Ram Sajiwan vs U.P. Public Service Tribunal and Others

Paritosh K. Mukherjee, J.—This writ petition is of 1984 origin. With the consent of learned Counsel for the parties, the writ petition is being finally disposed of, in accordance with Rules of the Court.

The Petitioner, Ram Sajiwan, was posted at Banda as a Police Constable at the relevant point of time. On the basis of a complaint made against the Petitioner for theft of one bed-sheet, three sarees, two petticoats, one blouse, etc., amounting to Rs. 285 from the box of his colleague, the services of the petilloner were terminated by order dated 15.2.1980, which is contained In Annexure 2 to the writ petition.

It has been contended by learned Counsel for the Petitioner that the impugned order of termination dated 15.2.1980 has been passed by the Respondent No. 3 on the basis of a complaint, and, therefore, It contains a stigma. Thus, without holding prior disciplinary proceedings, order of termination cannot be sustained in the eyes of law. He further contended that the Respondent No. 2, namely, U.P. Public Service Tribunal, has not considered the case of the Petitioner in the light of aforesaid fact, and therefore, the order passed by it, dated 28.8.1982, is also liable to be set aside.

Learned standing counsel drew my attention to the impugned order of termination dated 15.2.1980 and contended that it is an order of termination simplicitor and this Court, in the exercise of writ Jurisdiction, would not like to Interfere with such an order.

Having heard learned Counsel for the parties and carefully gone through the impugned orders, I am of the view that there is no force in the submission of learned standing counsel. The law, on this point, has undergone a drastic change since 1968.

This Court is not unaware of a decision in The Manager, Government Branch Press and Another Vs. D.B. Belliappa, , wherein it has been held by Hon''ble Supreme Court as follows:

...Where a charge of unfair discrimination is leveled with specificity, or improper motives are imputed to the authority making the impugned order of termination of service, it Is the duty of the authority to dispel that charge by disclosing to the court the reason or motive which impelled it to take the Impugned action. Excepting in cases analogous to those under Article 311(2), proviso the authority cannot withhold such information from court and plead that the order was purely administrative passed in the exercise of administrative discretion and not judicial. Fairness, founded on reason is to the essence of Articles 14 and 16(1).

The Hon''ble Supreme Court also made the following observations:

...since it was Incumbent on the Appellant to explain thetermination order by disclosing his reason for the ''action and since that information was withheld from the Court, there is no escape from the conclusion that the Respondent was picked out for action whimsically without any special reason which would put him in class separate from that of his juniors who have been retained in service.

The aforesaid view of the Apex Court has been followed in several Division Bench judgments, including in Satyabroto Mahapatro v. State of West Bengl 1981(2) CHC 20, wherein it has been held that a probationer has right for invoking provisions of Article 311(2) of the Constitution, in a case of termination of service from the post of Public Prosecutor. This was a decision rendered by a Division Bench consisting of Hon''ble P.K. Banerjee and Hon''ble Roy.

That being the legal position, in my view, since the Petitioner has been charged earlier, and since the U.P. Public Service Tribunal, Lucknow has commented on such involvement, it was not proper for the Tribunal to dismiss the appeal filed by the Petitioner without dealing with the said aspect of the case.

In the result, the writ petition is allowed. The Impugned orders dated 15.2.1980 and 28.8.1982 as well as order dated 12.3.1984 passed by Respondent Nos. 3, 2 and 1 respectively are hereby set aside. Since the Petitioner remained out of job for 15 years from 1980 to 1995, this Court is of the view that Petitioner is not entitled to any arrears of pay for the aforesaid period. The Petitioner is, however, entitled for re-employment, with break in service. The Respondents are at liberty to initiate fresh proceedings, if they like so, against the Petitioner by issuing formal charge-sheet and this judgment and order will not stand in their way in doing so. The Respondents are given one month''s time from the date of production of certified copy of this judgment and order to give re-employment to the Petitioner to the post of Constable.