Allowed

Wasim Ahmad v. State of U.P. and Others

Allahabad HC2 Jan 2020SPLA/1296/2011

Case brief

AI extract

What is this about?

This special appeal challenged the dismissal of writ petitions regarding illegal termination of public servants. The Supreme Court held that terminating a permanent employee without an inquiry or hearing violates natural justice. It affirmed that a non-speaking order cannot be validated by reasons supplied later in an affidavit, setting aside the lower court order.

What did the court decide?

Special appeals allowed; order dated 11.05.2011 and order dated 30.11.2005 setting aside appointments set aside.

Wasim Ahmad Vs State of U.P. and Others — Service and Employment | Allahabad HC (2020)

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(1)

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Court No. - 4

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Case :- SPECIAL APPEAL No. - 1296 of 2011 Appellant :- Wasim Ahmad Respondent :- State of U.P. and Others Counsel for Appellant :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Shishir Prakash Connected with

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Case :- SPECIAL APPEAL No. - 1024 of 2011

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Appellant :- Amit Kumar And Others Respondent :- State of U.P. and Others Counsel for Appellant :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Shiv Prakash

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Connected with

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Case :- SPECIAL APPEAL No. - 1302 of 2011

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Appellant :- Iqrar Ahmad Respondent :- State Of U.P. And Ors. Counsel for Appellant :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Shishir Prakash

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Hon'ble Bala Krishna Narayana,J. Hon'ble Shamim Ahmed,J.

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Heard learned counsel for the parties.

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The aforesaid three special appeals have been filed by the appellants against the judgment and order dated 11.05.2011 passed by Learned Single Judge in Civil Misc. Writ Petition No. 7115 of 2006 connected with Civil Misc. Writ Petition No. 4999 of 2006 were dismissed.

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Brief facts of the case as emerging from the perusal of the averments made in the writ petitions are that the petitioners were appointed on different posts in the year 2004-05 against substantive vacancies and confirmed on the their respective posts. The

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petitioners' appointments were cancelled by the respondent no. 3 by order dated 30.11.2005.

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Since the order dated 30.11.2005 was passed by the respondent no. 3 in gross violation of principles of natural justice without affording any opportunity of hearing to the petitioners, the petitioners challenged the same before this Court by means of Civil Misc. Writ Petition No. 7115 of 2006 alongwith connected Civil Misc. Writ Petition No. 4999 of 2006. The Learned Single Judge had passed an interim order in favour of the petitioners on 21.02.2006 (Annexure-3 to the affidavit accompanying the stay application). The aforesaid writ petitions were dismissed by the Learned Single Judge of this Court by a common judgment and order dated 11.05.2011.

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Challenging the legality of the aforesaid judgment and order, the petitioners have filed the aforesaid special appeals.

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Before the writ court, the stand taken by the petitioners was that the impugned order which carried civil consequences having been passed by the respondent no. 3 without either issuing any notices or affording them any opportunity of hearing in gross violation of the principles of natural justice, the same was wholly unsustainable and liable to be quashed. It was further pleaded before the writ court that the procedure prescribed under U.P. Municipal Board Servants (Enquiry, Punishment and Termination of the Services) Rules had not been followed by the respondent no. 3 before passing the impugned order.

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The respondents urged before the Learned Single Judge that the appointment letters on the basis of which the petitioners were claiming themselves to be appointed in the Nagar Panchayat, Kanth

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were forged documents as the appointment letters were never issued by Sri Mashkoorrahman, the then Executive Officer.

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Learned Single Judge repelled the contention of the petitioners and dismissed the writ petition by placing reliance on the letters purporting to have been sent by the Executive Officer who was holding the Office of Executive Officer of Nagar Panchayat, Kanth at the relevant time when the petitioners claimed to have been appointed in Nagar Panchayat, Kanth and confirmed stating therein that he had not issued any such appointment letters. His letter contained a further recital that he had not signed the appointment letters which were forged and fictitious.

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The Learned Single Judge further observed that since nothing had been placed on record before him to contradict the stands of the officer concerned and also the respondents, the question of attracting principles of natural justice did not arise and Article 226 of the Constitution of India was not available to the persons who had obtained appointment by fraudulent means.

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It is contended by the learned counsel for the appellantspetitioners that the appellants having been appointed on the different posts in Nagar Panchayat, Kanth pursuant to the appointment letters issued by the respondent no. 3 on 30.11.2004, 01.05.2005, 01.08.2004, 01.01.2005, 30.11.2004, 10.06.2004 and 28.02.2004 (Anneximpugend orderure-1, 3, 5, 7, 9, 11 and 13 to the writ petition) and having been confirmed on the aforesaid posts on 16.07.2005, 03.08.2005, 11.07.2005, 10.07.2005, 16.07.2005, 05.02.2005 and 11.07.2005 by the confirmation letters (Annexure-2, 4, 6, 8, 10, 12 and 14 to the writ petition), their appointments could not be cancelled without giving them any opportunity of hearing.

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He next contended that the reliance placed by the Learned Single Judge on the letters purporting to have been issued by the Executive Officer denying his signatures on the petitioners' appointment letters and issuance of the petitioners' appointment letters by him in the absence of any opportunity given by the respondent no. 3 to the petitioners to cross examine them on the said point was wholly unjustified and erroneous.

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He also submitted that the impugned order by which the petitioners' appointments were cancelled is an absolute cryptic and non speaking order which did not disclose any reason, the same was liable to be quashed on that count also but the Learned Single Judge erroneously relied upon the reasons furnished by the respondents in his counter affidavit for holding the order impugned before him to be valid. The view taken by the Learned Single Judge is contrary to the settled principle that validity of an order is to be judged on the basis of the reasons given therein and if the authority passing the order impugned is given opportunity to justify the order by furnishing the reasons which are not mentioned in the order, it would amount to validate and otherwise illegal order.

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In support of his aforesaid contention, learned counsel for the appellants-petitioners has placed reliance upon AIR 1978 SC 851 (Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Others).

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Per contra, learned Standing Counsel for the respondent nos. 1 and 2 as well as the learned counsel for the respondent nos. 3 and 4 have made their submissions in support of the impugned order. However, they have not been able to demonstrate that the respondent no. 3 before passing the impugned order by which the appointments of petitioners-appellants who were permanent

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employees of Nagar Panchayat, Kanth were cancelled by him he had afforded any opportunity of hearing to the petitioners. Moreover, we find that the impugned order is a wholly cryptic and non speaking order which does not disclose any reason.

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Having heard the learned counsel for the parties present and perused the impugned order as well as the other material brought on record, we find that the order which was impugned by the petitioners-appellants before the Learned Single Judge was an absolutely non-speaking and cryptic order which did not disclose any reason.

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There is absolutely no dispute amongst the parties about the fact that on the date on which the petitioners-appellants' services were terminated, they were permanent employees of Nagar Panchayat, Kanth and hence in our opinion their services could not have been terminated without holding any enquiry and without affording opportunity of hearing to them. The order by which the services of the petitioners-appellants were terminated does not contain any reason or any ground and in our opinion, the same being wholly untenable ought to have been quashed by the Learned Single Judge.

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In our opinion, the Learned Single Judge fell into error in upholding the validity of the order passed by the respondent no. 3 which was bad in the beginning on the basis of the additional grounds later brought on record.

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Thus, in view of the foregoing discussions, we find that the Learned Single Judge erroneously upheld the validity of the order impugned before him which was initially bad on the basis of additional grounds later brought on record by the respondent in his counter affidavit which is against the dictum laid down by the

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Constitutional Bench of the Apex Court in the case of Mohinder Singh Gill and another Versus The Chief Election Commissioner, New Delhi and others reported in AIR 1978 Supreme Court 851. Paragraph 8 of the judgment of the Apex court in the case of Mohinder Singh Gill (supra) which is relevant for our purpose is being reproduced hereinbelow :

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The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

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Orders are not like old wine becoming better as they grow older:

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A Caveat.

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All the three special appeals succeed and are allowed. The impugned order dated 11.05.2011 passed by Learned Single Judge and order dated 30.11.2005 passed by the respondent no. 3 by which the services of the petitioners-appellants were terminated are hereby set aside.

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However, it will be open to the respondent no. 3 to proceed against the petitioners/appellants afresh in accordance with law.

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Order Date :- 2.1.2020 SA

Wasim Ahmad v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Wasim Ahmad v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

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