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2018 DIGILAW 2364 (ALL)

Deep Chand Sahu v. State Of U. P.

2018-11-20

AJIT KUMAR

body2018
JUDGMENT : Ajit Kumar, J. 1. Heard learned counsel for the parties. 2. By means of this writ petition, the petitioner has questioned the order dated 28th May, 2011 passed by 2nd respondent asking the Block Development Officer to take action against the petitioner and submit new proposal for appointment of Gram Rozgar Sewak in place of petitioner. 3. The argument advanced on behalf of the petitioner is that the order is punitive in character as it has been passed on the basis of the some ex parte enquiry held against him and in which the petitioner was not given any opportunity to participate. Since findings arrived at in the enquiry and had been taken to be as foundation of the order passed, it has cast stigma also on the character of the petitioner. 4. The emphasis, therefore, has been made on the non compliance of principles of natural justice and action impugned as a result of definite bias at the end of the authority passing the order. In this regard, learned counsel for the petitioner has placed reliance upon the government order dated 23rd November, 2007 wherein condition of service in respect of such employees though employed on contract basis of honorarium being paid have been laid down. 5. The facts of the case are that the petitioner was initially appointed under the Rural Employment Scheme to work as Gram Rozgar Sewak vide order dated 22nd September, 2008 for a period of one year. Such agreement before could come to an end the term was further renewed for another period of one year and it went on being renewed until impugned action was taken. 6. Per contra, the argument advanced on behalf of the learned Additional Chief Standing Counsel Sri Amit Manohar is that subsequent to the order impugned enquiry was got conducted on 11.8.2011 and the report was submitted, and thereafter, an opportunity was also provided by means of show cause notice and ultimately services of the petitioner have stood terminated by the resolution dated 12th July, 2011. 7. 7. Having heard the learned counsel for the parties and having perused the record, I find that the order impugned has been passed by 2nd respondent on the basis of some enquiry got conducted and report got submitted on 20th May, 2011 on the basis of which the Chief Development Officer directed the Block Development Officer to take action against the petitioner and also forward the proposal in respect of new Rozgar Sewak in place of petitioner. The language and recitals as have come in the order impugned are quite suggestive of an action final in nature. 8. Further from the facts as have come to be recorded in paragraph 7 of the counter affidavit filed by one Mahesh Shankar on behalf of respondent nos. 1,2, and 3 it comes out clearly that some enquiry got conducted in the matter on 11.8.2011 and enquiry report in that regard has come to be appended as annexure 1 to the counter affidavit. From bare reading of paragraph 7, it clearly transpires that enquiry report that had been submitted by the District Development Officer, Jhansi on 20th May, 2011, and that entire enquiry was conducted ex parte on the basis of which impugned action has been taken. 9. Moreover, when the writ petition was entertained , this Court had passed detailed order in which operative portion runs as under: " Till the next date of listing, the operation of the order dated 28.5.2011 passed by the Chief Development Officer, Jhansi shall remain stayed." 10. It appears from the record that some resolution had been passed on 12th July, 2011 itself dispensing with services of the petitioner but same has not been brought on record though relevant paragraph has been sworn on the basis of information derived from the records. 11. In the absence of any material being on record through the counter affidavit, it is not possible for this Court to examine the veracity of the statement being made to raise presumption of the correctness in that reference of the order impugned passed by the concerned respondent. 12. 11. In the absence of any material being on record through the counter affidavit, it is not possible for this Court to examine the veracity of the statement being made to raise presumption of the correctness in that reference of the order impugned passed by the concerned respondent. 12. However, from the impugned order dated 23rd November, 2007, it is very much clear that in respect of service of Gram Rozgar Sewak if any such disciplinary action against such employee is to be taken then power lies in the Gram Panchayat and before taking any such action show cause notice was necessarily required to be given as condition precedent. Nothing is borne out from the counter affidavit nor, any material has been brought on record to demonstrate that any notice much less a show cause notice was ever issued to the petitioner. 13. Any administrative exercise of power that reflects lack of fairness and transparency in decision making process, cannot pass the test of Article 14 of the constitution of India which guarantees protection from arbitrariness which is benchmark of a rule of law society and this court will not close its eyes to get such arbitrary action escaped the judicial scrutiny under Article 226 of the Constitution . 14. In view of above, the Court is of the considered opinion that provision as contained in the government order dated 26th November, 2007 has not been followed in the matter in hand while passing the impugned order, and therefore, impugned order deserves to be set aside. 15. In normal course, this Court would have remitted the matter for authority to revisit the issue by giving opportunity of hearing and show cause but since very appointment of the petitioner was only for the period of one year and subject to further renewal of one year, the services of petitioner had already been dispensed with pursuant to the the order impugned herein petition, no useful purpose would be served in remitting the matter. 16. The petitioner at the most would have continued for the period for which he was under renewal. 16. The petitioner at the most would have continued for the period for which he was under renewal. Since order impugned has been found to be in violation of the procedure prescribed, inasmuch as, enquiry report having been found to be without any participation of the petitioner and notice in that regard never given to the petitioner, the order impugned dated 28.5.2011 is hereby quashed and the consequential action in pursuance thereof also stands quashed. 17. Since petitioner has been illegally restrained from discharging his duties though it is contended on behalf of the petitioner that after discharge of duties he has been directed to work, it is directed that in case if petitioner has worked for the period he was under renewal for the year 2011, he shall be paid salary for the said working period between passing of the impugned order and conclusion of renewal period. Calculation and computation of the amount of honorarium shall be done within period of 6 weeks from the date of production of certified copy of this order and the payment shall be made accordingly. 18. The writ petition is accordingly allowed with the aforesaid observations and directions.