Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 2342 (ALL)

DILIP KUMAR SONKAR v. STATE OF U. P.

2012-10-08

R.K.AGRAWAL, RAM SURAT RAM (MAURYA)

body2012
JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri K.K. Rai for the appellant and Standing Counsel for respondents 1 and 2. Notices of the Special Appeal has been sent by the appellant to respondents-3 and 4 through registered post on 20.9.2012. However no one has put in appearance on their behalf. Since respondent-3 and 4 are not a person interested in the relief claimed in this appeal as such the appeal is being decided finally in their absence. 2. This appeal has been filed from the judgment and order of Single Judge dated 12.9.2012 passed in Writ-A No. 40968 of 2012, by which Single Judge has directed the appellant to deposit the amount paid to Shiv Shankar Bind (respondent-3) within a week, imposed cost of Rs. 25,000/- upon the appellant and also directed the Principal Secretary, Panchayat Raj, U.P., Lucknow to set up an inquiry against the appellant who was posted as Block Development Officer, Block Chhanbe, District Mirzapur at the relevant time. 3. Shiv Shankar Bind (respondent-3) was appointed as ‘Rozgar Sewak’ on 26.12.2006 in Gram Panchayat, Bauta Bishesar Singh, Block Chhanbe, District Mirzapur, under the Government Order dated 23.11.2007. Government Order dated 23.11.2007 provides for initial engagement of ‘Rojgar Sewak’ for a period of one year. In case work and conduct of ‘Rajgar Sewak’ is found satisfactory, then Gram Panchayat through it’s resolution, can extend the engagement for a further period of two years only. Shiv Shankar Bind, alleged that he was not removed by Gram Panchayat, as such he was continuously working on the post even after expiry of three years. 4. In the year 2010, fresh election of Gram Panchayat was held in which Triloki Nath Bind (respondent-4) was elected as Pradhan. Respondent-4 filed Writ Petition No. 51362 of 2011 challenging the appointment of Shiv Shankar Bind (respondent-3) as ‘Rozgar Sewak’ and his continuance after a period of three years contrary to the Government Order dated 23.11.2007. The writ petition was disposed of vide order dated 6.9.2011 with direction to District Magistrate to hold an inquiry into the matter and pass appropriate order. The District Magistrate after holding inquiry vide order dated 16.11.2011 found the appointment of Shiv Shankar Bind was not illegal. However, no order has been passed in respect of his continuance on the post after the period of three years. 5. The District Magistrate after holding inquiry vide order dated 16.11.2011 found the appointment of Shiv Shankar Bind was not illegal. However, no order has been passed in respect of his continuance on the post after the period of three years. 5. Shiv Shankar Bind was not paid honorarium since September, 2010, therefore, he filed Writ Petition No. 5122 of 2012 for a mandamus directing the respondents to pay the honorarium to him. The writ petition was disposed of by order dated 30.1.2012 holding that Shiv Shankar Bind was not entitled to continue on the post after three years of his appointment. However, the Court directed that in case Shiv Shankar Bind had actually worked for any period, then Chief Development Officer, after conducting an inquiry into the matter may pass appropriate orders in respect of payment of his honorarium. 6. The appellant was posted as Block Development Officer, Chhanbe, Mirzapur on 23.5.2012. Order dated 30.1.2012 was brought to his notice, he therefore issued a show-cause notice dated 26.7.2012 to the Pradhan, Triloki Nath Bind (respondent 4) as to why payment of Shiv Shankar Bind was not made since September, 2010. Triloki Nath Bind instead of giving any reply of the show-cause notice, filed Writ Petition No. 40968 of 2012 for a mandamus restraining Chief Development Officer and Block Development Officer from paying excess amount of honorarium to what has been directed by the order dated 30.1.2012 and not to pressurized him for payment. As soon as the appellant came to know about the Writ Petition No. 40968 of 2012, he passed order dated 10.9.2012 withdrawing the notice dated 26.7.2012. 7. The writ petition was heard by the learned Single Judge who by order dated 12.9.2012 held that this Court vide order dated 30.1.2012 had not permitted Shiv Shankar Bind to discharge the functions of ‘Rozgar Sewak’ as his period of engagement had already come to an end, therefore, there was no reason to pass the order dated 26.7.2012 directing for payment of honorarium even after September, 2010. Accordingly, it was inferred that order dated 26.7.2012 was motivated with extraneous considerations and as a result of favoritism. The Court held that the conduct of the appellant was not fair. Accordingly, the appellant was directed to deposit the amount of honorarium paid to Shiv Shankar Bind within a period of one week and cost of Rs. Accordingly, it was inferred that order dated 26.7.2012 was motivated with extraneous considerations and as a result of favoritism. The Court held that the conduct of the appellant was not fair. Accordingly, the appellant was directed to deposit the amount of honorarium paid to Shiv Shankar Bind within a period of one week and cost of Rs. 25,000/- has been imposed upon him and the Principal Secretary, Panchayat Raj, U.P., Lucknow was directed to conduct an inquiry in respect of his conduct. 8. The appeal was heard on 25.9.2012. On that day we directed the Standing Counsel to produce the service book of the appellant in order to ascertain his integrity. Today, Standing Counsel has produced the service book of the appellant which shows that in the service book of the appellant, the entries of ‘’Utkristh’, 'Ati Uttam’ and ‘Uttam’ had been made from the year 1997 to 2011-12, except for the year 2011 in which censure entry has been made. The counsel for the appellant informs that the appellant has filed an appeal/representation against the censure entry which is pending. Photostat copy of the service book is taken on the record. The appellant is posted at this place on 23.5.2012. In the writ petition there is absolutely no personal allegation against the appellant. 9. The counsel for the appellant submits that the finding of Single Judge that the order dated 26.7.2012 is motivated with extraneous considerations and as a result of favoritism, is based upon no material on record. He submits that this Court in the order dated 30.1.2012 has specifically directed the Chief Development Officer, Mirzapur to make payment in respect of the period for which Shiv Shankar Bind had actually worked. When this order was brought to the notice of the appellant, he issued notice dated 26.7.2012 to the Pradhan to show-cause as to why payment of Shiv Shankar Bind was not made. The appellant bona fide made efforts for compliance of the order of this Court and issued show-cause notice to know the actual reasons for not payment. Findings that by the order dated 26.7.2012, the appellant has directed for making payment and the order was motivated with extraneous considerations and as a result of favoritism are not based upon any material on the record. Findings that by the order dated 26.7.2012, the appellant has directed for making payment and the order was motivated with extraneous considerations and as a result of favoritism are not based upon any material on the record. The notice dated 26.7.2012 is not an order for payment nor actually payment was made on it’s basis and there was actually no loss of public money. 10. He further submits that for last 15 years, the service record of the appellant was unblemished. The censure entry in the character roll made in the year 2011 was challenged in the appeal. There was nothing on the record which warrants any inquiry against the appellant. Direction issued to the Principal Secretary, Panchayat Raj, U.P., Lucknow for conducting an inquiry against the appellant is uncalled for. 11. We have considered the arguments of the counsel for the appellant and perused the record. Relevant portion of the order dated 30.1.2012 is quoted below : “In view of this petitioner cannot be permitted to perform and discharge his duty as on date. However, in case petitioner has actually worked in the past, then for the said period, Chief Development Officer, Mirzapur is directed to get inquiry conducted into the matter and appropriate decision be taken in accordance with law, preferably within period of next three months from the date of production of certified copy of this order for ensuring honorarium, if it is found that petitioner has actually functioned and same is substantiated from record also.” 12. Thus, there was a clear direction of this Court to the Chief Development Officer, Mirzapur to conduct an inquiry and if Shiv Shankar Bind was found to have worked in the past, then the payment of honorarium be made to him. Finding of learned Single judge in the impugned that this Court had not directed for payment does not appear to be correct. 13. The appellant merely issued a show-cause notice dated 26.7.2012 to the Pradhan as to why honorarium of Shiv Shankar Bind was not paid. This is not an order for payment, but an inquiry as directed by order dated 30.1.2012. Accordingly, no blame can be put on the appellant for issuing the show-cause notice, who was making effort to comply the order of this Court. No actual payment was made on its basis. There was absolutely no loss of public money. This is not an order for payment, but an inquiry as directed by order dated 30.1.2012. Accordingly, no blame can be put on the appellant for issuing the show-cause notice, who was making effort to comply the order of this Court. No actual payment was made on its basis. There was absolutely no loss of public money. Accordingly, imposition of fine and cost upon the appellant is not warranted. 14. The service record of the appellant for last 15 years was unblemished except for the year 2011. The censure entry in the character roll made in the year 2011 was challenged in the appeal. There was nothing on the record which warrants any inquiry against the appellant. The appellant was posted at this place for the first time on 23.5.2012. The appellant has no connection with Shiv Shankar Bind prior to his posting at this place. In the writ petition no allegation has been made against the appellant. Direction issued to the Principal Secretary, Panchayat Raj, U.P., Lucknow for conducting an inquiry against the appellant is uncalled for which may not only unnecessary create a burden upon the public authority but also a wastage of public money. The Court is not required to make personal remark against the public authority lightly, even if they commit some mistake in discharge of his statutory duties as has been held by Hon’ble Supreme Court in State of Uttar Pradesh and others v. Swadeshi Polytex Limited and others, (2008) 12 SCC 596 . In this case, the appellant has not committed any mistake. 15. In the result, the appeal succeeds and is allowed. The directions issued against the appellant in the order dated 12.9.2012 passed in Writ Petition No. 40968 of 2012, are set aside. ———————