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Mohd. Husain v. State Of U.P. & Others - WRIT - A No. 6810 of 1999  RD-AH 6730 (1 December 2005)
Court No. 30
Civil Misc. Writ Petition No. 6810 of 1999
Mohd. Husain ---- Petitioner
State of U.P. & others. ------- Respondents.
Hon'ble V.C.Misra, J.
Heard Sri Khalil Ahmad Ansari, learned counsel for the petitioner and learned Standing Counsel for the State respondents and perused the record of the case.
This writ petition has been filed for quashing the impugned order dated 18.9.1998 (Annexure No. 7 to the writ petition) passed by the respondent no. 2-Commissioner of the Allahabad Division, Allahabad and order dated 20.9.1992 (Annexure No. 4 to the writ petition) passed by respondent no. 3- District Magistrate, Allahabad and directing the respondents to pay salary to the petitioner month to month including all arrears without any deduction.
The facts of the case in brief are that the petitioner was appointed as Collection Amin in the year 1959 in Tehsil Chail of District Allahabad and since then he had been performing his duties as Collection Amin. The petitioner was suspended by respondent no. 3- District Magistrate, Allahabad vide his order dated 22.2.1992 (Annexure No. 1 to the writ petition) and thereafter he was dismissed from service vide his order dated 20.9.1992 (Annexure No. 4 to the writ petition). The petitioner approached the authority concerned to recall the dismissal order dated 20.9.1992 but nothing was done resulting therein the petitioner filed Civil Misc. Writ Petition No. 32924 of 1993 before this Court. The said writ petition was finally disposed off on 5.11.1997 affording an opportunity to the petitioner to file an appeal before the appellate authority within stipulated period and if the appeal so filed, the same shall be considered and decided by the authority concerned accordance with law within a period of six months from the date of filing of such appeal treating the same has been filed within time. The petitioner filed an appeal on 1.12.1993 before the Commissioner of the Division, Allahabad - respondent no. 2. The appeal was dismissed by the Commissioner of the Division, Allahabad vide order dated 18.9.1998 (Annexure No. 7 to the writ petition) affirming the termination order dated 20.9.1992 (Annexure No. 4 to the writ petition) passed by the District Magistrate, Allahabad.
Being aggrieved the petitioner filed the present writ petition before this Court on the grounds, inter alia, that he was neither afforded any reasonable opportunity of hearing nor he was supplied copy of the required documents which were referred to in the charge sheet, nor any copy of the inquiry report dated 30.7.1992 was supplied to him and nor any show cause notice was issued before passing of the termination order dated 20.9.1992, hence the impugned order dated 20.9.1992 was passed on the basis of exparte report without affording any opportunity of being heard and in violation of principles of natural justice, therefore, the impugned order dated 18.9.1998 (Annexure No. 7 to the writ petition) and the order dated 20.9.1992 (Annexure No. 4 to the writ petition) are liable to be quashed.
Learned counsel for the petitioner has submitted that during pendency of the writ petition the petitioner died on 24.3.1999 leaving behind his wife Smt. Anisa Khatoon, four daughters, three married namely, Khursheeda Bano, Farid Bano, Jarina Bano and one unmarried, namely, Km. Sahana Parvin and two sons namely, Mohd. Hasan & Ahmad Husain as legal heirs and representatives and to this effect Substitution Application No. 26669 of 1999 was moved which was allowed by this Court vide order dated 15.11.1999.
Learned counsel for the petitioner in support of his submissions has relied upon the decisions of this Court rendered in Subhash Chandra Sharma Vs. Managing Director and another (2000 (1) E.S.C. 65 (All.), P.N. Srivastava Vs. State of U.P. & others ( 1999 (1) UPLBEC 672), Paras Nath Sinch Vs. Additional Commissioner (Administration) Trade Tax & others ( 2002 (1) UPLBEC 600) and in Brijesh Kumar Vs. Collector/District Magistrate, Mainpuri and others (2001 (3) UPLBEC 2544). In Subhash Chandra Sharma (Supra) a Division Bench of this Court has held that dismissal order from service passed without holding any regular enquiry and without giving any opportunity to lead any evidence and to cross-examine the witnesses is illegal as a dismissal order has serious consequences it should be passed only after complying with the rules of natural justice. In P.N. Srivastava (Supra) also Division Bench of this Court has held that in disciplinary enquiry principle of natural justice should be applied and delinquent employee should be given an opportunity to defend himself and if he wishes to examine witnesses, authority concerned has to allow him opportunity to produce witnesses and if no such opportunity is given to delinquent employee and copies of the documents relied upon by department are not supplied to him, such enquiry is against principles of natural justice. In Brijesh Kumar (Supra) it has been held that termination order from service of Collection Amin passed merely on the ground of non-achieving target for collection is vague and bad in law. In Paras Nath Singh (Supra) this Court has held that awarding of different punishments to the persons for same charges are discriminatory. Relying upon the said decisions the learned counsel for the petitioner submitted that in identical facts and circumstances three other collection Amins of the same Chail Tehsil namely, Ramesh Chandra, Ramesh Prasad and Shiv Pratap Singh were suspended for not collecting the revenue according to norm but they had been awarded only minor punishment by stopping their annual increments and making some adverse entries in their character rolls but for the same and identical charges the petitioner has been awarded major punishment by dismissing from service and thus, he has been discriminated by respondent no. 2 and 3 and, therefore, orders passed by them may be quashed.
I have looked into the record of the case and the decisions cited by learned counsel for the parties. I am of the view that the order dated 20.9.1992 is not sustainable in the eye of law since reasonable opportunity of complete hearing was not afforded to the petitioner in violation of principle of natural justice. Accordingly the writ petition is allowed. The order dated 20.9.1992 (Annexure No. 4 to the writ petition) passed by the District Magistrate, Allahabad- respondent no. 3 and order dated 18.9.1998 (Annexure No. 7 to the writ petition) passed by the Commissioner of Division, Allahabad- respondent no. 2 are hereby quashed. The petitioner shall be treated to have continued in service till the date of his superannuation and be entitled to payment of salary with all consequential benefits. As the petitioner has died during the pendency of the writ petition his legal heirs and representatives who have already been brought on record by substitution vide order-dated 15.11.1999, are entitled to receive all the emoluments preferably within three months. No order as to costs.
Kdo(writ petition 6810/99)
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