V.M.Sahai, Shishir Kumar - (1.) -The present writ petition has been filed for quashing the order dated 9.12.1989, Annexure-5 to the writ petition passed by respondent No. 3 and order dated 19.5.1999, Annexure-6 to the writ petition passed by respondent No. 1. Further prayer is to issue a writ in the nature of mandamus directing the respondents to reinstate the petitioner in service on the post of Constable in U. P. Police and pay him regular salary including seniority, promotion due to the petitioner.
(2.) THE facts arising out of the writ petition are that the petitioner was appointed as a constable in the year 1965 and was subsequently confirmed on the said post. All of a sudden a show cause notice was given to the petitioner dated 20.8.1980 by respondent No. 3. THE petitioner submitted a reply on 2.9.1980. THE petitioner was under the impression that the disciplinary proceedings contemplated against the petitioner has been dropped and shortly the petitioner will be reinstated. In the year 1986 when the petitioner was on medical leave, a wireless message was received on 7.7.1986 from the office of respondent No. 4 requiring the petitioner to join the duties forthwith under respondent No. 5 but when the petitioner went to join his duties, he was declined to join the duties. As the petitioner was not permitted to join the duties therefore, he filed a claim petition before the U. P. State Public Services Tribunal which was numbered as Claim Petition No. 205/V/1989.A counter-affidavit in that claim petition was filed and in para 11 of the said counter-affidavit it has been stated that the services of the petitioner have already been terminated on 9.12.1981 and the petitioner has been removed from the service by respondent No. 3. It has further been submitted that till date, no material has been placed by the respondent to justify regarding the service of order dated 9.12.1981. When they first time came to know regarding the aforesaid order an amendment application was made on 7.4.1997 which was allowed by respondent No. 1, i.e., Tribunal but the respondents No. 2 to 5 did not file any additional counter/written statement to the said amendment. THE Tribunal vide its judgment and order dated 19.5.1999 has rejected the claim petition of the Tribunal in an arbitrary and discriminatory manner. It has been submitted on behalf of the petitioner that the order dated 9.12.1981 has been passed by the respondent in a wholly arbitrary, discriminatory and with mala fide intentions and the principles of natural justice has not been followed. While passing the order dated 9.12.1981, the respondents have not considered the reply of the petitioner dated 2.9.1980. The Tribunal has also failed to take into consideration the fact that as the amendment application was allowed and no counter-affidavit to that amendment application was filed and there is no proof regarding the service of the order dated 9.12.1981, therefore, the order impugned is bad and has resulted in substantial failure and miscarriage of justice. It is apparent from the record that there is no laches on the part of the petitioner in filing the claim petition. The wireless message dated 6.6.1986 clearly goes to show that the respondents have directed the petitioner to join. The reasoning and finding of respondent No. 1 contained in the impugned order are bad in law and without jurisdiction. As such the orders passed by the Tribunal is liable to be quashed. Notices were issued and as the counter-affidavit and rejoinder affidavits have been exchanged, therefore, with the consent of the parties the writ petition is being disposed of finally.
(3.) THE learned counsel for the petitioner Sri Umesh Narain Sharma, senior advocate assisted by Sri Kamla Singh has submitted that at no point of time the copy of the inquiry report has been given to the petitioner and no full-fledged inquiry has been done, therefore, order of removal is bad in law and is liable to be quashed. It is well-settled in law that without following the proper procedure if the disciplinary authority passes an order, that is not sustainable in law. It is clear from the record that only a show cause notice was given to the petitioner and the petitioner has submitted a reply and the order of removal has never been communicated to the petitioner, no preliminary inquiry as well as the final inquiry has been done and the copy of the inquiry report has never been given to the petitioner, therefore, the total action of the respondent is bad in law. THE petitioner has tried his level best to join his duties but he was not permitted to join. THErefore, the respondents were obliged to hold an inquiry as provided under law. It has further been submitted on behalf of the petitioner that the petitioner has taken leave and he was being treated in the hospital and he has sent applications and medical certificate and in case if it is admitted that the petitioner was absent without sanction of leave inspite of the aforesaid fact, the services of the petitioner cannot be terminated or he cannot be removed from service unless and until an inquiry and opportunity to that effect is given to the petitioner. The petitioner has placed reliance upon various judgments of the Apex Court rendered in the cases of Union of India and others v. Mohd. Ramzan Khan, (1991) 1 SCC 588 ; Jai Shanker v. State of Rajasthan, AIR 1966 SC 492 (V 53 C 101) ; Subhash Chandra Sharma v. Managing Director and another, (2000) 1 UPLBEC 541 : 1999 (4) AWC 3227 ; Sher Bahadur v. Union of India and others, AIR 2002 SC 3030 : 2002 (4) AWC 2877 (SC) ; State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 and State of U. P. and others v. Ramesh Chandra Mangalik, (2002) 3 SCC 443 : 2002 (2) AWC 1203 (SC).;