1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ::: Bhanwar Lal Acharya Vs State of Rajasthan & Ors S.B. CIVIL WRIT PETITION NO.3672/2007 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA Date of order : 10.8.2009 PRESENT HON'BLE MR. PRAKASH TATIA, J. REPORTABLE Mr. Mahesh Bora] Arjun Purohit ], for the petitioner. Mr. HS Balot, for the respondents. <><><> BY THE COURT: Heard learned counsel for the parties. The petitioner was appointed as Supervisor in the respondent Jaisalmer Sahakari Upbhokta Wholesale Bhandar Ltd., Jaisalmer by taking a resolution in the 2 meeting dated 25th Oct., 1986, copy of which has been placed on record as Annex.1. In this meeting 7 persons were given appointment on different posts and petitioner was given appointment on the post of Supervisor by specifically mentioning the post as non-cadre post. All the 7 persons were given appointment on probation for two years as well as on the condition that they may continue on the post till their requirement is there or till regularly selected candidates are made available. The petitioner since then is working on the said post and on 24th May, 2007 the impugned order was passed by which the petitioner has been removed from service by ordering that the petitioner shall be entitled to all the consequential benefits. The petitioner is aggrieved against this order Annex.2 dated 24th May, 2007. Learned counsel for the petitioner submitted that the order dated 24th May, 2007 is absolutely illegal and void-ab- initio as has been passed in violation to the principles of natural justice as the order has been passed without holding any inquiry and without holding the petitioner guilty and further more without giving an opportunity of hearing to the petitioner. It is also submitted that order dated 24th May, 3 2007 in itself is an order of a different nature, which does not fall in any of the category that whether petitioner has been removed from service because of the abolition of post or he has been removed for any criminal charges or he has been removed for remaining in jail for some period during service tenure or he has been retired compulsorily, which is apparent from the order as the petitioner has been given full retiral benefits, which can be done when employee is retired compulsorily. It is submitted that it is difficult to find out which reason prevailed over the authority concerned which has removed the petitioner from service. It is submitted that all actions taken against the petitioner vide order dated 24th May, 2007 is out come of malafide which is apparent from the order itself. The respondent-State as well as the respondent- Society have filed separate replies. The respondent no.4- society submitted that petitioner was given appointment under the influence of his father, who was holding the post of Administrator in the respondent-cooperative society. The post was abolished by resolution dated 25th March, 2000 yet he was allowed to continue on the post then the petitioner indulge in number of criminal cases and he faced the 4 criminal case under Section 408 IPC and in Cr. Case No.172/1997 he has been convicted by the court of Chief Judicial Magistrate, Jaisalmer vide judgment dated 28th March, 2003 and he has been sentenced to undergo one year's simple imprisonment and a fine of Rs.500/-. The appeal against the said conviction was dismissed by the appellate court i.e., Court of Sessions Judge, Jaisalmer in Cr. Appeal No.10/2003 vide judgment dated 1st August, 2005. However, against that appellate judgment, the revision petition is pending before this Court. The allegation that petitioner's father was the person behind the petitioner's continuation in the service was taken note of in the judgment of this Court in the writ petition filed by the petitioner's father Vasudeoji Acharaya in SBCWP No.403/1997, which was dismissed by this Court on 16th April, 2009 wherefrom it is clear that petitioner's father was charged for giving employment to his son by misusing of his office. I considered the submissions of learned counsel for the parties and perused all above referred documents as well as the judgment passed in criminal cases and the judgment of this Court delivered in SBCWP No.403/1997. It 5 is clear from the even reply submitted by the respondents that the impugned order was passed by the respondents without affording any opportunity of hearing to the petitioner. The order dated 24th May, 2007 itself clearly reveals that the authority who passed the order had very many things in mind, which reflected in the order dated 24th May, 2007 itself and for those reasons the petitioner was entitled to have opportunity of hearing as no person can be removed from service by any stigmatic order without giving opportunity to that person to show reasons. At this juncture, it will be worthwhile to mention here that, that in the order dated 24th May, 2007 it has been clearly mentioned that though the decision was taken in the meeting dated 25th March, 2000 that the post of Supervisor is non-cadre post and there is no requirement of that post, but that decision was not implemented because of the political reasons and administrative pressures. It will be worthwhile to mention here that decision dated 25th March, 2000 was taken not by the society but by the committee constituted to determine the strength of the employees for the society. The copy of this decision is placed on record as Annex.R/4/4 wherein it is mentioned 6 that the post of Supervisor is non-cadre post. That fact was known to the society since the year 1986 when petitioner was given appointment which is clear from the decision taken by the society to appoint the petitioner on the post of Supervisor. The society clearly mentioned that, that post is not in the cadre and is non-cadre post. The petitioner continued in service for about 14 years upto 25th March, 2000 without there being any objection of the society. Then even after decision of strength determination committee, no decision has been taken by the society itself to remove the petitioner for about seven years and the petitioner continued on the post and straightway several findings have been recorded including that decision of the committee was not implemented because of the political and administrative pressures upon the society and without giving opportunity to the petitioner to rebut this and all other services allegation he was removed from service. Learned counsel for the petitioner has shown the communication dated 23rd July, 2001 issued by the General Manager of the respondent no.4 certifying that petitioner's father was not in the respondent-society from 25th March, 2000 to 24th May, 2007 (the period for which the decision 7 dated 25th March, 2000 was not implemented). Be it as it may be, whether the petitioner continued because of influence of his father is concerned, that is not a ground for removing the petitioner in the impugned order. So far as contention of learned counsel for the respondent that petitioner's father was served with the charge-sheet with the allegation that he influenced the petitioner's employment by misusing of his office is concerned, a bare perusal of the decision of this Court dated 16th April, 2007 given in petitioner's father's writ petition no.403/1997 it is clear that, that was the contention of the respondent and was thereafter recorded by the court. However, this court found from the decision of this Court dated 16th April, 2007 that petitioner was not found guilty for that charges and the charge was only that petitioner's father while working as General manager of the respondent- cooperative society removed one Dhan Raj from member of the Board of Directors though it was beyond his authority. Be it as it may be, if the respondent's were of the view that the petitioner of this case was appointed in the society because of the influence of his father then also that could have been, if law permits, may have been a ground for 8 holding an inquiry against his father and if possible may have been a ground for holding inquiry against the petitioner and admittedly, no inquiry has taken place and, therefore, the consequentially, no finding has been recorded against the petitioner for obtaining the employment illegally. There is a reference of some allegation of criminal cases against the petitioner for which petitioner was convicted by the court and that fact cannot be disputed by the petitioner in view of the judgment dated 28th March, 2003 (Annex.R/4/1) and Annex.R/4/2 (though the said conviction is sub-judice) placed on record by the respondents, but it is difficult to say that petitioner has been removed from service because of his conviction by the criminal court and during pendnecy of revision petition to challenge conviction. According to learned counsel for the petitioner the petitioner has already exonerated from the charge of embezzlement departmentally in department inquiry vidd order dated 29th Sept., 2008, copy of which has been placed on record as Annex.RJ/2. There is further allegation that petitioner remained behind bar in criminal case, but for that also, there is no reasoned order passed 9 and it is difficult to gather that petitioner has been removed from service on this count. So far as allegation of some illegal purchases etc are concerned, those facts are also if were separate then the charge levelled against the petitioner in the departmental inquiry above referred then for that admittedly, there was no departmental inquiry. It will be further worthwhile to mention here that even by order dated 24th May, 2007 the petitioner was given 3 months salary in lieu of notice and also has been given all consequential benefits. Therefore, it is not clear that whether the petitioner has been compulsorily retired from service or he has been removed from service because of holding him guilty for any misconduct. In totality of the facts of the case, the order dated 24th May, 2007 has been passed without affording opportunity of hearing to the petitioner and the order is clearly stigmatic and there is a clear violation of principles of natural justice and, therefore, cannot be sustained, hence, liable to be set aside. In view of the above, the writ petition of the petitioner is allowed. The order dated 24th May, 2007 is set aside. However, it is made clear that respondents will be free to take any action against the petitioner afresh in accordance 10 with law on the basis of any of the grounds referred above or mentioned in the order dated 24th May, 2007 and none of the observations made by this Court in this order be taken as if finding in favour of the petitioner or against the petitioners. [PRAKASH TATIA], J. cpgoyal/-