Court No. - 16
Case :- WRIT - A No. - 17985 of 2018 Petitioner :- Shyam Bahadur Patel Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Salilendu Kumar Upadhyay,H.N.Singh,Sr.Advocate,Vineet Kumar Singh Counsel for Respondent :- C.S.C.,Anand Prakash Paul,Brij Bhushan Paul,Gaurav Pundir
Hon'ble Mrs. Sangeeta Chandra,J.
Oral Heard Sri ,H.N.Singh, learned counsel for the petitioner assisted by Sri Salilendu Kumar Upadhyay and Sri Ashok Khare, learned Senior Counsel assisted by Sri Gaurav Pundir, learned counsel appearing for the respondent Nos. 3 and 4.
It appears that the petitioner is aggrieved by the order dated 13.08.2018 passed by the respondent No. 4. It has been argued that the petitioner has been suspended on various allegations with regard to the irregular orders being passed in his favour by the then Executive Officer and also relating to interpolation and manipulation in the records and financial misdemeanours.
The learned counsel for the petitioner has taken this Court through the provision of U.P. Municipal Board Service Rules notified in 1960 by the Government. Under Rule 4, suspension has been mentioned as one of the penalty that can be imposed upon servants of the Municipal Board by the Competent Authority. Also, under Rule 8 an employee of the Municipal Board against whose conduct and enquiry is contemplated or is proceeding, may in the discretion of the Competent Authority, be placed under suspension. Such suspension should ordinarily be resorted to only when the charges against such an employee warrant removal or dismissal in case they are found proved.
Sri H.N. Singh says that if the order of suspension dated 13.08.2017 is read as a whole, it appears that it has been passed as a penalty under Rule 4. In case it is a penalty then at least a show-cause notice should have been issued to the petitioner to explain his case. In case his reply was found unsuitable then regular disciplinary proceedings could have been initiated. However, if it is treated to be an order under Rule 8 Sub Section -1 then also the language of the order should have indicated that the petitioner is being suspended on the allegations mentioned in the order, in contemplation of an enquiry.
Moreover the order of recovery of salary drawn by the petitioner w.e.f. 14.11.2011 to 03.01.2017 could not have been passed without giving opportunity of hearing to the petitioner.
The learned Senior Counsel Sri Ashok Khare appearing for Chairman Zila Panchayat has argued on the merits of the order impugned without adverting to the contentions raised by Sri H.N. Singh. He submits that one Udai Nand Pathak Typist/Clerk in the office of Nagar Panchayat having retired on 31.07.2011, the petitioner was engaged as daily wage typist/clerk on 05.11.1995, was found suitable to be engaged on regular basis, subject to approval by the Government. The petitioner could not have been paid regular salary of Clerk w.e.f. 14.2.2011 with approval of the Government.
The learned Senior Counsel has taken this Court through the language of the order dated 14.11.2011 and also the order dated 26.07.2017 said to have been passed by the then Executive Officer, Nagar Panchyat Khamariya, District Bhadohi in exercise of power as Appointing Authority or Chairman after the term of the elected Chairman expired.
This Court is of the considered opinion that there may be certain irregularities in the appointment of the petitioner and the allegations of financial misdemeanour many not be without substance, but the fact remains that the petitioner has not been issued any show-cause notice and no opportunity of hearing has been given to the petitioner before passing the order dated 13.08.2018.
The order dated 13.08.2018 is set aside. The respondents may pass fresh orders in accordance with the Rules after hearing the petitioner.
The writ petition is partly allowed.
Order Date :- 24.8.2018
A. Tripathi