Allowed

Deepak Kumar @ Deepak Verma v. State of U.P. and 4 Others

Allahabad HC27 Feb 2023WRIA/10302/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking to quash a termination order. The petitioners argued non-compliance with disciplinary rules and violation of natural justice. The Court rejected the applicability of specific rules to the contractual employee but quashed the order primarily because it was a non-speaking order, failing to consider the petitioner's reply or provide reasons.

What did the court decide?

Impugned order dated 21.05.2022 quashed; respondent directed to consider petitioner's reply and pass a fresh reasoned order.

Deepak Kumar @ Deepak Verma Vs State of U.P. and 4… — Service and Employment | Allahabad HC (2023)

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Court No. - 33

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Case :- WRIT - A No. - 10302 of 2022

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Petitioner :- Deepak Kumar @ Deepak Verma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Dwivedi,K.S. Tiwari Counsel for Respondent :- C.S.C.

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Hon'ble Jaspreet Singh,J.

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Heard Shri K. S. Tiwari, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.

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The petitioner has instituted the present petition seeking a writ in the nature of certiorari quashing the order dated 21.05.2022 passed by the respondent no.3 and a further direction in the nature of mandamus has been sought directing the respondents to reinstate the petitioner in service on his original post i.e. Computer Operator at Block Sumerpur, District Hamirpur with all consequential benefits.

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The submission of the learned counsel for the petitioner is that the petitioner was appointed as a Computer Operator on 07.07.2010 on contractual basis. The petitioner joined in Block Gohand, District Hamirpur from where, he was transferred to Block Maudaha, District Hamirpur where he worked till 10.07.2019.

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During the period, the petitioner worked in Block Maudaha, District Hamirpur, a list of 188 beneficiaries was submitted through the Gram Vikas Adhikari under the Pradhanmantri

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Awas Yojna (Gramin). The said list was handed over to the petitioner with joint signatures of the then Block Development Officer and the concern Gram Panchayat Adhikari. The work of the petitioner was to feed the names of these beneficiaries in the system and in any case the petitioner had no role to play regarding the authenticity of the list and its beneficiaries or in respect of certain irregularities, which is alleged to have been committed by the then Pradhan or Gram Panchayat Adhikari.

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In the aforesaid backdrop, a show-cause notice was issued to the petitioner on 30.10.2019. The petitioner was required to furnish his reply within a week. The then Block Development Adhikari, Maudaha, District Hamirpur thereafter sent a letter dated 18.01.2021 recommending initiation of disciplinary proceedings against the petitioner, the Gram Pradhan, the Gram Vikas Adhikari and the accountant in respect of certain financial irregularities committed during the financial year 2018-19. By means of a letter dated 18.01.2021, the services of the petitioner was terminated, which led him to approach this Court by means of a Writ-A No.5388 of 2021 (Deepak Kumar @ Deepak Verma Vs. State of U.P. and 4 Others). The said writ petition was allowed by means of an order dated 18.01.2021 with a direction to the respondent no.3 to pass a fresh order in accordance with law after conducting a proper enquiry as per rules.

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Once again, in furtherance of the order passed by the High

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Court dated 09.08.2021, the petitioner was informed by the respondent no.3 that the Deputy Commissioner (Self Employment), Hamirpur has been nominated as the Enquiry Officer. In the interim period since the initial order of termination had been set-aside by the High Court by means of an order dated 09.08.2021, the petitioner had moved an application/representation seeking permission to join, which was not acceded as a result the petitioner filed a contempt petition and once the notices of the contempt petition reached to the respondent, once again by means of an order dated 03.02.2022, the services of the petitioner was again terminated. It prompted to the petitioner to approach this Court once again by means of a Writ-A No.3446 of 2022 (Deepak Kumar @ Deepak Verma Vs. State of U.P. and 4 Others), whereby once again this Court by means of an order dated 20.04.2022 setaside the impugned order granting liberty to the respondent no.3 to issue a show-cause notice to the petitioner and the petitioner was directed to file his response within a period of one week and a decision was to be taken.

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Once again, the petitioner made a request to the respondent no.3 to permit him to join as the termination order again was setaside but the petitioner was not permitted to join. Another show-cause notice dated 28.04.2022 was issued to the petitioner, to which the petitioner furnished his detailed reply

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dated 05.05.2022. Yet again by means of an order dated 21.05.2022, the services of the petitioner have been terminated, which is now subject matter of the instant writ petition.

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Learned counsel for the petitioner has raised two fold submissions:-

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(i) It is urged that despite the order passed by the High Court on two earlier occasions, the petitioner was issued a show-cause notice but there is no compliance of Rule 7(iii), (iv) & (v) of the U.P. Government Servant (Discipline & Appeal) Rules, 1999. It is urged that in absence of the compliance of Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999, the entire proceedings are a sham. It is urged that the respondent authorities did not lead any evidence, nor any opportunity was granted to the petitioner to lead evidence and in any case the charges, which was levelled ought to have been proved, which is not to be done, neither any date, place and time for the enquiry was fixed accordingly, the entire proceedings are bad so also the impugned order, which deserves to be set-aside on this score alone.

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(ii) The other limb of the argument of the learned counsel for the petitioner is that the impugned order is completely bereft of any reasons and is nothing but a non-speaking order. It is urged that the petitioner had issued a detailed reply dated 05.05.2022, however, no cognizance of the same has been taken, neither the

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defence of the petitioner has been considered, nor the notices in the impugned order has been issued and by mere one stroke of pen, it has been held that the cause shown is not satisfactory. It is further urged that whether the petitioner is faced with a punishment, which entails dismissal and twice the matter has already travelled up to this Court and on both the occasions the termination orders have been set-aside. Yet the respondent authorities once again have passed a non-speaking order without disclosing any reason, which is nothing but against the principles of nature justice rendering the impugned order liable to be set-aside. Thus, in view of the aforesaid the petition deserves to be allowed.

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Learned Standing Counsel while opposing the aforesaid submissions has submitted that in so far as the first contention regarding the applicability of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 is concerned. It is urged that the petitioner admittedly is a contractual employee and for the said reason, the provisions of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 is not applicable. It is also urged that this issue was raised by the petitioner but did not find favour with the Court and the only compliance was for considering the case of the petitioner after affording an opportunity of hearing, the same has been granted to the petitioner, hence, in the aforesaid facts and circumstances, the

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impugned order does not require any interference and the petition deserves to be dismissed.

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The Court has considered the rival submissions and also perused the material available on record.

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Considering the first contention of the learned counsel for the petitioner, it would be clear from the pleadings as well as the case of the petitioner that the petitioner was appointed as a Computer Operator on contractual basis. A specific pin pointed query was put to the learned counsel for the petitioner to substantiate as to how the provisions of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 are applicable to the contractual employee, such as the petitioner. In response, the learned counsel for the petitioner submits that the petitioner has been working since 2010 and has served for a period of more than 12 years and it would be deem that he is a Government Servant and so the U.P. Government Servant (Discipline & Appeal) Rules, 1999 become applicable. It is also urged by the learned counsel for the petitioner that even on the earlier occasions when the petitioner had approached this Court in Writ-A No.5388 of 2021, which came to be allowed on 09.08.2021 and Writ-A No.3446 of 2022, which also came to be allowed on 20.04.2022, there are clear observations that require the respondent authorities to hold a proper enquiry, which in the instant case has not been held, as shall also be evident from the

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perusal of the counter affidavit, hence, it is submitted that the petition deserves to be allowed on this ground.

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Having noticed the aforesaid contention, this Court finds that in the first instance when the the petitioner approached this Court by means of a Writ-A No.5388 of 2021, a specific objection was raised by the petitioner. However, the same was not decided but the statement was recorded by the State Counsel that the impugned order dated 18.01.2021 had been passed without considering the objections of the petitioner accordingly on this concession, the order impugned was set-aside with liberty to the respondent no.3 to pass a fresh order in accordance with law after conducting a proper enquiry as per rules. The order passed by this Court dated 09.08.2021 has been brought on record as Annexure No.8. In the second round of litigation when the petitioner preferred Writ-A No.3446 of 2022, which came to be allowed by means of an order dated 20.04.2022, a copy of which is on record as Annexure No.13, it would indicate that the Co-ordinate Bench of this Court found that the order impugned transgressed the principles of natural justice, in as much as where the order of termination is accompanied on the basis of charges casting stigma and is punitive in nature, hence a second show-cause notice was required to be issued before the proposed punishment. In view of the aforesaid, the petition was disposed of granting liberty to

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the respondent to give a show-cause notice to the petitioner within a period of three weeks and the petitioner was directed to submit his reply within a week and thereafter a decision be taken by the competent authority in the matter.

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Thus, from the perusal of the aforesaid two orders, where the petitioner had approached this Court. It would be clear that though the petitioner had raised the issue regarding holding of the proper full-fledged enquiry but the same did not find favour with the Court, except that it require the respondent authorities to adhere to the principles of natural justice, as already noticed above, there is nothing which has been brought on record by the petitioner to indicate that the provisions of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 is applicable and attracted, neither the learned counsel for the petitioner has brought on record the order and the Rules, under which the petitioner was appointed on contractual basis. Thus, the first contention that the respondent authorities did not comply with the Rule 7 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999, does not find favour with the Court and is accordingly turned down.

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Now testing the impugned order on the second ground as raised by the learned counsel for the petitioner, this Court finds that though a show-cause notice was issued to the petitioner but there is no consideration of the reply of the petitioner. The

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impugned order dated 21.05.2022, a copy of which is on record as Annexure No.17, would indicate that the authorities have merely noticed the narration of facts including the earlier order passed on 20.04.2022 thereafter the show-cause notice was issued to the petitioner and it also takes note that the petitioner did file a reply but what is the content of the reply and why the defence or the cause shown by the petitioner was not found sufficient has not been indicated, nor any reasons have been disclosed.

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In view of the aforesaid, there can be no manner to dispute that the order is bereft of any reasons. It is now well settled that reasons are the heartbeats of any order. Any order, whether judicial or administrative, if it is without reason then it amounts to violation of principles of natural justice. This Court is fortified in its view in light of the the decision of the Apex Court in the case of Cyril Lasrado (Dead) by LRs and another

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vs. Juliana Maria Lasrado and another, (2004) 7 SCC 431, shall be relevant and reads as under:-

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"11. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable.

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12. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union [(1971) 1 All ER 1148 : (1971) 2 QB 175 : (1971) 2 WLR 742 (CA)] observed: (All ER p. 1154h) "The giving of reasons is one of the

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fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120] it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance."

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Considering the aforesaid, this Court has no hesitation but to hold that the impugned order is bad for the aforesaid reason that it is a non-speaking and without any reason, consequently the writ petition is allowed. Impugned order dated 21.05.2022 shall stand quashed and set-aside. The respondent no.3 is directed to consider the reply of the petitioner and pass a fresh order and take a decision by a reasoned and speaking order preferably within a period of four weeks from the date, a copy of this order be placed before the authority concerned and intimate the same

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to the petitioner. In the facts and circumstances, there shall however be no order as to costs.

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Order Date :- 27.2.2023 Zafar

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Digitally signed by :- MOHAMMAD ZAFAR ANSARI High Court of Judicature at Allahabad

Deepak Kumar @ Deepak Verma v. State of U.P. and 4 Others

Case brief

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Deepak Kumar @ Deepak Verma v. State of U.P. and 4 Others

Case brief

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