Allahabad High Court
Girijesh Kumar Pandey vs State Of U.P. Thru. Addl. Chief Secy. ... on 3 April, 2025
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:18619
Court No. - 3
Case :- WRIT - A No. - 8831 of 2022
Petitioner :- Girijesh Kumar Pandey
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Rural Development, Lko. And Others
Counsel for Petitioner :- Pradeep Kumar Shukla,Sanjay Kumar Singh,Skand Bajpai
Counsel for Respondent :- C.S.C.
Hon'ble Rajesh Singh Chauhan,J.
1. Heard Shri Skand Bajpai, learned counsel for the petitioner and Shri Vivek Shukla, learned Additional Chief Standing Counsel for the respondents.
2. By means of this petition, the petitioner has prayed following reliefs:
"(i) to issue a writ, order or direction in the nature of certiorari for quashing of the impugned termination order dated 01.10.2020 passed by the O.P. No. 3, as contained in the Annexure No.1 of the writ petition.
(ii) to issue a writ, order or direction in the nature of mandamus for restoring of the petitioner in service with immediate effect on the post of additional programme officer.
(iii) to a writ, order or direction in the nature of mandamus thereby commanding respondents to pay the full back wages to the petitioner till date on account of petitioner was illegally desisted from the work due to patently illegal order of termination dated 01.10.2020, along with interest."
3. At the very outset, this Court has noted that on 02.02.2024 this Court granted two weeks time to file supplementary counter affidavit to learned State counsel replying the contents of paragraph nos.11, 12 and 13 of the supplementary affidavit filed by the petitioner, wherein specific ground of hostile discrimination has been taken. No supplementary counter affidavit has been filed in compliance of the order dated 02.02.2024. Thereafter this Court vide order dated 20.02.2024 granted a week further time on the request of learned State counsel to file supplementary counter affidavit. Admittedly no supplementary counter affidavit has been filed till 05.11.2024, when this Court passed a detail order, which reads as under:
"1. Heard Shri Skand Bajpai, learned counsel appearing for the petitioner and learned Standing Counsel appearing for all the respondents.
2. Contention of learned counsel for the petitioner is that initially the petitioner had been appointed through an outsourcing agency on the post of Additional Programme Officer in the year 2009. Subsequent thereto, considering certain orders issued by Hon'ble Apex Court in SLP(C) No. 035284 - 035299 of 2009, it was decided to make appointment to the post of Additional Programme Officer, Technical Assistant, Computer Operator/Data Entry Operator and Account Assistant by means of order dated 13.01.2010, a copy of which is Annexure No. SA-2 to the supplementary affidavit dated 16.01.2024, from a three member committee headed by the District Magistrate. The said appointment was to be made on contractual basis.
3. The petitioner claims to have been appointed on 02.03.2009, a copy of which is Annexure No. SA-3 to the supplementary affidavit dated 16.01.2024, as an Additional Programme Officer by the three member committee. Subsequent thereto, on account of certain irregularities/illegalities committed by the petitioner and two other persons who were working as Computer Operator and Accountant, a show cause notice was issued to them. Vide impugned order dated 01.10.2020, a copy of which is Annexure No.1 to the petition, the services of the petitioner have been dispensed with on the ground that services are no longer required.
4. The specific case of the petitioner is that despite the charges pertaining to the irregularities as levelled against the petitioner and other two persons namely Power Operator and Accountant being one and same yet it is only the petitioner whose contractual services have been dispensed with by means of a stigmatic order while other two persons have been retained in services and thus, discrimination is alleged. Specific averment has been made to Paragraph 11 to the Supplementary Affidavit dated 29.01.2024.
5. Learned Standing Counsel for all the respondents has refuted the aforesaid on the basis of objection affidavit dated 29.02.2024/05.03.2024 more particularly on the basis of averments contained in Paragraph 5 to the said affidavit by contending that with regard to other colleagues in the case, they have been punished with minor penalties/adverse entries after departmental proceedings involved in the case.
6. In case the other persons were working on contractual basis, the departmental proceedings alleged to have been initiated against them is not understood.
7. Even otherwise as per averment made in the said affidavit, it has been indicated that other persons have been punished with minor penalties/adverse entries meaning thereby there could be discrimination in the punishment even though the petitioner is a contractual employee.
8. Considering the aforesaid it is apparent that the averments made in the affidavit filed by the respondents are vague. As such, let a specific supplementary counter affidavit in this regard be filed specifically adverting to the averment made by the petitioner of there being discrimination in punishment vis-a-vis the charges which were the same as levelled against the petitioner and other two persons, who have been retained in the services.
9. Upon the aforesaid order being dictated, learned counsel for the petitioner points out that this aspect of the matter has already been considered by this Court, as indicated in the order dated 02.02.2024 and the aforesaid objection affidavit has been filed in pursuance to the aforesaid order and consequently, no further time may now be granted as the respondents had ample opportunity to file an affidavit.
10. However, learned Standing Counsel appearing for all the respondents prays for a last opportunity to file a better affidavit.
11. As such, in the interest of justice, three weeks' time is granted to the respondents to file a better affidavit specifically adverting to the issued raised by this Court in this order on payment of Rs.10,000/- as cost. The cost shall be deposited with the High Court Legal Services Sub-Committee Lucknow within a week.
12. List/put up this case thereafter.
13. It is open for the respondents to realise the amount of cost from the officials who are responsible for non-compliance of the order dated 02.02.2024.
14. It is made clear that in case the cost is not deposited within the time specified, the supplementary counter affidavit shall not be taken on record."
4. In the aforesaid order, this Court noticed that specific and categorical reply of paragraph nos.11, 12 and 13 of the supplementary affidavit has not been filed though one vague reply has been filed, therefore, this Court granted three weeks further time to the respondents to file better affidavit adverting to the issue raised by this Court in its order dated 02.02.2024 on payment of Rs.10,000/- as a cost.
5. In paragraph no.14 of the aforesaid order dated 05.11.2024, this Court made it clearthat in case the cost is not deposited within the time specified, the supplementary counter affidavit shall not be taken on record. Admittedly, no cost has been deposited as on today, but learned Additional Chief Standing Counsel has shown supplementary counter affidavit, which has been sworn on 02.04.2025 i.e. after about five months from the order dated 05.11.2024. Since the cost has not been deposited, therefore, the aforesaid supplementary counter affidavit may not be taken on record.
6. Shri Vivek Shukla, learned Additional Chief Standing Counsel has drawn attention of this Court towards one Criminal Misc. Application No.16 of 2024 in this writ petition i.e. 'Application for grant of time to deposit the cost Rs.10,000/- in compliance of order dated 05/11/2024 passed in Writ-A No.8831/2022 (Girijesh Kumar Pandey versus State of U.P. and others)' filed on 29.11.2024. The period of three weeks in terms of the order dated 05.11.2024 expired on 26.11.2024, but this application has been filed on 29.11.2024 along with affidavit of one Shri Ravi Kumar Gupta, Block Development Officer, Tarabganj, Gonda dated 26.11.2024.
7. This Court is unable to understand as to why in Writ-A, criminal miscellaneous application has been filed and the office has numbered that application without pointing out defect thereof. Instead ofcriminal miscellaneous application, it should have been civil miscellaneous application, therefore, a note caution is issued to the office to remain careful that as and when any application is filed it should be examined properly, so that proper application could be filed in a writ petition etc.
8. In paragraph nos.3, 4 and 5 of the aforesaid application, reasons have been indicated as to why the cost of Rs.10,000/- could not be deposited well in time. For convenience, paragraph nos.3, 4 and 5 of the aforesaid application are quoted as under:
"3. That the order passed by this Hon'ble Court was well communicated and the State Government has also taken notice for compliance of the order passed by this Hon'ble Court and has issued a letter dated 09/11/2024 for compliance of the order passed by the Court Hon'ble dated 05/11/2024.
4. That unfortunately the brother of concern Accountant has died on 07/07/2024; hence, he became on leave; and the delay has occurred in preparation of the demand draft.
5. That the KYC of the Administrative Account was also not complete; hence, a process has been adopted for getting the KYC completed and for completing all these formalities, the time provided by the Hon'ble Court has lapsed."
9. As per paragraph no.3 of the aforesaid application, the approval has been sought from the State Government to make compliance of the order dated 05.11.2024 preferring one letter dated 09.11.2024 to the competent authority of the State Government. Undisputedly, the order dated 05.11.2024 has not been stayed by any superior court, therefore, seeking prior approval to make compliance of the order of this Court from the State Government is disobedience of the order of this Court.
10. In paragraph no.4 of the application, it has been indicated that the brother of the concerned Accountant has died on 07.07.2024 and he became on leave, therefore, the delay has occurred in preparation of the demand draft.
11. Shri Vivek Shukla, learned Additional Chief Standing Counsel has stated that the date 07.07.2024 is a typographical error, whereas it should be 07.11.2024.
12. Even the aforesaid submission of Shri Vivek Shukla is accepted that brother of the Accountant died on 07.11.2024, then for making compliance of the order of this Court any other competent authority/official could have been authorized to do needful. However, since the approval of the State Government was sought, therefore, no such exercise might have been undertaken by the competent authority.
13. Paragraph no.5 of the aforesaid application is so surprising, wherein it has been indicated that the KYC of the Administrative Account was incomplete, therefore, the process has been adopted in getting the KYC completed and in completing of these formalities, the time provided by this Court has lapsed.
14. If the KYC of the Administrative Account of the Department is not complete then it is really the sorry state affairs for the simple reason that the other important transactions, which are conducted through the aforesaid Administrative Account, could have not been proceeded and not only the department but also some other concerning persons might have suffered a lot, therefore, this very fact must be taken into account by the Head of the Department and information to that effect be provided to the Additional Chief Secretary, Department of Rural Development, Government of U.P., Civil Secretariat, Lucknow by the Registry of this Court within seven working days.
15. Having perused the aforesaid three main grounds not to make compliance of the order of this Court, I am constraint to say that these grounds are unacceptable and these are of lame excuses for which further responsibility may be fixed upon the erring authority/authorities. Since the cost in question has not been deposited within the time so stipulated and no order has been passed on the aforesaid application dated 29.11.2024 till date so the supplementary counter affidavit, which has been provided by learned Additional Chief Standing Counsel, may not be accepted in terms of paragraph no.14 of the order dated 05.11.2024.
16. So far as the merits of the case are concerned, this Court vide order dated 05.11.2024 (supra) has considered that other similarly placed persons having similar charges have been given minor punishment/adverse entries, but the present petitioner has been awarded major punishment i.e. termination of services. Since the aforesaid discrimination have not been explained by the respondents, therefore, this writ petition may be allowed on the ground of hostile discrimination alone.
17. Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.9, which is a judgement and order dated 28.09.2021 passed by this Court in Service Single No.17801 of 2020; Akeel Ahmad versus State Of U.P. Thru. Secy. Rural Development, Lko. & Ors. allowing the petition of one employee of the same department, more or less on the identical facts and circumstances directing the authorities to retain that petitioner in service at par with the similarly situated employees till the currency of the project subject to his satisfactory performance and the petitioner shall, however, be paid his future salary from the date of this order and shall not be entitled to the salary admissible to him for the period he has not worked. For convenience, the judgement and order dated 28.09.2021 passed by this Court in Service Single No.17801 of 2020 reads as under:
"Heard learned counsel for the petitioner and learned Standing Counsel for the State.
By means of this writ petition, the petitioner has assailed the order dated 10.08.2020 whereby his services were dispensed with on the allegations mentioned in the notice dated 23.05.2020 which according to the impugned order were not replied to satisfactorily. As per the impugned order passed against the petitioner certain informations were uploaded on the web portal with an alleged motive of causing financial loss and the deletion thereof was also not explained hence construing such an act on the part of the petitioner to be a misconduct and dereliction of duty, the services of the petitioner were dispensed with.
The appointment of the petitioner was made as Additional Programme Officer under the Mahatama Gandhi Gramin Guarantee Yojna initially for a period of one year by order dated 30.11.2010 which was extended from time to time. The petitioner continued to discharge his duties till issuance of notice dated 23.05.2020 contained in annexure no.11 to this writ petition. The petitioner is stated to have replied the notice on 02.06.2020.
After submission of the reply on 02.06.2020, the petitioner was called upon before the District Committee on 24.06.2020 and finding his work and conduct satisfactory, no further proceedings were drawn against him. Surprisingly enough it appears that the other employees working under the supervision of the petitioner were called upon on 29.06.2020 and by entertaining their version at the back of the petitioner, the impugned order has come to be passed.
From the tenor of the impugned order, it cannot be disputed that the observations have been made therein against the work and conduct of the petitioner. The observations made cannot be understood other than by way of a stigmatic aspersion in the normal course. Moreover, the motive of causing loss is attributed against the petitioner,therefore, the very foundation of the impugned order is an aspersion/stigma cast against him relating to the discharge of duty.
Sri Virendra Mishra, learned counsel for the petitioner placing reliance upon a division bench judgement rendered in the case of Barun Kumar vs. Uttar Pradesh Caste Finance And Development Corporation Limited, has argued that even the contractual employee against whom an aspersion is cast relating to his work and conduct is entitled to the protection of regular enquiry. According to the learned counsel, the employer was under a bounden duty to hold regular enquiry before assuming the petitioner guilty of the charge. In the present case however apart from issuance of a show cause notice to which the petitioner submitted a reply, no further opportunity was granted to disprove the allegations levelled against him.
A finding stigmatic in character has been recorded in the impugned order despite the continuance of the petitioner for his satisfactory/unblemished service record for about ten years. It is also submitted that the employees under his supervision who were proceeded on the strength of a similar allegation have been retained in service
In nutshell it is submitted that before recording a stigmatic finding in the impugned order, the petitioner ought to have been afforded an opportunity by holding a regular enquiry as is the law laid down by this Court in the judgment aforesaid and secondly, the petitioner ought not to have been subjected to a discriminatory treatment as compared to the other employees working under him in the same project.
Sri Alok Sharma, learned Additional Chief Standing Counsel has submitted that the impugned order does not attach any stigma against the petitioner, as such, the petitioner was not entitled to any further opportunity except that of a notice and the minimum procedure as was applicable in the case of a contractual employee has been followed. In the case at hand, learned Standing Counsel has however not in a position to justify as to why the observation made in the impugned order may not be read as stigmatic once the motive of causing financial loss to the government is alleged against the petitioner. The very foundation of the impugned order proceeds on the motive attached in uploading some data and deletion thereof.
Similarly situated employee who worked under the supervision of the petitioner was also proceeded against in the present case but has been retained.
This Court having regard to the judgement placed reliance upon has no reason not to extend the benefit thereof to the petitioner in the facts and circumstances of the present case. The observations made in the impugned order do not record a stigmatic aspersion and in the normal course the same would entitle a delinquent employee to be afforded an opportunity of defence by holding a regular enquiry. The ground of discriminatory treatment also leans in favour of the petitioner.
In view of above, the impugned order having been passed without following the course of regular enquiry, in my humble view, is clearly illegal and arbitrary. The impugned order for the reasons recorded above is liable to be set aside. It is ordered accordingly. The opposite parties are thus directed to retain the petitioner in service at par with the similarly situated employee till the currency of the project subject to his satisfactory performance. The petitioner shall however be paid his future salary from the date of this order and shall not be entitled to the salary admissible to him for the period he has not worked. No order as to cost."
18. Since the relevant facts have already indicated in the order dated 05.11.2024, therefore, those facts are not being indicated again. In paragraph no.4 of the aforesaid order, this Court considered the facts that despite the charges pertaining to the irregularities as levelled against the petitioner and other two persons namely Power Operator and Accountant being one and same yet it is only the petitioner whose contractual services have been dispensed with by means of a stigmatic order while other two persons have been retained in services and thus, it is a case of hostile discrimination.
19. This fact has indicated specifically in paragraph no.11 of the supplementary affidavit dated 29.11.2024, therefore, the respondents will have to file specific reply to the aforesaid supplementary affidavit. Besides the specific reply of paragraph nos.12 and 13 of the supplementary affidavit dated 29.11.2024 was required for that three weeks time was given vide order dated 05.11.2024 to the learned State counsel to file better affidavit in the shape of supplementary counter affidavit, but no supplementary counter affidavit has been filed as on today nor the cost of Rs.10,000/- has been deposited.
20. Shri Vivek Shukla, learned Additional Chief Standing Counsel has shown a photocopy of the demand draft of Rs.10,000/- dated 27.11.2024 in the name of 'High Court Legal Services Sub Committee, Lucknow', but the same could not be filed as the application dated 29.11.2024 was pending.
21. The order sheet reveals that this case was listed on couple of dates, but the aforesaid application dated 29.11.2024 could not be disposed of.
22. On being asked from learned Additional Chief Standing Counsel to justify the impugned order as well as the conduct of the authorities as to why the cost of Rs.10,000/- has not been deposited well in time pursuant to the order dated 05.11.2024 of this Court, he has stated that he has filed an application on 29.11.2024 (supra) on the basis of specific instructions so received to him and he has taken only those grounds in the said application, which have been apprised to him by the authorities concerned. He has fairly stated that if any order is passed by the Court, compliance thereof is mandatory upon the authorities unless that order is stayed by any superior court and he has also fairly submitted that to make compliance of the order of this Court, no prior approval from the State Government is needed. He has further stated that when those instructions were provided to him, he has also asked from the competent authority to make prompt compliance of the order of this Court, but he was intimated that one letter dated 09.11.2024 has been preferred to the State Government to seek approval to deposit the cost. He had also asked the authority concerned as to why the KYC of Administrative Account is incomplete whereas it should be completed so that the normal transaction could take place through such account, but that fact was not within his control.
23. Shri Shukla has also submitted that in supplementary counter affidavit, the Department has tried to justify the impugned order, but that supplementary counter affidavit is not being taken on record in the light of paragraph no.14 of the order dated 05.11.2024, therefore, he may not refer that explanation. Shri Shukla has, however, verbally submitted that the responsibility of the present petitioner, who was serving on the post of Additional Programme Officer, M.G.N.R.E.G.A., was graver than other two employees, who were serving on the post of the Power Operator and Accountant.
24. Having considered submissions of learned counsel for the parties and having perused the material available on record as well as judgement and order passed in the case of Akeel Ahmad (supra) as well as the directions being issued by this Court in the present case vide order dated 05.11.2024 (supra), I am of the considered opinion that the responsible authority/authorities have flouted the directions being issued by this Court vide order dated 05.11.2024 deliberately and intentionally by not depositing the cost of Rs.10,000/- well in time without having any cogent explanation to that effect. On the basis of material available on record and the pleadings which have been exchanged, there is no proper explanation with the competent authority in respect of apparent hostile discrimination inasmuch as the similar allegations and charges have been levelled against three employees including the petitioner, but two employees have been awarded minor penalties/adverse entries whereas the services of the petitioner has been dispensed with by means of stigmatic order. Whereas two other persons have been retained in services. The law is trite on the point that if any punishment order is stigmatic order then the same could have been passed by following the due procedure of law, by conducting full-fledged departmental inquiry by affording an opportunity of hearing to the employee.
25. In the present case, the reason for not conducting departmental inquiry against the petitioner is that he was a contractual employee whereas for two other employees the department has allegedly conducted departmental inquiry though those employees were also contractual employees. Had the impugned punishment order been order of simplicitor, the position would have been different, but the impugned punishment order is stigmatic order, therefore, the procedure will have to be followed and that major punishment order could have not been passed only issuing prior show cause notice.
26. Notably in the similar case ofAkeel Ahmad (supra), some contractual employees were retained, but services of Akeel Ahmad had been dispensed with through stigmatic order and the reason of hostile discrimination could not be explained, therefore, this Court allowed the writ petition of Akeel Ahmad vide judgement and order dated 28.09.2021.
27. Learned counsel for the petitioner has informed that order being passed in the case of Akeel Ahmad (supra) has been complied with by the Department and he is still working, therefore, on the basis of principles of parity, similar benefit may be given to the present petitioner.
28. In view of the facts and circumstances considered above, this writ petition is allowed. The impugned termination order dated 01.10.2020 passed by the respondent No. 3 as contained in the Annexure No.1 of the writ petition is hereby set aside/quashed. The respondents are directed to retain the petitioner in services at par with the similarly situated employees till currency of the project subject to his satisfactory performance. The petitioner shall be paid his future salary from the date of this order. However, the petitioner may prefer a representation for seeking arrears of back wages and the said representation may be decided by the competent authority by speaking and reasoned order on its own merits. No order as to costs.
29. Since the order of this Court dated 05.11.2024 has been flouted, therefore, a cost of Rs.50,000/- (Rupees Fifty Thousand only) is imposed upon the respondent - Department and that cost shall be deposited within a period of four weeks. The cost of Rs.10,000/- (Rupees Ten Thousand only) shall be deposited with the High Court Legal Services Sub Committee, Lucknow and remaining cost of Rs.40,000/- (Rupees Forty Thousand Only) shall be paid to the petitioner within aforesaid period failing with that cost may be recovered from the authorities as a land revenue.
Order Date :- 3.4.2025
Anupam S/-
