R.B. Misra, J. - (1.) The matter called twice non-appeared on behalf of the respondents. Counter-affidavit has been filed. Therefore, after hearing learned counsel for the petitioner and on the basis of the averment made in the counter-affidavit this matter is decided finally at this stage. In this writ petition, a prayer has been made to quash the order dated 16.3.1993, terminating the services of the petitioner. Heard Sri Jai Krishna Tiwari holding the brief of Sri Shashi Nandan, learned counsel for the petitioner.
(2.) The brief facts necessary for adjudication of the case are that the petitioner was appointed on 11.12.1975 as 'Pond Keeper' by the Chairman, Zila Parishad, Lalitpur, on temporary basis and subsequently, he was confirmed on 1.8.1977. The services of the petitioner was governed by Uttar Pradesh Chhetra Samiti and Zila Parishad Adhiniyam, 1961 and Zila Parishad Service Rules, 1970. By order dated 1.9.1992, the petitioner was placed under suspension. A charge-sheet was issued to him on 14.10.1992 alleging that the petitioner had entered in the room of accountant and under provocation has used un-parliamentary language and had misbehaved with the accountant. The petitioner has replied to the charge-sheet and denied the allegations. According to the petitioner, he has demanded certain documents which were supplied but no personal hearing was given to him and no opportunity was given to examine any of his witnesses or to cross-examine the witnesses produced on behalf of the department.
(3.) The relevant extract from Zila Parishad Service Rules, 1970, is applicable to the case of the petitioner is given as under : "36. Procedure for disciplinary proceedings,--(1) No order (other than an order based on facts which have led to his conviction on a criminal charge) of dismissal, removal or reduction in rank (which includes reduction to a lower post or time-scale or to a lower stage in a time scale but excludes reversion to a lower post of a person, who is officiating in a higher post), shall be passed against any servant of the Zila Parishad unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced in the form of a definite charge or charges which shall be communicated to the person charged and which shall be so clear and precise as to give sufficient indication to the person charged of the facts and circumstances against him. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs an oral enquiry shall be held in respect of such of the allegations as are not admitted. At the inquiry such oral evidence will be heard as the enquiring officer considers necessary. The person charged shall be admitted to cross-examine as he may wish provided that the officer conducting the enquiry may for sufficient reason to be recorded in writing refuse to call a witness. Neither the Zila Parishad nor the person charged shall be entitled to be represented by a counsel. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof. The officer conducting the enquiry may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the person charged. (2) Sub-rule (1) shall not apply : (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has held to his conviction on a criminal charge ; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be considered by that authority in writing, it is not reasonably practicable to observe the prescribed procedure ; or (c) where the State Government is satisfied and directs accordingly that the interest of the security of the State it is not expedient to observe the prescribed procedure. (3) If, in respect of any such person as aforesaid a question arises whether it is reasonably practicable to observe wholly or partly the procedure prescribed in Sub-rule (1), the decision thereon of the authority empowered to dismiss or remove or reduce in rank the person concerned shall be final. 37. Procedure to be followed after enquiry under Rule 36.--(1) After an enquiry against a person has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed, the person charged shall, if the penalty proposed is dismissal, removal or reduction in rank, be supplied with a copy of the proceedings prepared under Rule 36, excluding the recommendations, if any, in regard to the punishment made by the officer conducting the enquiry and given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence during the enquiry ; Provided that if for sufficient reasons the punishing authority dis-agrees with any part or whole of the proceedings prepared under Rule 36 the point or points of such disagreement, together with a brief statement of the grounds thereof, shall also be communicated to the person charged along with the copy of the proceedings under Rule 36. (2) Every order of dismissal, removal or reduction in rank shall be in writing and shall specify the charge or charges brought, the grounds of defence, if any, and the reasons for the order.";