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SHIVENDRA KUMAR SRIVASTAVA versus SUB DIVISIONAL MAGISTRATE, AND ANOTHER

High Court of Judicature at Allahabad

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Shivendra Kumar Srivastava v. Sub Divisional Magistrate, And another - WRIT - A No. 4093 of 2000 [2004] RD-AH 627 (24 August 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

Reserved

Civil Misc. Writ Petition No. 4093 of 2000

Shivendra Kumar Srivastava Vs. Sub-Divisional Magistrate, Sainfai, District Etawah and another

With

Civil Misc. Writ Petition No. 38223 of 1992

Shivendra Kumar Vs. State of U.P. and others

With

Civil Misc. Writ Petition No. 29101 of 1995

Sri Shivendra Kumar Vs. State of U.P. and others

~~~~

Hon'ble Dilip Gupta, J.

This writ petition has been filed for quashing the order dated 23rd April 1999 passed by the Sub-Divisional Magistrate, Sainfai, District Etawah by which the services of the petitioner who was a Seasonal Collection Amin have been terminated with immediate effect and for quashing the order dated 1st January 2000 by which the appeal filed by the petitioner against the aforesaid order has been rejected by the District Magistrate, Etawah.

I have heard learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents and have perused the materials available on record.

The petitioner was initially appointed as a Seasonal Amin by the Sub-Divisional Magistrate for the period from 21st June 1989 up to 31st August 1989. The petitioner worked as a Seasonal Amin for fixed periods with breaks in between. On the basis of the communication dated 1st August 1992 sent by the Prabhari Adhikari (Collection) Etawah, to the Sub-Divisional Magistrate the services of the petitioner as Collection Amin were sought to be dispensed with. This order was challenged by the petitioner by means of a writ petition in this Court being Writ Petition No. 38223 of 1992 in which this Court on 23rd April 1993 passed an order that the petitioner will be continued in service and paid salary. On the basis of the aforesaid order the petitioner was continued as a Seasonal Amin. By means of the order dated 12th September, 1995 the petitioner was suspended on various charges. This order of suspension was challenged by the petitioner by filing a writ petition in this Court being Writ Petition No. 29101 of 1995 in which an interim order was passed on 16th October 1995 staying the operation of the order dated 12th September 1995. However, it was left open to the respondents to proceed with the inquiry against the petitioner. Three charge sheets dated 9th October 1995, 24th February 1996 and 23rd September 1998 were served upon the petitioner. Whereas the first charge sheet contained three charges, four charges were contained in each of the two subsequent charge sheets. The petitioner submitted replies to the aforesaid charge sheets and the Inquiry Officer submitted two separate reports. A show-cause notice dated 25.11.1978 was then issued to the petitioner requiring him to submit an explanation as to why the proposed punishment may not be imposed upon him. Copies of the enquiry report were enclosed with the show cause notice. The petitioner submitted a reply to the aforesaid notice.

The Sub-Divisional Magistrate considered in detail the report of the Enquiry Officer in respect of each of the charges levelled in the charge sheet and then passed an order dated 23rd April, 1999 by which the services of the petitioner as Collection Amin were terminated with immediate effect. The petitioner filed an appeal before the District Magistrate Etawah, which has also been dismissed by means of the order dated 1st February, 2000. These two orders dated 23rd April 1999 and 1st February 2000 have been impugned in writ petition no. 4093 of 2000.

The materials available on record clearly indicate that proper opportunity had been afforded to the petitioner. Specific charges had been leveled against the petitioner, which were not only in respect of the percentage of collection being low but were also in respect of dereliction of duty and non-compliance of the directions issued by the Authority. It has been noticed by the disciplinary authority that in spite of the fact that the petitioner continued to have very low collection, he was permitted to continue in view of the interim order dated 23rd April 1993 passed by this Court in Writ Petition No. 38223 of 1992. The explanation submitted by the petitioner was not found to be satisfactory and so the order of termination of service was passed. The appellate court also passed a detailed order running into as many as 26 typed pages. The appellate court examined in detail the contention raised by the petitioner in his appeal. The appellate court has recorded a categorical finding that the order dated 23rd April 1999 had been passed after affording proper opportunity to the petitioner on the basis of the evidence on record and after affording an opportunity to the petitioner to file a reply against the proposed punishment. The appellate authority, looking to the seriousness of the charges leveled against the petitioner, was of the opinion that the punishment imposed on the petitioner was appropriate. It accordingly rejected the appeal.

Learned counsel for the petitioner submitted that the services of the petitioner could not have been terminated even if there was any short fall in the collection and in support of his contention he placed reliance upon the decision of this Court in the case of Dinesh Kumar Asthana Vs. Collector Azamgarh and others reported in 2001 (1) ESC 304, and Brijesh Kumar Vs. Collector/District Magistrate Mainpuri and others reported in 2001 (3) ESC 1325.

I have carefully perused the aforesaid decisions and in my opinion they do not apply to the facts of the present case. Firstly, the services of the petitioner were terminated not only on account of low collection but also for dereliction of duty and non-compliance of the directions issued by the Officer. Secondly, in the case of Dinesh Kumar Asthana (Supra) the Court held that it could not be ascertained whether the recovery in a particular year with respect to the petitioner was low for reason other than his efficiency. This decision was subsequently followed in the case of Brijesh Kumar (Supra). In the present case a detailed enquiry was held on the basis of the specific charges leveled against the petitioner and in the inquiry it has been clearly found that the low collection was because of the petitioner himself and not for other reasons. The petitioner, therefore, cannot derive any benefit from the aforesaid decisions.

Learned counsel for the petitioner then submitted that other persons who had equally low collection were retained in service but the services of the petitioner were dispensed with. In paragraph 24 of the petition the petitioner has only made a very vague averment without disclosing any particulars of such persons. In paragraph 25 of the counter affidavit, the contents of paragraph 24 of the petition were not only denied but it was also stated that the petitioner did not give any details. Even in the rejoinder affidavit the petitioner did not give the specific names, though in paragraph 3 of the supplementary affidavit, the petitioner has referred to the case of one Ramesh Chandra Awasthi against whom an enquiry was held but eventually an order dated 1st February 1995 was passed by the Sub-Divisional Magistrate exonerating the said Sri Ramesh Chandra Awasthi since the charges against him were not be proved. Thus the case of Ramesh Chandra    Awasthi does not held the petitioner. The plea of the discrimination sought to be raised by the petitioner is, therefore, without any substance.

Learned counsel for the petitioner then submitted that the complainant himself was appointed as the Inquiry Officer. There is no pleading to this effect in the writ petition and, therefore, it is not open to the petitioner to raise such a contention at the time of hearing of the petition.

Thus all the contentions sought to be raised by the learned counsel for the petitioner have been found to be without substance. The writ petition, therefore, fails and is accordingly dismissed.

Since the services of the petitioner were terminated by means of the order dated 23rd April 1999, Writ Petition No. 38223 of 1992 and Writ Petition No. 29101 of 1995 have become infructuous and are accordingly dismissed. The interim order in the said petitions shall stand vacated.

There shall be no order as to costs.                                    

Dt:

NSC


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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