioner are liable to be terminated and hence the services of the petitioner were terminated vide order dated 21.01.2016.
5. Therefore, the first challenge of the petitioner would be that his services have been terminated considering him as a temporary employee under the Rules known as Uttaranchal Temporary Government Employee (Termination of Service), Rules, 2003, whereas the admitted fact is that the petitioner was appointed on ad-hoc basis as a Class-IV employee in the Rural Engineering Services in the year 1994 and thereafter his services stood regularized in the year 2000. According to the petitioner, his cadre was also changed from a Class-IV employee to that of a driver in the year 2004 and since then he has been performing the duties of a Driver, although right from the very beginning the petitioner 2 has been discharging the duties of a driver in the department - a fact which is also admitted by the State/respondents.
6. The temporary service is defined under the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, which reads as under:-
"Definition- In these rules "temporary service" means officiating or substantive service on a temporary post, or officiating service on a permanent post under the Uttar Pradesh Government."
7. Since the petitioner is a permanent government servant working on a substantive vacancy, he cannot be defined as a "temporary government servant" under the Rules. What has still to be examined by this Court is that whether the procedure, which is required before inflicting a major penalty on a government employee, has been followed as merely because in the impugned order there was a recital of wrong rules the termination order would not be bad merely on that account.
8. It appears that a complaint was made against the petitioner that he had procured the appointment in the government service by submitting a forged certificate of Class VIII. On this complaint, an inquiry was made from the concerned Principal and it was found that the signatures of the then Principal do not match with the signatures made on the certificate. Thereafter, a charge-sheet was given to the petitioner charging that he had procured the government service on the basis of forged certificates, and the petitioner was asked to show cause within a stipulated time, as to why his services be not terminated on this ground.
9. It is again an admitted fact that the petitioner did not file any reply to the charge sheet. Nevertheless, from the records, it is clear that the matter did not proceed further as a case of a temporary government servant but there seems to have been an inquiry officer, who was appointed in the matter and he subsequently submitted his inquiry report. There is a mention of the inquiry report dated 07.08.2015 in the termination order dated 21.01.2016. There is no recital or averments in the 3 writ petition that the petitioner was not served a copy of the inquiry report.
10. Learned counsel for the petitioner would argue that there has been a violation of the principles of natural justice and fair play inasmuch as it was for the prosecution to have proved its charges, which they have failed to do.
11. Learned counsel for the State, on the other hand, would argue that the charges against the petitioner are serious in nature inasmuch as not only did he procure appointment in government service on the basis of forged and fabricated certificates but on complaint, it was revealed that in the school record, there is no mention of a person such as the petitioner right since 1981. Thereafter, the Class VIII certificate submitted by the petitioner was also found to be forged and fabricated. Consequently an inquiry was conducted again on 25.02.2015 wherein it was found that the signatures do not match.
12. Though, it is true that there was an inquiry in the matter and inquiry report was also considered, however whether this inquiry report has been served to the petitioner or not is not fully established from the record. There is no denial of the same by the State, however, on this allegation. The petitioner has been serving in the department for the last 20 years and the termination order only recites that his services are being terminated on a one month notice treating him to be a temporary employee. Considering therefore, the extreme nature of the punishment, the authorities have not proceeded in the manner they should have.
13. In view of the aforesaid, the writ petition is allowed considering the infirmity in the order dated 21.01.2016, the order dated 21.01.2016 is set aside.
14. All the same, the status of the petitioner in the department would remain as that of a suspended employee as the writ petition has been allowed merely on a technicality. The department may hence initiate a disciplinary proceeding against the petitioner by giving a charge sheet to the petitioner. The department would be at liberty to initiate fresh 4 disciplinary proceedings against the petitioner, which would mean initiating the proceedings from the point of time handing over the charge sheet. It is, however, made clear that the disciplinary proceedings be conducted against the petitioner as expeditiously as possible but definitely within a period of six months from the date of production of a certified copy of this order. This shall, however, be subject to the full cooperation of the petitioner in the disciplinary proceedings. It is further made clear that petitioner will also be liable to get subsistence allowance for the period during the present enquiry only, as that is presently to be considered as a period of suspension.
15. No other monetary benefit is liable to be given to the petitioner as of now as that would depend upon the findings and the order passed in the departmental proceeding.
(Sudhanshu Dhulia, J.) 03.03.2017 Ankit