1. Heard Sri K.K.Mishra for the petitioner and learned Standing Counsel for the respondents.
2. The petitioner a temporary Collection Amin, was suspended on 16th September, 1980 being accused in criminal case under Section 148, 149 and 302 I.P.C. He was convicted and sentenced for two years' imprisonment under Section 148 I.P.C. and for life imprisonment under Section 302 I.P.C. vide judgment dated 4th February, 1980 passed by the IVth Addl. Sessions Judge, Fatehpur in S.T.No.718 of 1980. The authorities also found that petitioner has filed false medical certificates and therefore, has defrauded his superior authorities. In view of his conviction and on the allegation of forged medical certificates, he was dismissed by Sub-Divisional Magistrate, Khaga, Fatehpur by order dated 2nd September, 1982 w.e.f. 4th February, 1982. The petitioner filed a criminal appeal, which was allowed by this Court vide judgment dated 19th December, 2006 and the petitioner was acquitted. Thereafter the petitioner appears to have approached District Magistrate concerned by making representation and then approached this Court by filing Writ Petition No.42684 of 2008 which was disposed of vide judgment dated 21st August, 2008 with the following order:
"Heard learned counsel for the petitioner and learned Standing Counsel.
Challenge is to the order of dismissal dated 2.9.1982 passed by the Sub-Divisional Officer.
Petition is reported to be barred by 25 years and 262 days. Otherwise also, petitioner has remedy to take up the matter to the higher authorities.
In view of above, this petition is dismissed.
However, if the appeal is filed, within a period of 15 days from today, then that will be decided in accordance with law, preferably within a period of three months from the date of filing a certified copy of this order along with the appeal."
3. Pursuant to the aforesaid, petitioner submitted his memo of appeal on 2nd September, 2008 along with certified copy of the judgment, which has been rejected by the Collector, Fatehpur by order dated 26.11.2008. The appellate authority held that even though petitioner has been acquitted in criminal case but so far as the charge of submitting false and fictitious medical certificates are concerned, he has not absolved therefrom and therefore, cannot be reinstated in service. It is against this order, the present writ petition has been filed. The petitioner's categorical case is that no departmental enquiry was ever conducted against him. So far as charge of submitting false medical certificates is concerned, it was never found proved in any disciplinary enquiry. He also submits that this was not a matter concerned in the criminal case where he was convicted on 4th February, 1982 and was acquitted by this Court in appeal on 19.12.2006.
4. In the counter affidavit, respondents have not given any reply as to whether any departmental enquiry was ever conducted against the petitioner in order to find him guilty of furnishing false and fictitious medical certificates. If that be so, for the said reason, the petitioner, by way of punishment, could not be dismissed from service without complying with the provisions of departmental enquiry provided in Civil Services (Classification, Control and Appeal) Rules, 1930 applicable on the date when dismissal order in 1982 was passed. Two reasons have been assigned in the dismissal order:-
(a) Conviction in a criminal case on 4th February, 1982; and
(b) The alleged fraud played by petitioner by filing forged and fictitious medical certificates.
5. So far as the first reason is concerned, that has become non-est after criminal appeal of petitioner is allowed by this Court vide judgment dated 19.12.2006. So far as second reason is concerned, admittedly, no departmental enquiry whatsoever was ever conducted against the petitioner wherein the said charge was found proved. Hence, on that basis, the petitioner without conducting departmental enquiry could not have been punished. The appellate authority failed to consider this aspect of the matter and has erred in law, therefore, the impugned order cannot sustain.
6. Now, the question is, what relief can be granted to the petitioner. Admittedly, within the period, prescribed in statutory rules, he did not file any appeal before the competent authority against the dismissal order dated 2nd September, 1982. For the first time, statutory appeal appears to have been filed by him on 2nd September, 2008 after he was acquitted in criminal case and thereafter when this Court permitted him to file appeal vide judgment dated 21.08.2008. The responsibility for the delay of 25 years and 262 days lie upon the petitioner and he cannot be exempted from the liability of not challenging dismissal order in accordance with the procedure prescribed in the statutory rules. Having failed to render service in the department, the principle of "No Work No Pay" therefore, apply in the fact of this case, at least till the date when the petitioner preferred the appeal before the appellate authority.
7. In view of the above discussion, this writ petition is allowed with the following directions:
(a) The dismissal order dated 02.09.1982 as well as appellate order dated 26.11.2008 are hereby set aside. The petitioner shall be reinstated forthwith with all consequential benefits of seniority, pay fixation etc. except the arrears of salary from the date of dismissal till 2nd September, 2008, when he preferred, for the first time, appeal as directed by this Court.
(b) However, the period of absence shall count for the purpose of pay fixation, increment, seniority, retiral benefits etc. except arrears of salary, as directed above.
8. No costs.
Order Date :- 18.1.2011 KA