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Smt. Girja Devi And Others v. State Of U.P.& Others - WRIT - A No. 16832 of 1994 [2003] RD-AH 262 (5 August 2003)


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(Court No. 10)

Civil Misc. Writ Petition No. 16832 of 1994

Daya Shanker Tewari.(since deceased represented

by Smt.Girja Devi(wife) and Santosh Kumar

Tiwari and Shrawan Kumar Tiwari(sons)............................Petitioner


State of U.P. and others.....................................................Respondents

Hon'ble A.K. Yog,J.

Hon'ble Umeshwar Pandey

Heard Sri M.D. Singh Shekhar, Advocate on behalf of the petitioner and Sri Abhinav Upadhyay, learned Standing Counsel representing the respondents.

The petitioner, Daya Shanker Tewari was employed as Peon in the office of District Harijan and Social Welfare Officer, Lalitpur on June 25, 1972.

There is some dispute between ''employer' and ''employee'  as to whether the petitioner's services were temporary or permanent.  The said     question is  not required  to be decided under following circumstances.

The petitioner was appointed on the basis of appointment letter dated 17-8-1982/Annexure-1 to the writ petition on temporary basis liable to be terminated on one month's notice or payment of salary in lieu thereof.

Services of the petitioner were terminated after holding preliminary enquiry and on receipt of enquiry report (P.P.42 of writ paper book) submitted by the then Sub Divisional Officer, Lalitpur. Enquiry was held on receipt of information that, 7 inmates had escaped from Government Aided School, Lalitpur in early morning at 3-15 A.M on 16-7-1982. Enquiry report shows that   Daya Shanker Tewari (petitioner) was  responsible for handing over key and permitting them to escape from main gate. The Enquiry Officer found that the attempt  to demonstrate that they had escaped from window after breaking iron rods fixed therein, was an attempt to mis-lead. We also find a letter of District Harijan and Social Welfare Officer, Lalitpur addressed to the petitioner wherein it is mentioned that on 28-7-1981, 17 inmates had escaped from the school apart from the fact that he beat the children creating averseness in the inmates (P.P. 39 of writ paper book). District Harijan and Social Officer also filed statement containing details of preceding years annual entry with reference to the petitioner and it shows that the entries awarded to him for the period from 1-1-1974 to 14-2-1975  were not found satisfactory.

The Enquiry Officer in his aforementioned report, found the petitioner guilty of an offence which was of serious nature and observed that  First Information Report should have been initiated against the petitioner. The services of the petitioner were terminated by District Harijan and Social Welfare Officer vide order dated August 17, 1982/Annexure-1 to the petition.

Being aggrieved, the petitioner filed Claim Petition No. 379/F/IV/83 before U.P. Public Services tribunal. The District Harijan and Social welfare Officer contested the said petition by filing written statement and pleaded the facts, noted above and  filed documents in support thereof.  

Public Services Tribunal, however, dismissed the aforesaid claim petition by means of the impugned judgment and order dated 4-1-1994/Annexure-4 to the petition

The petitioner has filed two supplementary affidavits annexing documents therewith in support of the contention that the petitioner was not temporary but a permanent employee.

It may be noted that no counter affidavit has been filed by the respondents.

Before dealing with the submissions made on behalf of the petitioner at the Bar , it may be noted that the petitioner unfortunately died on 21-9-1996 and his legal heirs, namely, Smt. Girja Devi (wife), Santosh Kumar Tiwari(son) and Shrawan Kumar Tiwari (minor son) were brought on record on the basis of substitution application No. 77103 of 1996 allowed by this Court vide order dated 4-11-1999 ( on the order sheet of the case).

Learned counsel for the petitioner submitted that the impugned judgment and order dated 4-1-1994, passed by the Tribunal suffers from manifest error apparent on the face of record inasmuch as from the material brought on record,  it was abundantly clear that the order of termination dated 17-8-1982/ Annexure-1 to the petition, passed  , though couched in innocuous/innocent language, was an order of punishment since attending circumstances (brought on record ) clearly indicated that it was on the basis of certain  charges levelled against the petitioner which did cast stigma.

Learned Standing Counsel, however, submitted that the contention of the petitioner is misconceived inasmuch the order of termination itself does not spell out any stigma and that whatever is being brought on record is only to show that the action of the employer is not arbitrary and that material said to be casting stigma is mere to establish motive. According to the learned Standing Counsel if the respondents terminate services of the petitioner without holding enquiry or in absence of any material to show that services of the petitioner were not satisfactory and/or unsuitable, the act of the termination would have been termed arbitrary.

In the facts of the instant case, we do not want to enter into the aforesaid controversy in the facts of the instant case, particularly in view of the fact that the petitioner has died and in that view of the matter, there cannot be any order of reasonable opportunity being given to the petitioner and/or for holding enquiry after serving the charge sheet.  

In any case, we find that by interfering with the impugned order of Tribunal, we shall be prejudicing the position of the employer. We are further fortified in our approach considering the service record of the petitioner as such.

It is well settled that to issue a writ of certiorari is a discretionary remedy. This Court, while exercising its jurisdiction under Article 226, Constitution of India, cannot be compelled to interfere even if order is illegal, provided substantial justice is being done. Court can refuse to exercise its jurisdiction considering facts of each case.

In view of the above, we refuse to interfere with the impugned order of the Tribunal dated 4-1-1994/Annexure-4 to the petition.

Writ petition is accordingly dismissed. No order as to costs.




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