D.S.Sinha - (1.) HEARD Sri Amar Nath Srivastava, learned counsel for the petitioner and Sri S. K. Saxena, learned Standing Counsel representing the respondents no. 1 and 2. No body appears from the respondent no. 3.
(2.) THE petitioner, an erstwhile clerk in the Judgeship of Shahjahanpur, invokes the jurisdiction of this Court under Article 226 of the Constitution of India, and prays that the order dated 20th February, 1987, passed by the District Judge, Shahjahanpur, the respondent no. 2, dismissing him from service, and the order dated 26th November, 1987 passed by High Court of Judicature at Allahabad, the respondent no. 1, on its administrative side, and whereby the order dismissing the petitioner has been affirmed an appeal, be quashed. At the relevant time, the petitioner was posted as Suits clerk in the court of II Addl. Civil Judge, Shahjahanpur, and in that capacity he was custodian of the record of Original Suit No. 334 of 1985, Allahabad Bank v. M/s. Shanker Rice Mills and others., pending in the said court. The original agreements, containing seven papers, which formed the basis of the suit were lost. This led to institution of art inquiry to find out the person responsible for the loss of the documents. A preliminary inquiry was held. On the basis of the preliminary enquiry the petitioner was charge-sheeted for having deliberately caused loss of the documents, mentioned above. The petitioner submitted a written statement before the enquiring officer. On 9th January, 1987, the enquiring officer found that the charges against the petitioner were established. On the basis of the findings arrived at by the enquiring officer, the punishing authority, namely, the District Judge, Shahjahanpur, the respondent no. 2, came to the conclusion that the dismissal was the only suitable punishment for the petitioner. He, therefore, passed the impugned order dated 20th February, 1987, a copy whereof Is to be found on record as Annexure '17' to the petition. Against the order dated 20th February, 1987, aforesaid, the petitioner preferred an appeal before this court under Rule 7 of the U. P. Subordinate Courts Staff (Punishment and Appeals) Rules, 1976 hereinafter called the Rules. The appeal of the petitioner was dismissed by the order dated 26th November, 1987, which is annexure '19' to the petition. To assail the impugned dismissal of the petitioner, Sri Amar Nath Srivastave, learned counsel for the petitioner, has pressed only one ground, namely, the lack of opportunity to represent against the proposed punishment of dismissal, as envisaged in sub-rule (4) of Rule 5 of the Rules.
(3.) IN paragraph 30 of the petition, it has been specifically pleaded by the petitioner that no show cause notice had been issued to him before awarding the extreme punishment of dismissal from service. This pleading of the petitioner has not been denied in the counter affidavit sworn by Sri Raj Kumar Singh Addl. District and Sessions Judge, Shahjahanpur, filed on behalf of the respondent no. 2. It would be pertinent to notice to reply on behalf of the respondent no. 2 to the pleading of the petitioner contained in paragraph 30 of the petition, which is contained in paragraph 26 of the counter affidavit. Paragraph 26 of the counter affidavit reads as follows : "26. That in reply to the contents of para 30 of the petition it is stated that the petitioner was given full opportunity to defend him and to produce evidence in his defence and to cross-examine the witness. The District Judge before passing the order has perused the entire record and has recorded finding on all the issues involved in the enquiry. It was not necessary to issue a show cause notice before punishing the petitioner. The order passed by the District Judge does not suffer from any error of procedure, law and jurisdiction." (Emphasis added). A perusal of the averments contained in paragraph 26 extracted above, shows that the plea of the petitioner contained in paragraph 30 of the petition with regard to the lack of opportunity to represent against the proposed punishment of dismissal from service, has not been denied either specifically or by necessary implication What is pleaded in the aforesaid paragraph is that it was not necessary to issue a show-cause notice before punishing the petitioner.;