Kareem Ahmad vs State Of U.P. Thru Prin.Secy. ...
2021 Latest Caselaw 10060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 6721 of 2019
 

 
Petitioner :- Kareem Ahmad
 
Respondent :- State Of U.P. Thru Prin.Secy. Panchayat Raj Lko. & Ors.
 
Counsel for Petitioner :- Mohammad Aslam Siddiqui,Akhtar Ali
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the respondents.

Instant petition has been filed praying for quashing of the order dated 20.03.2018, a copy of which is Annexure-1 to the writ petition, passed by respondent no.2 by which representation of the petitioner has been rejected as well as the order dated 31.07.2010, a copy of which is Annexure-2 to the writ petition, by which the services of the petitioner have been dispensed with by giving one month's notice pay under the provisions of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as '1975 Rules').

Learned counsel for the petitioner contends that the petitioner had been appointed as a Safai Karmi on 12.01.2009. The said appointment was occasioned on account of Government Orders having created the posts of Safai Karmis in Gram Panchayats. The petitioner had seriously fallen ill in July 2010 and thus could not report for duty when without giving any opportunity of hearing to him the impugned order dated 31.07.2010 was passed by respondent no.3 terminating the services of the petitioner under the provisions of 1975 Rules by giving one month's notice pay. It is contended that the petitioner continued to approach the respondents for reinstatement in service but to no avail and being aggrieved the petitioner filed Writ Petition No.15322 (SS) of 2017 in re: Kareem Ahmad vs. State of U.P. and another and this Court vide judgment and order dated 20.11.2017, a copy of which is Annexure-6 to the writ petition, disposed of the writ petition with a direction to the Director, Panchayatraj, Uttar Pradesh, Lucknow to decide the representation of the petitioner.

In pursuance thereof, the representation of the petitioner has been decided vide order dated 20.03.2018, a copy of which is Annexure-1 to the writ petition, and his claim for reinstatement in service has been rejected.

Learned counsel for the petitioner contends that though the petitioner is a temporary employee yet when the respondents have proceeded to terminate the services of the petitioner while taking into consideration the conduct of the petitioner which specifically finds place in the impugned order dated 20.03.2018 i.e. the petitioner was usually absent from his job, he did not carry out the work of cleanliness in the village rather engaging other persons to do his work and the sanitary condition of the village having been found unsatisfactory as such a stigma has been cast upon him which requires the respondents to have granted the petitioner an opportunity of hearing to explain his conduct and the same not having been accorded makes the impugned order patently bad in the eyes of law. He also contends that the respondents while filing counter affidavit have also indicated regarding the conduct of the petitioner as finds place in paragraph 6 of the counter affidavit which makes the impugned order patently stigmatic in the eyes of law.

In this regard, reliance has been placed on the judgment of this Court passed in Writ A No.56474 of 2010 in re: Vijay Kumar vs. State of U.P. and others decided on 08.04.2013, a copy of which is part of Annexure-7 to the writ petition, to contend that in similar facts where the services of a temporary Government servant had been terminated by following the provisions of 1975 Rules yet from perusal of the records it transpires that the termination order was stigmatic and based on the conduct of the petitioner the Court had interfered and had set-aside the order with a further direction to the respondents for reinstatement of the petitioner without any pecuniary benefits.

On the other hand, learned Additional Chief Standing Counsel argues that the petitioner was working on a temporary basis and as his work and conduct were not satisfactory consequently the competent authority has proceeded to terminate the services of the petitioner in accordance with the provisions of 1975 Rules by giving one month's notice pay. Merely because the work and conduct have been indicated by filing counter affidavit and in the impugned order by which representation has been rejected, the same would not entail any interference by this Court.

Heard learned counsel for the parties and perused the records.

From perusal of the records, it is apparent that the appointment of the petitioner was on a temporary basis. The services of the petitioner had been terminated through the impugned order dated 31.07.2010 by following the provisions of 1975 Rules and by giving one month's notice pay. Though in the impugned order of termination no reasons come out and the said order is perfectly in accordance with 1975 Rules but the respondents while filing the counter affidavit and even in the impugned order dated 20.03.2018 which has been passed on the representation of the petitioner have indicated the reasons for termination of the services of the petitioner. Thus, it is apparent that the reasons for termination of the services of the petitioner are (1) he was usually absent from his job, (2) he did not carry out the work of cleanliness in the village rather engaging other persons to do his work, and (3) the sanitary condition of the village having been found unsatisfactory, and thus once the termination is based on such conduct of the petitioner then an opportunity of hearing should have been accorded to the petitioner to explain the said lapses, if any, which were found by the appointing authority.

This aspect of the matter has been considered by this Court at Allahabad in the case of Vijay Kumar (supra) wherein the termination of a temporary Government servant under the provisions of 1975 Rules had taken place, the Court has held as under:-

"This Court has the occasion to peruse annexure-CA-1 and therein it has been mentioned that petitioner is care less in performing and discharging duty and is indisciplined and his character is doubtful. Assistant Development Officer, (Panchayat), Block Khutar, District Shahjahanpur has proceeded to mention that person like petitioner who are indisciplined and characterless, his services should be terminated and based on the said report action has been taken. Once it was being mentioned that petitioner was indisciplined and characterless and based on the same action has been taken, though it is not mentioned in the impugned order, then opportunity of hearing ought to have been afforded to the petitioner before proceeding to pass such an order so that petitioner could have satisfied the authorities that opinion formed was on totally wrong premises.

Under U.P. Temporary Government Servants (Termination of Service) Rules 1975 services of an incumbent who has been temporarily appointed can be dispensed with in consonance with the terms and condition contained in appointment letter but once action is being taken based on adverse report reflecting upon the character of an incumbent, and the same on its face value is punitive stigmatice in nature then before proceeding to dispense with the service of an employee in consonance with provision as contained under under U.P. Temporary Government Servants (Termination of Service) Rules 1975 opportunity of hearing is must.

Here in the present case no opportunity of hearing has been provided to the petitioner and on the recommendation made against the petitioner that he is indisciplined and characterless, straight away order of dispensation of service has been passed by mentioning that service of the petitioner are no longer required.

In view of this order dated 06.08.2010 passed by District Panchayat Raj Officer, Shahjahanpur is not at all being approved of and same is hereby quashed and set aside. Looking into the nature of engagement of the petitioner that his engagement is purely termporary employee and petitioner has not at all functioned for all these period, he will not be entitled for any remuneration but he shall be reinstated forthwith and all other benefits shall be admissible to him and it would be open to the respondents to proceed in accordance with law."

A perusal of the aforesaid judgment would indicate that the facts of the present case are fully covered by the said judgment. Admittedly, in the instant case also the reasons for termination exist on record as would be apparent from perusal of the impugned order dated 20.03.2018 consequently an opportunity of hearing was a must as per law laid down by this Court in the case of Vijay Kumar (supra).

Learned Standing Counsel has been unable to persuade the Court to take a different view from that of Vijay Kumar (supra).

Keeping in view the aforesaid discussions, the writ petition deserves to be partly allowed and is hereby partly allowed.

A writ of certiorari is issued quashing the orders dated 31.07.2010 and 20.03.2018, copies of which are Annexures 2 and 1 respectively to the writ petition. Looking into the nature of engagement of the petitioner that his engagement is purely of temporary employee and petitioner has not at all functioned for all these period, he will not be entitled for any remuneration but he shall be reinstated in service forthwith and all other benefits shall be admissible to him and it would be open to the respondents to proceed in accordance with law.

Order Date :- 11.8.2021

A. Katiyar