Raghav Prasad Pathak vs Commissioner/Administrator, Sharda Sahayak, Command Area and Development Project, Lucknow and Others

I.M. Quddusi, J.

Heard learned counsel for the petitioner and the learned standing counsel.

These are two writ petitions of the same petitioner. In W.P. No.1663 (S/S) of 1981 the petitioner has sought for a writ in the nature of certiorari quashing the order of termination of the petitioner''s service dated 4.4.1981 and further for a writ of mandamus commanding the opposite parties not to remove the petitioner from service.

In W.P. No.5076 (S/S) of 2001 the petitioner has sought for a writ in the nature of mandamus commanding the opposite parties to consider and place the petitioner in time scale (promotionalpay scale) and to consider the grant of increment to the petitioner and fix the pay of the petitioner accordingly from due date and in the alternative all other benefits of service.

The brief facts of the case are that the petitioner was appointed on ad hoc basis on the post of Junior Engineer, previously known as Overseer, by the opposite party No.3 who was the Chairman of the Selection Committee. Subsequently a combined appointment letter was issued by the Deputy Director (Agri) vide order dated 10.9.1979. Later on the services of the petitioner were terminated vide impugned order dated 4.4.1981, against which the petitioner filed the present writ petition.

This Court while admitting the writ petition, stayed the impugned order vide order dated 10.4.1981. Thereafter the services of the petitioner have been regularized with effect from 1.5.1983 by the opposite parties vide order dated 13.9.1993 as contained in Annexure RA2 of the Rejoinder Affidavit.

The learned counsel for the petitioner has contended that the impugned order of termination is illegal, arbitrary and against the law because it has been passed without affording any opportunity of hearing to the petitioner. He also alleged the malafides against the opposite parties which are detailed as under.

It is alleged that Sri Gyan Chandra the opposite party No.4 was working as Stenographer of opposite party No.1. He was a resident of Faizabad Town and owned a House No.215/209, at Arya Kanya Pathshala Road, Kandhari Bazar, Faizabad. The said Sri Gyan Chandra had let out his house to the Soil Conservation Officer, Khand II, at monthly rent of Rs.150/ per month, the said house was used for storing the cement but there is yet another godown for storing the cement having bigger capacity under the tenancy of the Soil Conservation Officer, Khand II, near village Deokali, district Faizabad. The need of the department was being met by the bigger godown and the house of Sri Gyan Chandra was not at all required and since its rent was simply a drag on public exchequer, the petitioner on the instructions of the Soil Conservation Officer gave a notice to the said Sri Gyan Chandra on 23.3.1981 that with effect from 31.3.1981 the department will give up the tenancy of the house and he can take possession of the house on the said date. When the petitioner has handed over the notice of giving up the tenancy to the opposite party No.4 i.e. Sri Gyan Chandra, the mother of said Sri Gyan Chandra who lived in the said house, had threatened the petitioner that he would have to face consequences of giving up the tenancy and it would not be good for his career. These words were uttered on the instructions of Sri Gyan Chandra who had been then come to know that Bhumi Sanrakshan Adhikari would be giving up the tenancy soon. After receipt of the notice, Sri Gyan Chandra, true to his threat, pulled wires at his end, as a result of which the opposite party No.1 had issued an order terminating the services of the petitioner. The said order dated 4.4.1981 is under challenge in the instant writ petition.

It has further been alleged that the petitioner was not given any prior show cause notice before passing the order of termination. The petitioner is confident that termination order is direct result of personal vengeance wrested by Sri Gyan Chandra because the petitioner under the instructions of the Soil Conservation Officer has given notice of termination of tenancy of the house.

The learned counsel for the petitioner also submits that the impugned termination order dated 4.4.1981 is bad in the eyes of law because if it was bonafide then by the opposite parties following the principles of Last Come First Go, the services of the petitioner''s junior should have been terminated first. In the case of the petitioner this principle has been violated for personal vendata at the behest of the opposite party No.4. the learned counsel for the petitioner further submits that the petitioner was appointed alongwith two other candidates and several persons junior to the petitioner have been appointed much later than the petitioner, but they have not been touched and only the services of the petitioner have been singledout due to personal vengeance. It is also submitted that the opposite parties stated in para 13 of the counter affidavit that the stigma in performance of his duties is established against the petitioner which is sufficient cause for terminating his services, therefore, if there was stigma in performance of the duties the opportunity of hearing should be provided to the petitioner prior to the termination. But in the present case no opportunity of hearing has been provided to the petitioner nor any departmental proceedings have been initiated against the petitioner in any manner whatsoever. The learned counsel for the petitioner further submits that para 12 of the writ petition has not been denied by the opposite parties in which the petitioner stated that the termination order has been passed by the opposite party No.1 and typed by the opposite party No.4 and the same has been done by Sri Gyan Chandra, as a result of which the services of the petitioner have been terminated by the opposite party No.1, who has issued the order terminating the services of the petitioner. The said letter does not show any reason whatsoever for terminating the services of the petitioner.

The learned counsel for the petitioner relied upon the decision of the Hon''ble Apex Court reported in 2000(3) SCC 239: V.P. Ahuja v. State of Punjab and others, in paragraph 7 of which it has been held that probationer like the temporary servant is also entitled to certain protections and his services cannot be terminated arbitrarily nor can his services be terminated in punitive manner without complying with the principles of natural justice. The learned counsel for the petitioner also relied upon the judgment of the Hon''ble Apex Court given in the case of Javed Ahmad v. State of Uttar Pradesh and others, reported in 1999(17) LCD 8, in which it has been held in para 13 that by means of the Interim Order dated 14.9.1986 operation of the impugned order was stayed that the petitioners have been on the strength of the interim order as well as are holding the posts in question and have been discharging their duties for about 13 years continuously in my opinion it is not equitable to permit the respondents to disturb the statusquo and proceed further against the petitioners.

The learned counsel for the petitioner further submits that services of the petitioner have been regularized on merit vide order dated 13.9.1993 with effect from 1.5.1983 meaning thereby termination order stands cancelled/set aside by the opposite parties.

The learned counsel for the opposite parties Smt. Tanuja Somvanshi submitted that the termination order dated 4.4.1981 is valid, legal and same has been passed in accordance with the law. She further submits that suddenly during the surprise checking by the officer of the Headquarter it was found that the petitioner misused his powers and taken out the bags of the cement without prior authority with some ulterior motive but definitely not for the purpose of the Government work. The shortage was made good later on. From the surprise checking and examination of the stock register, indent book etc. it was arrived that the petitioner committed grossnegligence and misappropriation of the government property. The learned counsel for the department also submitted that the petitioner was appointed temporarily and purely on ad hoc basis. The services of the petitioner were terminated due to lapses, misconduct and abuse of powers as well as malicious intention on his part. He had no authority to take out the 700 bags of the cement from the store. The learned counsel for the department further submits that there is no relevancy in the allegations because the services of the petitioners were terminated due to plot earned by the petitioner during the execution of his duties and performance of the responsibilities assigned. It has been further argued that there was no need of issuing show cause notice according to the terms and conditions of services of the petitioner and in accordance with the government Order dated 11.6.1975. The learned counsel for the Department further submits that order has been passed according to the terms and conditions of Government Order No.20/11974 dated 11.6.1975. There is no question of denial of natural justice and the services were terminated due to stigma already shown. The services of the petitioner were purely temporary and ad hoc. He was removed from the services according to the terms and conditions of his appointment orders and also he was removed from service due to bad conduct and unsatisfactory work. The learned counsel for the Department relied upon the judgment in the case of State of Uttar Pradesh and others v. Smt. Kamla Devi and another, reported in 1996 SCC 548. In this case the question was whether it is necessary for Government to conduct enquiry as contemplated under Article 311 (2) of 9th Constitution of India read with statutory rules. In the State of Uttar Pradesh there are statutory rules viz. Uttar Pradesh Temporary Government Servants Rules, 1975, the Rule 4(a) of the same contemplates for termination of services of the temporary Government Servants either on one month''s notice or pay in lieu thereof.

In my opinion the case law laid down in the State of U.P. & others v. Smt. Kamla Devi & another (supra) is not applicable in the instant case as I have gone through the submissions made by learned counsel for the parties and perused the record, from which it is clear that the impugned order of termination of the petitioner has been passed due to misconduct and negligence in performance of duties, which casts stigma, for which opportunity of hearing is necessarily required. Hence, the impugned order has been passed against the principle of natural justice as admittedly neither any departmental inquiry was conducted nor any opportunity of hearing was provided to the petitioner.

In view of the aforesaid facts and circumstances, the impugned order of termination is not sustainable in the eye of law and the same is liable to be quashed.

Therefore, the Writ Petition No. 1663 (S/S) of 1981 is allowed and the impugned order of termination dated 4.4.1981 is quashed and it is declared that the petitioner shall get all consequential benefits.

The Writ Petition No.5026 (S/S) of 2001 is disposed of with the direction to the opposite parties to consider the petitioners representation for promotion with effect from date of promotion of his similarly circumstanced Juniors and provide him all consequential benefits which has already been ordered in the above mentioned writ petition.

(Ordered accordingly)