Court No. - 33
Case :- WRIT - A No. - 3746 of 2009 Petitioner :- Sunder Lal Respondent :- The District Judge Kanpur Nagar Counsel for Petitioner :- Gaurav Mahajan,Amit Mahajan,M.K.Singh,Nisaruddin,Prabhat Kumar,Rajesh Kumar,Siddharth Niranjan,Vivek Mishra Counsel for Respondent :- S.C,Bushra Mariam,Rajeev Gupta,S.C.
Hon'ble Ashwani Kumar Mishra,J.
Ref: Amendment Application Two amendment application appears to have been filed. The first amendment application dated 28.04.2013 was dismissed as not pressed on 23.01.2014. The second amendment application dated 04.03.2014 has remained pending. By this amendment application petitioner seeks to amend the writ petition and challenge order dated 28.10.2002.
A counter affidavit has been to this amendment application contending that dismissal order was duly served upon the petitioner in the year 2002 itself and its challenge by way of an amendment in the year 2014 is grossly barred by unexplained laches. It is also pointed out that charge against the petitioner was of misbehaving with the judicial officer under influence of liquor. Petitioner's reply to the show cause notice also amounts to admission of his guilt in which he has stated that whatever was done by him was under the influence of liquor. In such circumstances, when the assertion about service of dismissal order in the year 2002 remains unrebutted there would be no justification for this Court to allow amendment application and permit challenge to be laid to the order dated 28.02.2002 after such long lapse of time.
Amendment application dated 04.03.2014 is, accordingly, rejected.
Ref: Writ Petition Petitioner was a Driver in District Judgeship, Kanpur Nagar and disciplinary enquiry appears to have been initiated against him in the year 1998 which resulted in submission of enquiry report against him. A show cause notice was issued to petitioner, whereafter an order of dismissal was passed against him. Writ Petition No.44470 of 2002 was filed by the petitioner which came to be dismissed vide following orders passed on 23.02.2006:
"Heard learned counsel for the parties.
The petitioner was working as a driver in the subordinate courts at Kanpur when he was charge sheeted for unruly and indecent behaviour with the Judicial Officers and their familites under the influence of alcohol and also for abusing and threatening them together with other charges. The charges were framed in 1998 but inspect of several opportunities, the petitioner did not appear or file his written statement but after an order was passed for proceeding exparte, he filed his written statement but thereafter again absented himself from the enquiry. The Inquiry Officer found all the charges to be proved against the petitioner and after an opportunity to show cause against the proposed punishment, his services have been dispensed with.
Learned counsel for the petitioner has sought to raise objections that the enquiry was exparte and that his demand for certain documents was not considered is not proved from the record. Even otherwise, this is a pure question of fact which can appropriately be dealt with by a factual forum and it is not denied that an appeal lies under section 7 of the U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976. The petitioner has failed to satisfy that the court why should it exercise its discretion under Article 226 inspect of availability of an efficacious statutory alternative remedy.
For the reasons given above, I do not find that this is a fit case of interference under Article 226 of the Constitution of India. Rejected."
An order thereafter was passed by the Administrative Judge on 12.10.2006 against the petitioner. It is after expiry of several years that present petition has been filed seeking following prayer:
"A suitable writ, order or direction in the nature of Mandamus commanding the respondent to supply/serve upon the petitioner the second dismissal/termination order dated 28.10.2002 and also the report of enquiry no.3/98 on the basis of which the said dismissal/termination order has been passed."
In the writ petition it is stated that neither enquiry report has been served upon the petitioner nor the order of dismissal was ever served upon him and, therefore, impugned action is wholly arbitrary.
Counter affidavit has been filed in which it is shown that in Departmental Enquiry No.03/1998 an enquiry report was submitted and the petitioner was given opportunity to submit reply. The show cause notice dated 10.09.2002 contains endorsement of its receipt by the petitioner on the same day. A reply was submitted by the petitioner on 16.09.2002. It is thereafter that order of dismissal was passed by the District Judge against the petitioner on 28.10.2002. This order has been sent by registered speed post on 31.10.2002 and is alleged to have been served upon the wife of petitioner. All such facts stated in the counter affidavit remains unrebutted. Alongwith counter affidavit the respondents have also brought on record a letter of petitioner demanding copies of the orders passed against him.
The averment made in the counter affidavit that order of dismissal dated 28.10.2002 was served by registered speed post upon the petitioner is not denied by filing any rejoinder affidavit. No prayer has otherwise been made for grant of further time to file rejoinder affidavit notwithstanding the fact that counter affidavit was served upon counsel for the petitioner in November, 2009 itself. In the writ petition there is no prayer for quashing the order of dismissal.
In view of the fact that amendment application dated 04.03.2014 has already been rejected by a separate order and there is no challenge to the dismissal order dated 28.02.2002, despite its service upon the petitioner by registered speed post and also by filing counter affidavit. Petitioner is, therefore, not entitled to any relief.
Writ petition is, accordingly, dismissed.
Order Date :- 29.9.2021 Ashok Kr.