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2013 DIGILAW 230 (UTT)

GANESH PRASAD DANGWAL v. STATE OF UTTARAKHAND

2013-05-02

Sudhanshu Dhulia

body2013
JUDGMENT Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. B. K. Pal, Advocate assisted by Ms. Sangeeta Miyan, Advocate for the petitioner, Mr. N. P. Sah, Standing Counsel for the State of Uttarakhand and Mrs. Beena Pande, Standing Counsel for the State of Uttar Pradesh. 2. According to the petitioner, he was appointed way back in the year 1964 in the erstwhile State of Uttar Pradesh in the department of Food & Supply, Lucknow. He was initially appointed as Clerk on 01.06.1964 and continued to work in the aforesaid department in Garhwal region and, thereafter, promoted as Senior Accounts Clerk, Purthi Nirikshak, Mukya Lipik, Lekhakar and Assistant Food Inspector. After rendering 16 years of continuous service, his services was terminated vide order dated 24.11.1979. The said impugned order is a termination order simplicitor, which has been passed by the authority invoking powers under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975 by which after giving one month prior notice, services of a temporary employee can be terminated. Therefore, the records show that the petitioner was a temporary employee and no appointment letter & subsequent letters of promotion have been filed by the petitioner to indicate that his service was of a permanent nature or that he was in regular service or that he was promoted at any level. Only bald averments have been made by the petitioner in this regard. However, it appears that at the same time when the petitioner’s services were terminated, a criminal case was also filed against him in which chargesheet was submitted by the police and he faced a trial before a criminal court. Although, no document to this effect has been filed by the petitioner but from the order of the trial court it appears that the petitioner faced a trial in the court of Chief Judicial Magistrate, Pauri Garhwal and was convicted for an offence punishable under Section 409 I.P.C. i.e. a criminal breach of trust by a public servant and was sentenced to undergo rigorous imprisonment of one year and fine of Rs.25,000/-. The judgment of the trial court was challenged before the learned Sessions Judge, Pauri Garhwal in Criminal Appeal No.12/1996 and his appeal was allowed and the order of the trial court dated 03.10.1996 was set aside. The judgment of the trial court was challenged before the learned Sessions Judge, Pauri Garhwal in Criminal Appeal No.12/1996 and his appeal was allowed and the order of the trial court dated 03.10.1996 was set aside. Consequently, the State preferred a Government Appeal before the High Court of Allahabad and after the enforcement of U.P. Reorganization Act, 2000 the said government appeal was transferred to this Court and registered as Government Appeal No.D-73/2001, which was dismissed by this Court vide judgment & order dated 21.09.2006. 3. The petitioner armed with the order of the High Court dated 21.09.2006 made a claim before the authorities in Uttarakhand stating that the basis of his termination from service was a criminal case in which he has now been acquitted and, therefore, he is liable to be taken back in service. The Commissioner, Food & Supply Department, Uttarakhand vide letter dated 13.07.2007 (Annexure-10 to the writ petition) referred the matter to his counterpart in Uttar Pradesh i.e. Commissioner, Food & Supply Department, U.P., Lucknow, on grounds that the petitioner is in fact not an employee of Uttarakhand and in view of the U.P. Reorganisation Act, 2000 and now the State of Uttarakhand being carved out only such employees are treated in the service of Uttarakhand who have been allocated to this State by the Central Government and since the petitioner has not been allocated to the State of Uttarakhand, he would continue to be an employee of State of Uttar Pradesh. The petitioner has challenged the orders dated 24.11.1979 and 13.07.2007. 4. Mr. B. K. Pal, learned counsel for the petitioner has tried to argue before this Court that the termination of the petitioner was not a simplicitor order of termination, but it was in consequence of certain charges levelled against him and that the petitioner has been acquitted from the criminal charge, therefore, this Court may lift the veil and appreciate the actual nature of the impugned order, which is punitive in nature and that the case of the petitioner may be considered on its merit in view of the fact that the petitioner has been acquitted from all criminal charges. In other words, since the sole basis of termination of the petitioner stands demolished and does not exist any more, the petitioner shall be deemed to be in continuous service. In other words, since the sole basis of termination of the petitioner stands demolished and does not exist any more, the petitioner shall be deemed to be in continuous service. Learned counsel for the petitioner argued that if the petitioner was in continuous service, he would have been regularized by now, a benefit which has been wrongly denied to him. 5. Reliance has been taken on two decisions, firstly, Babu Lal Vs. State of Haryana & others 1991 (2) SCC 335 , wherein the service of an employee was suspended on the ground of pendency of criminal proceedings against him. However, he was not reinstated in his service. The Hon’ble Supreme Court held that on being acquitted of the criminal charge, the employee is entitled to be reinstated in service. All the same, this Court finds that the facts of the present case are entirely different. It is admitted that the petitioner was terminated way back in the year 1979, the petitioner never challenged the termination order before any forum and it has now reached a finality. There are numerous judgments of the Hon’ble Apex Court wherein it has been held that the departmental proceedings and the criminal proceedings are entirely different. In a criminal proceedings, the conviction can only be made when the prosecution has fully established its case beyond any reasonable doubt, on the other hand, in a departmental proceeding the charges are not to be proved “beyond reasonable doubt” and all that has to be proved in a departmental proceeding is “preponderance of probabilities”. Although, in the present case, there was no departmental proceedings as the service of the petitioner was terminated while considering him to be a temporary employee. The petitioner never challenged the termination order before any forum to show his status as an employee in the department. 6. Learned counsel for the petitioner further relied upon the decision of the Supreme Court in the case of The Manager, Government Branch, Press & another Vs. D. B. Belliappa 1979 (1) SCC 477 , wherein it was held that the termination order of a temporary employee was bad in law. The fact of the matter is that the petitioner has never challenged his termination before any forum and the same has now been challenged in the year 2008. Mrs. D. B. Belliappa 1979 (1) SCC 477 , wherein it was held that the termination order of a temporary employee was bad in law. The fact of the matter is that the petitioner has never challenged his termination before any forum and the same has now been challenged in the year 2008. Mrs. Beena Pande, Standing Counsel for the State of U.P. submits that this writ petition is not liable to be entertained, as the petitioner in the first place had never challenged his termination order of the year 1979 till now in the year 2008. 7. The fact remains that the petitioner cannot be directed to be reinstated in service for various reasons. Firstly, it is not clear as to whether the petitioner’s service belongs to the State of Uttarakhand or of Uttar Pradesh. Secondly, no such direction can be given as the petitioner was only a temporary employee and his services was terminated way back in the year 1979, which was never challenged before any forum. So far as the regularization of the petitioner is concerned, the regularization of services recruited on daily wage/temporary basis is no longer res-integra in view of the Constitution Bench decision of the Hon’ble Supreme Court in Secretary, State of Karnataka Vs. Umadevi 2006 AIR SCW 1991. The writ petition therefore has no merit and it fails. It is accordingly dismissed. 8. No order as to costs.