GANGA SINGH Vs. SUPERINTENDENT OF POLICE BADAUN

JUDGEMENT

(1.) Petitioner's services have been terminated by means of the order dated 8-2-1989 (Annexure-2 to the writ petition) as 'services no longer required, under purported exercise of power conferred by U. P. Temporary Government Servants (Termination of Services) 1975 Rules (hereinafter called the Rules 1975), which the petitioner has assailed by means of the present writ petition.

(2.) IN the year 1980, the petitioner was appointed as Falver by the opposite party No. 1 on the clear vacancy and his services were unblemished throughout; a suspension order dated 28th February, 1988 (Annexure-1 to the writ petition) was served upon the petitioner on 2nd of March, 1988 on the ground that the petitioner is an accused in criminal case No. 23 under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N. D. P. S. Act): no disciplinary proceedings were initiated against the petitioner till now nor any charge sheet was served upon him: the services of the petitioner were terminated by means of an order dated 8-2-1989 (Annexure-2 to the writ petition) as 'services no longer required' passed by the Superintendent of Police, Badaun, the respondent No. 1; the petitioner filed representation stating therein that the petitioner is an agriculturist and he is producing opium in his field after obtaining the licence from the concerned department. The copy of the licence was also appended with the representation aforesaid. The opposite party No. 1 made, enquiry through the Deputy S. P. Sri Ramji Lal, who after making enquiry, recommended to recall the suspension order and to reinstate the petitioner in service. The Respondent No. 1, instead of reinstating the petitioner in service passed the impugned order terminated the petitioner's services as no longer required. The petitioner filed the appeal against the impugned order but the same was not disposed of, presumably, for the reasons that no appeal lies against the termination order which has been passed exercising the powers conferred by Rules 1975; during the pendency of the aforesaid appeal, the criminal case aforestated ended in acquittal. The certified copy of the judgment dated 26-5-1993 is placed on record as Annexure- 1 to the supplementary affidavit. The petitioner approached the Respondent No. 1 with copy of the judgment for his reinstatement but with no avail.

(3.) THE impugned order has been challenged inter-alia on the grounds that the petitioner was suspended on the sole ground that a criminal case under Section 18 of N. D. P. S. Act is pending. THE said criminal case resulted in acquittal and the department has not initiated any disciplinary proceeding in order to afford opportunity of hearing to the petitioner to lead his defence. THErefore, the impugned order being stigmatic in nature could not have been passed without affording opportunity of hearing. In support of the submission, learned Counsel for the petitioner has relied upon a decision in Babu Lal v. State of Haryana, AIR 1991 Supreme Court 1310. This case came before the Apex Court by means of the Special Leave Petition. THE appellant therein was appointed as Sub-Inspector in the department of Food and Supplies by order dated 13-4-1975 on ad-hoc basis against the ex-servicemen quota; the appointment shall not exceed six months and shall be liable to be terminated without notice. He continued on the post without any break till November 17, 1980; i. e. the date of termination of his services. THE appellant was served with an order of suspension dated 15-4-1980 in view of the criminal proceeding pending against him under Section 420 of the Indian Penal Code. During the pendency of criminal case, order of termination was made. THE said criminal proceedings were decided on 21-10-1981 wherein the appellant was acquitted of the charge. THE appellant on receiving the order of termination filed suit being Civil Suit No. 453 of 1981 seeking declaration to the effect that the order of suspension dated 15- 4-1980 and the order of termination dated 17-11-1980 were illegal, arbitrary and without jurisdiction and the appellant is entitled to reinstatement with effect from his date of suspension and he is further entitled to be regularised and to all benefit of service. THE suit was decreed by the Civil Court against which a Civil appeal was filed. Additional District Judge by means of his order dated 16-10-1986 upheld the decision of the learned Sub Judge. Against the judgment of the Additional District Judge a second appeal was filed which was considered by the High Court of Punjab and Haryana. THE High Court set aside the judgment and decree of the Courts below holding that the appellant was not entitled to be regularised automatically unless he fulfils all conditions given in the notification. THE appellant was not entitled to be regularised automatically. It was further held that since the appellant was an ad-hoc employee and his work was found not to be of required standard, therefore, the department instead of waiting for the result of the criminal case thought it fit under the circumstances to dispense with the services of the appellant. THE Court observed as under: - "it is well settled by several decisions of this Court that though the order is innocuous on the face of it still then the Court if necessary, for the ends of fair play and justice can lift the veil and find out the real nature of the order and if it is found that the impugned order is penal in nature even though it is couched with the order of termination in accordance with the terms and conditions of the order of appointment, the order will be set aside."