Court No. - 5
Case :- WRIT - A No. - 24371 of 2017 Petitioner :- Suraj Singh Respondent :- State Of U.P. And 2 Othrs. Counsel for Petitioner :- Prashant Mathur,Ravi Bala,Sarita Gupta Counsel for Respondent :- C.S.C.
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the petitioner and Sri Sunil Kumar Singh, learned Standing Counsel for the respondents.
2. This Court vide order dated 9.12.2019 has granted four weeks' and no more time to file counter affidavit but no counter affidavit has been filed by the respondents till date. Accordingly, the Court proceeds to hear the matter without any counter affidavit.
3. The petitioner, by means of the present writ petition, has assailed the impugned orders dated 14.05.2013 and 15.10.2016 passed by respondent no.3-Block Development Officer, Baniyakheda, Moradabad, by which the services of the petitioner have been terminated with immediate effect by granting the salary and allowances up to 23.03.2013.
4. The case of the petitioner is that after facing a selection by the Board for the post of Safai Karmi, the petitioner was issued an appointment letter vide office memorandum dated 11.09.2008. In pursuance of the said office memorandum, the petitioner was issued letter dated 22.09.2008 by the District Panchayat Raj Officer, Moradabad for being appointed on temporary basis and he was directed to perform the duty of Safai Karmi.
5. Pursuant to the said appointment letter, petitioner joined in the office of District Panchayat Raj on temporary basis.
6. It appears that the petitioner was subsequently transferred to Block Baniyakheda, Moradabad and was asked to perform his duties under the supervision of Assistant Development Officer (Panchayat). Later on, the petitioner was transferred to revenue village Behtasarthal by the order dated 20.11.2008.
7. While being posted at Behtasarthal, the petitioner was suspended and subsequently, a show cause notice dated 06.02.2012 was issued by the Assistant Block Development Officer, Baniyakheda calling upon him to submit his reply as to his unauthorized absence from duty since 2009.
8. The petitioner in response to the said notice, submitted reply on 09.02.2012 that he became ill due to which he could not perform his duty. Along with the reply, the petitioner also enclosed the medical certificate.
9. Thereafter, another show cause notice dated 23.03.2013 was again issued by the District Panchayat Raj Officer, Moradabad on two grounds, firstly, the petitioner was absent from duty without any information and and secondly, there is heap of garbage in the concerned village.
10. The petitioner submitted his reply to the said show cause notice on 06.05.2013 stating therein that he had submitted all the documents in respect of his treatment before the Enquiry Officer in reply to the show cause notice dated 06.02.2012, but those documents have been kept by the Enquiry Officer with him and he did not acknowledge the receiving of the said documents despite several requests made by the petitioner. It is also stated that the petitioner was mislead by the Enquiry Officer and the petitioner being an illiterate believed the Enquiry Officer.
11. Thereafter, the respondent no.2-District Panchayat Raj Officer passed an order on 14.05.2013 terminating the services of the petitioner forthwith and in lieu thereof allowed payment of one month's salary.
12. Feeling aggrieved by the said order dated 14.05.2013, he approached this Court by means of filing Writ-A No.29674 of 2016, which was disposed of by this Court vide order dated 01.07.2016 with a direction to the Block Development Officer, Baniyakheda, Moradabad, respondent no.3 to consider the reply of the petitioner dated 06.05.2013 and pass appropriate order relating to the duty of the petitioner as well as his salary, copy of which is annexed as Annexure-13 to the writ petition.
13. Pursuant to the order dated 01.07.2016 passed by this Court, the District Panchayat Officer by order dated 15.10.2016 has terminated the services of the petitioner on the ground that since the services of the petitioner has been dispensed with on merit by order dated 14.05.2013, therefore, there is no reason to reinstate the petitioner in service.
14. Relevant extract of the order of the District Panchayat Raj Officer is extracted herein below:
" इस कार्यार्र्यालय के आदेश पत्रार्ंक- 1228/िदनार्ंक- 14 मई-
2013 के द्वार्रार् गुण दोष के आधार्र पर श्री सूरज िसंह अस्थार्ई (पदनार्म) सफार्ई कमी की सेवार्ये सार्मार्प्त की जार् चुकी है, इस कार्रण इस स्तर से श्री सूरज िसंह को पुनः सेवार् मे िलये जार्ने कार् कोई िविधक औचिचत्य नहीं है। श्री सूरजिसंह द्वार्रार् मार्० उच्च न्यार्यार्लय इलार्हार्बार्द मे योिजत िसिवल िमस यार्िचकार् संख्यार् -29674/2016 सूरज िसंह बनार्म रार्ज्य सरकार्र व अन्य के सम्बंध मे मार्० उच्च न्यार्यार्लय इलार्हार्बार्द के िनणर्याय आदेश िदनार्ंक- 01.07.2016 के अनुपार्लन मे खण्ड िवकार्स अिधकार्री बिनयार्खेड़ार् के कार्यार्र्यालय पत्रार्ंक- 686/िदनार्ंक-29.08.2016 के द्वार्रार् भी यार्ची को िकसी प्रकार्र कार् अनुतोष पार्ये जार्ने की संस्तुित नहीं की गयी है। अतः यार्ची श्री सूरज िसंह की मार्ंग को अस्वीकार्र करते हुये प्रकरण िनक्षेिपत िकयार् जार्तार् है।"
15. Challenging the aforesaid order, learned counsel for the petitioner has contended that the order impugned is not sustainable for the reason that this Court while disposing of the Writ-A No.29674 of 2016 had directed the Block Development Officer, Baniyakheda, Moradabad to pass a fresh order after considering the reply of the petitioner's dated 06.05.2013, hence, the reason given by the District Panchayat Raj Officer that the services of the petitioner has already been dispensed with and, therefore, there is no occasion to reinstate the petitioner is wrong and in the teeth of the judgment of this Court in Writ A No.29674 of 2016.
16. He further submits that the order dated 15.10.2016 passed by District Panchayat Officer discloses that the District Panchayat Officer has placed reliance upon some enquiry report dated 14.08.2016 but no such report has been supplied to the petitioner, nor the petitioner was given any notice or opportunity of hearing to rebut the said report. The said report is ex-parte and cannot be placed reliance upon.
17. He has drawn the attention of this Court towards paras-12 & 17 of the writ petition, wherein the petitioner has categorically pleaded that ex-parte report has not been supplied to him, hence, the District Panchayat Raj Office has erred in law placing reliance upon a enquiry report dated 14.08.2016.
18. Learned Standing Counsel would contend that the petitioner is a temporary employee and detailed reason has been noted by the District Panchayat Raj Officer in passing the impugned order dated 15.10.2016.
19. Having considered the rival submissions advanced by the learned counsel for the parties and perused the record.
20. The record of the case reveals that a show cause notice was issued to the petitioner on 06.02.2012 and the petitioner submitted his reply to the said show cause notice on 09.02.2012. Thereafter, another show cause notice was issued to the petitioner on 23.03.2013 by the District Panchayat Raj Officer, Moradabad. The petitioner submitted reply to the said show cause notice on 06.05.2013 denying the charges in the show cause notice.
21. Thereafter the District Panchayat Raj Officer, Moradabad by the order dated 14.05.2013 dismissed the petitioner from service. The said order has been challenged by the petitioner in Writ-A No.29674 of 2016, wherein this Court while disposing of the said writ petition on 01.07.2016, had directed the Block Development Officer, Baniyakheda, Moradabad, respondent no.3 to pass fresh order after considering the reply of the petitioner dated 06.05.2013.
22. The impugned order dated 15.10.2016 clearly reveals that the District Panchayat Raj Officer did not apply his mind and without appreciating the correct facts on record, has passed the order impugned terminating the petitioner from service holding that the petitioner has already been terminated, and there is no justification for reinstating the petitioner at this stage. The said reason in the opinion of the Court is misplaced for the reason that in Writ-A No.29674 of 2016, this Court had given specific direction to the District Panchayat Raj Officer to pass a fresh order after considering the reply of the petitioner.
23. Further, the order impugned is also not sustainable for the reason that the enquiry report, referred in the impugned order, has never been supplied to the petitioner. The said enquiry report was an ex-parte enquiry report. The petitioner in this respect has made specific averments in paras-12 and 17 of the writ petition. As no counter affidavit has been filed by the respondents, therefore, the Court believes the averments made in the said paragraph to be true and correct.
24. Accordingly, this Court finds that the impugned orders dated 14.05.2013 and 15.10.2016 passed by respondent no.3 are not sustainable and are hereby set aside with a direction to the respondent no.3 to reinstate the petitioner forthwith. However, it is open to the respondents that they may hold a fresh enquiry in accordance with law against the petitioner.
25. The writ petition is allowed subject to the observations made above.
Order Date :- 22.9.2021 NS