RAVI KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) This intra Court appeal arises from the judgment and order of the learned Single Judge dated 31.1.2012, passed in Writ Petition No. 3928 of 2012 (Ravi Kumar Sonker v. State of U.P. and others), by which the appellant's writ petition challenging the order of termination dated 1.11.2011, passed by Adhyaksh, Nagar Panchayat, Bharwari, District Kaushambi (hereinafter referred to as the Adhyaksh), has been dismissed. The learned Single Judge has dismissed the writ petition on the ground that the learned counsel for the petitioner-appellant could not show any error in the decision making process, warranting interference under Article 226 of the Constitution of India. The facts giving rise to this case are that the petitioner-appellant was appointed as a Clerk in Nagar Panchayat, Bharwari, District Kaushambi on the fixed salary of Rs. 3,500/- against the sanctioned post by the Adhyaksh. Pursuant to the appointment letter, the appellant joined. However, since juniors to the appellant were regularised, he Writ Petition No. 31134 of 2011 for his regularisation. In the said writ petition, on 1.11.2011, the Court directed the Adhyaksh to apprise the Court as to under what provision the petitioner-appellant has been appointed on contractual basis without advertising the vacancy when the persons are waiting for regular appointment. It is contended that the writ petition is still pending and because of that, on the fake charges, the appellant's service has been terminated on the basis of the alleged temporary embezzlement. It is submitted that although the charge-sheet was served but without there being any enquiry in accordance with the Uttar Pradesh Municipal Board's Servant (Inquiry, Punishment and Termination of Service) Rules (hereinafter referred to as Municipal Board Servants Rules), the services of the appellant has been terminated for the alleged misconduct of temporary embezzlement. For appreciation, order of termination is reproduced hereunder :

(2.) It is contended by learned counsel for the appellant that no opportunity was given to the appellant for rebutting the charges levelled against him with regard to the alleged embezzlement. It is stated in the writ petition that forged and fabricated papers have been prepared for the purposes of termination of the appellant's service and the termination order has been passed without affording opportunity of hearing. The learned Single Judge without having the version of the other side has dismissed the writ petition on the ground that the learned counsel for the petitioner-appellant could not show any error in the decision making process. It is submitted by the learned counsel for the petitioner-appellant that the error in the decision making process is apparent from the perusal of the impugned order which would reveal that the appellant was asked orally to submit the reply to the charge-sheet, which was not submitted. It is not in dispute that the appellant's service has been terminated for misconduct of temporary embezzlement of certain amount. For that, a charge-sheet was issued and Inquiry Officer was appointed. It is contended by the learned counsel for the petitioner-appellant that only on verbal instructions, which according to the appellant is false, the disciplinary authority has passed the impugned order. The appellant was never informed about the date and place of the inquiry and no material was supplied, demanded by him, for rebutting the charge. In the submissions of the learned counsel for the petitioner-appellant, once the charge-sheet was served alleging financial embezzlement, then procedure contained under the Municipal Board Servants Rules ought to have been followed, which, admittedly, has not been followed. Therefore, there was apparent error in the decision making process and the learned Single Judge has not considered this aspect hence fell in error.

(3.) On the other hand, learned counsel for the respondent Nos. 4 and 5 on being asked by the Court as to whether he would like to file counter-affidavit, stated that he did not propose to file counter-affidavit, as he could not improve the factual position with respect to the denial of proper opportunity to the petitioner-appellant while passing the impugned order.