A.P.SAHI, J. - (1.) HEARD learned counsel for the petitioner.
(2.) THE petitioner has challenged the order dated 16th January, 2007 passed by the District Basic Education Officer, Saharanpur whereby punishment has been imposed on the petitioner by stopping one increment on permanent basis with a further warning to the petitioner on account of the charges levelled against him. The writ petition was preferred and entertained on 1st May, 2007 and the respondents had accepted notice and were granted time to file counter affidavit. None of the respondents including the Basic Education Shiksha Parishad has filed any counter affidavit till date. A notice in writing has been served on learned counsel for the Basic Shiksha Parishad about this case being taken up today. In spite of the notice none appears on behalf of the Parishad. I have heard learned Standing Counsel for the respondents who contends that the order has been passed after a full scale inquiry. I have perused the impugned order as also the averments contained in the writ petition which have not been controverted by filing any counter affidavit. The petitioner contends that the inquiry had earlier been instituted and satisfied with the reply of the petitioner a recommendation was made for dropping the inquiry. A copy of the same dated 15th April, 2005 is Annexure-3 to the writ petition. It appears that the disciplinary authority did not agree with the said inquiry report and ordered a fresh inquiry which was conducted. On such fresh recommendation by the second Inquiry Officer, the impugned order dated 16th January, 2007 has been passed. A perusal of the order does not indicate that the petitioner was given any show cause or opportunity prior to the passing of the order dated 16.1.2007. It is also not evident from the impugned order as to what was the reason for disagreeing with the earlier inquiry report. In view of the aforesaid clear position and no counter affidavit having been filed the impugned order dated 16.1.2007 is unsustainable. Learned Standing Counsel contends that the petitioner has filed a representation and he had a right to file an appeal before the Secretary Basic Shiksha Parishad. It is correct that an alternative remedy is always available in such a matter but in view of the law laid down in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & others, reported in 1998 (8) SCC, Page 1, the aforesaid argument does not hold water inasmuch as the impugned order is absolutely vitiated as pointed out herein above. In view of this, the order dated 16.1.2007 is quashed. The Basic Education Officer shall give a show cause to the petitioner and, thereafter proceed to pass an appropriate order in accordance with law within three months from the date of production of a certified copy of this order before him. The writ petition is allowed.;