Prem Niwas Mishra vs State of U.P. and Another

Heard counsel for the parties and perused the record.

This writ petition is directed against the order of termination-dated 24.10.1990 passed by the District Magistrate, Pilibhit.

The matrix of the case are that the Petitioner was appointed as Collection Amin vide order dated 15.3.1984 in Tehsil Bisalpur, district Pilibhit. The appointment of the Petitioner was on compassionate ground under the provisions of U.P. Employment of Dependents of Government Servants Dying-in-Harness Rules, 1974, as the father of the Petitioner died in harness.

Before coming to the merits of the case, it is necessary to see the backdrop of the case in which the order of termination was passed. The Petitioner was given a warning on 30.8.1990 by the Tahsildar of the concerned Tahsil for collection of less revenue. Thereafter, a show cause notice dated 30.9.1990 was given to him for his lackadaisical attitude. In pursuance thereof, he submitted his explanation by reply/letter dated 1.10.1990. Counsel for the Petitioner contends that without considering the reply or the contentions raised therein, the impugned order of termination was passed by the District Magistrate/ Prescribed Authority, Pilibhit. Counsel for the Petitioner next contends that the impugned order of termination was passed behind the back of the Petitioner depriving him of reasonable opportunity of hearing. He contends that the impugned order of termination is not a termination simpliciter in the circumstances stated above.

Counter-affidavit has been filed on behalf of the Respondents. Placing reliance on letter dated 13.1.1988 issued by the Board of Revenue, it is contended by the standing counsel that before termination of service of Collection Amin, no opportunity was required to be given. A copy of this letter has been annexed as Annexure-CA-1 to the counter-affidavit. Para 10 of the letter dated 13.1.1988 reads as under:

other language

Sub-clause (1) of para 10 of the said letter provides that in case any Collection Amin is found to have realized less revenue, then a warning has to be issued first. Thereafter even if his work is not up to the mark, then he has at least to be given two opportunities to enhance his revenue collection and in that event, if he does not comply with the standards prescribed, only then his services can be dispensed with without giving him a show cause notice.

The contention of the Petitioner is that appointment of the Petitioner though temporary, was made on a substantive vacancy under the Dying-in-Harness Rules by the order of the District Magistrate. Counsel for the Petitioner has placed reliance on a case Ravi Karan Singh Vs. State of U.P. and others, , in which it has been held that once an appointment on compassionate ground, under the provisions of Dying-in-Harness Rules is being made, then his service cannot be terminated under Rule 3 of U.P. Temporary Government Servants (Termination of Service) Rules, 1975.

Counsel for the Petitioner contends that once the Petitioner by fiction of law acquires the permanent status, then he could not have been punished without following the procedure prescribed under Article 311 of the Constitution of India. The last submission of the counsel for the Petitioner is that the Petitioner was given show cause notice but no disciplinary proceeding or enquiry was ever conducted as contemplated under Financial Hand Book Chapter II to IV, read along with the amended Fundamental Rule 56.

It appears that the impugned order of termination is not a termination simpliciter. The services of the Petitioner have been terminated without holding disciplinary enquiry. Furthermore, the provisions of U.P. Temporary Government Servants (Termination of Service) Rules, 1975, do not apply in case of a person appointed under the provisions of U.P. Employment of Dependants of Government Servants Dying-in-Harness Rules as they are deemed permanent as has been held by a Division Bench of this Court in Ravi Karan Singh''s case (supra).

In the circumstances, the termination of the services of the Petitioner was illegal and against the principles of natural justice and it was passed without holding any disciplinary enquiry.

The impugned order cannot be sustained and it is, therefore, quashed. The writ petition is allowed with a direction to the Respondents to reinstate the Petitioner in service forthwith within a period of 2 weeks from the date of production of a certified copy of this order and pay him salary month to month. It will, however, be open to the Respondents to take any further such action against the Petitioner as they are advised and may pass appropriate order after holding enquiry.