Court No. - 58
Case :- WRIT - A No. - 36969 of 2012 Petitioner :- Mohd. Akaram Respondent :- State Of U.P. And Others Counsel for Petitioner :- Zafeer Ahmad Counsel for Respondent :- C.S.C.,C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order passed by the District Panchayat Raj Officer, District Moradabad dated 28.04.2012, whereby the petitioner's representation made against the order cancelling his engagement has been rejected. This order has been passed in purported compliance of earlier adjudication made by this Court in Writ-A No.63878 of 2010.
Facts, giving rise to filing of the present petition have been noticed by this Court while deciding the earlier Writ-A No.63878 of 2010 dated 30.01.2012, and the same is reproduced hereinafter-:
"The petitioner is aggrieved by the order dated 22.7.2010 passed by the Block Development Officer, Block Kundarki, District Moradabad whereby the appointment of the petitioner as Technical Assistant has been terminated and a direction has also been issued for a recovery of Rs. 21286/-.
Briefly stated, Office of the Chief Development Officer Moradabad issued an advertisement dated 23.5.2008 which was published in the Newspaper, inviting the applications from the eligible candidates for the appointment as Technical Assistant in Mahatma Gandhi Rashtriya Gramin Rojgar Guarantee Yojana, hereinafter referred as MANREGA. A copy whereof is annexed as annexure-1 to the writ petition.
In pursuant to the said advertisement, the petitioner had submitted his application for the said post. The petitioner's name found place in the list of successful candidates and he joined on 8.7.2008. While, the petitioner was working as Technical Assistant in Nyay Panchayat and village Panchayat Bhandri, Block Kundarki a complaint was made against him to the Joint Commissioner Development with regard to some fake payment made under the said scheme.
An inquiry was conducted by the Joint Development Officer, Moradabad and after completing the said inquiry, the inquiry report was submitted to the Commissioner. On the basis of the said ex parte report dated 6.4.2010, the impugned order has been passed for recovery of a sum of Rs. 21286/- and his service has been terminated.
Learned counsel for the petitioner Sri G.C.Pant has submitted that petitioner has not been given any opportunity before passing the impugned order. He has further submitted that order passed by respondent no. 6 isstigmatic, therefore, opportunity was necessary. He further submitted that the foundation of the order is a preliminary report of Joint Development Officer. However, copy of the said report was also not supplied to him.
Learned Standing Counsel submitted that a show cause notice was issued to the Pradhan, a copy whereof is annexed as annexure-3 to the counter affidavit.
I have considered the rival submissions advanced by the learned counsel for the parties.
The petitioner has stated in para-20 of the writ petition that no opportunity was afforded to the petitioner and his termination from service was based on preliminary inquiry, no final inquiry has been made, the reply of the said paragraph nos. 20 and 21 of the writ petition has been given in para 10 of the counter affidavit. For the sake of convenience paragraph nos. 20 and 21 of the writ petition and para-10 of the counter affidavit have been extracted herein below'
"Para-20 of the writ petition- That while passing the order of termination the petitioner's contract as Technical Assistant, the respondent no. 6 did not perused the record that there was only preliminary inquiry held in the matter in which the petitioner was not heard and only on the basis of preliminary inquiry his contract was terminated.
Para-21 of the writ petition- That the order dated 22.7.2010 is against the principle of natural justice as without awaiting the results of final inquiry against the Pradhan of village Bhandari who was equally involved in the matter, the order against the petitioner is bad in the eyes of law and thus, to be liable to be quashed.
Para- 10 of the counter affidavit- That in reply to the contents of para 21 to 23 of the writ petition it is stated that in view of the facts and circumstances stated above, the petitioner is not entitled to any relief from this Hon'ble Court. The writ petition is devoid of merit and is liable to be dismissed with costs".
From perusal of the impugned order as well as paragraph nos. 20 and 21 of the writ petition, it is clear that no opportunity was afforded to the petitioner before passing the impugned order. The impugned order is based on the ex parte report of fact finding inquiry. There is nothing on record that copy of the said inquiry report was served on the petitioner. Since, the petitioner has not been given opportunity, the impugned order is vitiated on the ground of violation of principle of natural justice.
In view of the aforesaid facts, the writ petition is disposed of and the matter is remitted back to the respondent no. 3 to pass an appropriate order after giving opportunity of hearing to the petitioner within a period of three months from the date of production of certified copy of this order before him. The impugned order dated 22.7.2010 is set aside. No order is passed as to costs.
Learned counsel for the petitioner further states that the petitioner has already deposited the amount as mentioned in the impugned order and a receipt whereof has also filed as annexure-7 to the writ petition. The said amount shall be subject to the further order passed by respondent no. 3."
This Court had found that impugned action against the petitioner was taken on the basis of ex-parte report, and that there was otherwise nothing on record to show that the said report was served upon the petitioner or that he was given an opportunity to confront it.
While rejecting the writ petition, District Panchayat Raj Officer has again reiterated the report of Joint Development Commissioner dated 21.04.2012, as per which the petitioner was present at the time of spot verification.
This report has been brought on record by way of counter affidavit and is Annexure- 1 thereof. This report does not show that technical assistant was also associated in the spot verification exercise or that he was given an opportunity to submit his version. The report of the Joint Development Commissioner has also been annexed alongwith writ petition as annexure-5. It is clear from the report that the Project Director, Executive Engineer and Block Development Officer alone were present at the time of spot inspection. The observation in the order impugned that petitioner was present at the time of spot verification or that he failed to demonstrate that there was any error in the inquiry is, therefore, not liable to be sustained. Petitioner's defence that work was actually undertaken in the village otherwise has not been examined and has been completely ignored. The mere deposit of amount by petitioner cannot be construed as admission of his guilt, inasmuch as, this Court in its earlier judgement dated 30.01.2012 had clearly provided that such deposit of amount would be subject to the orders to be passed by respondent no.5.
The determination of petitioner's guilt by the District Panchayat Raj Officer, therefore, cannot be sustained, inasmuch as it is found to be inconsistent with the observations made earlier by this Court. Petitioner's plea otherwise has not been got examined on merits.
Consequently, this petition succeeds and is allowed. The order dated 28.04.2012 stands quashed. The District Panchayat Raj Officer, Moradabad shall pass a fresh order, keeping in view the observations made by this Court in the previous judgement dated 30.01.2012, after affording an opportunity of hearing to the petitioner within a period of four months from the date of presentation of certified copy of this order.
Order Date :- 27.2.2019 Radhika