- (1.) Heard Counsel for the parties and perused the record. Recall application No. 283892 of 2009 has been filed for recall of the order dated 2.9.2009 alongwith delay condonation application No. 283891 of 2009. The order dated 2.9.2009 is as under: The petitioner is an Assistant Clerk in Sangram Balika Junior High School, Sarokhanpur, Post-Badlapur, District-Jaunpur. It appears that the petitioner was found absent and an explanation in this regard was called. Initially, the petitioner has not submitted any explanation for being absent but later on he submitted a medical certificate in support of his claim that he was not well. It appears that thereafter the petitioner was called for giving explanation in respect of payment of certain amount of group insurance which is alleged to have been embezzled by the petitioner. No inquiry as per argument advanced by Sri V.P. Singh, appearing for the Basic Shiksha Adhikari, has been held into the matter as appears from the counter-affidavit. Learned Counsel for the management, Sri S.K. Singh is not present in Court though the case has been called out in the revised list. On a query made by the Court, the learned Counsel appearing for the parties informed the Court that the petitioner is working on the post of Assistant Clerk in the institution. The grievance of the petitioner is that despite he has been working in the institution, he has not been paid his salary though the petitioner was paid his salary for one month after filing of the writ petition. In the circumstances stated above, and considering the fact that no inquiry has been held against the petitioner and he is working in the institution, it is directed that the petitioner will be paid his salary on the post of Assistant Clerk month to month along with other employees in the institution. The question whether petitioner is entitled for payment of arrears or not will be decided in the final hearing of the writ petition. In view of the above, the writ petition is admitted. List for hearing in ordinary course.
(2.) In the affidavit filed in support of the recall application by the Manager of the Committee of Management, it has been averred that the writ petition was filed for a writ of mandamus commanding the respondents to pay the salary of the petitioner of the post of Head clerk for the period February 2002 to January 2003 and continue to pay the salary of the petitioner month to month. It is also averred in the affidavit in support of the recall application as well as delay condonation application that as since the Counsel for the committee of management was not present at the time of hearing therefore subsequent facts, which have taken place after filing of the writ petition has not been placed before the Court. These facts have been detailed in para Nos. 6 and 7 of the affidavit inter alia that the petitioner was convicted in case crime No. 152 of 1993 under sections 304, 323, 324, 325, 504, I.P.C. police station Badlapur District Jaunpur and that vide order dated 30-7-2009, the District Basic Education Officer, Jaunpur has also passed an order granting approval to the termination of the petitioner. Both the orders have been appended as Annexure Nos. 2 and 3 to the affidavit. It is also averred that the petitioner has embezzled a sum of approximately Rs. 2.5 lacs for which a disciplinary proceeding has been initiated against him placing him under suspension.
(3.) On the basis of aforesaid it has been contended that since the services of the petitioner have been terminated, therefore there was no justification for continuing payment of salary and as some delay has occurred in filing recall application due to the fact that the copy of the order dated 30.7.2009 passed by the District Basic Education Officer was misplaced, delay is liable to be condoned in the facts and circumstances of the case.;