Qamer Ali vs U.P.Public Service Tribunal No.2,Lucknow & Ors.

Heard Shri CH. N.A. Khan, learned Counsel for the petitioner and Sri Prem Chand, learned Counsel appearing for respondents. We have also perused the writ petition.

The petitioner, a peon in Nagar Panchayat Parishad, Shivhara, District Bijnor was suspended vide order dated 2411989 on the charge of disobedience of order to bring water and also on the charge of breaking glasses which, according to the respondents, was an act of insubordination and misconduct warranting removal. The suspension order was issued by the Executive Officer, Nagar Palika, Shivhara. Subsequently, chargesheet dated 721989 was issued. The petitioner submitted his reply to the chargesheet and the enquiry officer found him guilty of the charges framed against the petitioner. The showcause notice dated 1291989, Annexure4 to the writ petition was issued by the President of Nagar Panchayat, Shivhara. The petitioner submitted his reply to the showcause notice, a copy of which has been filed as Annexurc5 to the writ petition. The enquiiy report and the reply was considered by the Board in its meeting held on 2971989 presided over by the Chairman of Nagai i. alika, Shivhara, Bijnor in which it was decided by resolution No. 6 to remove the petitioner from service. Consequent upon the decision taken by the Board, the petitioner was removed from service vide order dated 1481989 issued by the Executive Officer, Nagar Palika, Shivhara, a copy of which has been filed as Annexure8 to the writ petition. The petitioner filed an appeal which came to be dismissed vide order dated 8121989 which order was communicated to the petitioner vide order dated 11121989, a copy of which is Annexure10 to the writ petition. The petitioner then filed a claim petition before the U.P. Public Service Tribunal, Lucknow which came to be dismissed by the impugned order dated 8101996.

Apart from challenging the order of removal on merit, learned Counsel for the petitioner submitted that the appellate order passed by the Chairman suffers from vice of violation of the rules of natural justice inasmuch as the Chairman himself had issued showcause notice and also presided over the meeting in which the decision was taken to remove the petitioner and hence he was not competent to decide the appeal preferred by the petitioner. The appeal preferred by the petitioner ought to have been forwarded to the Commissioner under Rule 3 of the U.P. Municipal Services Appeal Rules, 1967 which provides that subject to the provision of the Act, the appeal against the order of punishment shall lie to the President in case the order of punishment has been passed by the punishing authority other than the President and in case the order of punishment has been passed by the President, the appeal shall lie to the Commissioner of the Division. The appellate order, in our opinion, passed by the President of the Board is unsustainable in view of the fact that he was a party to the decision taken by the Board to remove the petitioner from service. The appeal was although addressed to the President of the Board but it should have been transmitted to the Commissioner under Rule 3 (2) of the Rules aforestated.

Accordingly, the writ petition succeeds and is allowed. The impugned order of the Tribunal dated 8101996 and the appellate order dated 8121989 communicating the petitioner dated 11121989 are quashed. The Executive Officer is directed to transmit the appeal to the Divisional Commissioner who shall decide the appeal in accordance with law as early as possible after due notice to the parties.