BRIJ BEHARI Vs. NAGAR PALIKA PARISHAD MATHURA

JUDGEMENT

(1.) Shri S.V.Goswsami, learned counsel for respondents had taken a Preliminary objection as to the maintainability of the writ petition on the ground that an appeal is provided under rule 3 of the U.P. Municipal Servants Appeal Rules 1967. He had also contested the case on merit on the ground that the order of termination impugned in this writ petition is of termination Simplicitor without casting any stigma and the decision not to retain the Petitioners is followed by a motive that the petitions were not fit to be retained in service. The reason for non-retention of the petitioners in service was not a foundation for removal of the petitioner as such it was not a Punishment. The word used in the termination being a simple removal, on the ground that there was no necessity of their services, no prejudice was meant to The petitioners since it did not cast any stigma from securing any future Employment. Therefore, the petitioners cannot maintain the writ petition on Merit.

(2.) Mr. Janaradan sahai, learned counsel for the petitioners, on the other hand, Contents that Rule 3 of the said Rule provides an appeal only against an order of punishment. Since the order impugned is a simple order of removal not being an order of punishment, no appeal is maintainable, even through the Order of removal has been passed in exercise of power conferred under section 74 of the U.P. Municipalities Act. The representation that was filed, though it was described as an appeal, was wholly incompetent. He next contends that the reasons for termination is not motive, as has been sought to be advanced by Mr. Goswami but is a foundation to the extent that the petitioners did not express their regret not had given any undertaking to work sincerely after the strike was over for which the petitioners had participated by reason of the fact that strike was declared illegal. He relies on the statement made in paragraph 13 of the counter affidavit where some of the participants of the strike were taken back in service on expressing regret and giving undertaking for working with sincerely. The petitioners did not express regret or gave any undertaking, and therefore, despite the promise contained in Annexure-11 to the writ petition to take back all the participants of the strike on the condition that they would not be victimised, the petitioners have not been taken in, and such non retention which was effected before the promise was entered into is in effect a case of victimisation. Therefore, according to him though dressed in a simple form, the order of termination is a penalty in disguise, which cannot be inflicted except after holding an enquiry. I have heard learned counsel for the parties at length. Rule 3 of the U.P. Municipal Servants Appeals rules, 1967 provides as under :-

(3.) Thus it appears that the appeal is provided against an order of punishment. Clause (I) of rule 3 prescribes the forums of appeal as President in case where an order of punishment is passed by an officer other than the President under section 76. Whereas Clause (ii) of Rule 3 prescribes the forum of appeal to the commissioner of the Division in case where an order of punishment is passed by the punishing authority under section 74 or by the President under section 76. Clause (I)and (ii) therefore makes it clear that the appeal lies only against order of punishment passed either section 74 or under section 76. Section 74 and 76 provides as follows: