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2002 DIGILAW 1427 (ALL)

PREM NIWAS MISHRA v. STATE OF U. P.

2002-10-04

RAKESH TIWARI

body2002
RAKESH TIWARI, J. ( 1 ) HEARD counsel for the parties and perused the record. ( 2 ) THIS writ petition is directed against the order of termination dated 24. 10. 90 passed by the District magistrate, Pilibhit. ( 3 ) THE matrix of the case are that the petitioner was appointed as Collection amin vide orders dated 15. 3. 84 in Tahsil bisalpur, district Pilibhit. The appointment of petitions was on compassionate ground under the provisions of U. P. Employment of dependents of Government Servants dying-in-Harness Rules, 1974 as the father of the petitioner died in harness. ( 4 ) BEFORE coming to the merits of the case it is necessary to see. the backdrop of the case in which the order of termination was passed. The petitioner was given a warning on 30. 8. 90 by the Tahsildar of the concerned Tahsil for collection of less revenue. Thereafter a show cause notice dated 30. 9. 90 was given to him for his lackadaisical attitude. In pursuance thereof he submitted his explanation by reply/letter dated 1. 10. 90. Counsel for the petitioner contends that without considering the reply or the contentions raised therein the impugned order of termination was passed by the District magistrate/prescribed Authority, Piliphit. Counsel for the petitioner next contends that the impugned order of termination was passed behind the back of the petitioner depriving him of reasonable opportunity of hearing. He contends that the impugned order of termination in not a termination simplicitor in the circumstances stated above. ( 5 ) COUNTER affidavit has been filed on behalf of the respondents. Placing reliance on letter dated 13. 1. 88 issued by the board of Revenue it is contended by the standing counsel that before termination of service of Collection Amin no opportunity was required to be given. A copy of this letter has been annexed as annexed-CA-1 to the counter affidavit. Para 10 of the letter dated 13. 1. 88 reads reads as under: ( 6 ) SUB Clause (1) of Para 10 of the said letter provides that in case any collection Amin is found to have realized less revenue then a warning has to be issued first. Para 10 of the letter dated 13. 1. 88 reads reads as under: ( 6 ) SUB Clause (1) of Para 10 of the said letter provides that in case any collection Amin is found to have realized less revenue then a warning has to be issued first. Thereafter even if his work is not up to the mark then he has at least to be given two opportunities to enhance his revenue collection and in that event he does not comply with the standards prescribed, only then his services can be dispensed with without giving him a show cause notice. ( 7 ) THE contention of the petitioner is that appointment of the petitioner though temporary, was made on a substantive vacancy under the Dying in Harness rules by the order of the District magistrate. Counsel for the Petitioner has placed reliance on a case Ravi Karan singh Vs. State of U. P. and others, (1999) 3 UPLBEC-2263 in which it has been held that once an appointment on compassionate ground, under the provisions of Dying in Harness Rules is being made, then his service can not be terminated under Rule 3 of U. P. Temporary Government Servant (Termination of Service) Rules, 1975. ( 8 ) COUNSEL for the petitioner contends that once the petitioner by fiction of law acquires the permanent status, then he could not have been punished without following the procedure prescribed under Article 311 of the constitution of India. The last submission of the counsel for the petitioner is that the petitioner was given show cause notice but no disciplinary proceeding or enquiry was ever conducted as contemplated under financial Hand Book Chapter-II to iv read along with the amended fundamental Rule-56. ( 9 ) IT appears that the impugned order of termination is not a termination simplicitor. The services of the petitioner have been terminated without holding disciplinary enquiry. Furthermore, the provisions of U. P. Temporary government Servant (Termination of service) Rules, 1975 do not apply in case of a person appointed under the provisions of U. P. Employment of dependants of Government Servants dying-in- Harness Rules as they are deemed permanent as has been held by a division Bench of this Court in Ravi karan Singhs Case (supra. ). ). ( 10 ) IN the circumstances, the termination of the service of the petitioner was illegal and against the principle of natural justice and it was passed without holding any disciplinary enquiry. ( 11 ) THE impugned order cannot be sustained and it is, therefore, quashed. The writ petition is allowed with a direction to the respondents to reinstate the petitioner in service forthwith within a period of 2 weeks from the date of production of certified copy of this order and pay him salary month to month. It will, however, be open to the respondents to take any further such action against the petitioner as they are advised and may pass appropriate order after holding enquiry. .