Allahabad High Court
Kailash Narain Sirothia vs State Of U.P. And Others on 22 July, 2010
Author: Anil Kumar
Bench: Anil Kumar
1
Reserved
Court No. - 26
Case :- WRIT - A No. - 6939 of 2000
Petitioner :- Kailash Narain Sirothia
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Ram Shiromani Shukla,R.S. Mishra
Respondent Counsel :- C.S.C.
Hon'ble Anil Kumar,J.
Heard learned counsel for the petitioner and learned Standing Counsel and perused the record.
Factual matrix of the present case as submitted by learned counsel for the petitioner are that in the year 1983 an advertizement was issued for appointment on the post of Chowkidar in the office of Superintendent of Police, Vigilance Establishment, Jhansi.
In response to the abovesaid advertizement, the petitioner submitted his candidature and was duly selected by the Selection Committee constituted for the said purpose. Thereafter, the Superintendent of Police (Headquarter), U.P. Vigilance Establishment, U.P., Lucknow issued an order dated 12.01.1984 thereby appointing the petitioner on the post of Chowkidar. In pursuance to the said order, petitioner joined his duties. While petitioner was working and discharging his duties in the capacity of Chowkidar, he was implicated in a Criminal case No. 52/88 under Section 379/411 I.P.C. and was arrested by the police (G.R.P.), Jhansi on 25.10.1987 and was sent to jail.
In view of the abovsaid facts, the petitioner was placed under suspension by order dated 16.11.1987. The petitioner was released on bail after remaining in jail up to 02.11.1987 and by judgment dated 05.02.1991 the petitioner was initially convicted. But instead of sentencing him to any imprisonment the Criminal Court has passed an order to release him under section 4 of the Probation of First Offenders Act, on execution of two sureties in the amount of Rs. 3000/- each and a personal bond in the like amount for a period of 3 years for maintaining good behaviour. The petitioner was also required to pay compensation to the extent of Rs. 2000/-. Feeling aggrieved by the order dated 05.02.1991, the petitioner filed a criminal appeal No. 21 of 1991 Kailash Narain Vs. State of U.P. On 21st July, 1991 2 respondent No. 3 passed an order thereby reinstating the petitioner in service (Annexure-5) and a show cause notice was also issued to the petitioner in the month of July, 1992 (Annexure-6) thereby directing the petitioner to submit his reply as to why the subsistence allowance already paid to him may not be considered as final. However, respondent No. 3 by means of the order dated 24th July, 1992 invoking the provisions and exercising power under U.P. Temporary Govt. Servants (Termination of Service) Rules, 1975, terminated the services of the petitioner.
Aggrieved by the order dated 24.07.1992, petitioner challenged the same before this Court by way of Writ Petition No. 31418 of 1992 (Annexure-10), and on 01.09.1992 this court has passed an interim order, the operative portion of the same is as under:-
"Until further orders, the operation of the order dated 24.7.92 shall remain stayed."
In pursuance to the same, the petitioner was allowed to join his duties.
In the meantime, by order dated 03.08.1993, the criminal appeal No. 21 of 1991 Kailash Narayan Sirothia Vs. State of U.P. and others was allowed with the following direction:--
"Appeal is hereby allowed. Conviction and sentence against the accused is set aside. Case is remanded back to the learned trial court for framing proper and correct charge, after which learned Magistrate shall give an opportunity to the prosecution to produce any evidence if they like then opportunity should be given to the appellant accused to recall any witness for cross-examination and giving any further defence if he so likes. The accused appellant shall appear before the court of Judicial Magistrate, Railways (Now Addl. Chief Judl. Magistrate, Railways), Jhansi on 24.08.1993. Let the file be sent to the court of Addl. Chief Judicial Magistrate, (Railways)."
Moreover, in the said matter, the final orders were also passed thereafter by the competent criminal court on 06.05.1997 thereby giving the benefit of doubt to the petitioner and acquitted him.
In the meantime, on 03.05.1999, the writ petition (No. 31418 of 1992) filed by the petitioner against the order dated 24th July, 1992 was dismissed by this 3 Court with the following direction:-
"After arguing the petition at considerable length, Shri A.R.B. Kher, learned counsel of the petitioner, prays that instant petition may be dismissed as not pressed in order to enable the petitioner to avail alternative remedy before the U.P. Public Service Tribunal through claim petition. Shri S.G. Hasnain, learned Additional Chief Standing Counsel of the State of U.P. representing the respondents has no objection.
Accordingly, the petition is dismissed as not pressed. The interim order dated 1st September, 1992 is vacated."
Further in pursuance to the abovesaid facts, the petitioner challenged the termination order dated 24th July, 1992 by filing a Claim Petition (No. 1109 of 1999) before the State Public Service Tribunal. Thereafter on 16.10.1999 (Annexure-16) , Superintendent of Police Vigilance Sector Jhansi (O.P. No. 1) after considering the case of the petitioner and other relevant factors passed an order thereby cancelling the order dated 24th July, 1992 by which the services of the petitioner has been terminated with the condition that the said order will be effective only after the petitioner withdraw his claim petition filed before the State Public Service Tribunal. In view of the abovesaid facts, the petitioner moved an application before the State Public Service Tribunal, Indira Bhawan and the said application was allowed, the claim petition was dismissed as withdrawn by order dated 26.10.1999 by the Tribunal. On 19th January, 2000, Director Vigilance, U.P., Lucknow (O.P. NO. 2) passed on order inter alia stating therein that the respondent No. 3 has got no authority whatsoever to cancel the order dated 24.07.1992 as such the same is illegal and accordingly canceled the order dated 16.10.1999.
In pursuance to the same, the order dated 27.01.2000 (Anneuxre-19) has been passed by which the order dated 24th July, 1992 was revived and the petitioner was removed from services.
Aggrieved by the abovesaid action, the petitioner filed the present writ petition before this Court challenging the same. On 08.02.2000, this Court after hearing the counsel for the parties had passed an order, the relevant portion of the same is as under:-
"By order dated 16.10.99, Superintendent of Police (Vigilance), Jhansi has 4 cancelled the earlier order passed by Superintendent of Police (Vigilance), Jhansi. With a condition that the petitioner shall have to withdraw his claim petition from State Public Service Tribunal. In pursuance of this order dated 16.10.99 the petitioner has withdrawn his claim petition from State Public Service Tribual on 26.10.99. Therefore, the petitioner became entitled to be taken back his service as Chaukidar as the order dated 16.10.99 became operative. The respondents after getting the claim petition of the petitioner dismissed by the State Public Service Tribual have passed an order dated 19.1.2000 that the order dated 24.7.92 could not be cancelled by Superintendent of Police (Vigilance), Jhansi by his order dated 16.10.99. This view taken by respondent No. 2 appears to be erroneous in view of the fact that if an order is passed by Superintendent of Police (Vigilance), Jhansi, it can be cancelled or withdrawn by Superintendent of Police (Vigilance), Jhansi. Therefore, the petitioner is entitled for interim order.
Until further orders of this Court, the effect and operation of order dated 19.1.2000 cancelling the order dated 16.10.99 passed by Superintendent of Police (Vigilance), Jhansi shall remain stayed. The petitioner shall be reinstated in service as Chaukikar and paid his salary. This order shall be complied by respondent No. 2 within a period of two months from the date a certified copy of this order is produced before respondent No. 2."
In pursuance to the same, the petitioner is working and discharging his duties on the post in question and the said fact has not been disputed by the counsel for the parties. Learned counsel for the petitioner while assailing the impugned order submits that the order dated 24.07.1992 passed by respondent No. 3 thereby terminating the services of the petitioner by invoking the provisions as provided under U.P. Temporary Govt. Servants (Termination of Service) Rules, 1975 is only illegal, arbitrary as the said rule is not applicable in the present case. Further, the services of the petitioner has been terminated by way of punishment without providing any opportunity whatsoever to him as such the order dated 24.07.1992 is arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India.
Learned counsel for the petitioner, further submits that the sole basis of passing of the order dated 24.07.1992 as the Criminal case which was initially instituted against the petitioner in which he was acquitted, so there is no 5 justification and reason on the part of the respondents to pass the order dated 19.01.2000 and 27.01.2000 as such the said orders are passed without providing any opportunity whatsoever to the petitioner as such the said orders are arbitrary in nature and in violation of principle of natural justice.
It is also contended on behalf of the petitioner that once by means of the order dated 16.10.1999 has been passed by which the order dated 24.07.1992 has been withdrawn then prior to passing of the order dated 19.01.2000 and 27.01.2000 an opportunity of hearing should have been given to the petitioner in order to put up his version which was not done in the present case, as such the impugned orders are arbitrary in nature and liable to be set aside.
Learned Standing Counsel on the other hand defending the orders which are under challenge submits that by order dated 24.07.1992, the services of the petitioner was rightly terminated by respondent No. 3 thereby invoking the provisions as provided under Rules of 1975 and further as the respondent No. 3 has got no power whatsoever to pass an order dated 16.10.1999 thereby cancelling the order dated 24.07.1992 so the order dated 19.01.2000 passed by the respondent No. 2 thereby cancelling the said order and the order dated 27.01.2000 in pursuance to the same are perfectly valid, accordingly, the present writ petition filed by the petitioner lacks merit and liable to be dismissed.
I have heard the counsel for the parties and perused the record.
First and foremost question which is to be decided and adjudicated in the present case is whether the order dated 24.07.1992 passed by respondent No. 3 is in accordance with the provisions as provided under rules 1975 or not? After going through the facts and circumstances of the case and material on record in the present case in view of the Criminal Case No. 52/1988which was filed against the petitioner and he was placed under suspension and thereafter a show cause notice was also issued to the petitioner to submit his reply however without waiting that the petitioner should submits his reply the impugned order dated 24.07.1992 has been passed by which the petitioner has been terminated from services. As such the said facts compelled the punishing authority to pass an order of termination thereby terminating the services of the petitioner.
Further, the provision of U.P. Temporary Government Service ( Termination of Service ) Rules,1975 would not apply where a temporary Government Servant, 6 is sought to be removed by way of punishment. If there is a termination simplicitor, which is intended to be ordered in respect of a Government Servant Rule 3 of the Rules can be invoked. But if a government servant, who is governed by these rules is sought to be removed on the ground of misconduct, embezzlement or lack of integrity, something more is required to be done before the termination of Government servant is ordered. Something more which must be consistent with the constitutional provisions and with the principles of natural justice. At least an opportunity of hearing should be given to such Government employee to explain his misconduct, lack of integrity and negligence of duty.
In the case of State of U.P. and another Vs. Prem Lata Misra (Km) and others (1994) 4 SCC 189 Hon'ble Supreme Court has held that it is settled law that the court can lift the veil of the innocuous order to find whether it is the foundation or motive to pass the offending order. If misconduct is the foundation to pas the order then an enquiry into misconduct should be conducted and an action according to law should follow. But if it is motive, it is not incumbent upon the competent officer to have the enquiry conducted and the service of a temporary employee could be terminated, in terms of the order of appointment or rules giving one month's notice or pay/ salary in lieu thereof .Even if an enquiry was initiated could be dropped midway and action could be taken in terms of the rules of order of appointment.
In the case of Radhey Shyam Shukla Vs. State of U.P. and others (2008) 1 UPLBEC 177 the Hon'ble Supreme Court after considering the various case laws has held in the cases of Triveni Shanker Saxena V. State of U.P. 1992 SCC(L&S) 440 and State of U.P. V. Prem Lata Misra (1994) 4 SCC 189 that in the former case, the termination order was simple order which did not cast any stigma and there were several adverse entries in the confidential reports. The termination was as per rules. In the letter case, the employees superiors complained that the employee was not regular in her work and was in the habit of leaving office during office hours. A simple order of termination was passed in terms of the order of her temporary appointment. There was no prior enquiry. In both these cases, the termination orders were upheld.
In Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Center for Basic Sciences, Calcutta and others, reported in (1999) 3 SCC,60, the Hon'ble Supreme Court in paragraph 21 of the report observed as under:-
7"If findings were arrived at in an enquiry to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as " founded" on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, as the same time, he did not want to continue the employee against whom there were complaints, if would only be a case of motive and the order would not be bad. Similarly is the position if the employer did not want to enquiry into the truth of the allegation because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegation would be a motive and not the foundation and the simple order of termination would be valid."
Similarly in Chandra Prakash Shahi Vs. State of U.P. and others, (2000)5 SCC 152, the Hon'ble Supreme Court articulated that if for determination of suitability for the post or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate the services, the order will not be punitive in nature. But , if there are some allegations of misconduct and an inquiry is held to find out the trust of that misconduct and thereafter the order of termination is passed, the order would be punitive in nature .
In V.P. Ahuja v. State of Punjab,(2000) 3SCC 239, the Apex Court reiterated that services of temporary servant and even of probationer cannot be terminated arbitrarily, or can those services be terminated in a punitive manner without complying with the principles of natural justice as they are also entitled to certain protection.
In the case of Nar Singh Pal Vs. Union of India and others(2000) 3 SCC 588, Hon'ble Supreme Court has held that the reasoning of the Tribunal is fallacious. If an order had been passed by way of punishment and was punitive in nature, it was the duty of the respondents to hold a regular departmental enquiry and they could not have terminated the services of the appellant arbitrarily by paying him the retrenchment compensation. The observation of the Tribunal that the respondent had a choice either to hold a regular departmental enquiry or to terminate the services by payment of retrenchment compensation is wholly incorrect.
In the case of Hari Ram Maurya Vs. Union of India and others (2006) 9 8 SCC 167, Hon'ble Supreme Court has held that from the order of termination Annexure P-7, it appears that the same refers to the show- cause notice dated 20.8.2002 which is to be found at Annexure P-5 . It is stated therein that the appellant demanded kickback with a view to help the complaint to get a favorable order in the pension matter. That being so, there was a clear charge of bribery levelled against the appellant. No doubt, the appellant was a temporary employee, but if he is sought to be removed on the ground that he was guilty of the charge of bribery, it becomes necessary for the respondent Union of India to hold an inquiry and thereafter to act in accordance with law. In this case, admittedly, no inquiry was conducted , and that is obvious even from Annexure P-7 , the latter described as disengagement of casual labour. We, therefore, allow this appeal and set aside the order of the High Court as also the order of termination Annexure P-7 dated 30.9.2002. This, however, will not prevent the respondents from taking action in accordance with law.
In the case of State of U.P. and others Vs. Vijay Shanker Tripathi (2005) 6 SCC 135 Hon'ble Supreme Court has held that from a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or to motive on the ground of unsuitability to continue in service.
A Division Bench of this Court in the case of Kailash Bharti Vs. State of U.P. and others 2005 (23) LCD 436 has held that the factual situation indicates that had there been no allegation of drunkenness there would have been no order of termination. The papers and affidavits show this and those are all matters of record. The whole thing having come to the notice of the Writ Court it cannot now say that the Court and everybody else will now only look at the faceless, or the unreasoned; letter of termination, but it will show its eyes to the history of its genesis. This type of self-imposed partial blindness is not permitted to the Writ Court. As such the order of termination brought into existence, because an allegation of drunkenness against the writ petitioner was found without any 9 hearing to be true, has to be set aside.
On going to the background of the present case, it is crystal clear that the bridge foundation of passing of the impugned order of termination thereby terminating the services of the petitioner was a criminal case which was initiated against the petitioner and due to said fact the petitioner was sent to jail. Accordingly, the action of the respondent No. 3 thereby terminating the services of the petitioner by invoking the provisions as provided under U.P. Temporary Govt. Servants (Termination of Service) Rules, 1975 is an action which is wholly arbitrary and unsustainable under law.
Further as a matter of record in the present case, the respondent No. 3 had passed an order dated 16.10.1999 inter alia stating therein that the order dated 24.07.1992 by which the services of the petitioner was terminated was cancelled with the condition that the petitioner will withdraw the claim petition filed by him before the Tribunal challenging the said order.
In view of the abovesaid assurance given by the respondent No. 3, the petitioner withdrew his claim petition thereafter the respondent No. 2 had passed an order 19th January, 2000 canceling the order dated 16.10.1999 and in pursuance to the same the order dated 27th January, 2000 was passed by respondent No. 3 that as by means of the order dated 19th January, 2000 the order dated 16.10.1999 has been cancelled the order dated 24.07.1992 by which the services of the petitioner was terminated.
In view of the assurance given by concerned opposite parties by means of the order dated 16.10.1999, petitioner had withdrawn the claim petition filed by him before the Public Service Tribunal. So the subsequent action taken by the respondent Nos. 2 and 3 thereafter passing the order dated 19.01.2000 and 27.01.2000 is an action beside being arbitrary in nature and is also violative of Article 14 of the Constitution of India as well as principles of natural justice as the said order has been passed without providing any opportunity whatsoever to the petitioner and put forward this case. At this stage it is relevant to mention herein that if any order has any civil consequences, then the same must be passed after giving an opportunity to the person concerned and if any order is passed without providing any opportunity to him then is violative of the principles of natural justices and arbitrary in nature.
10Moreover, as submitted by the learned counsel for the petitioner that the orders dated 19.01.2000 and 27.01.2000 are contrary to law as laid down by this court in the case of Shiam Lal Vs. Ram Saroop and others (1971) ALJ 1349 is also correct submission. Accordingly, the orders dated 19.01.2000 and 27.01.2000 are unsustainable and liable to be set aside.
For the foregoing reasons, the orders dated 24.07.1992 and 27.01.2000 passed by respondent No. 3 and the order dated 19.01.2000 passed by respondent No. 2 are set aside, however the petitioner is not entitled for the salary of the intervening period in view of the principles of no work and no pay but the said period will be considered for other service benefits for which the petitioner is entitled as per law. Accordingly, the writ petition is allowed with above observation.
No order as to costs.
Orer Date :- 22/7/2010 Ravi/-