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2018 DIGILAW 867 (ALL)

RAM SINGH v. STATE OF U. P.

2018-04-11

SURYA PRAKASH KESARWANI

body2018
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Shailesh Kumar Pathak, learned counsel for the petitioner, Sri Jagdish Misra, learned standing counsel for the respondent Nos. 1,2 and 3 and Sri Narendra Kumar Giri, learned counsel for the respondent Nos. 4 and 5. 2. Sri Narendra Kumar Giri states that he has no instruction from respondent Nos. 4 and 5. 3. This writ petition has been filed praying for the following relief: (a) issue a writ order or direction in the nature of certiorari for quashing the impugned order dated 13.4.2005 passed by the Respondent No. 2. (b) issue a writ order or direction in the nature of mandamus directing the respondents to treat the petitioner in service up to the age of superannuation and to pay all the benefits of service and the subsequently benefits also in accordance with law. (c) issue a writ order or direction in the nature of mandamus directing the respondents to pay the entire arrears of amounts with market rate interest to the petitioner. 4. Learned counsel for the petitioner submits that the impugned order is wholly arbitrary and illegal and it has been passed even without considering the submissions of the petitioner. The impugned order is contrary to evidences on record. The charges against the petitioner regarding dereliction in duty by not informing about the theft, could not be proved against the petitioner. Even in the impugned order no finding has been recorded that the charges against the petitioner have been found proved. In the impugned order the respondent No. 2 has not even recorded a finding that the services of the petitioner were liable to be terminated and yet it has been held that since the petitioner has already retired, therefore, he cannot be reinstated in service. Even if the petitioner has retired yet the petitioner was entitled for consequential benefits including his retirement dues and pension after treating him in uninterrupted service. The impugned order is arbitrary and illegal. Therefore, it deserves to be quashed and the relief as sought in the writ petition deserves to be granted. 5. Learned standing counsel submits that the petitioner has retired in the year 2001. He submits that the matter needs to be considered by the District Inspector of Schools in the light of the relief sought by the petitioner in the present writ petition. 6. 5. Learned standing counsel submits that the petitioner has retired in the year 2001. He submits that the matter needs to be considered by the District Inspector of Schools in the light of the relief sought by the petitioner in the present writ petition. 6. I have carefully considered the submissions of learned counsel for the parties. 7. Briefly stated facts of the present case are that undisputedly the petitioner was appointed as Chowkidar in the respondent No. 4 institution on 8.8.1961. His date of birth is 20.8.1941. On the allegation that in the mid night of 5/6 April 1982 a theft had occurred in the office of the Principal and certain cups and shields were stolen but the fact of the theft was not immediately reported by the petitioner to the Principal. The alleged non reporting of the theft to the Principal was mainly the charge against the petitioner and on that ground the Principal held the petitioner to be guilty of dereliction in duty. The Inquiry Officer submitted his report dated 7.6.1982 in which he came to the conclusion that the petitioner has not deliberately informed the Principal about the theft. On the basis of the inquiry report, the Principal of the institution dismissed the petitioner from service by order dated 22.7.1982. Against this order the petitioner preferred a representation before the respondent No. 2, who allowed it by order dated 1.3.1983 on the ground that a final report was submitted by the police with respect to the alleged theft and that the petitioner was not afforded an opportunity to defend his case. By the aforesaid order dated 1.3.1983, the respondent No. 2 allowed the representation of the petitioner and held that the petitioner shall be entitled full salary. Aggrieved with the order of the respondent No. 2 i.e. D.I.O.S., Mathura, the respondent No. 4 - Committee of Management preferred a Civil Misc. Writ Petition No. 2958 of 1983, which was allowed by order dated 3.2.1989 and the order dated 1.3.1983, passed by the respondent No. 2 was quashed and the matter was remitted back to the respondent No. 2 to decide the representation of the petitioner within a period of three months. The petitioner made a detail representation dated 19.4.1989 to the respondent No. 2. 8. The petitioner made a detail representation dated 19.4.1989 to the respondent No. 2. 8. Pursuant to the aforesaid order dated 3.2.1989, passed by this Court in Writ Petition No. 2958 of 1983, the petitioner filed a detail representation dated 19.4.1989, before the respondent No. 2 in which he specifically stated that no theft had occurred; the allegation of dereliction in duty on account of not informing about the alleged theft was a concocted story and the allegations were malafidly made by the Principal to oust the petitioner from service; final report was submitted by the police which also indicates that no theft had occurred; there were various costly items kept in the office of the Principal and, therefore, it is surprising that only cups were stolen leaving the costly items; inquiry should have been conducted by senior teacher but it was not done; the inquiry report is false and ex parte and no opportunity was afforded to the petitioner. No opportunity of hearing was afforded by the Committee of Management while dismissing the appeal of the petitioner filed on 11.8.1982 and that even the alleged stolen cups and shields were not entered in the inventory register and as such the story of theft was false. 9. The aforesaid representation of the petitioner was allowed by the respondent No. 2 by order dated 4.11.1989 and the order of the Principal dated 22.7.1982 dismissing the petitioner from service and the order of the Committee of Management dated 11.12.1982, were set aside. The petitioner was reinstated in service. 10. Against the aforesaid order of the D.I.O.S. (respondent No. 2) dated 4.11.1989, the respondent No. 4 (Committee of Management) filed Civil Misc. The petitioner was reinstated in service. 10. Against the aforesaid order of the D.I.O.S. (respondent No. 2) dated 4.11.1989, the respondent No. 4 (Committee of Management) filed Civil Misc. Writ Petition No. 23039 of 1989 (Managing Committee v. District Inspector of Schools, Mathura and another) which was disposed of by order dated 15.9.2004 with the following observations/directions: “The impugned order dated 4.11.1989 is set aside and the matter is relegated back so that the Principal may hear the respondent No. 2 afresh on the same charge and may also take the fresh evidence in sequence of the earlier statements and material available on record and shall appoint a Senior most teacher as Inquiry Officer who may rely and also accept the fresh documents and in consonance to the Principle of natural justice may complete the Inquiry which shall be subject-matter of the present Principal and on the basis of the decision of Principal afresh order shall be passed by the D.I.O.S. concerned within six months from the date of production of certified copy of this order. The parties concerned are expected to give full cooperation. In view of the above observations, the writ petition is disposed of.” 11. The parties concerned are expected to give full cooperation. In view of the above observations, the writ petition is disposed of.” 11. It appears pursuant to the aforequoted order of this Court that one Sri B. Lal was appointed as Inquiry Officer who submitted few lines inquiry report dated 2.2.2005, as under: ^^tkap ekuuh; mPp U;k;ky; ds leknj esa lEcfU/kr deZpkjh Jh jkewflag rRdkyhu pkSdhnkj DySUlh b.Vj dkyst] eFkqjk dks i= fnukad 01-11-2004 ds }kjk tkap dk;Z es lg;ksx nsus vkSj bl lEcU/k es viuh tkudkjh izLrqr djus gsrq fnukad 05-11-2004 ,oa 10-12-2004 dks cqyk;k x;kA ekuuh; mPp U;k;ky; ds leknj vkSj izkd`frd U;k; ds vUrZxr Jh jkewflag dks iw.kZ volj fn;k x;k fd og viuk i{k IkzLrqr djsa ijUrq mldk ;gh dguk jgk fd eq>sa pksjh ds ckjs esa tks dqN Hkh dguk vFkok lQkbZ nsuh gS mls eSaa iwoZ es gh okjnkr ds le; fy[kdj ns pqdk gwa vkt Hkh esjk ogh c;ku gS tks igys FkkA izFke n`“;rk es HkwriwoZ tkap vf/kdkjh LoŒ Jh gjh'k dqekj jkBh ,oa iwoZ xokgks ds iqu% izkIr c;kuksa ds vk/kkj ij eSa Hkh jk; bRrQkd j[krk gwa vkSj jkewflag ls izkIr tkudkjh ds vk/kkj ij Hkh esjk ;g er gS fd jkewflag us tkucw> dj pksjh dh ?kVuk dh tkudkjh rRdkyhu iz/kkukpk;Z dks u nsdj vius dRrZO; dh tkucw>dj ?kksj vogsyuk dh gSA** fu.kZ; vr% eSa tkap vf/kdkjh bl fu"d"kZ ij igqapk gwa fd jkewflag dRrZO; dh vogsyuk dk nks"kh gS tks ek/;fed f'k{kk vf/kfu;e ds v/;k; rhu /kkjk 16¼N½ ds fu;e 32 ds vuqlkj n.Muh; vijk/k gSA vr% iwoZ eas jkewflag ds fo:} dh xbZ dk;Zokgh dk i{k/kj gwaA fnukad&02-02-2005 izfrfyfi& Jh jkew flag dks lwpukFkZ izsf"kr gŒ viBuh; ¼ch yky½ tkap vf/kdkjhA 12. On receipt of the aforequoted inquiry report dated 2.2.2005 the respondent No. 5 submitted a report to the respondent No. 2 dated 5.2.2005 in which he merely noted certain events and the charge in few lines and, thereafter observed that the order of the Principal against the petitioner was justified. 13. On receipt of the aforesaid report of the respondent No. 5, the matter was disposed of by the respondent No. 2 by the impugned order dated 13.4.2005, in which he has not recorded any finding that the petitioner was guilty of dereliction in duty. 13. On receipt of the aforesaid report of the respondent No. 5, the matter was disposed of by the respondent No. 2 by the impugned order dated 13.4.2005, in which he has not recorded any finding that the petitioner was guilty of dereliction in duty. In the paragraphs 1, 2 and 3 of the impugned order the respondent No. 2 merely noted certain dates and events regarding date of birth, appointment of the petitioner, the final report submitted by the police, the date of superannuation of the petitioner, payment of GPF and insurance to the petitioner. Thereafter, he concluded as under: ^^fu.kZ; mijksDr foospuk ,oa fu"d"kZ ls Li"V gksrk gS fd izfroknh la[;k&2 Jh jkew flag 60 o"kZ dh vf/ko"kZrk vk;q fnukad 20-8-2001 dks iw.kZ dj pqds Fks] vf/ko"kZrk vk;q fnukad 20-8-2001 dks iw.kZ djus ds mijkUr Jh jkewflag dks iqu% lsok es fy;s tkus dk dksbZ izkfo/kku ugha gS vr% ;kph dk izR;kosnu fnukad 4-10-2004 vLohdkj djrs gq, fuLrkfjr fd;k tkrk gSA** 14. Aggrieved with the aforesaid order, the petitioner has filed the present writ petition. 15. Perusal of the inquiry report and the recommendation of the respondent No. 5, dated 5.2.2005 sent to the respondent No. 2 clearly reveals that there was no credible evidence either before the Inquiry Officer or before the respondent No. 5 to hold the petitioner guilty of the charges levelled against him. The respondent No. 2 while passing the impugned order, has not held the petitioner to be guilty of the charges levelled against him. He merely observed that since the petitioner has attained the age of superannuation on 20.8.2001, therefore, there is no justification to take back the petitioner in service. On this ground the representation of the petitioner was rejected by him. Thus, finally the respondent No. 2 has not found the petitioner to be guilty of the charges levelled against him. Therefore, the order dismissing the petitioner from service being arbitrary and illegal, deserves to be quashed. 16. In view of the above discussion, the writ petition is allowed. The impugned order dated 13.4.2005 is quashed. Matter is remitted back to the respondent No. 2 to take an appropriate decision in accordance with law, within three months from the date of presentation of a certified copy of this order in the light of the observations made above. 16. In view of the above discussion, the writ petition is allowed. The impugned order dated 13.4.2005 is quashed. Matter is remitted back to the respondent No. 2 to take an appropriate decision in accordance with law, within three months from the date of presentation of a certified copy of this order in the light of the observations made above. It is made clear that I have not interfered with the finding of the respondent No. 2 to the extent that the petitioner has retired on 20.8.2001. Petition Allowed.