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Ramji Yadav v. State Of U.P. And Another - WRIT - A No. 20721 of 1999  RD-AH 7020 (6 December 2005)
Writ Petition No.20721 of 1999
Ramji Yadav Vs. State of U.P. and another.
This writ petition has been filed by the petitioner with the prayer to issue a writ, order or direction for quashing the order dated 9.2.1999 passed by Zila Resham Adhikari-respondent no.2 (Annexure No.15 to the writ petition) and directing the respondents to make payment of the pending bills of the petitioner i.e. for November, 1995 to August, 1996, January 1997 and December, 1997 to November, 1998 and reinstate the petitioner in service with all consequential benefits.
Learned standing counsel had been granted time vide order dated 19.5.1999 passed by this court to file counter affidavit, but no counter affidavit was filed. Thereafter, he was given another opportunity of filing a counter affidavit with stop order, but even then till date no counter affidavit has been filed. In absence of counter affidavit, this writ petition is being disposed off on the facts as are available on the record. Learned standing counsel placed a copy of letter no.3149/A dated 11.3.2004 by which order dated 26.2.2004 was intimated to Zila Resham Adhikri, Vikas Bhawan, Varanasi and it was also required of him to file a counter affidavit within six weeks. The original copy of the said letter is retained on record of this case.
It is settled law as laid down in A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. page 407, A.I.R. 1987 S.C. page 479, 1993 Supp. (4) SCC, page-46 and 1999 (82) Factory Law Report, page 709 that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct drawing the presumption in favour of the petitioner in terms of Section 114 Illustration (g) of the Evidence Act,1872 and Order 8 Rule 5 of the Code of Civil Procedure, 1908. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be correct and true.
Learned standing counsel has submitted his legal argument in respect of letter-dated 9.2.1999 (Annexure No.15 to the writ petition), issued by Zila Resham Adhikari Nideshallaya, Vikas Bhavan, Varanasi, wherein it has been admitted that the petitioner has been engaged as Para-worker for three years on conditions enumerated therein and that he has not worked according to requirement nor he ever appear on the site and, therefore, he has been prevented from receiving the payment, more so since as on date the progress of plantation of tree was nil the petitioner had no right to the claim made by him.
I have heard learned counsel for the parties at length and perused the record and find that vide several letters issued by respondents' department, which have been annexed as Annexures to the writ petition disclose that the petitioner has been working and after evaluating his work it was directed to pay stipend which he was actually paid till certain period referred to in the said letter dated 9.2.1999 (Annexure No.15 to the writ petition)
In view of the same, the writ petition is allowed. The order dated 9.2.1999 (Annexure No.15 to the writ petition) is hereby quashed. The respondent no.1 is directed to release the total amount of the stipend claimed for by the petitioner in the present writ petition with interest at the rate of 6% per annum calculated from the due date of payment till the date of the actual payment preferable within a period of two months from the date of production of a certified copy of this order.
However, it shall be open to respondent no.1 to recover the amount of interest having accrued so payable to the petitioner, as aforesaid from respondent no.2, as unnecessarily burden has been a cast upon the exchequer.
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