R. M. Sahai, J. - (1.) IN this petition directed against order of removal of petitioner who was Assistant Tax Superintendent the question is if on facts the District Magistrate/Administrator of Municipal Board Hapur was justified in differing from the order of the Sub-Divisional Magistrate. Further could the District Magistrate exercise this power after enforcement of Centralised Service Rules.
(2.) IN 1980 a complaint was made by one Jugul Kishore that after death of his father Krishna Murari Lal the name of Shyam Sunder Lal who was father of one Ashok Kumar Mittal a clerk in Municipal Board was substituted over house no. 105 Mohalla Maheshwariganj, Hapur with collusion of petitioner. Sri Jugul Kishore filed a criminal complaint as well. On 24th January, 1981 the petitioner was suspended. His services were terminated in September, 1981. The order was, however, set aside in appeal in August 1982, and direction was issued to proceed afresh in accordance with rules. Fresh proceedings were started in December, 1982. The Prabhari Adhikari exonerated the petitioner. It was held that on mere suspicion no action could be taken against him. Further criminal case was already pending. He, therefore, reinstated petitioner in June, 1983 and the order was given effect to. IN May, 1986, just one month before petitioner's superannuation the District Magistrate passed the impugned order. It was held that Prabhari Adhikari was not empowered to pass the order of reinstatement. On merits it was held that charges against petitioner were serious. Retention of such employee was not in public interest. Whether Prabhari Adhikari was authorised by the District Magistrate to deal with disciplinary proceeding against petitioner or not, and the District Magistrate could sit over judgment on the order exonerating petitioner need not be gone into as even the District Magistrate has not recorded any finding against petitioner. The order of removal was passed only because the responsibility of maintaining record etc. was of petitioner and he along with Mittal might have been interested in removal of records needed in criminal case. Although this court cannot examine the correctness or otherwise of the finding recorded by District Magistrate but there is no clear finding that the petitioner was instrumental either in substitution of Shyam Sunder's name or in removal of records. The petitioner further has been acquitted from the criminal court. In these circumstances and when petition had been reinstated and the order had been given effect to then the District Magistrate before passing the impugned order just one month before superannuation should have taken greater care in disagreeing with Prabhari Adhikari. Merits apart the petition is liable to succeed on the legal ground that the District Magistrate had no jurisdiction to pass the impugned order. U. P. Palika (Centralised) Services Rules were framed in 1966. Under rule 3 the post of Assistant Tax Superintendent is one of the Centralised Services The authority competent to dismiss or remove such a person under rule 37 is the State Government. Sub rule (4) of rule 37 further makes it clear that the President, which power is being exercised by the District Magistrate, after completion of inquiry shall submit the findings and recommendations to the State Government. Therefore, the District Magistrate could utmost have made recommendations to the State Government. Reliance has been placed by learned counsel for opposite party on rule 41 and it is urged that in exercise of this power the State Government delegated its function to the District Magistrate. The argument appears to be devoid of any substance. Rule 41 is extracted below : "Notwithstanding anything contained in these rules, where the Government is satisfied that the operation of any of the provisions of these rules causes undue hardship in any particular case, it may be order dispense with or relax the requirements of that provision to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner."
(3.) A bare perusal of rule indicates that it does not empower the State Government to delegate its power in favour of any authority. It empowers relaxation likely to cause hardship. It cannot normally apply in case of rule 37. In absence of any averments or any material brought on record that opposite parties made any move to the State Government for relaxation from requirement and State Government has passed order relaxing provisions of rule 37 in respect of petitioner, the impugned order cannot be maintained. In the result this petition succeeds and is allowed. Order passed by the District Magistrate is quashed. Since the petitioner has already retired he shall only be entitled to the benefit which would have been available if he would have continued in service till 30th June, 1986. There shall be no order as to costs. Petition allowed.;