JAGDISH SINGH YADAV Vs. DISTRICT MAGISTRATE GHAZIPUR

JUDGEMENT

(1.) THE Petitioner was appointed as Lekhpal on 12 -6 -80. On 28 -5 -86 the Petitioner was suspended and on 23 -7 -86 a charge sheet was issued to him True copy of the charge sheet is Annexure 2 to the writ petition. The Petitioner submitted his reply on 27 -9 -86, true copy of which is Annexure '3' to the writ petition. There after the S.D.M. Saidpur sent a show cause notice dated 23 -12 -86 to the Petitioner, true copy of which is Annexure '4' to the writ petition. By this notice the Petitioner was asked to explain why his services be not terminated. The Petitioner sent a reply on 30 -12 -86, true copy of which is Annexure 5 to the writ petition. Ultimately the termination order dated 31 -12 -86 was passed against the Petitioner. A true copy of the said order is Annexure 6 to the petition The Petitioner filed an appeal before the District Magistrate, Ghazipur which was rejected on 22 -5 -87.

(2.) THE Petitioner has alleged in para 10 of the writ petition that the show cause notice dated 23 -12 -86 was not accompanied with the enquiry report. The reply to paragraph 10 of the writ petition is contained in para 5 of the counter affidavit. Paragraph 5 of the counter affidavit states that paragraphs 10 to 16 of the writ petition are not admitted and the same are argumentative in nature. This is hardly a reply to the allegation in para 10 of the writ petition that the report or the Inquiry Officer was not supplied to the Petitioner. I take it, therefore, that the enquiry report was not supplied to the Petitioner along with the show cause notice.

(3.) COUNSEL for the Petitioner has relied upon the decision of Hon'ble B.M. Lal. J. in Hari Prasad Shukla v. State of U.P., 1991 AWC 950. In my opinion, this judgment is per incuriam as it has been passed in ignorance of para 17 of the judgment in Mohammad Ramzan Khan's case, and also in ignorance of S.P. Vishwanathan's case, which clearly lays down that the judgment in Mohammad Ramzan Khan's case is prospective In Hari Prasad Shukla's case the impugned termination order was of 29 -8 -1986, i.e. much before the judgment in Mohammad Ramzan Khan's case. Hence, with great respect to the Hon'ble Judge who decided Hari Prasad Shukla's case the Petitioner in that case was wrongly given the benefit of the judgment in Mohammad Ramzan Khan's case. Since the judgment in Hari Prasad Shukla's case has been passed overlooking the decision in S.P. Vishwanathan's case as well as para 17 of the judgment in Mohammad Ramzan Khan's case, I am of the view that the said decision of Hon'ble B.M. Lal, J. is a judgment per incuriam.