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2016 DIGILAW 1771 (ALL)

Ramji Yadav v. State of U. P.

2016-05-09

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra, J. 1. This writ petition is directed against orders dated 25.8.1992 and 31.8.1992, passed by respondent nos.2 and 3 respectively, holding that petitioners have secured employment on the basis of forged documents, and as such, they be terminated. A further prayer has been made to restrain the respondents from interfering in the functioning of the petitioners, as Operators, in the Lift Canal Pump Scheme of the respondent irrigation department. 2. The averments in the writ petition are to the effect that petitioners were initially appointed in Irrigation Department at Ghazipur. While petitioner nos.1 and 2 allege to be in employment since 1973, petitioner no.3 has claimed to be employed since 1976, and there has been no complaint against their working. An order dated 25.8.1990 is stated to have been issued by the office of Executive Engineer, Irrigation Department, Ghazipur, declaring petitioners to be surplus, and accordingly, an order dated 2.2.1991 was issued by the office of Chief Engineer for absorbing them in Irrigation Division, Varanasi. Pursuant to such order, petitioners claimed to have been relieved on 12.3.1991. By a separate order enclosed as Annexure-3 to the writ petition, petitioners were assigned work at the different pump canals within Varanasi Region. Orders were also passed on 15.3.1991, permitting petitioner no.2 to work at Western Pump Canal, Newajganj. It was subsequently found that the order dated 25.8.1990 was forged. Immediate orders consequently were passed to remove the petitioners from service and also to lodge an F.I.R. On 25.8.1992. Consequential orders were passed by the Executive Engineer dated 31.8.1992. It is these two orders dated 25.8.1992 and 31.8.1992, which have been challenged in the present writ petition. 3. A counter affidavit has been filed in the writ petition on 9.1.2014, in which service book of the petitioners were annexed as Annexure-1. According to the entries made in the service book of petitioner no.1, his date of birth is 21.11.1960 and he was appointed on work charge on 1.1.1978 in the office of Executive Engineer, Division-27, Raebareilly. The service book of petitioner no.2 shows that his date of birth is 3.9.1968 and he was engaged on work charge for the first time on 8.6.1986, in the office of Executive Engineer, Ghazipur. The service book of petitioner no.2 shows that his date of birth is 3.9.1968 and he was engaged on work charge for the first time on 8.6.1986, in the office of Executive Engineer, Ghazipur. So far as petitioner no.3 is concerned, his service book shows that his date of birth is 8.10.1959 and he was also engaged on work charge on 1.1.1976 in the office of Executive Engineer, Ghazipur. Respondents have annexed a chart in the counter affidavit as annexure-2, according to which, as per the entries made in the service books, petitioners were appointed when they were less than 18 years of age, and as such, their appointment is not valid. Respondents have also annexed letter sent by the office of Chief Engineer (Soan), Varanasi, dated 3.8.1992, enquiring about genuineness of letters declaring petitioners as surplus, which has been replied by the concerned Executive Officer stating that no such letter declaring the petitioners as surplus was issued by his office. 4. Heard Sri A.R. Dubey, learned counsel for the petitioners and Sri J.P.N. Raj, learned Chief standing Counsel for the respondent State and perused the record. 5. From the pleadings which have been exchanged on behalf of the parties, it appears that the issue required for determination in the present case is as to whether petitioners were appointed by the respondents, as alleged by them in writ petition, and have been declared surplus by the Ghazipur office, pursuant to which they claimed to have been absorbed in the Regional Office, Varanasi. The matter was heard and following orders were passed on 26.10.2015: - "This writ petition is directed against the orders dated 5.8.1992 and 31.8.1992, contained in Annexure-5 & 6 to the writ petition, whereby it has been clarified that petitioners were never declared surplus by the concerned division and were never transferred validly to a different unit. It is stated that such documents are fabricated document and a direction, therefore, was issued to forthwith remove the petitioners from service and an F.I.R. has also been directed to be lodged. In the counter affidavit also it has been stated that no orders were passed by the concerned division declaring the petitioners to have been rendered surplus and thereby justifying their claim for continuance at the present place. In the counter affidavit also it has been stated that no orders were passed by the concerned division declaring the petitioners to have been rendered surplus and thereby justifying their claim for continuance at the present place. Learned counsel appearing for the petitioners submits that the factum of petitioners' appointment way back in the year 1973 has not been disputed and there is no order terminating services of the petitioners. Attention of the Court has also been invited to Annexure-1 of the counter affidavit, which is the service book, from a perusal of which it appears that petitioners have been working as work charge employees from the year 1978 onwards. However, the counter affidavit is absolutely silent on the issue as to whether petitioners had at all been appointed in the department or not and what was their status i.e. they were confirmed employees or they continued to function as work charge employees. The records also do not reflect as to whether any order has been made against the petitioners and whether any enquiry etc. was conducted in the matter, and petitioners were granted an opportunity, in this regard. It is also not clear as to whether any F.I.R. has actually been lodged and if it is so lodged, then what is the outcome thereof. Respondent no.2 Chief Engineer is, therefore, directed to file a supplementary counter affidavit specifically clarifying the position on the aforesaid aspect within a period of three weeks from today. List in the week commencing 23rd November, 2015." 6. The Executive Engineer, Lift Sinchai Nirman Khand, Sigra, Varnasi, has filed an affidavit. Para 4 to 6 of the affidavit is reproduced: - "4. That in so far the first query of this Hon'ble Court regarding the question whether petitioners had at all been appointed in the department or not and what was their status is concerned, it is respectfully submitted that as per record available, it appears that the petitioners had never been appointed in the department. Although on the basis of forged letter dated 25.8.1990, petitioners were inducted in the department and on verification of the letter dated 25.8.1990 when it was found that the letter dated 25.8.1990 was itself forged, the engagement of the petitioners were dispensed with. Once the induction in the department was based on forged document, there is no question arises for absorption in the department itself. Once the induction in the department was based on forged document, there is no question arises for absorption in the department itself. The alleged service book which has been found on record was brought by the petitioners itself and in this regard one of the petitioner Mr. Ramji Yadav himself received the letter no.674 dated 12.3.1991 issued under the signature of the then Executive Engineer by which the service books were called for and kept on record. It is noteworthy to state that in this regard Executive Engineer, Sinchai Nirman Khand, Ghazipur, now it has been changed to Varanasi communicated the respondent no.3 that the alleged service book had not been sent from his office. Copy of the letter no.2348 dated 12.12.2013 and copy of the letter dated 12.3.1991 are collectively being filed herewith as Annexure No.SCA-1 to this affidavit. 5. That the second query which has been made by this Hon'ble Court that what was the status i.e. they were confirmed employees or they continued to function as work charge employees is concerned, it is stated that once the petitioners have never been appointed in the department, their status regarding confirm employee does not arise and they have never been confirmed or continued in the service in view of the order dated 25.8.1992 and 31.8.1992. 6. That the last query which has been made by this Hon'ble Court is whether any equiry etc. was conducted in the matter and the petitioners were granted an opportunity is concerned, it is respectfully submitted that the letter dated 25.8.1990 was verified from the authority concerned and when it was found that same is forged paper, on which basis the petitioners were absorbed vide order dated 2.2.1991 in the work charged establishment, the appointment was dispensed with. Once the basis of absorption was found forged, there was no occasion for holding any enquiry. Since the petitioners were inducted in the department on the basis of forged letter, therefore, there was no any need to hold any departmental enquiry. Moreover, the employees of the work charged establishment has not come within the purview of Service Rules, 1999." 7. Once the basis of absorption was found forged, there was no occasion for holding any enquiry. Since the petitioners were inducted in the department on the basis of forged letter, therefore, there was no any need to hold any departmental enquiry. Moreover, the employees of the work charged establishment has not come within the purview of Service Rules, 1999." 7. Matter was thereafter heard on 5.1.2016 and following orders were passed: - "Shri J.P.N. Raj, learned Chief Standing Counsel submits that a further affidavit would be filed by the respondents categorically stating and clarifying as to whether the endorsement made in the service book, certifying period of working by the petitioners and duly countersigned by the Executive Engineer are factually correct or not. Let that be done. List this matter appear once again before the appropriate Bench on 27th of January, 2016." 8. A second supplementary counter affidavit has been filed in which following averments have been made in para 8 and 9: - "8. That in the alleged Service Books of Sri Ram Ji Yadav (Petitioner No.1) and Sri Arjun Ram it has been shown that they have worked in the office of Executive Engineer, Sharda Sahayak Division-27, Rai Bareilly during the period from 01.01.1978 to 08.08.1987 and 01.07.1976 to 08.08.1987 respectively. In this regard enquiry was made from the Executive Engineer, Irrigation Division, Rai Bareilly regarding the working of petitioner nos.1 and petitioner no.2 in Sharda Sahayak Division-27, Rai Bareilly. The Executive Engineer, Irrigation Division, Rai Bareilly vide its letter No.68/Si.Kha.Ra/Ka. Pra.A., dated 14.01.2016 informed that in March, 1980 Sharda Sahayak Division-27, Rai Bareilly has been closed and merged in Sharda Sahayak Division-31, Rai Bareilly and thereafter, the same renamed as Irrigation Division, Rai Bareilly after the year 1984. It has been further informed by the Executive Engineer, Irrigation Division, Rai Bareilly that till February, 1980 the names of petitioner nos.1 and petitioner no.3 are not recorded in the Payment Registrar showing that they have never worked in Sharda Sahayak Division-27, Rai Bareilly at any point of time. Copy of letter No.68/Si.Kha.Ra/Ka. Pra.A., dated 14.01.2016 of Executive Engineer, Irrigation Division, Rai Bareilly is being annexed herewith and is marked as Annexure No.SCA-1 to this supplementary counter affidavit. 9. Copy of letter No.68/Si.Kha.Ra/Ka. Pra.A., dated 14.01.2016 of Executive Engineer, Irrigation Division, Rai Bareilly is being annexed herewith and is marked as Annexure No.SCA-1 to this supplementary counter affidavit. 9. That it is relevant to submit here that in the alleged Service Books of petitioner nos.1,2 and 3 it has been shown that they have worked in the office of Executive Engineer, Irrigation Construction Division, Ghazipur (now Irrigation Construction Division, Varanasi) during the period from 09.08.1987 to 12.03.1991, 08.06.1986 to 12.03.1991 and 09.08.1987 to 12.03.1991 respectively. It is further submitted that enquiry was made from the office of Executive Engineer, Irrigation Construction Division, Varanasi regarding the working of petitioners in his division and the Executive Engineer, Irrigation Construction Division, Varanasi vide his letter no.2348/Si.Ni.Ka./Court case, dated 12.12.2013 informed that petitioners have never worked in the Irrigation Construction Division, Varanasi at any point of time therefore, no question arises for sending their alleged Service Books. Copy of letter no.2348/Si.Ni.Ka./Court case, dated 12.12.2013 of the Executive Engineer, Irrigation Construction Division, Varanasi, is being annexed herewith and is marked as Annexure No.SCA-2 to this supplementary counter affidavit." 9. From the stand taken by the respondents, it is apparent that petitioners never worked for the period which have been referred to in their service books filed by the respondents. It is also stated that service books were also provided by the petitioners themselves and that the endorsement and entries made therein are absolutely false. The matter was again taken up on 11.2.2016 and following orders were passed: - "Matter has been heard at some length. Learned counsel for the petitioner prays for and is granted a further indulgence to demonstrate that they had worked with the respondents prior to 1990, as is being claimed on the strength of service book. List on 18.2.2016." Again on 25.2.2016 following orders were passed: - "Learned counsel for the petitioners submits that an affidavit in terms of the order passed on previous date, to be filed on behalf of the petitioners, is under preparation and accommodation on such account is sought. List in the next cause list. It is made clear that no further request for adjournment would be entertained. " 10. List in the next cause list. It is made clear that no further request for adjournment would be entertained. " 10. Learned counsel for the petitioners, however, made a statement before the Court on 4.3.2016, which has been noticed in the order of date which is reproduced: - "Learned counsel for the petitioners submits that whatever material and evidence, in support of his claim to establish his working was available with him, has already been filed, and there is no further document, which is available with him to be brought on record. Heard learned counsel for the parties. Judgment reserved." 11. From the materials, which have been brought on record, this Court finds that petitioners' engagement in the office of Irrigation Department at Varanasi was consequent upon the orders issued by the Ghazipur Division, declaring the petitioners to be surplus work charge employee, as well as consequential orders passed by the Chief Engineer, absorbing them in Irrigation Division, Varanasi. The letter of the Chief Engineer (Soan), U.P. Sigra, Varanasi, dated 2.2.1991, refers to the letter of Executive Engineer, Irrigation Department, Ghazipur Division, dated 25.8.1990. It has come on record that no such letter dated 25.8.1990 had been issued by the Executive Engineer, Irrigation Devision, Ghazipur and that such letter was forged. It has further been found that petitioners had themselves produced the service books, which contained endorsement with regard to their previous working at different regions. 12. The second supplementary counter affidavit filed on behalf of respondents states in categorical terms that upon necessary enquiries it has been verified that petitioners had never worked in the respective offices for which endorsement exists in their service book. From the stand taken by the respondents, it is clear that petitioners' entry into service is based upon manufactured documents and that they have never been engaged in the respective divisions of the Irrigation Department, as have been claimed by them. The record further goes to show that despite opportunity granted by this Court to the petitioners to produce any material or record to show that they had worked prior to 1990 in any office/division of the irrigation department, as per the entries made in the service books, petitioners have failed to substantiate their engagement. 13. The record further goes to show that despite opportunity granted by this Court to the petitioners to produce any material or record to show that they had worked prior to 1990 in any office/division of the irrigation department, as per the entries made in the service books, petitioners have failed to substantiate their engagement. 13. In such circumstance, this Court has no hesitation to hold that on the basis of materials brought on record, petitioners have not been able to establish their working in the office of irrigation department at Ghazipur and have obtained engagement in the irrigation department at Varanasi on the strength of manufactured documents. 14. As petitioners have not approached this Court with clean hand and have instead resorted to manufacturing of documents in order to setup claim before the respondent authorities, the writ petition deserves to be dismissed with costs. The cost is quantified at Rs.1,000/- for each of the petitioners, separately. 15. Writ petition is dismissed accordingly.