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2002 DIGILAW 707 (ALL)

GANGA SINGH v. SUPERINTENDENT OF POLICE BADAUN

2002-05-17

D.R.CHAUDHARY

body2002
D. R. CHAUDHARY, J. Petitioners services have been terminated by means of the order dated 8-2-1989 (Annexure-2 to the writ petition) as services no longer required, under purported exercise of power conferred by U. P. Temporary Government Servants (Termination of Services) 1975 Rules (hereinafter called the Rules 1975), which the petitioner has assailed by means of the present writ petition. 2. In the year 1980, the petitioner was appointed as Falver by the opposite party No. 1 on the clear vacancy and his services were unblemished throughout; a suspension order dated 28th February, 1988 (Annexure-1 to the writ petition) was served upon the petitioner on 2nd of March, 1988 on the ground that the petitioner is an accused in criminal case No. 23 under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N. D. P. S. Act): no disciplinary proceedings were initiated against the petitioner till now nor any charge sheet was served upon him: the services of the petitioner were terminated by means of an order dated 8-2-1989 (Annexure-2 to the writ petition) as services no longer required passed by the Superintendent of Police, Badaun, the respondent No. 1; the petitioner filed representation stating therein that the petitioner is an agriculturist and he is producing opium in his field after obtaining the licence from the concerned department. The copy of the licence was also appended with the representation aforesaid. The opposite party No. 1 made, enquiry through the Deputy S. P. Sri Ramji Lal, who after making enquiry, recommended to recall the suspension order and to reinstate the petitioner in service. The Respondent No. 1, instead of reinstating the petitioner in service passed the impugned order terminated the petitioners services as no longer required. The petitioner filed the appeal against the impugned order but the same was not disposed of, presumably, for the reasons that no appeal lies against the termination order which has been passed exercising the powers conferred by Rules 1975; during the pendency of the aforesaid appeal, the criminal case aforestated ended in acquittal. The certified copy of the judgment dated 26-5-1993 is placed on record as Annexure- 1 to the supplementary affidavit. The petitioner approached the Respondent No. 1 with copy of the judgment for his reinstatement but with no avail. 3. The certified copy of the judgment dated 26-5-1993 is placed on record as Annexure- 1 to the supplementary affidavit. The petitioner approached the Respondent No. 1 with copy of the judgment for his reinstatement but with no avail. 3. The respondents have not filed counter-affidavit though the time was granted for the same, thus, the averments contained in the writ petition remained uncontroverted. Heard learned Counsel for the parties. 4. The impugned order has been challenged inter-alia on the grounds that the petitioner was suspended on the sole ground that a criminal case under Section 18 of N. D. P. S. Act is pending. The said criminal case resulted in acquittal and the department has not initiated any disciplinary proceeding in order to afford opportunity of hearing to the petitioner to lead his defence. Therefore, the impugned order being stigmatic in nature could not have been passed without affording opportunity of hearing. In support of the submission, learned Counsel for the petitioner has relied upon a decision in Babu Lal v. State of Haryana, AIR 1991 Supreme Court 1310. This case came before the Apex Court by means of the Special Leave Petition. The appellant therein was appointed as Sub-Inspector in the department of Food and Supplies by order dated 13-4-1975 on ad-hoc basis against the ex-servicemen quota; the appointment shall not exceed six months and shall be liable to be terminated without notice. He continued on the post without any break till November 17, 1980; i. e. the date of termination of his services. The appellant was served with an order of suspension dated 15-4-1980 in view of the criminal proceeding pending against him under Section 420 of the Indian Penal Code. During the pendency of criminal case, order of termination was made. The said criminal proceedings were decided on 21-10-1981 wherein the appellant was acquitted of the charge. The appellant on receiving the order of termination filed suit being Civil Suit No. 453 of 1981 seeking declaration to the effect that the order of suspension dated 15- 4-1980 and the order of termination dated 17-11-1980 were illegal, arbitrary and without jurisdiction and the appellant is entitled to reinstatement with effect from his date of suspension and he is further entitled to be regularised and to all benefit of service. The suit was decreed by the Civil Court against which a Civil appeal was filed. The suit was decreed by the Civil Court against which a Civil appeal was filed. Additional District Judge by means of his order dated 16-10-1986 upheld the decision of the learned Sub Judge. Against the judgment of the Additional District Judge a second appeal was filed which was considered by the High Court of Punjab and Haryana. The High Court set aside the judgment and decree of the Courts below holding that the appellant was not entitled to be regularised automatically unless he fulfils all conditions given in the notification. The appellant was not entitled to be regularised automatically. It was further held that since the appellant was an ad-hoc employee and his work was found not to be of required standard, therefore, the department instead of waiting for the result of the criminal case thought it fit under the circumstances to dispense with the services of the appellant. The Court observed as under: - "it is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside. " 5. Further, the conclusion arrived at by the Court in para 11 of the judgment is quoted as below: "in the premises aforesaid, we are constrained to hold that the judgment rendered by the High Court is wholly illegal and unwarranted and as such we quash and set aside the same and affirm the judgment of the Courts below". 6. A similar controversy came up before this Court in Kesho Singh v. The State of U. P. and another, [1993 (3) E. S. C. 2259 (All.)]. In that case a First Information Report was lodged against the petitioner on 11-12- 1992 alleging that the petitioner has produced a forged document in order to secure the employment and on the same date the services were terminated as services no more required, invoking the provisions of the Rules, 1975. In that case a First Information Report was lodged against the petitioner on 11-12- 1992 alleging that the petitioner has produced a forged document in order to secure the employment and on the same date the services were terminated as services no more required, invoking the provisions of the Rules, 1975. The Court held as under: "that even though Article 311 may not apply in respect of a temporary employee when the order of termination is passed under 1975 Rules, yet the principle of natural justice and equity in the form of giving of an opportunity would arise if it is found that such termination is not a termination simpliciter but a penalty in disguise casting stigma on the employee, as in the present case by reason of the lodging of the F. I. R. The giving of opportunity following the principles of natural justice and equity would be necessary. " 7. In Vinay Kumar Srivastava v. State of U. P. and others, (2000)3 UPLBEC 1904 : 2000 (2) LBESR 1 (All), in that case the petitioner was appointed in the substantive post stating that the services are temporary liable to be terminated, the petitioner had put in 20 years continuous service and he also crossed the Efficiency-Bar and his service record was unblemished. All of a sudden, the services were terminated under the Rules of 1975 as services no more required, the Court held that such type of termination is clearly illegal, vague, arbitrary and punitive in nature and directed the respondents to reinstate the petitioner with full back salary. 8. Undisputedly, the petitioner was appointed in a substantive vacancy and had put in about 9 years of continuous service without there being any complaint against him. His service record remains unblemished throughout. It is also established on record (Annexure-1 to the writ petition) that the services of the petitioner were terminated only on the ground that a criminal case under Section 18 N. D. P. S. Act, 1985 was registered against the petitioner. It is also established on the record that the petitioner has honourably been acquitted in a criminal case aforestated as is evident from the certified copy of the judgment filed as Annexure-1 to the supplementary affidavit and no disciplinary proceedings initiated against the petitioner. It is also established on the record that the petitioner has honourably been acquitted in a criminal case aforestated as is evident from the certified copy of the judgment filed as Annexure-1 to the supplementary affidavit and no disciplinary proceedings initiated against the petitioner. In view of the fact situation of the case the law laid down by the Apex Court in Babu Lals case (supra) and by this Court in Kesho Singhs case and Vinay Kumar Srivastava (supra) is applicable in the present case. 9. Referring to the uncontroverted averments contained in para 14 of the writ petition that S/shri Surajpal, Siya Ram, Mahendra Prasad, Kalyan and several others were appointed as Falvers subsequent to the appointment of the petitioner and they are still continuing in service, learned Counsel for the petitioner urged that the impugned order terminating the services of the petitioner as services no longer required is violative of principle of first come last go and last come first go. The learned Counsel for the petitioner has relied upon a Division Bench decision of this Court in Birendra Prasad Srivastava v. State of U. P. and others, [1999 (3) E. S. C. 1793 (All.) wherein the services of the petitioner were terminated exercising the powers conferred by Rules, 1995 without following the principle of first come and last go retaining juniors to the petitioner in that case. The Court held that it is well settled law that in case of termination the rule of first in and last out and last in first out has to be followed. 10. As stated above no counter-affidavit has been filed though time was granted to the learned Standing Counsel. However, the learned Standing Counsel tried to defend the impugned order on the ground that the termination order has legally been passed by the authority competent in accordance with the terms and conditions of the order of appointment. The petitioner being a temporary Government servant has no right to the post. The arguments of learned Standing Counsel cannot be accepted in view of the fact situation of the case and the law laid down by the Apex Court as well as by this Court by means of the decisions referred to herein above which in my view, is applicable to the present case. 11. The arguments of learned Standing Counsel cannot be accepted in view of the fact situation of the case and the law laid down by the Apex Court as well as by this Court by means of the decisions referred to herein above which in my view, is applicable to the present case. 11. In view of whatever discussed hereinabeve; the writ petition deserves to be allowed and the order impugned is liable to be quashed. 12. In the result the writ petition succeeds and is allowed. The impugned order dated 8-2-1989 (Annexure 2 to the writ petition) passed by the Superintendent of Police, Badaun Respondent No. 1 is quashed. The petitioner is entitled to full backwages from 28-2-1988 i. e. the petitioner was placed under suspension and he shall be paid arrears of his salary within a period of two months from the date of receipt of a certified copy of this order by the Respondents. However, in the facts and circumstances of the case there shall be no order as to costs. Petition allowed. .