Allahabad High Court
Bablu vs State Of U.P. And 3 Others on 4 July, 2022
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 5825 of 2022
Petitioner :- Bablu
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Durga Prasad Tiwari,Sunil Kumar Shukla
Counsel for Respondent :- C.S.C.,Devendra Kumar,Prem Shankar Tripathi
Hon'ble Neeraj Tiwari,J.
Rejoinder affidavit filed today be taken on record.
Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Prem Shankar Tripathi, learned counsel for the respondent nos. 3 & 4.
Learned counsel for the petitioner submitted that earlier petitioner was appointed as Safai Karmi on 4.9.2006 on contract basis and he has continued in service till the passing of termination order dated 26.3.2022. He next submitted that the services of petitioner has been terminated merely on the ground of absence of one day from duty i.e. 2.3.2022. He further submitted that frivolous allegation of misconduct has also been levelled against him in the impugned order dated 26.3.2022. In the show cause notice dated 5.3.2022, there is only allegation of absence of one day and there is no allegation of misconduct. Upon which, petitioner has filed reply on 14.3.2022 and denied the same in reply. He submitted that statement of person residing in that area were not recorded and in case any videography is conducted by the respondents, his presence may be verified. He further submitted that without considering the reply, impugned termination order has been passed. Apart from absence from duty for one day, another allegation of misconduct has also been levelled against him in impugned order, which is not mentioned in the show cause notice dated 5.3.2022. Ttherefore, under such facts and circumstances, impugned termination order dated 26.3.2022 is liable to be quashed.
Per Contra, Sri Prem Shankar Tripathi, learned counsel for the respondent nos. 3 & 4 has opposed the aforesaid argument of learned counsel for the petitioner and submitted that not only on 2.3.2022, but on many other dates, he was absent from duty and also misbehaved with the Chairman, therefore, there is no illegality or irregularity in the impugned termination order.
Being confronted by the Court, he could not dispute this fact that in the show cause notice except the absence of one day from duty i.e. 2.3.2022, no charges of misconduct are mentioned. Further, absence on other dates are mentioned only in the counter affidavit and is not the part of the impugned order.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as impugned termination order dated 26.3.2022. The facts of the case are very much clear. There is no dispute in the show cause that applicant was alleged for absence of one day from duty i.e. 2.3.2022, therefore, while terminating his services no other charges of misconduct can be considered. Further, there is allegation of absence on other dates in the counter affidavit, which can also not be taken into consideration in light of judgment of Apex Court in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner reported in 1978 1 SCC 405 as impugned order cannot be improved by filing affidavit. It is also apparent that reply of the petitioner dated 14.3.2022 has not properly been considered by the respondents. Neither statement of person residing in that area has been recorded nor any videography has been placed showing his absence from duty, if conducted by the respondents. It is also undisputed that petitioner is working from 4.9.2006, therefore, punishment of termination for absence of only one day from duty is disproportionate and same is bad in law and liable to be quashed.
Therefore, under such facts and circumstances of the case, The writ petition is allowed and impugned termination order dated 26.3.2022 is hereby quashed.
However, it is open for the respondents to have full supervision upon the conduct and work of petitioner future.
In case, he is found absence from duty or indulge in any misconduct, it is open for the respondents to pass appropriate order in accordance with law.
Order Date :- 4.7.2022
Junaid
