HIGH COURT OF JUDICATURE AT ALLAHABAD ?Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 846 of 2010 Petitioner :- State Of U.P. Thru Sec. Home Lko. And Othes Respondent :- Constable 618/946 C.P. Rajvir Singh Petitioner Counsel :- M.S. Pipersenia S.C. Respondent Counsel :- Vijay Bautam Hon'ble Syed Rafat Alam, Chief Justice Hon'ble Krishna Murari, J.
This intra court appeal arises out of the order of the learned single Judge dated 1.4.2010 passed in Civil Misc. Writ Petition No. 25129 of 2008.
We have heard Sri M. S. Pipersenia, learned Standing Counsel appearing on behalf of the appellants.
Facts are that the petitioner-respondent, herein, was selected and recruited as Constable in Uttar Pradesh Police Force on 1.1.1989. At the time of recruitment, he submitted his High School Certificate and mark-sheet wherein his date of birth was recorded as 15.11.1969. A complaint was made some time in 2008 that the actual date of birth of the petitioner-respondent is 15.11.1965 and thus on the date of recruitment, he was aged 24 years and was over-age. A preliminary enquiry was instituted and the Circle Officer, (Lines), Aligarh was appointed to conduct the same. He submitted a report that the petitioner misrepresented his date of birth at the time of recruitment and obtained the appointment on the basis of forged date of birth. On the basis of the said report, Senior Superintendent of Police, Aligarh passed an order dismissing the petitioner from service.
Aggrieved, the petitioner approached this Court by filing writ petition on the allegation that the impugned order has been passed without any notice or opportunity. The learned single Judge after having considered the averments made in the writ petition as well as in the counter affidavit found that neither any show cause nor opportunity of hearing was afforded before passing the impugned order. Relying upon various pronouncements of the Hon'ble Apex Court as well as this Court holding that the order dismissing an employee from service without any notice or opportunity of hearing and without drawing disciplinary proceedings cannot be sustained being in violation of the principles of natural justice, the learned single Judge allowed the writ petition and directed the appellants to reinstate the petitioner-respondent with full consequential benefits.
Learned counsel for the appellants during the course of arguments could not show us any such material on record from which it could be inferred that any show cause notice or any opportunity of hearing was given to the petitioner-respondent before passing the impugned order of dismissal. It is an admitted position that petitioner-respondent was appointed in the year 1989 and after rendering more than about 17 years of service, the impugned order has been passed on the ground that the petitioner-respondent obtained appointment on a forged and incorrect date of birth.
In our view, before passing the order dismissing the services of the petitioner-respondent show cause notice and opportunity of hearing ought to have been given and in the absence of the same, the order suffers from vice of principles of natural justice. Thus, the learned single Judge rightly held that the impugned order was unsustainable.
In view of the aforesaid facts and discussions, we do not find any merit in the appeal and the same accordingly stands dismissed.
However, it is provided that it will be open to the appellants to pass fresh order in accordance with law after holding an enquiry in accordance with the Rules.
Order Date :- 24.8.2011 Dcs Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 846 of 2010 Petitioner :- State Of U.P. Thru Sec. Home Lko. And Othes Respondent :- Constable 618/946 C.P. Rajvir Singh Petitioner Counsel :- M.S. Pipersenia S.C.
Respondent Counsel :- Vijay Bautam Hon'ble S, R. Alam, CJ.
Hon'ble Krishna Murari, J.
This is an application for condoning the delay of 140 days in filing the appeal.
Though a copy has been served and the name of Sri Vijay Gautam is shown in the cause list as counsel for the respondent but neither he appeared nor filed any counter affidavit to the delay condonation application though time was granted on 23.2.2011.
Having heard learned counsel for the applicants, we are of the view that delay of 140 days in filing the appeal has satisfactorily been explained and the delay has not been caused on account of willful or deliberate laches on the part of the applicants. Therefore, we condone the delay.
The application is accordingly allowed.
24.08.2011 Dcs