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2021 DIGILAW 132 (UTT)

Trilok Chand Sharma v. State Of U. P.

2021-03-01

RAVINDRA MAITHANI

body2021
JUDGMENT Ravindra Maithani, J. (Oral). - Challenge in the writ petition is mainly to an order dated 08.12.1992 (Annexure 12), by which the appointment of the petitioner as Co-operative Kurk Amin has been cancelled. 2. According to the petitioner, he was appointed to the post of Kurk Amin on 19.02.1981 on commission basis. Subsequently on 21.01.1984, he was appointed on salary basis, but suddenly on 09.01.1991, the petitioner was reverted to the post of Co-operative Collection Amin on commission basis. This order was challenged by the petitioner before the State Public Services Tribunal, Lucknow (for short "the Tribunal") in Claim Petition No.352 of 1995 (for short "the claim petition"). The claim petition was allowed on 30.07.1997 and the order of reversion of the petitioner dated 09.01.1991 was quashed. Directions were also issued to reinstate the petitioner on the post of Co-operative Kurk Amin on salary basis. This order was produced by the petitioner before the competent authority on 23.09.1997. On that date, the petitioner also gave his joining. 3. It is the case of the petitioner that the order dated 08.12.1992 was never brought to the notice of either the petitioner or before the Tribunal when the claim petition was heard and decided finally on 30.07.1997. It has been passed without affording any opportunity of hearing being given to the petitioner; without conducting any inquiry. The order dated 08.12.1992 was sent to the petitioner vide communication dated 05.11.1997 (Annexure-11), which is also impugned in this petition. 4. On behalf of the respondents, a counter affidavit has been filed. According to it, the order dated 30.07.1997 passed by the Tribunal had already been challenged by the respondents in Civil Miscellaneous Writ Petition No. 43719 of 1997, in which a stay was granted. Reference has been made to the Uttar Pradesh Co-operative Collection Dues Rules, 1982, while stating that the petitioner is governed by these Rules. According to the learned counsel for the State of Uttar Pradesh, the interim order dated 04.02.1998 was procured by the petitioner by suppressing the material facts. 5. Learned counsel for the petitioner would submit that after the order of the Tribunal dated 30.07.1997, the petitioner was given joining by the department. He continuously served thereafter and as such retired from the service in the month of December, 2020. 5. Learned counsel for the petitioner would submit that after the order of the Tribunal dated 30.07.1997, the petitioner was given joining by the department. He continuously served thereafter and as such retired from the service in the month of December, 2020. According to the learned counsel for the petitioner, when the claim petition was heard, the impugned order dated 08.12.1992 was never brought to the notice of the Tribunal; it was never served upon the petitioner; no inquiry was ever conducted; and the petitioner was not at all aware that any such order was passed till it was served upon him on 05.11.1997 by way of communication which is Annexure No. 11. 6. Learned counsel for the petitioner would argue that, in fact, the matter is only academic now because the petitioner has already served his entire tenure of service. He has retired now and the existence of the impugned orders make no difference, as such. Therefore, they deserve to be set aside. 7. On behalf of State of Uttar Pradesh, learned counsel would submit that the impugned order dated 08.12.1992 was sent to the petitioner through registered post, but it was returned un-served. 8. Undisputedly, the petitioner was appointed as Kurk Amin on 19.02.1981 and he continued his services till 09.01.1991, when suddenly, according to him, he was reverted from salary based Kurk Amin to commission based Kurk Amin. This order dated 09.01.1991 was challenged by the petitioner in the claim petition, which was finally decided on 30.07.1997. These facts are not disputed. Even it is not disputed that this order dated 30.07.1997 passed by the Tribunal was challenged by the respondents in Civil Miscellaneous Writ Petition No. 43719 of 1997, in which initially on 04.02.1998, a stay was granted, but the fact remains that it is now undisputed that the said writ petition was dismissed for want of prosecution on 24.02.2004. 9. If the appointment of the petitioner was cancelled on 08.12.1992, why the respondents did not bring it to the notice during the pendency of the claim petition before the Tribunal? How suddenly on 05.11.1997, the impugned order dated 08.12.1992 was served upon the petitioner? How the impugned order dated 08.12.1992 was passed? What inquiry was conducted? According to this impugned order dated 08.12.1992 since the petitioner remained absent since December, 1991, his appointment was cancelled. Who gave this report? Who conducted this inquiry? How suddenly on 05.11.1997, the impugned order dated 08.12.1992 was served upon the petitioner? How the impugned order dated 08.12.1992 was passed? What inquiry was conducted? According to this impugned order dated 08.12.1992 since the petitioner remained absent since December, 1991, his appointment was cancelled. Who gave this report? Who conducted this inquiry? No material is placed before this Court. Though the respondents have filed counter affidavit, but nothing has been given in support of the impugned order dated 08.12.1992. 10. What is more interesting, according to the counter affidavit of the respondents, is that the impugned order dated 08.12.1992 was sent to the petitioner through registered post, but it was never served upon the petitioner. It means that the respondents had conducted some sort of inquiry in secrecy, or at least, without any notice to the petitioner, and the impugned order was sent through registered post, which was not served, but kept safely with the respondents and it was not brought to the light till five more years. Did it mean that the order was kept close in the file during the pendency of the claim petition before the Tribunal? If so, why? 11. According to the petitioner, in the year 1998, he was allowed to join his services by the respondents, and he continued to render his services till he was superannuated in the month of December, 2020. 12. In view what has been stated hereinbefore, this Court is of the view that the impugned order dated 08.12.1992 deserves to be set aside and the petition allowed. 13. Impugned order dated 08.12.1992 is hereby set aside. 14. The writ petition is allowed.