Allahabad High Court
Brajendra Bahadur Singh & Anr. vs State Of U.P. Thru. Prin. Secy. Rural ... on 19 July, 2021
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 7 Case :- SERVICE SINGLE No. - 22441 of 2020 Petitioner :- Brajendra Bahadur Singh & Anr. Respondent :- State Of U.P. Thru. Prin. Secy. Rural Development,Lko.&Ors Counsel for Petitioner :- Vijay Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Vijay Kumar Srivastava, learned counsel for the petitioners and the learned Standing Counsel for the State-respondents.
By means of this writ petition, the petitioners have prayed for the following reliefs:-
"1. to issue a writ, order or direction in the nature of certiorari thereby quashing the recovery orders dated 23.10.2020, passed by the opposite party No.3, as contained in Annexure No.1 to the writ petition.
2. to issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to make any recovery from the petitioner in pursuance of the order dated 23.10.2020."
At the outset, learned counsel for the petitioners has informed the Court that by means of order dated 08.01.2021 an interim order was granted in favour of the petitioners. For convenience, the interim order dated 08.01.2021 is being reproduced here-in-below:-
"By way of this petition, the petitioners have prayed for quashing the recovery order dated 23.10.2020 passed by respondent no.3 and also to command the respondents not to make any recovery from the petitioners.
Learned counsel for the petitioners has submitted that the petitioners have been appointed as computer operator under the MANREGA scheme in a fixed honorarium. A first information report was lodged but after investigation, final report has been submitted on 11.03.2020. It has also been submitted that impugned order has been passed ignoring the inquiry report dated 16.11.2019 in which the petitioners have been exonerated from the charges and the findings have also been recorded that the petitioners are not found guilty for the payment.
On the other hand learned counsel for the State has opposed the submissions made by the learned counsel for the petitioners and prays for time to file the counter affidavit.
After hearing the learned counsel for the parties, I am of the view that the matter requires consideration.
Let counter affidavit be filed within four weeks. The petitioners may file rejoinder affidavit within two weeks thereafter.
List the matter on 22.02.2021.
Till the next date of listing, no coercive measures shall be adopted against the petitioners pursuant to order darted 23.10.2020."
Learned counsel for the petitioners has submitted that the petitioners are serving on the post of Computer Operator (MNREGA) and the impugned order of recovery has been issued in contradiction of enquiry report inasmuch as the petitioners have enclosing the enquiry report as Annexure No.23 to the writ petition, which clearly indicates that the present petitioners are not liable in any manner whatsoever for the loss suffered by the department. Learned counsel for the petitioners has referred the internal page Nos.6,7 & 8 of the enquiry report, which clearly indicates that the petitioners may not be held responsible for the loss in question. Even in the First Information Report (FIR) lodged against the petitioners, the final report dated 11.03.2020 has been filed by the Investigating Officer, which is contained as Annexure No.18 to the writ petition.
Learned counsel for the petitioner has drawn attention of this Court towards the impugned order (Annexure No.1) wherein vide internal page No.2, it has been indicated that as per findings of the Enquiry Officer dated 16.11.2019, one Mohd. Idrish Seikh the then Village Panchayat Officer, and one Sri Dipak Kumar the then Additional Programme Officer (MNREGA), Jagatpur are responsible for irregularities and no such allegations have been levelled against the petitioners. However, without any cogent reason it has been averred in the impugned order that the recovery in question may be executed from the petitioners also. It appears, as per Sri V.K. Srivastava, that such order of recovery has been passed without application of mind and without perusing the findings of the Enquiry Officer, which is contained as Annexure No.23 of the writ petition.
Sri Srivastava, learned counsel for the petitioners has also submitted that in the counter affidavit no explanation to this effect has been given and the learned Standing Counsel has also submitted that the petitioners being a Computer Operator (MNREGA) were not directly responsible as per findings of the Enquiry Officer, however some other employees, whose names referred in the impugned order, have been held responsible.
Sri Srivastava, learned counsel for the petitioners has further submitted that the sole reason assigned in the impugned order against the petitioners is that during the period in question the Computer Operators (MNREGA) were on strike, the petitioners have been paid honorarium for that period, therefore, the petitioners would have discharged their duties during the period of strike. However, this fact has got no nexus with the allegations and loss suffered by the department.
The submission of Sri Srivastava, learned counsel for the petitioners regarding MNREGA scheme where the Additional Programme Officer, Technical Assistant, Computer Operator and the Assistant Accountant are being appointed on contract basis on fixed honorarium and as per the job chart no financial powers are given to them in respect of fund transfer appears to be correct and even in the enquiry the Enquiry Officer has given his finding on this point saying that the petitioners being the Computer Operator (MNREGA) may not be held liable in any manner whatsoever for transferring the funds.
Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that when the Enquiry Officer has not found the petitioners guilty in any manner whatsoever and the responsibility has been fixed on some other employees, then the petitioners may not be held responsible for the loss in question and the petitioners have been paid honorarium for the period when the Computer Operators (MNREGA) of the State of U.P. were on strike, does not have any nexus with the allegations of loss suffered by the department. Therefore, the submission of Sri Srivastava, learned counsel for the petitioner on that score appears to be appropriate.
Further, neither the Enquiry Officer while conducting the departmental enquiry in the issue in question nor the Investigating Agency while making investigation pursuant to the First Information Report have found any material against the petitioners establishing their fault, therefore, the Enquiry Officer has given finding in favour of the petitioners and the police Investigating Agency has submitted a final report in favour of the petitioners.
Therefore, in view of the aforesaid facts and circumstances, the impugned order dated 23.10.2020 being illegal, arbitrary, discriminatory and unwarranted, is not sustainable in the eyes of law.
Accordingly, the writ petition succeeds and is allowed. The impugned order dated 23.10.2020, passed by the opposite party No.3, which is contained as Annexure No.1 to the writ petition, is hereby quashed so far as it relates to the petitioners and the interim order dated 08.01.2021 is made confirmed.
The consequence to follow.
No order as to costs.
Order Date :- 19.7.2021 Suresh/