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Shiv Ashrey v. State Of U.P. And Others - WRIT - A No. 35008 of 2007 [2007] RD-AH 13688 (7 August 2007)


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Civil Misc. Writ Petition   No. 35008   of   2007

Shiv Ashrey           ..................................................................    Petitioner


State of Uttar Pradesh & others   ...............................          Respondents


Hon'ble Ashok Bhushan, J.

Heard counsel for the petitioner and Sri P. C. Pathak appearing for the respondents No. 3 and 4. Learned counsel for the parties have agreed that the writ petition be finally disposed of without inviting counter affidavit.  Supplementary affidavit filed today  is taken on record.

The petitioner's case in the writ petition is that he was appointed as Class  IV  employee in  the institution on 6.9.2002 and thereafter he has been working.  By the impugned order 18.7.2007 the Principal of the Institution terminated the services of the petitioner. copy of which has been filed as Annexure-5 to the writ petition.  Learned counsel for the petitioner contended that the impugned order terminating the services of the petitioner has been passed without there being any enquiry holding the petitioner guilty of charges by the Enquiry Officer  hence the order impugned is wholly illegal.  Sri P.C. Pathak, learned counsel for the respondents, submitted that the Enquiry Officer  was appointed and charge sheet has been issued to the petitioner.  He submitted that the petitioner did not cooperate with the enquiry hence the enquiry could not be completed.  Sri Pathak has also submitted that against the order of termination of services,  the petitioner  has right of appeal before the Committee of Management under Regulation 31 of Chapter IV of Regulations framed under U.P. Intermediate Education Act, 1921.  From perusal of the impugned order it is clear that the said order has been passed without any enquiry.  The impugned order does not refer  holding  of any enquiry or affording opportunity tot he petitioner hence the order cannot be said to have passed  on the basis of enquiry.  In such circumstances the remedy of appeal cannot be said to bar the entertainability of the writ petition in this Court in view of the judgement of the apex Court reported in  (1998) 8  Supreme Court Cases 1  Whirlpool Corporation   Versus   Registrar of Trade Marks, Mumbai and others.   In the circumstances of the present case ends of justice be served in setting aside the impugned order dated 18.7.2007 passed by the respondent no. 3 terminating the services of the petitioner.  However, it will be open tot he competent authority to hold enquiry in accordance with law and take appropriate decision after giving opportunity to the petitioner.

The writ petition is disposed  of accordingly.




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