UMESHWAR PANDEY, J. - (1.) THE petitioner, Ram Darash Pandey, whose services as Class IV employee (Notice Server/Chaukidar) with respondent No. 5, Development Authority, Gorakhpur have been terminated, has approached this Court under Article 226 of the Constitution of India with the following prayer : - - (a) Issue a writ, order or direction in the nature of certiorari quashing the termination order dated 23.3.81 (Annexures 3/A and 3/B) and order and judgment of the Tribunal dated 9.1.83 and 19.12.85 (Annexures 5 and 6); (b) Issue a writ of mandamus directing the respondent No. 4, Gorakhpur Development Authority to treat the petitioner in its regular service as Notice Server and to pay his requisite salary and all other allowances as and when it becomes due; and (c) Issue any writ, order, direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(2.) THE facts as disclosed in the writ petition are that the petitioner, vide Annexure -1 to the writ petition, was appointed as Notice Server (a Class IV Post) on 11.7.1977, in the office of Gorakhpur Development Authority. While serving there, the respondent No. 2, Sri Kant Khare, the then Secretary to the respondent No. 5, unduly tried to compel the petitioner to work at his residence as domestic servant. The petitioner did not concede to this pressure and was threatened by the Secretary with dire consequences. Thereafter respondent No. 3 Hausala Prasad succeeded respondent No. 2 as Secretary in the Authority and he also, in the same fashion, tried to utilise the petitioner as domestic servant. As usual, the petitioner did not oblige him also. Out of vengeance and in order to harass him, the then Secretary (respondent No. 3) transferred the petitioner from the post of Notice Server to the post of Chaukidar. This was a malicious act and it is contended that the petitioner was not supposed to work as Chaukidar when he was appointed on the post of Notice Server. He made a representation (Annexure -2 to the writ petition) against this transfer to the Higher Authorities. Later on his services were terminated, vide impugned order dated 23.3.1981 (Annexures 3 and 4 to the writ petition). Aggrieved with this order of termination, the petitioner approached respondent No. 1. the U.P. Public Services Tribunal (in short 'the Tribunal'), with a claim petition, which too was dismissed, vide impugned judgment and order dated 9.1.1985 (Annexure -5 to the writ petition). He, thereafter, preferred a review petition before the Tribunal and that was also dismissed, vide judgment dated 10.12.1985 (Annexure -6 to the writ petition). It is further contended by the petitioner that the termination of his services in the Cadre of Class IV employee by the respondent is arbitrary, mala fide and in violation of Articles 14 and 16 of the Constitution of India and the persons, junior to him in the Cadre, have been retained in service. The impugned termination order is stigmatic and punitive in nature and is, thus, violative to Article 311 of the Constitution of India. Since, the petitioner was indicted for the purposes of awarding punishment of termination of service and was not afforded any opportunity of defence by holding departmental enquiry, the order suffers from non -observance of the principle of natural justice. Respondent No. 1, the Tribunal, failed to consider the mala fide alleged in the claim petition against respondents No. 2 and 3. Respondents No. 2 to 6, as per the office report, are represented by Sri P.P. Srivastava and Sri S.P.K. Tripathi, Advocates, Sri Tripathi was required to file Vakalatnama, but he did not file the same. Obviously, no counter -affidavit has been filed in this case from the side of respondents.
(3.) WE have heard the learned Counsel for the parties at length and have gone through the record.;