Padam Singh Sharma vs State of U.P.

S. N. Srivastava, J.—By way of this writ petition, petitioner prays for quashing of the order dated 23rd February, 2001, passed by the District Magistrate, Saharanpur (Annexure7 to the writ petition) terminating services of petitioner.

Petitioner was working as Cooperative Kurk Amin in Block Ballia Kheri, District Saharanpur. Due to certain misconduct a preliminary enquiry followed by show cause notice was initiated and the services of the petitioner were terminated by the District Magistrate. This Court dismissed the writ petition preferred by the petitioner challenging the impugned order by a judgment dated 26.3.2000, but the Special Appeal No. 408 of 2001 preferred against the said judgment was allowed and the matter was remanded back after setting aside the judgment of the learned Single Judge. The Division Bench recorded following findings as regard termination of petitioner''s services:

"8. The documents which have been placed before us pertain to the preliminary inquiry made against the appellant in which the statement of certain persons who had seen the incident was recorded. The services of the appellant were, thereafter, terminated by paying him the retrenchment compensation through a cheque along with the order dated 20.5.1992. The order having been passed on the basis of a preliminary inquiry and not on the basis of a regular departmental enquiry without issuing a chargesheet or giving an opportunity of hearing to the appellant, cannot be sustained.

10.........A bare reading of the notice dated 6.11.2000 issued by the Additional District Cooperative Officer filed as Annexure 2 the notice dated 5.12.2000 issued by the Assistant District Registrar, Cooperative Societies, Saharanpur filed as Annexure 5 and the termination order dated 23.2.2001 passed by the District Magistrate/Collector, Saharanpur filed as Annexure 7 to the affidavit in support of the stay application prima facie show that the inquiry which was conducted against the appellantwrit petitioner was in the nature of a preliminary inquiry and not a regular departmental inquiry as contemplated under Article 311 (2) of the Constitution of India and thus the services of the petitioner could not have been terminated on the basis of preliminary inquiry without holding a regular departmental inquiry as has been held by the Hon''ble Supreme Court in the case of Nar Singh Pal [supra].

As already stated hereinbefore, there is no material on record before us to come to the conclusion that a regular departmental inquiry was held before the services of the petitioner were terminated. Prima fade, on the basis of the documents referred to above it appears that only a preliminary inquiry had been held in the matter. Since the writ petition filed by the appellantwrit petitioner had been dismissed in limine without giving any opportunity to the respondents to file an affidavit in reply bringing on record such documents as they may be advised to establish that a regular departmental inquiry has been held before passing the order of termination, it would be appropriate and in the ends of justice hat the order of the learned Single Judge is set aside and the writ petition be decided on merits on the basis of the affidavit."

Heard learned Counsel for the parties.

Learned Counsel for the petitioner urged that impugned order of termination was not an order of termination simplicitor, but it is an order of punishment on the basis of some alleged misconduct for which no disciplinary proceeding was held, no chargesheet was framed and no opportunity of hearing was given to the petitioner. Impugned order is violative of Article 311(2) of the Constitution of India and is liable to be set aside. He relied upon a judgment reported in 2005 All C.J. 2148, Katar Singh v. District Magistrate/Collector, Saharanpur and others, in support of his case which is similarly situated to the case of petitioner and prayed to quash the impugned order.

Learned, Standing Counsel in the counter affidavit could not point out or show any material that chargesheet was issued or served to the petitioner as required under the relevant Rules and opportunity of hearing or to participate in the disciplinary proceeding was afforded to the petitioner.

On careful consideration of arguments of learned Counsel for the parties and materials on record, it transpires mat after receiving report of the preliminary enquiry, no charge sheet was framed and relying upon the report of the preliminary enquiry only, the District Magistrate passed the impugned order terminating services of petitioner.

Material on record further makes it clear that the impugned order was not an order of termination simplicitor, but was passed on the basis on the report of the preliminary enquiry and apparently order of punishment which amounts to removal from service act was passed without holding a regular departmental proceeding which is unsustainable in law. Impugned order was passed in violation of Article 311(2) of the Constitution of India as well as in violation of procedure prescribed under the relevant Rules.

In view of the discussions made above and also taking into account finding of the Special Appeal Bench, the impugned order of termination is unsustainable to law and is liable to be quashed.

With the result, writ petition succeeds and is allowed. Impugned order dated 23rd February, 2001 passed by the District Magistrate, Saharanpur is quashed However, it is open to the Department to initiate a regular Departmental Proceedings in accordance with Rules.

No order as to costs. Petition allowed.