- (1.) THIS special appeal, under the Rules of the Court, is preferred against the judgment dated 21st September, 1999 passed by the Hon'ble Single Judge dismissing Civil Misc. Writ Petition No. 40379 of 1989 on the ground of alternative remedy by filing claim petition before the U. P. Public Service Tribunal under U. P. Public Service Tribunal Act, 1976.
(2.) WE have heard Sri N. D. Kesri, learned Counsel for the appellant and the learned Standing Counsel for the State-respondents. Learned Counsel for the petitioner-appellant vehemently contended that the criminal proceeding was the foundation for his termination and, therefore, the impugned order of termination, without holding any departmental enquiry or giving any opportunity to the petitioner-appellant, is illegal and vitiated in law. He further submits that pursuant to the criminal proceeding he was prosecuted but ultimately acquitted in the criminal case by the appellate Court and, therefore, was entitled for re-instatement with all consequential benefits. He further contended, relying on the judgment of the Hon'ble Apex Court in Babu Lal v. State of Haryana, AIR 1991 SC 1310, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Ors. , (1999), 2 UPLBEC 1280, Purshottam Lal Dhingra v. Union of India, AIR 1958 SC 36, and Similesh Kumar v. Gaon Sabha Uskar Ghazipur and Ors. , AIR 1977 Alld 360, that it was not justified on the part of the Hon'ble Single Judge in relegating the petitioner to avail alternative remedy, since the order impugned in the writ petition is void ab initio having Infringed the constitutional provision under Article 311 (2) of the Constitution of India. Prima facie, we do not find any reason to interfere in the discretion exercised by the Hon'ble Single Judge in declining to entertain the writ petition on the ground of alternative remedy, since the statutory alternative remedy is admittedly available to the petitioner-appellant wherein he can raise all his grievances against which, the writ petition was filed. However, the learned Counsel for the petitioner- appellant vehemently contended that after such a long time, it would be very hard on the part of the appellant to start afresh before the learned Tribunal and, therefore, the merit of his case may be considered by this Court in the appeal itself on the basis of the record of the writ petition and the writ petition may be decided on merits. Learned Standing Counsel did not raise any objection to this submission and, therefore, we have permitted the parties to make submission on the merits of the writ petition and proceed to consider the validity of the order of termination impugned in the writ petition.
(3.) IN brief, the facts as disclosed in the writ petition are that the appellant was appointed as Panchayat Secretary on 8-1-1969 on purely temporary basis. Pursuant thereto he joined on 10-1-1969. The term of the appointment of the petitioner-appellant, contained in Annexure-2 to the writ petition, are reproduced as under. It appears that there was some confusion as to whether the Panchayat Secretaries are the Government Servant or not and the Commissioner-Secretary, Agriculture Produce and Development, Lucknow vide Government Order dated 24-2-1972 clarified that the Panchayat Secretaries have been designated as Panchayat Servants and their appointing authority is Additional District Magistrate/district Planning Officer and they are Government servants to whom all Rules and Regulations applicable to the employees of the State Government are applicable. It also appears that the work and performance of the petitioner-appellant was assessed by the Additional District Magistrate/district Planning Officer, Agra and vide order dated 17-3-1976 in purported exercise of power under the U. P. Temporary Government Servants (Termination of Service) Rules, 1975 (hereinafter referred to as 1975 Rules) the petitioner-appellant was terminated with effect from the expiry of one month from the date of order of termination. Subsequently, it appears that on 14-1-1977, after about 10 months from the date of termination of his service, an FIR was lodged alleging embezzlement of public funds, which resulted in criminal trial under Sections 409,420 and 468 I. P. C. The trial Court convicted the petitioner-appellant imposing rigorous imprisonment of three years and a fine of Rs. 2000/- under Section 409 I. P. C. , Rs. 1000/- under Section 420 I. P. C. and Rs. 1000/- under Section 468 I. P. C. However, the petitioner-appellant preferred a Criminal Appeal No. 13 of 1990, which has been allowed, vide judgment dated 24-3-1992 and the petitioner-appellant has been acquitted. Thereafter, the petitioner-appellant submitted an application dated 2-6-1992 requesting the authorities to reinstate him in service since he has been acquitted in criminal trial, whereupon no orders were passed by the Director, Panchayat Raj although the District Panchayat Raj Officer referred the matter with his recommendation.;