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Judgment
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondent.
Petitioner is before this Court assailing the order of State Government dated 7.8.2020 (Annexure No. 2) as well as dismissal order of the petitioner, which has not been served upon the petitioner. With a further request commanding the respondents not to interfere in the working of the petitioner as Computer Operator at Development Block Handia, District Prayagraj and to pay him regular monthly emoluments.
Learned counsel for the petitioner in support of his submissions has placed reliance upon the judgment passed by this Court in Bharat Lal Vs. State of U.P. and 10 Others (Writ-A No. 10378 of 2020, dt. 16.12.2020) and as such it is sought to be contended that the present matter is squarely covered by the aforesaid judgment and the similar indulgence may also be accorded in this matter. The jdugment and order dated 16.12.2020 passed in Bharat Lal(supra) is reproduced herein below.
"1. Heard learned counsel for the parties and perused the record.
In compliance of the order of this Court dated 08.12.2020, learned Standing Counsel has obtained instructions that are taken on record.
The moot question involved in the present petition when it was initially argued was as to whether before passing the order dated 07.08.2020 any opportunity of hearing was afforded to the petitioner or not to explain his position qua the inquiry conducted in the matter as the decision has been taken on the basis of an inquiry conducted by Chief Development Officer, Prayagraj submitted on 30.07.2020.
As per the instructions obtained by learned Standing Counsel under the order dated 07.08.2020 passed by the Additional Chief Secretary, Government of U.P., Lucknow, the District Magistrate, Prayagraj was directed to take appropriate action in the matter in the light of directions issued and therefore, once the matter came to be examined by the District Magistrate, Prayagraj, he issued a show cause notice to the petitioner to which the reply was submitted by the petitioner on 14.08.2020 and thereafter, considering the same, the decision has been taken by the District Magistrate to dispense with the services of the petitioner holding the charge to be proved vide order dated 25.08.2020.
The show cause notice issued to the petitioner by the District Magistrate has been brought on record as Annexure No. 4 to the writ petition which is signed on 01.08.2020 but it is dispatch date is 04.08.2020 which clearly demonstrate that a parallel proceeding was being drawn by the District Magistrate while the matter was engaging attention of the State Government, upon which the Additional Chief Secretary proceeded to pass an order on 07.08.2020. Quite interestingly the District Magistrate has proceeded to pass the order on 25.08.2020 dispatched on 26.08.2020 clearly stating that the State Government has taken decision vide its order dated 07.08.2020 to dispense with the services of the petitioner. The issue is very clear that the authorities sitting in higher echelons in an administrative set up, must either rest the discretion with the appointing/ competent authority or clearly indicate that the State Government has taken a decision so no discretion lies with the appointing/ competent authority. The manner in which the operative portion of the order of Additional Chief Secretary dated 07.08.2020 is worded, it clearly indicative of a clear executive fiat issued to the District Magistrate to dispense with the services of the petitioner and other such employees having held them guilty of the charges accepting the inquiry report of Chief Development Officer. In order to appreciate the above, it is necessary to quote hereunder paras 7 and 7(i) that deals with the petitioner and similarly situated employees and which runs as under:
''7-अतः प्रश्नगत प्रकरण में मुख्य विकास अधिकारी, प्रयागराज की जांच आख्या के आधार पर शासन स्तर पर निम्नानुसार कार्यवाही किये जाने का निर्णय लिया गया हैः- (1) सर्वश्री लालमनि, ओम प्रकाश, रामरति, भरत लाल, चन्द्रभान एवं राम कैलाश तकनीकी सहायकगण की सेवा समाप्त कर दी जाय। (2) श्री अरूण कुमार वर्मा, अतिरिक्त कार्यक्रम अधिकारी, विकास खण्ड-हण्डिया प्रयागराज की सेवा समाप्त कर जाय। (3) श्री जय प्रकाश मौर्य, कम्प्यूटर आपरेटर विकास खण्ड-हण्डिया, प्रयागराज की सेवा समाप्त कर जाय। 6- जांच आख्या से स्पष्ट है कि प्राक्कलन के अनुसार कार्य न कराये जाने और गलत एम0बी0 के कारण तकनीकी मूल्याकंन में भौतिक सत्यापन में पाये गये कार्य से रू0-3,61,393/- का अधिक भुगतान हुआ है। 7-अतः प्रश्नगत प्रकरण में मुख्य विकास अधिकारी, प्रयागराज की जांच आख्या के आधार पर शासन स्तर पर निम्नानुसार कार्यवाही किये जाने का निर्णय लिया गया हैः- (1) सर्वश्री लालमनि, ओम प्रकाश, रामरति, भरत लाल, चन्द्रभान एवं राम कैलाश तकनीकी सहायकगण की सेवा समाप्त कर दी जाय। (2) श्री अरूण कुमार वर्मा, अतिरिक्त कार्यक्रम अधिकारी, विकास खण्ड-हण्डिया प्रयागराज की सेवा समाप्त कर जाय। (3) श्री जय प्रकाश मौर्य, कम्प्यूटर आपरेटर विकास खण्ड-हण्डिया, प्रयागराज की सेवा समाप्त कर जाय। ""
A bare reading of the aforesaid paragraphs which are penultimate paragraphs of the order of Additional Chief Secretary it can be safely concluded that no discretion was left with the District Magistrate to exercise power as an appointing authority in respect of the petitioner's services, may be under contract employment and therefore, this Court is of the clear opinion that the entire exercise conducted by the District Magistrate at his end on the basis of inquiry report is a sham and cannot have any independent existence to cloth it with legality to make it sustainable in law. The Additional Chief Secretary having found the petitioner guilty, ought to have afforded him opportunity of hearing before recording a final order that his services are to be dispensed with. Such an exercise of power is quite foreign to the concept that "justice not only be done but must seem to have been done" and therefore, this Court is of the clear opinion that the petitioner's services based on an inquiry report holding him guilty of the charges has been dispensed with by way of punishment and therefore, the order is also quite stigmatic in nature and under such circumstances, an opportunity of hearing ought to have been afforded qua the proposed action by the Additional Chief Secretary and having not done so he is in clear error of his authority and the order cannot be sustained on the touch stone of Article 14 of the Constitution as well as principles of natural justice.
In view of the above, the order passed by Additional Chief Secretary dated 07.08.2020 as well as of the District Magistrate dated 25/26.08.2020 are hereby quashed. The matter is remitted to the State Government to take a decision afresh in the matter giving full opportunity of hearing to the petitioner to submit his explanation to the inquiry report.
Writ petition succeeds and is allowed in terms of above observations and directions. "
So far as the legal and factual aspect is concerned, the same is not being disputed by learned Standing Counsel.
The writ petition is accordingly allowed in terms of Bharat Lal(supra). The order passed by Additional Chief Secretary dated 07.08.2020 as well as of dismissal order of petitioner are hereby quashed. The matter is remitted to the State Government to take a decision afresh in the matter giving full opportunity of hearing to the petitioner and considering his reply to the notice dated 21.7.2020.