Allahabad High Court
Surendra Nath Tripathi & Anr. vs State Of U.P.Thru Prin.Secy. ... on 11 November, 2019
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- SERVICE SINGLE No. - 30842 of 2019 Petitioner :- Surendra Nath Tripathi & Anr. Respondent :- State Of U.P.Thru Prin.Secy. Cooperative Lko & Ors. Counsel for Petitioner :- Daya Shankar Yadav,Sanjiv Kumar Singh Counsel for Respondent :- C.S.C.,Shireesh Kumar Hon'ble Manish Mathur,J.
Heard Sri D.S. Yadav learned counsel for petitioners, learned State Counsel appearing on behalf of opposite party No.1, 3 and 4 and Sri Shireesh Kumar learned counsel appearing for opposite parties 2 and 5.
Petitioner has challenged the order dated 2nd November, 2019 whereby not only departmental or other proceedings have been directed to be instituted against Secretaries of the society concerned but directions for lodging of first information report against said persons has also been directed.
Learned counsel for petitioner submits that since petitioners are currently holding the post of Secretaries of societies concerned, therefore the order is naturally against him leading to filing of present writ petition. It has been submitted that prior to passing of impugned order, show cause notices were issued to petitioners to which replies were also submitted but have not at all been considered while passing an order dated 2nd September, 2019.It has been submitted that once notices were issued to petitioner and reply submitted by them in pursuance thereof, it was incumbent upon the opposite parties to have considered the reply so submitted prior to passing of order impugned herein.It has been further submitted by learned counsel for petitioner that order impugned in the present writ petition is clearly punitive in nature and could not have been passed without considering reply submitted by him.
Sri Shireesh Kumar learned counsel appearing on behalf of opposite parties 2 to 5 however disputes the submissions raised by learned counsel for petitioners with the submission that show cause notice issued to petitioners prior to passing of impugned order was not the subject matter of the order dated 2nd November, 2019 and was merely to seek a clarification from petitioners as such there was absolutely no requirement to have considered the reply submitted by petitioners prior to passing of impugned order. It has also been submitted that even otherwise the petition is not maintainable against order dated 2nd November, 2019 as it is premature in nature since no final orders have been passed and merely directions for holding of inquiry and lodging of first information report have been issued.
Learned counsel for opposite parties has also relied upon (2019) 2 SCC 660 Mahesh P. Pardasani versus State of U.P. and others in which it has been held that the petition is not maintainable only on the basis of apprehension unless an actual order has been passed.
Considering the submissions raised by learned counsel for parties, and upon a perusal of order dated 2nd November, 2019, it is clear that directions have been issued not only for holding of departmental or legal proceedings against Secretaries of society concerned but directions for lodging of first information report against said persons have also been passed. It has not been disputed by opposite parties that petitioners are indeed holding the post of Secretaries of societies concerned and therefore would clearly be effected by the impugned order.
So far as submission of learned counsel for opposite parties is concerned regarding maintainability of writ petition, it is clear that order for initiation of legal proceedings has been directed against petitioners along with directions for lodging of first information report. Clearly the replies submitted by petitioners have not been considered. Although as has been submitted, the show cause notices may not have been clearly the subject matter of order dated 2nd November, 2019 but it is the considered opinion of the Court that once show cause notice had been issued to the petitioners who submitted a reply, at least some subjective satisfaction should have been recorded by the authority concerned prior to passing of order dated 2nd November, 2019.
So far as the case law relied upon by learned counsel for opposite parties is concerned, it is quite apparent that vide order dated 2nd November, 2019 matters have travelled beyond mere apprehension since specific directions for initiation of legal proceedings and for lodging of first information report have been issued. It has been stated upon instructions by learned counsel for opposite parties as of now, no further proceedings have taken place in pursuance of impugned orders. So far as initiation of departmental or any other civil legal remedies are concerned, it is quite clear that no prejudice would be caused to the petitioner. However lodging of first information report would definitely have serious consequences upon the petitioners and therefore could not have been directed in such a casual manner without the authority recording even a subjective prima facie satisfaction regarding culpability of petitioners.
However in view of submission advanced by learned counsel for opposite party No.5, as instructed by his client that lodging of first information report would be effected only after ascertaining prima facie culpability of petitioners with regard to charges levelled against them, there does not seem any occasion to interfere with the order dated 2nd November, 2019 at present in view of such statement. However it shall be open to opposite parties to continue with any other civil legal proceedings against petitioners as indicated in the impugned order.
With the aforesaid directions, the petition stands disposed of.
Order Date :- 11.11.2019 prabhat