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KAMAL SINGH versus THE D.I.O.S. & OTHERS

High Court of Judicature at Allahabad

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Kamal Singh v. The D.I.O.S. & Others - WRIT - A No. 5644 of 1993 [2004] RD-AH 866 (22 September 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 7

Civil Misc. Review/Recall ApplicationNo.53644 of 2003

AND

Civil Misc. Clarification Application No. 173214 of 2003

IN

Civil Misc. Writ No. 5644 of 1993

Kamal Singh      Petitioner

Vs.

District Inspector of Schools Agra and others        Respondents

Hon'ble Rakesh Tiwari, J

Review/recall application no.53644 of 2003 was filed on behalf of the respondent no. 2 for review/recall of the judgement and order 11.10.2002 passed in the abovementioned writ petition.  

The operative portion of the judgement and order dated 11.10.2002 is as under :-

"For the reasons stated above, the writ petition is allowed. The suspension order dated 29.3.1989 is quashed.  The respondents are directed to reinstate the petitioner and pay the arrears of salary to him since the date of his suspension and permit him to work and also pay his salary month to month."

It is evident from the judgement that the petitioner was suspended by order dated 29.3.1989 and the departmental proceedings were not concluded for the last about 13 years till the decision in the writ petition.

Now the college- respondent no. 2 has moved the clarification application to clarify the status of the departmental proceedings pending against the petitioner in relation to its completion.  

The learned counsel for the respondents does not press the review/recall application, hence it is dismissed as not pressed.

The petitioner was suspended pending enquiry on certain charges. The substance of each of the charges is as under :-

vkjksi la[;k 1%&   vkidks ,oa izcU/kd ,d nwljs ds foj) yxk;s x;as vkjksiksa dh tkWp gsrq ,d nks lnL;h; tkap lfefr Mk0 e/kqlqnu flag rRdkyhu mi izkpk;Z ,oa Mk0 ts0,l0 /kkdjs v/;{k ouLifr foHkkx dh xfBr dh x;h Fkh] bl lfefr usa 30&5&1986 dks tkap dj 4&6&86 dks viuh tkap fjiksVZ izLrqr dh ftlesa iw.kZ :Ik ls dk;Z ds fy;s vkidks ftEesnkj ik;k x;k I ftlds vk/kkj ij vkidks ,d xEHkhj psrkouh nh x;h Fkh fd Hkfo"; esa vki viuh dk;Z iz.kkyh esa lq/kkj yk;s rFkk QkeZ izcU/kd ds vkns'kksa dk ikyu djsa vU;Fkk vkids fo:+) dBksj dk;Zokgh dh tk;sxh ijUrq u rks vkius viuh dk;Z iz.kkyh esa dksbZ lq/kkj yk;s vkSj u gh QkeZ izcU/kd ds vkns'kksa dk ikyu fd;k !

  bl izdkj vki xEHkhj vuq'kklughurk ds nsk"kh ik;s x;s gSa !

vkjksi la[;k 2%& QkeZ ij batu ikVZl dh pksjh dh tkWp gsrq lfefr us viuh fjiksVZ esa fnjkad 27&4&1987 esa ik;k fd vki QkeZ ds ekeyksa esa vukf/kd`r Li ls gLr{ksi djrs gS!a  

vkjksi la[;k 3 %& vkids QkeZ izcU/kd ,oa QhYM lqijokbZtj ds e/; okn fookn ds  fuiVkjs gsrq xfBr tkWp lfefr usa vius fjiksVZ fnukad 27&4&1987 esa flQkfjl dh fd QkeZ e'kjhujh dks cpkus ads fy, ;g vko';d gS fd vkidks lsok ls gVk fn;k tk, bl izdkj vki drZC;ghurk ds nks"kh ik;s x;s

vkjksi la[;k 4%& vkids dk;Z ds laca/k eas dk;Z lfefr us viuh fjiksVZ fnukad  9&10&1986 esa dgk fd vki QkeZ ds fgr ds fo#} dk;Z dj jgsa gSa vki le; ls M;wVh ugha vkrs gSa rFkk fcuk lwpuk ds M;qVh ls vuqifLFkr jgrs gSa bl izdkj vki M;wVh ls vuqifLFkr ds vkjksi ds ds nks"kh ik;s x;s

vkjksi la[;k 5%& 20&8&1988 dks vkius dkfydk flag ijekj fyfid ds lkFk feydj Jh us=iky flag QkeZ izcU/kd ls ekjihV dh bl ekjihV dh tkap gsrq ,d dk;Z lfefr xfBr dh x;h ijUrq vki fdlh u fdlh cgkus tkWp lfefr ds le{k izLrqr gksus ls drjkrs jgs vkius bl laca/k esa izkpk;Z ,oa izkpk;Z Onkjk xfBr dk;Z lfefr ds la;kstd ds vkns'kksa dk ikyu ugha fd;k gS bl izdkj vki vkns'kksa ds ikyu u djus ds nks"kh ik;s x;s !

vkjksi la[;k 6%& vkidks bl dk;kZy; i= la[;k 1560 fnukad 5&11&1988 Onkjk rRdky fopiqjh QkeZ ij viuh mifLFkfr nsus dk funsZ'k fn;k x;k Fkk vki dksbZ u dksbZ cgkuk cukdj fopiqjh QkeZ ij viuh mifLFkfr ugha ns jgs gSa ! vkidks iqu% i= la[;k 1763 fnukad 7&12&1988 Onkjk 15&12&1988 rd fopiqjh QkeZ ij viuh mifLFkfr nsus dks fy[kk x;k Fkk ijUrq vki vHkh rd ofpiqjh QkeZ ij mifLFkr ugha gq, ftlds dkj.k vki M;qVh ls vuqifLFkr ekus x;s rFkk vkids Onkjk izkpk;Z ds vkns'kksa dk [kqyk mYya?ku fd;k tk jgk gS !

bl izdkj vki tkucw>dj M;wVh ls vuqifLFkr ,oa vkns'kksa dh vogsyuk  ds nks"kh ik;s x;s

vkjksi la[;k 7%&vkius vius vokx< QkeZ ds iwjs laokdky esa flok; izkpk;Z dks QkeZ izcU/kd dh f'kdk;rksa ds vykok dksbZ dk;Z ugha fd;k VZSDVj pykusa ds fy, ftl dk;Z ds fy, vkidks fu;qfDr fd;k x;k Fkk mlesa vkius ys"kek= Hkh #fo ugha yh vkSj fdlh u fdlh izdkj VSDVj dks [kjkc j[kk rkfd vkidks VSDVj pykus ds dk;Z dks u djuk I<s vkidh lsok dk;Z esa QkeZ ij fdjk;s dk VSDVj pyokuk iMk vkSj nSfud etnwjh ij Mkboj j[kuk iMk ftlds dkj.k QkeZ dks vuko';d vkfFkZd gkfu mBkuh iMh vkSj vkidh mi;ksfxrk ux.; ugh lkf/kdkj fu;a=d ds lkFk esajs uokx< QkeZ dk Hkze.k fnukad 19&3&1989 dks vkils VSDVj dh ykSxcqd ekWxh x;h vkius u rks ykSXkxqd izLrqr dh vkSj u gh dksbZ larksltud mRrj fn;k blls izrhr gksrk gS fd vkius dksbZ ykSxcqd cuk;k gh ugha bl izdkj vki drZC; ikyd ds ?kksj mis{kk ds nks"kh ik;s x;s !

 

After suspending the petitioner the domestic enquiry against him did not proceed. The petitioner has remained  under suspension for about 15 years and the domestic enquiry was not brought to its logical end. The petitioner has also not been paid subsistence allowance during the last 15 years of his suspension which itself vitiates the enquiry.  He has also not been paid arrears of pay etc., in compliance of judgement and order dated 11.10.2002 and has been forced to remain without any subsistence allowance or livelihood for more than 15 years.

A perusal of the charges show that the charges are quite vague, e.g., charge no. 1 is with regard to ''not improving his way of working'. Charge no. 2 is with regard to ''undue influence in the proceedings of the committee constituted for the purpose of enquiry in theft of engine parts on the farm.  Again, charge no. 3 pertains to a dispute between Farm Manager and the Farm Supervisor and  the enquiry committee recommended removal of the petitioner from service. Similarly a perusal of charge no. 5 shows that the petitioner was avoiding to appear before an enquiry committee on one pretext or another.  Charge no. 6 is regarding not giving his attendance at Vichpuri farms and being marked absent in contravention of the orders of the Principal; keeping the tractor under repairs, hence not doing work of tractor driver, which caused financial loss to the farm and of not keeping the log book properly maintained.

At the end of each charge, the petitioner has been found guilty (without enquiry) and has been informed about the evidence against him.

Even if the enquiry proceedings had been brought to its logical end into the aforesaid charges during the last 15 years of his suspension,  finding the petitioner guilty of all the aforesaid charges, it would have been more than sufficient punishment for the petitioner.  If a death blow is given, all the woes of the man are over, but if he is made to die every day, the punishment is harsher than killing him.  Had the petitioner been given the harshest punishment of termination of services, he could have availed his remedy against that order but in the instant case, the services of the petitioner were ''suspended' and he was neither given any subsistence allowance nor any salary/wage for the last 15 years.  He was made to live and die every day of last 15 years; but law was not followed, vitiating the enquiry for non payment of subsistence allowance.  The charge have also become stale by efflux of time.

Normally, this court does not interfere in such matters, but it  does not mean that the court is devoid of any power to mould any relief in the peculiar facts and circumstances of a particular case as well as in the interest of justice. The apex court in A.I.R. 2002(2) Supreme Court Cases -475- Food Corporation of India V. S.N. Nagarkar has held that the High Court, in exercise of its jurisdiction under Article 226 can mould and grant relief having regard to the facts of the case and in the interest of justice. Similarly, in A.I.R.2003 S.C-924 -Sri Justice S.K.Ray V. State of Orissa and others it has been held that Lokpal whose tenure was got curtailed due to abolition of post claimed compensation for loss of future employment but relief of compensation for future employment was not claimed.  On being found entitled only to compensation on account of loss of future employment, cannot be denied relief for want of such prayer and the High Court under Article 226 has power to grant and mould the relief.

The respondent no. 2 has not even complied with the direction of this court for payment of arrears of salary to the petitioner and permit him to work. On the contrary, the clarification application has been filed clarifying the judgement regarding proceedings of domestic enquiry.  This is also an indication of the bend of mind of respondent no. 2 that it is still not prepared to accept the verdict of the court gracefully and wants to have his ''pond of flesh' like the Shylock.

Since I have already held that the enquiry proceedings stand vitiated for non payment of subsistence allowance, the charge are vague and even proved, the petitioner has been punished for more than the severity of the charges for last 15 years, the court cannot permit at this stage to rip the matter wide open without any just cause after all these years to enable the respondents to play a second innings.  The clarification application is, therefore, rejected.

In the facts and circumstances of the case, in the interest of justice and in good conscience, the respondent no. 2 is directed to pay the arrears of salary to the petitioner in compliance of judgement and order dated 11.10.2002 of this court within six weeks from the date of production of a certified copy of this order.  

The clarification application is accordingly rejected.

Dated 22.9.2004

kkb


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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