Ali Abbas Abdi vs State of U.P.& Ors.

A.K. Yog, J.—Heard Sri Raj Kumar Jain, advocate on behalf of the petitioner and Sri Hanuman Upadhaya, learned Standing Counsel appearing on behalf of the respondents.

This petition under Article 226, Constitution of India, has been filed by Ali Abbas Abdi, petitioner, challenging order of termination dated 141184 passed by the District Magistrate, Mirapur, communicated vide letter dated November 17, 1984, (Annexure 10 to the writ petition) passed by Assistant Records Officer, Robertsganj, Mirapur.

When writ petition was filed ad interim order dated 131284 was passed by the Division Bench of this Court. It reads:

"Learned Standing Counsel may file a counteraffidavit within three weeks. I thereafter. Meanwhile until further orders of this Court the operation of the impugned order of dismissal dated 141184 as communicated to the petitioner through Annexure 10 to the writ petition dated 17th November, 1984 shall remain stayed."

Respondents'' application for vacating the stay order was rejected by learned Single Judge vide order dated September 27, 1995. It reads:

"Heard learned counsel for the petitioner as also the learned Standing Counsel. After going through the materials on record I do not find any justification for vacating the interim order passed in the matter so, the interim order dated 131284 is hereby confirmed. The stay vacating application is accordingly rejected. Since the matter is a very old one, the writ petition requires to be disposed of expeditiously."

Briefly stated undisputed facts of the case are that the petitioner, who was working as Assistance Record Keeper in the record office, Mirzapur, was suspended and chargesheeted. Notice was given on 23rd October, 1972.

An Enquiry Officer was appointed and petitioner was charged of certain additional charges. The Enquiry Officer submitted report dated May 23rd, 1973. An 172 order of dismissal was passed on 18th June, 1973. Petitioner file departmental appeal, which have also been dismissed.

Feeling aggrieved claim petition (Claim No. 348 (1) 1917. Ali Abbas Abdi v. State Government and others) challenging order of dismissal dated 18th June, 1973 as well as appellate order October 25, 1975 was filed and the same, after hearing the parties, was allowed vide judgment and order dated 28101980. The Tribunal declared departmental proceedings against the petitioner and the order of dismissal dated 18th June, 1973 (Annexure 1 to the writ petition) and appellate order dated 251075 illegal. While Tribunal quashed the same, it, however, observed that "The department shall be at liberty to proceed with the departmental enquiry against the petitioner afresh after giving him proper opportunity for defence according to law, if consider necessary."

As consequence of quashing of dismissal order dated 18th June, 1973 and the department having denied the same, petitioner was compelled to file Execution Case No. 3 of 1983 before District Judge, which subsequently came to the Additional District Judge. Petitioner has filed several documents pertaining to the execution proceedings. Judgment and order dated 311 83 (Annexure 3 to the petition) passed by learned Vth Additional District Judge, Mirzapur, shows that Execution Court held that once dismissal order was quashed, employee was entitled to get his service and all the emoluments relating to period in which he was out of service and objection of the judgmentdebtor did not find with reference Court and same were dismissed. Petitioner has filed copy of Execution Court order dated 51283, (Annexure 4 to the petition) and copy of order dated 25th July, 1984 passed by High Court Allahabad dismissing Civil Revision No. 446 of 1984 and affirming the order dated 2551984 passed by Executing Court rejecting the objection of the judgmentdebtor. This order of High Court contains reference to the fact that petitioner was not paid his salary from 1972 and also made observation that nothing was shown to the satisfaction of the Court that there was anything to hamper initiation of departmental enquiry in pursuance to the order passed by the Tribunal dated 28101980. Petitioner has filed copies of the applications and objection filed by him and the department in the execution case. (Annexures 6, 7 and 8 to the petition).

Perusal of these objections filed by the department clearly shows that there was a tacit approach to frustrate the executive proceedings on one ground or the other. It appears from the perusal of these documents that no departmental proceedings were initiated in pursuance of the order of Tribunal and second showcause notice is said to have been issued only when department felt concerned and to find an excuse to escape the liability of making payment under Execution proceedings. In application dated 1681984 (Annexure 7) filed on behalf of the department in Execution Case for the first time a reference was made that second showcause notice was issued 16th August, 1984. In the said objection, department prayed for one month time to pay decrial amount. Curiously enough again an Application'' dated 21st August, 1984 was filed by the department in the Execution Court and therein it was indicated for the first time that said second shownotice was sent by registered post to the petitioner on 16th August, 1984 itself. The objections filed by decree holder in the Execution Court shows that issuance of the said showcause notice was only in order to forge a false pretext to forestall execution proceedings, copy of the said second showcause notice has been filed as Annexure 8 to the petition. A perusal of the said notice shows that it has referred to and relied upon earlier Enquiry Officer''s report dated 23rd May, 1973 itself which was the subjectmatter prior to the passing of the judgment and order dated 28101980 passed by Tribunal (Annexure 1 to the petition). This shows that showcause notice was clearly issue violation of the direction given by Tribunal to initiate departmental enquiry a fresh after giving appropriate opportunity.

In Para 28 of the writ petition, it has categorically asserted that dismissal order of 14th November, 1984 as communicated vide order 17th November, 1984 (Annexure 10 to the petition) is absolutely without jurisdiction as no fresh departmental proceedings were held nor any opportunity was provided to the petitioner. The said paragraph has been replied vide Para 24 of the counteraffidavit. Reference is being made to the order of dismissal dated 14th November, 1984 but copy of the same has not been annexed. It is also not mentioned that said order was ever issued or communicated to the petitioner. Moreover, in the said para there is no averment, much less a categorical assertion, that an enquiry was held and petitioner was afforded opportunity and if so in what manner and when. The said Paragraph 24 to the counteraffidavit merely refers and asserts the facts pertaining to the order of Tribunal.

In view of the above unrequited facts, no departmental enquiry was initiated afresh and petitioner was not afforded opportunity to defend, as directed by Tribunal vide its judgment and order dated 281098, Annexure 1 to the petition. The impugned order contained in letter dated 17th November, 1984 (Annexure 10 to the petition) cannot be sustained and is liable to be set aside.

The order contained in the letter dated 17th November, 1984 passed by Assistant Record Officer addressed to the petitioner referring to the order of District Magistrate, Mirzapur dated 14th November, 1984, which has not been seen in the light of day as yet, this order is set aside. The writ petition is allowed with costs.