Shiva Kant Pandey vs State Of U.P.& Others
2014 Latest Caselaw 2560 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(Judgment reserved on 16.05.2014)
 
(Judgment delivered on 07.07.2014)
 

 

 

 

 

 

 

 

 
Case :- WRIT - A No. - 1054 of 2000
 

 
Petitioner :- Shiva Kant Pandey
 
Respondent :- State Of U.P.& Others
 
Counsel for Petitioner :- K.M. Mishra,Mithilesh Kumar Tiwari
 
Counsel for Respondent :- C.S.C.
 

 

 

 
Hon'ble Rajan Roy,J.

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

This writ petition was filed in the year 2000 challenging the order dated 09.12.1999 by which the services of the petitioner were terminated by the respondent No.4/5 in exercise of powers under U.P. Temporary Government Servants (Termination of Service) Rules, 1975. On 10.01.2000, an interim order was passed in this case as under:

"Learned counsel for the petitioner is permitted to add respondent No.5 to the writ petition.

Learned standing counsel is allowed two months' time to file counter affidavit.

The respondents initiated inquiry proceedings against the petitioner. The inquiry officer in his inquiry report dated 15/11/99, Annexure-5 to the writ petition, did not find the petitioner guilty of the charges framed against him. After the inquiry report the respondents No.5 has terminated the services of the petitioner by order dated 9/12/99 without even considering the inquiry report. In view of the fact that the petitioner has been working as forest guard since 1985 and in view of division bench decision of this court in State of U.P. Vs. Puttilal, 1998 (1) UPLBEC 313, the petitioner is entitled for interim order.

Until further orders of this court, the effect and operation of termination order dated 9/12.99 passed by respondent No.5, Annexure-1 to the writ petition shall remain stayed. The petitioner shall be continued in service and paid his salary."

In pursuance of the aforesaid interim order, the petitioner has continued in service and has also been allowed to retire on attaining the age of superannuation, i.e. 30.09.2013.

As, on account of the pendency of this writ petition, the claim of the petitioner for grant of post retirement benefits including pension was not being acceded, therefore, he filed an application for amendment seeking the said relief. However, the learned counsel for the petitioner submits that if the writ petition against the termination of service is decided, the consequences will follow and it is not necessary to consider the amendment application.

The petitioner was engaged as Forest Guard, vide appointment order dated 04.12.1984, after due and proper selection including written test and interview. Ever since then, he continued to work as Forest Guard. On 07.07.1999, he was placed under suspension in view of certain alleged irregularities/ misconduct committed by him. He challenged his suspension by means of Writ Petition No.31908 of 1999 before this court, which was disposed of with the direction to the concerned authorities to complete the inquiry against him by 15th November 1999, failing which the petitioner shall stand reinstated on 16.11.1999.

As per the documents on record, the inquiry against the petitioner was completed and inquiry report was submitted on 15.11.1999, however as per the petitioner, he was not reinstated on 16.11.1999 as ordered by this court, whereas in similar circumstances another person Harishankar Mishra, who had also been suspended and in whose case also, a similar order had been passed was reinstated on 4th October 1999 itself. A copy of said reinstatement order is annexed as Annexure-7 to the writ petition.

On 09.12.2009, based on the aforesaid inquiry report, an order is said to have been passed, a copy of which has been annexed as Annexure-CA-6 to the counter affidavit of the respondents, though there is no mention of the same in the writ petition.

By means of the said order, the petitioner was found guilty of charges No.1, 2 & 3, whereas charge No.4 was not found proved. The petitioner was found to have caused financial loss of Rs.1,49,133/- to the government, however, no punishment was imposed by the said order, instead, only conclusions were drawn with regard to the charges framed against him and the irregularities, misconduct committed by him.

On that very date, i.e. 09.12.1999, another order was passed terminating the services of the petitioner in exercise of power under the Rules of 1975 as already referred above and it is this order, which is under challenge in this writ petition.

The contention of the learned counsel for the petitioner is firstly that the petitioner had put in more than 14 years of service on the date of his termination, therefore, he could not be treated as a temporary employee especially as he was given all the benefits which are given to the regular employees. A perusal of the appointment order will reveal that he was appointed after due and proper selection, therefore, merely because the appointment order referred to the appointment as being temporary and terminable on one month's notice, would not make the appointment temporary. He was paid salary in the regular pay scale with increments and was also allowed to cross the efficiency bar.

The learned counsel further submitted that during the pendency of this writ petition, the petitioner was substantively promoted as Forester on 04.04.2000, he was paid the second promotional pay scale w.e.f. 01.12.2008, vide order dated 22.08.2010. He was also paid the third promotional pay scale w.e.f. 22.01.2011, vide order dated 28.03.2011. These benefits are given to regular employees.

Learned counsel further submitted that the interim order dated 10.01.2000 was never challenged by the respondents by filing any appeal. The petitioner has continuously worked since 21.01.1985 and has even been allowed to retire from service on 30.09.2013 while working on the promotional post of Forester, however, the post retirement benefits of the petitioner are not being paid though the Forest Conservator, vide order dated 07.01.2014, has recommended the same.

The learned counsel further submits that the impugned order was passed malafide because of ill motivation of the respondent No.4 towards the petitioner.

The contention is that the petitioner was fully exonerated in the inquiry but without considering the same and in a round about manner his services were terminated treating him to be a temporary employee after having put in more than 15 years of service. Learned counsel also submitted that the service record of the petitioner was clean. In view of the above, especially the retirement of the petitioner, the termination was liable to be quashed with consequential benefits.

On the other hand, the learned standing counsel submitted that as per the recitals contained in the counter affidavit and the documents annexed therewith, the work and conduct of the petitioner was never satisfactory. It is incorrect to say that he was exonerated in the inquiry report. The petitioner was a temporary employee and considering the allegations against him, his continuance was not found to be in the interest of administration and his services being not satisfactory, the same were terminated under the provisions of Rules, 1975, therefore, same does not suffer from any error.

A perusal of the appointment order of the petitioner reveals that his appointment was made after due and proper selection including written test and interview but it is also a fact that the appointment order refers to his appointment as temporary and also contains a condition that his services may be terminated at any time on one month's notice. The fact is that the petitioner as on the date of his termination, had put in about 15 years of service.

Even after initiation of inquiry proceedings against him and the submission of the inquiry report, the respondent No.4/5 did not terminate his services based on the charges levelled against him and the inquiry report referred earlier, instead, he chose to adopt a circuitous route to terminate the services of the petitioner by passing an order under the provisions of Rules, 1975 treating him to be a temporary employee.

This court is of the view firstly, that after having put in 15 years of service and having been given all the benefits admissible to a regular employee and after having been appointed after due and proper selection, it would be unreasonable to treat the petitioner as temporary employee and to terminate his services under the Rules of 1975. It would have been understandable, if his services would have been terminated on the ground of misconduct if the charges against the petitioner were found to be proved and were such as to dis-entitle him from continuing in service.

A perusal of the inquiry report reveals that some of the charges were found to be proved while others were not proved. With regard to charge No.1, Inquiry Officer has mainly found that Sri Ram Ji Rai, Forest Range Officer, Meza is responsible and so far as the petitioner is concerned, it has not been categorically held that he was responsible though it has been observed that he alone cannot be held responsible. Charge No.2 was found to be proved. Charge No.3 was not found to be proved. Charge No.4 was also not found to be proved.

Be that as it may, the fact is that the petitioner was exonerated fully in respect of charges No.3 & 4, Charge No.2 was fully proved, the findings regarding charge No.1 were vague and at best could be treated as partial affirmation against the petitioner.

A perusal of the order dated 09.12.1999 contained in Annexure-CA-6 passed by the respondent No.4/5 reveals that he has drawn his own conclusion from the inquiry report and has held that all other charges except charge No.4 were proved meaning thereby he has differed with the report of the Inquiry Officer. There is nothing on record to show that the points of difference were ever communicated to the petitioner for submission of his explanation before passing the order dated 09.12.1999 drawing his own conclusions in the disciplinary proceedings and any opportunity of hearing was given to him in this regard.

Moreover, no punishment was imposed by means of the said order though the petitioner's integrity has been doubted. The court fails to understand as to what was the purpose of passing such order if no punishment was to be imposed. It appears that the disciplinary authority was not very sure that such an order would stand the scrutiny of the courts and, therefore, he avoided passing an order of punishment, which he could have very well done. In fact, he could have even terminated the services of the petitioner, instead, he chose to adopt another route, which perhaps, according to him, was available and was a simpler one, i.e. passing an order of termination simplicitor under the Rules of 1975.

In the circumstances, the court is of the view that based on the inquiry report, an order of removal or termination from service could not have been passed and in fact the same was not passed. Therefore, it was not open for the respondent No.4/5 to adopt a circuitous route and terminate the services of the petitioner in the garb of an order simplicitor under the 1975 Rules.

Moreover, after the passing of the interim order dated 10.01.2000, not only the petitioner was allowed to continue in service but he was also granted promotion to the post of Forester on 04.04.2013 as also the second and third promotional pay scales, which are only granted to regular employees.

In view of the conduct of the respondents themselves in treating the petitioner as a regular employee by giving him all such benefits and also allowing him to retire on attaining the age of superannuation on 30.09.2013, there appears to be no justification for sustaining the impugned order of termination dated 09.12.1999 passed by the respondent No.4/5 contained in Annexure-1 to the writ petition. The petitioner continuously worked from 21.01.1985 to 30.09.2013. Though in the counter affidavit, the respondents have mentioned about certain adverse entries against the petitioner and certain other actions taken against him but the fact remains that the same were never made the basis for terminating his services and he was allowed to continue and retire. It is too late in the day to take any other view of the matter.

In view of the above discussion, the impugned order dated 09.12.1999 contained in Annexure-1 to the writ petition is quashed. The writ petition is accordingly allowed. It is made clear that the claim of the petitioner for grant of post retirement benefits has neither been considered nor adjudicated and it shall be open for the respondents to take a decision in this regard separately as also for the petitioner to agitate his claim before the respondents or before any other Forum in this regard and also to file a separate writ petition, if the need so arises.

Order Date :- 07.07.2014

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