Sudhir Agarwal, J. - (1.) AGGRIEVED by the judgment dated 2.11.2000 of Hon'ble single Judge dismissing petitioner-appellant's (hereinafter referred to as the "petitioner") Writ Petition No. 24972 of 1991 this intra Court appeal under the rules of the Court has been preferred by the petitioner. The writ petition was filed challenging the order dated 5.8.1991 whereby the Director, North Central Zone, Cultural Centre, Nyay Marg, Allahabad (hereinafter referred to the "N.C.Z.C.C.") has terminated petitioner's services giving him one month's salary in lieu of notice.
(2.) THE facts in brief giving rise to the present dispute are that the petitioner was appointed vide order dated 11/16.9.1987 as Stenographer (Hindi) attached to Deputy Director (Admin.) on consolidated pay of Rs. 1,581 per month including all allowances. THE aforesaid appointment was purely temporary and terminable at any time without prior notice. On 30.7.1991 the Director, N.C.Z.C.C. published an advertisement in daily Hindi newspaper "Aaj" inviting application to fill up three posts of Karyakram Sewa and four posts of Prechagrah Sewa. It is said that on 30.7.1991 the petitioner met Ms. Neeru Nanda, the then Director, N.C.Z.C.C. and requested that his brother, Sri Surendra Nath Pandey, a handicapped person, may be appointed against one of the aforesaid vacancies which were advertised but she decline to help the petitioner. THE petitioner's brother filed Writ Petition No. 22437 of 1991 challenging the advertisement but the said writ petition was dismissed by this Court vide order dated 2.8.1991 (Annexure 3 to the writ petition). In the meantime the petitioner proceeded on leave up to 8.8.1991 by moving an application on 30.7.1991. On 3.8.1991 a false complaint was lodged before the District Magistrate, Allahabad against the petitioner alleging that he appears to be a man of unsound mind and require treatment. On the same date he was called in the office of N.C.Z.C.C. When he reached the office he was handed over to the police. THE petitioner was produced before the Chief Medical Officer who referred his case to S.R.N. Hospital, Allahabad. THEreafter, the petitioner was kept in Ward No. 18, Bed No. 40 at S.R.N. Hospital for some time and in the meantime on 5.8.1991 the respondents passed the impugned order of termination. THE petitioner further learnt that on 3.8.1991 a First Information Report was lodged at Police Station, Civil Lines, under Section 353, I.P.C. pursuant whereto he was arrested on 3.8.1991 and thereafter on the recommendation of Chief Medical Officer he remained in the hospital from 7.8.1991 to 16.8.1991. Admittedly, on 17.8.1991 Dr. V. K. Singh gave a report certifying that the petitioner was of sound mind and did not suffer any psychiatric illness. THE Chief Medical Officer also signed the said report and sent to the City Magistrate, Allahabad. The order of termination was challenged in the writ petition on the ground that it is founded on the alleged false allegations contained in the First Information Report dated 3.8.1991 and, therefore, punitive. It is also alleged that the service of other temporary employees has continued while only the petitioner has singled out and, therefore, the order is violative of Article 14 of the Constitution of India. The Hon'ble single Judge has dismissed the writ petition holding that the termination of petitioner is simplicitor and not founded on any alleged misconduct, therefore, the petitioner is not entitled for any relief.
(3.) LEARNED counsel for the petitioner vehemently contended that the counter-affidavit also revealed that a fact finding inquiry was conducted by the Administrative Officer, N.C.Z.C.C. wherein he submitted a report observing that the petitioner is guilty of alleged misconduct. He also observed that the petitioner is not fit to be retained in service and should be terminated. In the circumstances, considering overall facts and material available, it is evident that in respect to alleged incident of 3.8.1991 not only a first information report lodged against the petitioner but the Director also initiated a fact finding inquiry conducted at the back of the petitioner, wherein the Inquiry Officer found the petitioner guilty and recommended that he is not fit for retention in service. These facts show beyond doubt that the termination of petitioner was founded on the aforesaid incident and is by way of punishment. Since no inquiry was conducted in which any opportunity ought to have been given to the petitioner and, therefore, the impugned order of termination is vitiated in law. The Hon'ble single Judge has erred in taking a different view. LEARNED counsel for the petitioner supported his submissions placing reliance on the Apex Court's decision in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, 1999 (3) SCC 60 : 1999 (2) AWC 1184 (SC) ; Nar Singh Pal v. Union of India and others, AIR 2000 SC 1401 : 2000 (2) AWC 1499 (SC) ; Chandra Prakash Shahi v. State of U. P. and others, 2000 (5) SCC 152 : 2000 (3) AWC 1848 (SC) ; A. P. State Federation of Cooperative Spinning Mills Ltd. and another v. P. V. Swaminathan, JT 2001 (3) SC 530 : 2001 (2) AWC 1291 (SC) and a Division Bench decision of this Court in Radhey Shyam Gupta v. State of U. P. and others, 1991 (1) ESC 314. The stand of respondents, however, is that the facts finding inquiry was only to form an opinion about the work and performance of petitioner and after having the said report instead of proceeding against the petitioner, the respondents decided not to go ahead with a regular inquiry and instead terminated his service since he was a temporary employee. Accordingly an order of termination simplicitor was passed. It is not a case where it can be said that the impugned order is founded on any alleged misconduct but it has been passed after the overall assessment of work and performance of petitioner, made objectively.;