AWADH KISHORE DUBEY Vs. STATE OF U P

JUDGEMENT

(1.) S. H. A. Raza and Bhagwan Din, JJ. The petitioner who was a chairman work ing in the Ceiling Department was refused casual leave which he had applied on ac count of the illness of his and as treated was absent on that date. By means of the order dated 1-2-1982 his services were terminated by the Joint Director Prescribed Authority, Urban Ceiling, Varanasi. It seems that the petitioner represented to the appointing authority against the order of the termination. On 18-5-1982 the Joint Director addressed a letter to the Director stating that the services of the petitioner were terminated without giving him any opportunity. The letter also indicated that the petitioner was a laborious and committed worker and due to the illness of his son he absented himself on 1-2-1982. He is a law paid employee and his conduct and work was not as serious to warrant ter mination for such a small lapse particular ly, when he was not given any opportunity to show cause. He recommended that his representation can be considered sym pathetically. The Director by means of his letter dated 25-5-1982 addressed to the Joint Director stated that being the ap pointing authority he (Joint Director) may take suitable action and inform the Direc torate about the same. It appears that no action was taken by the departmental authorities. The petitioner there after was constrained to file a writ petition before this Court being No. Nil of 1988. A Division Bench of this Court on 27-10-1988 considering the recommendations of the higher authorities in favour of the petitioner directed that if the recommen dations had not been considered by the appropriate authority then the Joint Director would pass appropriate orders at the earliest. Surprisingly no order was passed by the Joint Director but instead, an Assistant Engineer who is not the ap pointing authority of the petitioner in formed the petitioner by means of his let ter dated 10-4-1991 that as the administra tion has put up an embargo upon fresh appointments and no post is available hence a fresh appointment cannot by made and in view of the directions of the Hon'ble High Court appointment would not be possible. It was vehemently con tended by the learned Counsel for the petitioner that the order of termination simpliciter was camouflaged into the order of punishment in as much as it is admitted case of the parties that the services of the petitioner were terminated for the reason that he was found absent on a particular date. The Hon'ble Supreme Court in the case of State of U. P. v. Kaushal Kishore Sharma, (1991) SCC 691, has not ruled out the Court's powers to delve into the foun dation of the order. Hence the contention which has been raised by the learned Standing Counsel that this Court cannot look into the foundation of the impugned order as the impugned order is simpliciter, casting no stigma on the character of the petitioner, cannot be accepted.

(2.) IT was also contended by Shri M. S. N. Tripathi, learned Counsel for the petitioner, that the Joint Director who himself reported that the petitioner was a laborious and committed worker could have put back the petitioner into service on the basis of the directions issued by the Director as well as by this Court but he failed to perform his duty being the ap pointing authority and the order on the representation of the petitioner was al lowed to be passed by an Assistant En gineer who is not the appointing authority of the petitioner. Hon'ble Supreme Court in Dr. (Mrs.) S. P. Sherre v. Union of India, 1989 (3) SCC 311, held that an employee should be made aware of the defect in his work and efficiency and his performance before an order of termination is passed. If a public servant is made aware about any defect in his work and efficiency and he does not improve then the authorities are competent to terminate his services. This rule as laid down by the Hon'ble Supreme Court should not be treated as a universal rule in every case, but if the lapse on the part of the public servant is of trivial na ture and his conduct and efficiency has been affected then certainly he should be made aware about the lapse on his part to enable him to explain as to what were the circumstances under which that lapse was committed.

(3.) IN view of what we have indicated here in above a writ in the nature of cer-tiorari quashing the order dated 10-4-91 contained in Annexure 9 and the order dated 1-2-1982 contained in Annexure 1 to the writ petition is issued with all conse quential benefits, except the payment of back wages.