S.P. Singh vs State of U.P. and others

V.M. Sahai and Barkat Ali Zaidi, JJ.—Heard Sri H.R. Misrha, learned Counsel for the petitioner, Sri Shiv Nath Singh learned Additional Chief Standing Counsel for respondent No. 1 and Sri Atul Srivastava, Advocate holding brief of Sri V.P. Mathur, learned Counsel appearing for respondent No. 2. They pray for and are allowed a month''s time to file counter affidavit. The petitioner shall have three weeks thereafter to file rejoinder affidavit. The petitioner shall also take steps to serve respondent No. 3 by registered post within a week. The office shall send notices returnable at an early date.

List on the date fixed by the office in the notice.

Normally the Court should not interfere at the interim stage in the mattes of dismissal. But, here we have a case where interim order must be made against the Government.

The petitioner was serving as Assistant Excise Commissioner/District Excise Officer, Chandauli when the impugned order dated 23.1.2006 (Annexure12 to the writ petition) was passed.

In the year 200203 in Rai Bareli when he was charged for not auctioning and giving licenses of some liquor shops of country made liquor shops of country made liquor in time, with the result an amount of Rs. 83,75,796/ towards revenue became outstanding. He remained on Medical Leave for about 65 days and did not inform in time for it which also contributed the aforesaid lapse and loss. The explanation furnished by the petitioner was found unpalatable and the Inquiry Officer/Joint Excise Commissioner held the petitioner guilty on two counts vide report dated 14.7.2003, Annexure4 to the writ petition :

(i) 64 Liquor Shops could not be auctioned out on desired Licence Fee with the result a revenue of Rs. 83,75,796/ became outstanding and an alternative arrangement in this regard too was not made. 68 shops Licensees had not deposited their installments, whereas licensees of 95 shops deposited licence fee partly, and as security by them was not deposited revenue could not be recovered from them.

(ii) Proceed on Leave without prior getting the leave sanctioned and remained absent since 23.11.2002. That is why the liquor shops could not be auctioned at the appropriate time. Even the officials were not given salary, at the due date.

On the basis of the inquiry report. Special Secretary Excise Department on 23.7.2004, vide Annexure6 to the writ petition, proposed that the petitioner be visited with the following penalty for the afore noted charges respectively, found proved against him :

(i) Two increments be permanently stopped.

(ii) An entry of condemnation be issued for not following the Leave Rules properly.

The Special Secretary recommended this proposal be placed before the Hon''ble Chief Minister, in capacity of Excise Minister, for the approval.

The respondent No. 1, the Principal Secretary on 26.7.2004, vide Annexure7 to the writ petition, forwarded the proposal to the Hon''ble'' Chief Minister with a note that for the charges proved, the petitioner could be visited with a major penalty and the Hon''ble Chief Minister/Excise Minister, after perusing the note of the respondent No. 1, vide order dated 3.8.2004, ordered to proceed to dismiss the petitioner. (See Annexure7 to the writ petition). The matter was then referred by the respondent No. 1 vide letter dated 4.8.2004, Annexure8 to the writ petition, to respondent No. 2, U.P. Public Service Commission for sending its suggestions, on the punishment proposed by the Government to the petitioner.

As will appear, the respondent No. 2 after examining the inquiry report and the punishment proposed found that out of the two charges, the petitioner faced, the former was not found proved while the later was found only partly proved, therefore, inconsonance of the charge proved, the petitioner should be awarded a penalty of stopping of 3 annual increments permanently.

10 After the recommendation of respondent No. 2 was received, the respondent No. 1 reconsidered the matter but stick to its earlier decision of dismissal and sent back the matter again vide its letter dated 2.8.2005 (Annexure10 to the writ petition) to the U.P. Public Service Commission fpr revising its suggestion but as will appear from the decision of the Union Public Service Commission dated 28.10.2005 (Annexure10A to the writ petition), the respondent No. 2, Public Service Commission after sorting out the matter again declined to fall in line with the suggestions of the Government. The U.P. Public Service Commission while reiterating and reaffirming its decision, said that the respondent No. 1, the Government had not sent any new material to the respondent No. 2 in that regard.

This suggestion of the U.P. Public Service Commission did not ultimately find favour with the Government and finally the respondent No. 1 has been said the go bye vide the impugned order dated 23.1.2006 (Annexure12 to the writ petition), and that is how this petition:

It may true that the Government is not hide bound by the advice of the Constitutional constituent the U.P. Public Service Commission and as an independent right, may dismiss a public servant after proper inquiry but the action of the Government should not be excessive smacking of reprisal as also alleged by the petitioner vide para 23 of the writ petition, saying the Excise Commissioner, respondent No. 3 Sri Gangadin Yadav bore grudge and has been instrumental by exerting pressure, for his dismissal. The punishment should confirm with the principal of natural justice and fair play. That is what the Jural Pharmacopia also lays. In this case, the Government seems to have primafacie exceeded the limits of propriety and fair play It did not even take notice of the proposal made by the Special Secretary and also the punishment suggested by the respondent No. 2 Public Service Commission not only once but twice. This thus furnishes a clear primafacie ground for stay being granted till the matter is fully examined and finally decided.

An interim stay will also be justified in the present circumstances because the balance of convenience leans in favour of the petitioner if his services are allowed to be terminated and consequently, it is found after time, when the case is decided that his dismissal from services was not justified then he would suffer a great loss. For taking this view, the decision of the Apex Court in the case of Deorai v. State of Maharashtra and others, (2004) 4 SCC 697, can be referred to, where the Court said, that the Court may having regard to strong primafacie case, balance of convenience and irreparable injury, issue an interim writ in rare cases under compelling circumstances even though, it would amount to granting the final relief.

Consequently, until further orders of this Court, the effect and operation of the impugned dismissal order dated 23.1.2006 (Annexure12 to the writ petition) passed by the Respondent No. 1, shall remain stayed. The petitioner will continue in his post and be paid his salary. Petition decided accordingly.