MULTIPLICITY OF DISCRETIONARY JURISDICTION VICTIMIZATION OF THE DRIVER POSTED AT JUDGESHIP BARREILLY

MULTIPLICITY OF DISCRETIONARY JURISDICTION VICTIMIZATION OF THE DRIVER POSTED AT JUDGESHIP BARREILLY EXERCISED BY AT LEAST FOUR JUDGES OF ALLAHABAD HIGH COURT

1.      That this is the first writ petition filed by the petitioner challenging the impugned orders passed on 07.09.2012 and order dated 05.11.2011 passed by rejecting the review petition and having affirmation to the order passed in the departmental appeal filed by the petitioner before the administrative judges respectively only to the extent of withholding the back wages of the petitioner on the post of the driver in the judgeship of District Bareilly by the administrative judge even after the reinstatement of the petitioner on the said post

2.      That by means of the present writ petition, the petitioner is challenging the order to the extent only for withholding the back wages amenable to the petitioner from 24.11.2006 to 05.11.2011 in pursuance of the orders passed by this Hon’ble Court (Administrative Side) passed on 07.09.2012 by an order bearing no. 13655 (7-A/Admin(D):Sec: Dated: Allahabad ) 07.09.2012 passed by the joint registrar (1), High Court of Judicature at Allahabad rejecting the review petition of the petitioner by the administrative judge of judgeship of District Bareilly rejecting the application / review petition filed by the petitioner before the appellate authority and thereby making an affirmation to the order passed on 05.11.2012 having the decision of the administrative judge Bareilly dated 18.10.2011. Both these orders are challenged by the petitioner as these orders have been passed in defiance of the judgement passed on 18.11.2009 setting aside the order of the dismissal of the petitioner from the service passed on 24.11.2006 in writ petition no. 2641 of 2007 filed by the petitioner challenging the aforesaid order as well as in violation of the RULE 54 of Financial Handbook, Vol. II Part-2 to 4 of the Financial Handbook dealing with  the withholding of the back wages in case of reinstatement of the petitioner in appeal decided on 05.11.2011 by this Hon’ble Court.

3.      That the petitioner was appointed in the judgeship of District Bareilly on 11.12.1989 and since then he had been working as the senior most driver in the judgeship of Bareilly without having any complaints and departmental proceedings initiated against him, except in passing of an order by then District Judge, Bareilly on the ground of the alleged misconduct of transferring the petitioner along with his car to the judgeship of Shahjahanpur by an order dated 24.11.2006 which was already set aside by the  judgment dated 18.11.2009 passed in writ petition no. 2641/2007 Anis Ahmed v/s State of U.P. and others. It is submitted that the order of dismissal of the petitioner was passed wholly without jurisdiction and in gross violation of the principle of natural justice.

4.      That the petitioner fell ill on 20.09.2006 and therefore he submitted an application for grant of the casual leave at about half past 11’o clock in the morning and came back to his house for taking the rest and medical treatment for his ailment. He consulted Dr. D. P. Bharadwaj in District Hospital, Bareilly who advised him to go on complete bed rest for 2 weeks and as such the petitioner submitted application for grant of the medical leave on 22.09.2006 through speed-post along with the prescription dated 21.09.2006 of Dr. D. P. Bharadwaj posted in District Hospital, Bareilly.

5.      That on 04.10.2006, on being advised by the doctor to have another rest for 2 more weeks on the prescription slip of 21.09.2006 issued from the District Hospital, Bareilly, the extension of the medical leave was further sought from on the ground of medical prescription again on 05.10.2006 by the petitioner.

6.      That the petitioner could not get any relief from the treatment at Bareilly, and as such on 19.10.2006 the petitioner requested to seek permission to leave the District headquarters and to be treated at Ujihani district Badaun, at his home place where he was given treatment at Community Health Centre from 19.10.2006 to 18.11.2006 by Dr. S. P. Singh who diagnosed the petitioner suffering from Typhoid fever with Broncho-pulmonary pneumonitis and was successfully treated by issuance of the fitness certificate dated 18.11.2006 to join his duties on 20.11.2006 as 19.11.2006 was Sunday.

7.      That this application of the fitness was personally handed over to Central Nazir along with the Medical Certificate but since the petitioner had already approached this Hon’ble Court by filing the writ petition no. 56513 of 2006 along with another driver who was also subjected to be transferred from judgeship of District Bareilly to Shahjahanpur on 20.09.2006 itself in pursuance of some letter issued by the registry of Allahabad High Court on 16.09.2006 and the said writ petition was decided 12.10.2006 to decide the representation dated 10.10.2006 and as such the District Judge, Bareilly did not sanctioned the medical leave and decided the representation dated 10.10.2006 by passing order of termination from service on 24.11.2006 itself. The representation filed against the transfer order dated 20.09.2006 was rejected and the termination order was passed by the District Judge, Bareilly holding therein that since the transfer order was not complied and as such the termination order has been passed for non-compliance of the said transfer order just after 5 days of submitting the application along with the fitness report dated 18.11.2006 after being recovered from his ailment of Typhoid fever with Broncho-pulmonary pneumonitis .

8.      That in this regard the petitioner may further submit that the transfer order was passed by selecting the senior most drivers of the judgeship of Bareilly wherein the petitioner was the senior most driver while the other two drivers were ranked at Sr. No. 3 and Sr. No. 5 and on their joining to judgeship of Shahjahanpur they were placed as the junior most driver and it was not within the jurisdiction of the District Judge, Bareilly to transfer his subordinate employees under his judgeship to another judgeship under the provision of Uttar Pradesh Subordinate Civil Court’s inferior establishments Rules 1955 wherein the individual judgeship is defined under Rule 3 of the aforesaid rules. The District Judge can only transfer the subordinate employee within the judgeship of the District Judge concerned and not otherwise.

9.      That the aforesaid action of the District Judge having termination of the services of the petitioner on 24.11.2006 was challenged by the petitioner in writ petition no. 2641 of 2007 wherein the aforesaid writ petition was allowed on 18.11.2009 having setting aside the order passed on 24.11.2006 by the District Judge, Bareilly to hold the enquiry against the petitioner if deemed proper and pass the appropriate order in accordance with law.

10.  That as soon as the order of this Hon’ble High Court was served on 03.12.2009 before the learned District Judge, he immediately started the judicial inquiry no. 07/09 against the petitioner on which one Shri. P. K. Srivastava, special judge, SC/ST Act, Bareilly was appointed as Enquiry Officer. The enquiry was conducted in an arbitrary manner without giving any opportunity of being heard to the petitioner and to defend himself as the action of the District Judge to hold the enquiry afresh was in itself against the settled principles of the safeguard provided to the confirmed employee and were devoid of any basis as per the settled case law reported in AIR 1974 SC 455 , AIR 1978 SC 597, JT 1993(3) SC 617, JT 1998(6) SC 464 as well as in view of 1991 suppl.(1) SCC 504,1991 ,SCC (L&S) 998 as well as 1991 SCC(L&S) 421in respect of the proprietary and competence and the decision making process applicable to the confirm employee in the government service.

11.  That the petitioner challenged the order passed on 20.05.2010 dismissing the services of the petitioner without even caring for the reason of the absence of the petitioner on account of his being suffering from Typhoid fever with Broncho-pulmonary pneumonia by filing a departmental appeal under Rule 7(2)(b) of the U.P. Subordinate Courts staff (punishment and appeal) rules 1976 and the Hon’ble administrative judge was pleased to allow the said appeal on 18.10.2011 having communication of the said order being made on 05.11.2011 through the District Judge, Bareilly in part and directed reinstatement of the petitioner by withholding his two increments permanently but  simultaneously also withholding the back wages from 24.11.2006 to 05.11.2011without having its effect being counted towards service.

12.  That the Hon’ble administrative judge has not considered even that the order dated 24.11.2006 was set aside in the writ petition no. 2641 of 2007 on 18.11.2009 and as such when there was no existence of the order passed on 24.11.2006 still remained in force, the withholding of the salary of the petitioner from 24.11.2006 till 05.11.2011 is wholly without jurisdiction.

13.  That it is pertinent to mention here that the petitioner has brought to the notice of the Hon’ble administrative judge that the learned District Judge, Bareilly had committed the manipulation in passing the anti-dated orders which was reflected in the representation submitted before the humble authority of the administrative judge. It has been submitted that the order was passed by this Hon’ble Court on 30.10.2006 in another matter in respect of the direction contained in the writ petition filed by another driver namely Rakesh Kumar whose representation dated 27.10.2006 filed against his transfer from judgeship Bareilly to District Shahjahanpur by Sh.S.K.Pandey, then district judge, Bareilly , was directed to be decided. Surprisingly, the learned District Judge decided to terminate the services of Sri Rakesh Kumar on 27.11.2006, but merely to justify his pre-medicated order of termination from services. Shri S. K. Pandey disposed off the representation of Rakesh Kumar on 27.10.2006, even before passing of the order in the writ petition by this Hon’ble Court on 30.10.2006.

14.  That the application for grant of the leave which was accompanied by the medical certificates were also rejected by the anti-dated orders passed by then District Judge, Bareilly in order to demonstrate the justification for termination of the services of the petitioner by treating him as deliberate absence from duty while the petitioner was suffering from illness of Typhoid fever with Broncho-pulmonary pneumonitis during the period from 20.09.2006 to 18.11.2006 and the medical prescription from the government hospital were submitted to establish the fact of the genuine ailment but the learned District Judge had acted arbitrarily and discriminately in choosing the name of the petitioner for transfer to another judgeship and to become the junior most driver in the said district despite the fact that the petitioner was the senior most driver in  District Bareilly.

15.  That in this manner once the administrative judge has arrived to the conclusion that the punishment given to the petitioner is disproportionate to the charges and if the Hon’ble administrative judge had already imposed the minor punishment by depriving the petitioner from two increments permanently, the double punishment given to the petitioner on the same charges in respect of withholding the salary from 24.11.2006 to 05.11.2011 is violative of the principle of the equity on the Doctrine of being violative on account of double jeopardize which is unconstitutional and violative of Article 20 (2) read with Article 14, 16, 21 and 311 (2) of the Constitution of India.

16.  That apart from this as submitted earlier that the question of entitlement to the back wages on the reinstatement of the petitioner in service had to be decided in accordance with the provision of Rule 54 Vol.II Part 2 to 4 of the Financial Handbook wherein in such type of the category of cases when the punishment order was modified by the appellate authority in appeal, the petitioner became entitled to receive his pay and allowances for the period when he was subjected to victimized by imposing the major punishment, but was exonerated of the major punishment of the dismissal/termination to the minor punishment of the loss of two increments permanently for the rest of the services as per sub rule 6 and 7 of the aforesaid rules.

17.  That the Hon’ble Appellate authority on one hand had taken the stand that the period of the absence shall be treated as the period spent on duty while withholding of the salary without assigning any reason and thereby modifying even the judgment delivered on 18.11.2009 in the writ petition no. 2641/2007 which became final between the parties in which the administrative side of the High Court was in itself the party to the said proceedings and since the finality is attributed to the aforesaid judgment withholding of the salary from 20.09.2006 up to 18.11.2009 was in itself derogatory to the orders passed between the parties.

18.  That the petitioner filed the review petition stating all such facts before the Hon’ble administrative judge who has completely overlooked to all such aspects of the matter and had not dealt with even the provisions of Rule 54 of the Financial Handbooks in dealing with the question of entitlement of the petitioner for grant of the entire back wages which could have only been forfeited after giving an opportunity of hearing on the substantial question of law submitted herein above before this Hon’ble Court in the present writ petition.

19.  That the Hon’ble Supreme Court in the case of N. M. Gopal Krishna Naidu v/s  State of Madhya Pradesh AIR 1968 pg 240 had laid down that, “consideration under the rule FR 54 ”, “depending upon as it does on facts and circumstances in their entirety and passing an order on the basis of the factual finding arrived at from such facts and circumstances and such an order resulting in pecuniary loss to government servant must be held to be an objective rather than the subjective function”. “The very nature of the function implies the duty to act judicially”. “In such a case, if an opportunity to show cause against the action proposed is not afforded, as admittedly it was done in the present case the order is liable to be struck down as invalid on the ground that it is one breach of the principle of Natural Justice”.

20.  That the petitioner has further been advised to state that the order passed on 05.11.2011 to the extent of forfeiture of his pay and allowances for the period intervening the dismissal and reinstatement in service is totally invalid and unsustainable within the eye of law.

21.  That acting upon the directive issued by the Hon’ble Apex Court in the above noted case of N. M. Gopal Krishna Naidu v/s  State of Madhya Pradesh, the government of Uttar Pradesh issued the government orders no.17/1/1970-Niukti(3) dated 29.11.1973 followed by the other government orders issued on 13.01.1983 regarding withholding of the applicant’s back wages, which according to the aforesaid government orders is illegal and invalid.

22.  That in case no payment or lesser payment of the applicant’s back wages was proposed it was mandatory to give a show cause notice to the petitioner and in case of giving lesser payment or forfeiture of the pay and other allowances, the same could have been done after considering the reply of the petitioner in furtherance of the show cause notice, which has not been done in the present case by the Appellate authority.

23.  That in this manner the petitioner has been deprived of his legitimate expectations which is akin to the Doctrine of Promissory Estoppel which prescribes that unequivocal promises creates the binding effect between the parties making them and such assurance may not be repudiated unilaterally, simply on the basis of the whims and fancies of the authority  and as such once it has been held that the order of dismissal of the petitioner is unsustainable by directing the petitioner in reinstatement in service, neither it was within the power and jurisdiction of then learned District Judge to complete the departmental enquiry without providing any opportunity of being heard and to submit the enquiry report and thereafter to pass again the order of dismissal when admittedly the petitioner applied for the grant of the medical leave and was supported with the medical prescription regarding his ailment of Typhoid fever with Broncho-pulmonary pneumonitis during the period from 20.09.2006 to 18.11.2006 and the medical prescription from the government hospital that has been taken into consideration by the Appellate authority in passing the order on 05.11.2011, but without granting the back wages during the period in which he has been deprived arbitrarily to discharge his duties due to the punishment found disproportionate to the charges leveled against the petitioner by the Appellate authority.

24.  That the rejection of the review petition has been done without looking to the grounds and the evidence adduced in the review petition. None of the grounds including the legal aspect dealt with regarding ambit and the scope of FR 54 has been taken by the Hon’ble administrative judge in rejecting the review petition by the cryptic order that “the petitioner had never been exonerated on merit, punishment awarded is commensurate to the charges found proved” which is liable to be set aside by this Hon’ble Court. WHERE WE HAVE BEEN WRONGED IN JUDICIAL SYSTEM OF FUCTIONINGS OF THE HIGH COURT JUDGES INDULDGING THE INNOCENT CITIZEN TO DEALT WITH