High Court
Case Details
Neutral Citation No. - 2025:AHC:79314-DB Court No. - 29 Case :- SPECIAL APPEAL No. - 839 of 2024 Appellant :- State Of Up And 2 Others Respondent :- Mayank Sharma Counsel for Appellant :- Amit Manohar,C.S.C. Counsel for Respondent :- Siddharth Khare Hon'ble Ashwani Kumar Mishra,J. Hon'ble Praveen Kumar Giri,J. 1. This appeal is filed by the State challenging an order passed by the learned Single Judge in Writ A No. 6724 of 2019, whereby the order of punishment passed against the writ petitioner, as affirmed in the appeal, is set aside. Learned Single Judge has held the writ petitioner entitled to continuity in service along with back wages.
Decision
2. It transpires that the writ petitioner was offered compassionate appointment on account of death of his father, who was clerk in the office concerned. The writ petitioner joined pursuant to such appointment on 05.10.2012 and his services were confirmed. It is after nearly four years that a complaint has been made against the writ petitioner, stating that he had suppressed the fact that his brother was already in employment and the affidavit allegedly submitted by the writ petitioner, suppressing such facts, has been construed as material adverse to the writ petitioner. Five other charges were also leveled against the writ petitioner. These charges essentially were of showing disrespect to the higher authorities and thereby suggesting insubordination. One of the allegations was also that the writ petitioner tried to obtain certain records from the office of the Collector by offering bribe. On the aforesaid charges, the writ petitioner was found guilty and he was terminated. This order was challenged in the writ petition which has since been allowed by the learned Single Judge. 3. So far as, withholding of information with regard to the employment of the writ petitioner's brother is concerned, learned Single Judge observed that the affidavit was submitted after the appointment was offered and that it otherwise made no difference inasmuch as the appointment could be denied only if the surviving spouse was in employment. It has been observed that this is not the case herein. So far as, charges of insubordination is concerned, learned Single Judge has gone into the facts to return a finding that there was no credible material to sustain such charges. So far as the allegation with regard to obtaining information by bribing the employees are concerned, the charge was allegedly proved on the basis of admission. This admission was presumed by the employer on the ground that a strict warning was given which had not been challenged. Learned Single Judge has observed that merely because a warning was issued and no challenge was made, it would not lead to the conclusion that the charge leveled against the employee was admitted. 4. On the basis of detailed examination of the record and upon due consideration of the submissions urged, learned Single Judge has allowed the writ petition, holding that the action impugned in the writ petition is wholly arbitrary. 5. Learned counsel for the State, while challenging the order of the learned Single Judge, has invited our attention to Rule 6 of the Dying in Harness Rules, 1974, in order to submit that the economic status of the family as well as details of persons in the family already employed are required to be furnished. It is submitted that this has the effect of determining the question as to whether compassionate appointment is to be offered to the candidate concerned or not. 6. Shri Ashok Khare, learned Senior Counsel for the petitioner opposes the submission on the grounds that none of the charges against the employee were made out and that the finding of the Enquiry Officer was wholly perverse. He also submits that under Rule 5 of the Dying in Harness Rules, the employment status of brother is not specified as a ground to disentitle the grant of compassionate appointment. It is lastly submitted that the compassionate appointment once had been granted and the employee had worked for sufficiently long period, there would be no occasion to reconsider the matter based on the grounds urged by the State. 7. We have heard learned counsel for the parties and have perused the materials on record. 8. The judgment of the learned Single Judge clearly notices the allegations made against the petitioner as well as the material which has surfaced against him to justify the termination of the employee concerned. It has been found by the learned Single Judge that the charges are not backed by any legally admissible evidence and most of the conclusions of the Enquiry Officer are based on unsubstantiated allegation. So far as suppression of the employment status of his brother is concerned, it is observed that the affidavit submitted by the writ petitioner would not have made any difference, since the writ petitioner's claim for compassionate appointment had already been substantially processed and the affidavit was also submitted after the grant of appointment. Therefore, it cannot be said that the appointment was obtained on the strength of any misrepresentation or suppression of facts. 9. Considering the fact that compassionate appointment was already offered to the writ petitioner and it is after several years that his appointment has been interfered with on charges that are not found to be made out, we do not find any occasion to interfere with the order passed by the learned Single Judge. 10. At last, Shri Amit Manohar, learned Additional Chief Standing Counsel for the State argues that the writ petitioner has admittedly not worked and, therefore, the entire back wages ought not to be allowed to him. It is also urged that even though learned Single Judge has found that the charges are not entirely made out, yet considering the nature of the accusations made against the writ petitioner, he is not entitled to the payment of back wages. 11. Shri Ashok Khare, learned Senior Counsel, on the other hand, argues that once the impugned action is found to be unsustainable then back wages must be an obvious consequence. 12. In the facts and circumstances of the case, since the petitioner has not worked for all this period and the proceedings were otherwise not malafide, we are of the view that the writ petitioner would be entitled to continuity of service and ends of justice will be met if he is allowed 50% of the back wages. 13. Subject to the above modification, this special appeal stands disposed of. Order Date :- 14.5.2025 K.Tiwari Digitally signed by :- KRISHNA KANT TIWARI High Court of Judicature at Allahabad