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2015 DIGILAW 2386 (ALL)

Mahendra Kumar Singh v. State of U. P.

2015-08-13

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. Heard Sri Virendra Singh, learned counsel for the petitioner and Ms. Parul Bajpai, learned Standing Counsel. 2. Facts, in brief, of the present writ petition are that the petitioner was initially appointed as Constable on 31.10.1990 in U.P. Police. By order dated 22.03.2007, the petitioner was dismissed from service. The dismissal order was challenged by him before the learned U.P. Public Services Tribunal, Indira Bhawan, Lucknow by filing Claim Petition No.665 of 2007. The claim petition was allowed by the judgment and order dated 10.08.2009. The relevant portion of the order dated 10.08.2009 reads as under: "The claim petition is partly allowed. In view of the above observation the impugned order of dismissal dated 22.03.2007 as contained in annexure no.3 is hereby set aside and the petitioner shall be deemed to be continuing in service with effect from the date of the dismissal order and shall be eligible for consequential service benefits as per rules. The opposite parties shall be at liberty to initiate the disciplinary proceeding against the petitioner for the alleged misconduct and to conclude the same within three months from the date of receipt of certified copy of this judgment. There is no order as to costs" 3. In view of the aforesaid directions, by order dated 27.08.2009, the petitioner was reinstated in service but his salary and other benefits from the date of dismissal to the date of reinstatement has not been paid to the petitioner inspite of repeated requests. The petitioner filed Contempt Petition No.108 of 2011 before the State Public Services Tribunal, Lucknow for not compliance of its earlier order. The contempt petition was consigned to record by order dated 11.08.2011 on the ground that the order dated 10.08.2009 has already been complied with by order dated 27.03.2010 (Annexure-5 to the writ petition). The petitioner filed Contempt Petition No.108 of 2011 before the State Public Services Tribunal, Lucknow for not compliance of its earlier order. The contempt petition was consigned to record by order dated 11.08.2011 on the ground that the order dated 10.08.2009 has already been complied with by order dated 27.03.2010 (Annexure-5 to the writ petition). The relevant portion of order dated 27.03.2010 passed by the opposite party no.3-Senior Superintendent of Police, Lucknow is quoted below: " vr% 'kklukns'k la0% fjV &107@6&iq&2&10&1000 ¼231½@09 fnukad%11&02&2010 ,oa iqfyl egkfujh{kd ¼LFkkiuk½] eq[;ky;] iqfyl egkfuns'kd] mRrj izns'k] y[kuÅ ds i= la[;k &Mhth&pkj&110 ¼601½09 fnukad% Qjojh 2010 }kjk fn;s x;as funsZ'k ds vuqlkj 'kklukns'k fnukad 28&08&2008 ds vuqdze esa ekuuh; vf/kdj.k ds vkns'k fnukad 10&08&2009 ds vuqikyu esa inP;qr vkns'k fnukad 22&03&2007 dks lsV ,lkbM djrs gq, ;kph@egsUnz dqekj flag dks inP;qr fd;s tkus ds vkns'k ds fnukad ls vkj{kh l0iq0 ds in ij lsok esa iquLFkkZfir fd;s tkus ,oa fu;ekuqlkj lsok ykHk fn;s tkus ds vkns'k ikfjr fd;s tkrs gSA " 4. However, inspite of the order passed by the opposite party no.3 and the repeated representations/ reminders, the benefit of the petitioner has not been given, so, the petitioner for redressal of his grievance approached this Court by filing Writ Petition No.499 (S/S) of 2012, which was disposed of by order dated 02.07.2012 with the following directions: "Without entering into the merits of the case, court directs the opposite party no. 3 to decide the representation of the petitioner, annexed as Annexure no. S.A. 2 of the Supplementary Affidavit to the writ petition, by a reasoned and speaking order in accordance with law in a month from the date a certified copy of this order is placed before him." 5. Thereafter, in compliance of the order dated 02.07.2012, the petitioner moved representation along with certified copy of the said order before the DIG/ SSP, Lucknow but when no order has been passed, the petitioner filed Contempt Petition No.3140 (C) of 2012, which was dismissed on 18.02.2013 with liberty to the petitioner to raise his grievance before the appropriate forum. During the pendency of the contempt petition, the opposite party no.3 by order dated 23.01.2013 rejected the representation of the petitioner filed in pursuance of the order of this Court dated 02.07.2012. During the pendency of the contempt petition, the opposite party no.3 by order dated 23.01.2013 rejected the representation of the petitioner filed in pursuance of the order of this Court dated 02.07.2012. The relevant portion of the order dated 23.01.2013 reads as under: " ;kph }kjk nkf[ky fd;s x;s iwjd 'kiFk&i= esa vkj{kh gfjds'k flag dh HkkWfr c[kkZLrxh vof/k ds osru Hkqxrku dh ;kpuk dh x;h gS] vkj{kh gfjds'k flag }kjk ek0 mPp U;k;ky; esa ;ksftr fjV ;kfpdk la[;k 456 ¼,l,l½08 esa ikfjr fu.kZ; dh HkkWfr osru HkRrs Hkqxrku fd;s tkus dk iz'u gS ds lEcU/k esa Li"V djuk gS fd ;kph }kjk ;ksftr funsZ'k ;kfpdk la[;k0 665@2007 esa ikfjr fu.kZ; fnukad% 10&08&09 esa fn;s x;s funsZ'k ds vuqikyu esa rRdkyhu iqfyl miegkfujh{kd@ofj"B iqfyl vf/k{kd] y[kuÅ }kjk dk;kZy; vkns"k la[;k%;&549@2007 fnukafdr 27&3&2010 ds ek/;e ls ;kph dks lsok esa iquZLFkkfir ,oa fu;ekuqlkj lsok ykHk fn;s tkus dk vkns'k ikfjr fd;k x;k Fkk ftlds dze esa dk;Zky; Lrj ls ;kph dks lsok ykHk nsrs gq, osru fu/kkZj.k dj fn;k x;k ftlls ;kph vius lkFk HkrhZ vU; dfeZ;ksa ds cjkcj osru ikus yxkA ,slh fLFkfr esa ;kph ds izdj.k esa vU; fdlh dk;Zokgh dks vko';drk izrhr ugha gksrh gSA " Learned counsel for the petitioner submits that inspite of the direction of this Court dated 02.07.2012, the opposite party no.2 has passed non-speaking and unreasoned order, so, the order dated 23.01.2013 is illegal and the same is liable to be quashed. After hearing the learned counsel for parties and going through the record. It is well settled law that an order passed by an authority should be a reasoned one and the objection taken by a person should be dealt with because reasons are like a live wire which connects the mind of the decision making authority and the decision given by him and if this wire/link is broken i.e. to say no reasons are given in the impugned order then it will not be possible to know as what was going in the mind of the decision making authority on the basis of which he has come to the conclusion and passed the impugned order. In Breen Vs. Amalgamated Engg. Union, reported in 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd.Vs. In Breen Vs. Amalgamated Engg. Union, reported in 1971(1) AIIER 1148, it was held that the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd.Vs. Crabtress, reported in 1974(4) IRC 120 (NIRC), it was observed that "failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other worlds, a speaking out. The inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance." 6. Further, as far as late in the year 1970 Hon'ble the Apex Court in the case of Mahabir Prasad Santosh Kumar Vs. State of U.P. and otehrs, AIR 1970 SC 1302 , held that such an order cancellation is quasi-judicial and must be a speaking one and supported by a reason and if a reason is caprice one, the same is in violation of principles of natural justice and the same is liable to be set aside. 7. The said view was further reiterated by Hon'ble the Supreme Court in the case of Union of India Vs. Mohan Lal Capoor and others, AIR 1974 SC 87 , further in the case of Shri Swamiji of Shri Admar Mutt etc. etc. Vs. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors. AIR 1980 SC 1 , Hon'ble the Apex Court in the judgment referring Broom's Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as "Ces-sante Ratione Legis Cessate Ipsa Lex" held that "reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself" (See. and Ors. AIR 1980 SC 1 , Hon'ble the Apex Court in the judgment referring Broom's Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as "Ces-sante Ratione Legis Cessate Ipsa Lex" held that "reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself" (See. also M/s. Bombay Oil Industries Pvt. Ltd. Vs. Union of India and Others, AIR 1984 SC 160 ). 8. In the case of Maharasthra State Board of Secondary and Higher Secondary Education Vs. KS. Gandhi and Others, (1991) 2 SCC 716 , Ho'ble the Apex Court held that if no reason is recorded in the impugned order, the same is violative of principles of natural justice. 9. In the instant matter, from the perusal of the record, the position which emerge to the effect is that by order dated 18.08.2009 passed in Claim Petition No.665 of 2007, the learned U.P. Public Services Tribunal, Lucknow held that the petitioner is treated to be deemed in continuous service from the date of his dismissal. He is entitled for consequential benefits. 10. In view of the said fact, it is prayed by the petitioner that the petitioner is entitled for payment of salary w.e.f. 22.03.2007 to 27.03.2010. However, while passing the impugned order dated 23.01.2013, the opposite party no.2 has not given any reason that under what circumstances the petitioner is not entitled for the same, rather on the point on issue, the impugned order is non-speaking one. So in view of the abovesaid facts, the same is liable to be set aside. 11. For the forgoing reasons, the writ petition is allowed. The impugned order dated 23.01.2013 passed by opposite party no.3-Senior Superintendent of Police, Lucknow is set aside and the matter is remanded back to the authority concerned to re-examine the same within a period of eight weeks from the date of production of a certified copy.