Court No. - 5
Case :- WRIT - A No. - 16039 of 2019 Petitioner :- Sampurnand Dubey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anil Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
Heard learned counsel for the petitioner and Dr. Amar Nath Singh, learned Standing Counsel appearing for the State-respondents.
The petitioner was appointed as Home Guard and was allotted Home Guard No.3406. The petitioner also took training in Firing Center conducted under the supervision of Commandant 36th Vahini PAC, Ramnagar, Varanasi.
It appears that a Case Crime No.551 of 2013, under Sections 302, 201 and 498-A IPC was registered against the petitioner at Police Station Robertsganj on 7.8.2013 in which all the family members of the petitioner has been implicated. Since the petitioner is implicated in the aforesaid criminal case, therefore, vide order dated 11.6.2019 the services of the petitioner as Home Guard has been dispensed with.
The order dated 11.6.2019 recites that a show cause notice was given to the petitioner on 6.6.2019 but the petitioner did not furnish any reply to the said show cause notice and, therefore, his services are dispensed with as the petitioner is implicated in the aforesaid criminal case in the year 2012 and the petitioner has not informed the Department about the pendency of the aforesaid criminal case.
In paragraph no.18 of the writ petition the petitioner has stated that no notice or opportunity of hearing was afforded to the petitioner by the respondents before passing the order of termination. The petitioner has further stated in paragraph no.20 of the writ petition that after being released on bail, he gave an information about the pendency of the aforesaid criminal case in the Department and thereafter duty was assigned to him.
In the counter affidavit a stand has been taken by the respondents that since there is a Government Order dated 2.11.2007 that the services of a Home Guard can be dispensed with in case, he is found to be indulged in criminal case. It is further stated in the counter affidavit that a show cause notice was issued to the petitioner but he did not reply to the said cause notice within the specified time.
Challenging the aforesaid order, learned counsel for the petitioner contended that neither any notice was issued to the petitioner nor he was afforded any opportunity of hearing before passing the impugned order of termination. He submits that the impugned order dated 11.6.2019 recites that a notice dated 6.6.2019 was issued to the petitioner, but this cannot be said to be a sufficient notice, inasmuch as, notice was issued on 6.6.2019 and dismissal order was passed on 11.6.2019. In such circumstances, the order being in violation of principles of natural justice, is not sustainable in the eye of law. He further contended that the petitioner has made specific averment in paragraph no.20 of the writ petition that he gave due information to the respondent- authority about the pendency of criminal case and thereafter he was assigned duty. He further submits that the averment made in paragraph-20 of the writ petition has been replied by the respondents in paragraph-14 of the counter affidavit and no specific denial has been made by the respondents to the averment made in paragraph-20 of the writ petition.
Accordingly, he submits that recital in the order impugned that the petitioner did not give due information about the pendency of the aforesaid criminal case to the department is incorrect, and had he been given an opportunity of hearing, he would have demonstrated that he had given due information to the respondent-authority about the pendency of the aforesaid criminal case and thereafter he has been assigned duty Learned Standing Counsel appearing for the respondents submits that the petitioner does not dispute the fact that there is a criminal case pending against the petitioner and, therefore, in view of the Government Order dated 2.11.2007 the services of the petitioner has rightly been dispensed with. He has placed reliance upon the Government Order dated 2.11.2007.
Paragraph-4 of the Government Order is extracted here-in-below:
"4. यह भभी आददेश ददयदे जजातदे हहै दकि दनिष्किजासनि किकी किजायरवजाहभी सभभी तथ्यय किकी गहनि छजानि-बभीनि एएंव तथ्यय किदे सम्बन्ध मम पपूरर सएंततुदष्टि किदे उपरजान्त किकी जजायदे तथजा सभभी तथ्यय किजा पपूरर दववरर अपनिदे किजायजारलय मम सतुदनिशशश्चित रखजा जजायदे। दनिष्किजासनि दनिम्निलललखत पररशसथदतयय मम हभी दकियजा जजायदेय-
A. .........
B. .............
C. ...........
D. ..........
E. ...........
F. ............
G. आपरजालधकि मजामलम मम सएंललप्ततजा (आपरजालधकि मजामलय मम अदभययोग पएंजभीकिक त हयोनिदे पर प्रथमदृष्टियजा सएंललप्ततजा पजायदे जजानिदे पर)"
I have heard learned counsel for the petitioner and the learned Standing Counsel.
It is not in dispute that the petitioner has been appointed on 24.5.2008 and has worked in the Department till the impugned order dated 11.6.2019 has been passed dismissing the petitioner from service.
It is a specific case of the petitioner that no notice or opportunity has been afforded to the petitioner as has been averred in paragraph-18 of the writ petition. The respondents in the in paragraph-4 of the counter affidavit though stated that a show cause notice was given to the petitioner which the petitioner did not reply.
The respondents have not filed any show cause notice on record to support the averment made in paragraph-18 of the writ petition. Even if presuming that a show cause notice dated 6.6.2019 was given to the petitioner, as stated in the order dated 11.6.2019, issuance of said show cause notice does not mean that reasonable opportunity of hearing has been afforded to the petitioner, inasmuch as, the order dismissing the services of the petitioner was passed on 11.6.2019 which is after five days of issuance of show cause notice. Therefore, this Court finds that the impugned order has been passed in violation of principles of natural justice as no reasonable opportunity of hearing was afforded to the petitioner before passing the impugned order of termination. Further, it is also relevant to mention that the petitioner in paragraph-20 of the writ petition has specifically stated that the petitioner has given due information regarding pendency of the aforesaid criminal case.
Paragraph-20 of the writ petition is extracted here- in-below:
"20.That it is also further submitted that when the petitioner was released on bail by the competent court of law, immediately, he came and give the information to the respondent No.4 and thereafter, he was allotted duties by the respondent No.4, after obtaining the approval from the respondent No.3, as such, the entire averment itself became demolished."
The aforesaid paragraph has been replied by the respondents in paragraph-14 of the counter affidavit, which reads as under:
"14. That the contents of paragraph-18 to 26 of the Writ Petition are not admitted as stated, hence denied. Suitable and detailed reply has already been given the preceding paragraphs."
The averment contained in paragraph-14 of the counter affidavit reveals that no specific reply has been given by the respondents in respect of averment made in paragraph-20 of the writ petition and, therefore, in such circumstances, an opportunity of hearing ought to have been afforded by the respondents before passing the impugned order of termination. The averments made in paragraph-20 of the writ petition demonstrate that the petitioner had given due information to the respondent-authority regarding pendency of criminal case.
So far as reliance placed by the learned Standing Counsel in paragraph-4 of the aforesaid Government Order dated 2.11.2007 is concerned, it is worth mentioning that paragraph-4 provides that proceedings for dismissal shall be undertaken after due enquiry and verification of facts and on satisfaction of enquiry against the petitioner.
The service of a Home Guard can be terminated on any of the grounds mentioned in paragraph-4 of the Government Order. Hence, reading of paragraph-4 of the Government Order suggests that necessary enquiry ought to be conducted and if on enquiry the authorities are satisfied that the petitioner can be dismissed from service on any of the ground mentioned in paragraph-4 of the Government Order, the order can be passed dismissing the services of an employee.
The order of dismissal causes stigma on the petitioner and, therefore, the authorities are expected to follow the rules of fair play which includes reasonable notice and opportunity of hearing to the employee to rebut the charges levelled against him before passing the order of dismissal on any grounds provided in paragraph-4 of the Government Order.
For the reasons given above, this Court finds that the order impugned dated 11.6.2019 is not sustainable in the eye of law, being in violation of principles of natural justice and, accordingly, the same is set-aside with the liberty to the respondents to pass a fresh order after giving due notice and opportunity of hearing to the petitioner.
Subject to the aforesaid, the writ petition allowed.
Order Date :- 19.8.2021 SKM