F.SINGHversusD.M.

                                                   Neutral Citation No. - 2023:AHC:236160

Court No. - 10

Case :- WRIT - A No. - 21985 of 1988

Petitioner :- F.Singh
Respondent :- D.M.
Counsel for Petitioner :- Satish Kumar,Ram Raksha Yadav
Counsel for Respondent :- S.C.,Ravindra Singh

Hon'ble Kshitij Shailendra,J.

1. Heard Sri S.S. Shukla, Advocate, holding brief of Sri Ram Raksha Yadav,
learned counsel for the petitioner, Sri Deepak Chauhan, learned Additional Chief
Standing Counsel for State-respondents and perused the record.

2. The petitioner was appointed on the post of orderly/peon by an order dated
15.6.1987. His services were terminated by an order dated 13.10.1987 by referring
to the U.P. Temporary Government Servants (Termination of Service) Rules, 1975
(hereinafter referred to as the "Rules of 1975') on the ground that his services were
not required further and the same would stand terminated after expiry of one month
period from the date of service of notice.

3. The order of termination has been challenged by means of this writ petition and
vide an interim order dated 05.11.1988, the operation of the order of termination
was stayed by this Court. It is admitted between the parties that at the strength of
the interim order, the petitioner continued to work till 14.6.2022 on which date,
another order of termination was passed taking note of the proceedings of the
present writ petition including the fact that the writ petition was dismissed in the
year 2003, however, factum of dismissal was deliberately concealed by the
petitioner.

4. Learned counsel for the petitioner submits that the Rules of 1975 do not apply to
the appointment of the petitioner and, therefore, the order impugned is not
according to law. He has referred to the definition of 'temporary service' contained
under Rule 2 and submits that "temporary service" means officiating or substantive
service on a temporary post, or officiating service on a permanent post under the
Uttar Pradesh Government and by referring to letter of appointment, he submits
that for the purpose of filling up vacancy, the petitioner was appointed after the
department called for a list of candidates selected in the interview process, by the
District Employment Office, Rampur.

5. It is further contended that subsequent order of termination dated 14.6.2022 was
passed without providing any opportunity of hearing to the petitioner and, for the
first time, it has been annexed along with the counter affidavit filed in furtherance
of the order dated 19.7.2022 on which date, the writ petition was restored. It is
further contended that the order dated 14.6.2022 is an ante-dated order.

6. Sri Deepak Chauhan, learned Additional Chief Standing Counsel submits that
Rules of 1975 provide for termination of a temporary government servant after
giving one month notice. He has also referred to the stand taken in paragraphs 4
and 5 of the counter affidavit dated 02.8.2022 in relation to the proceedings of the
present writ petition and submits that the petitioner continued to work in the
department despite dismissal of the writ petition and vacation of the interim order.

7. Having heard learned counsel for the parties, following facts require mention:-

(a) The order of termination was passed on 13.10.1988;

(b) in pursuance of an interim order dated 05.11.1988, the petitioner continued to
work till 14.6.2022 i.e. for a period of about 35 years;

(c) the writ petition was dismissed for want of prosecution on 08.12.2003;

(d) an application seeking recall of the order was filed on behalf of the petitioner on
31.03.2006;

(e) The said application was supported by an affidavit of the petitioner Fakir Chand
himself therefore, at least this much is apparent that the petitioner had knowledge
of dismissal of the writ petition and vacation of the interim order since March,
2006.

8. Though this Court allowed the restoration application on 19.7.2022, it issued a
direction to the respondents to explain as to how the petitioner was allowed to work
till date despite the writ petition was dismissed in 2003 and the interim order was
also vacated.

9. A counter affidavit has been filed on 02.8.2022 in which it has been stated that
vide a letter dated 27.5.2022, the petitioner was asked to submit current status of
the stay order as the file of the petitioner was put up by the concerned officials for
the purposes of ascertaining retiral dues. It is further contended that when the
petitioner did not submit any response to the notice, the status of the case was
checked up and it came to the notice that the petition was dismissed in default in
2003 and the recall application was filed on 31.3.2006 and, therefore, according to
the respondents, the petitioner, despite being fully aware of the dismissal of the writ
petition, deliberately concealed the said fact and continued in service till passing of
an order dated 14.6.2022, vide which, taking into consideration the admitted
position on record, his services were terminated.

10. The aforesaid position of fact has not been disputed by learned counsel for the
petitioner, however, he sticks to his stand that the respondents have misinterpreted
the nature of services rendered by the petitioner and, therefore, the initial order
impugned as well as the subsequent order of termination should be set aside.

11. It is well settled that the writ jurisdiction, being extraordinary and discretionary,
the conduct of a litigant is of much significance. Once this Court is satisfied that
the petitioner was having full knowledge about the dismissal of the writ petition in
2003 as restoration was filed in 2006, the explanation furnished by the State in
terms of the order dated 19.7.2022 has substance.

12. The Court also takes notice of section 106 of Evidence Act, 1872 which
provides that when any fact is especially within the knowledge of any person, the
                   burden of proving that fact is upon him. Further, section 114, Illustration (g) of
                   Evidence Act also needs a reference which provides that the Court may presume
                   the evidence which could be and is not produced would, if produced, be
                   unfavourable to the person who withholds it.

                   13. In view of the above provisions of the Evidence Act, the Court is satisfied that
                   the petitioner deliberately did not inform the department about the dismissal of the
                   writ petition despite having knowledge of the said fact and, as such, withholding of
                   material evidence, particularly, the order of dismissal persuades this Court to
                   observe that adverse inference is bound to be drawn against the petitioner.

                   14. Even accepting the last submission of learned counsel for the petitioner that the
                   petitioner, though had knowledge of dismissal, could not understand that he should
                   have produced the order before the authorities, it would not improve the case of the
                   petitioner as, with the dismissal of the writ petition in 2003, the status of the
                   petitioner would be as that of a "terminated servant" but he enjoyed the status of a
                   confirmed servant and reaped all service benefits for a period of 35 years.

                   15. Though learned counsel for the petitioner submits that petitioner has attained
                   the age of superannuation on 31.12.2022, his salary was not paid after 14.6.2022 in
                   view of the second termination order and that the petitioner received salary up to
                   June, 2022, in the totality of facts and circumstances of the case, the Court is not
                   inclined to set aside the orders of termination but at the same time, considering the
                   old age of the petitioner and the fact that he has retired from service, the Court is
                   not inclined to direct recovery of any amount of salary already received by the
                   petitioner. However, at the same time, considering the aforesaid conduct of the
                   petitioner which in itself is a misconduct, the petitioner is held not entitled to any
                   salary after 14.6.2022 or the post-retiral benefits.

                   16. Writ petition is dismissed.

                      Order Date :- 12.12.2023
Digitally signed by :-Madhurima
MADHURIMA GARG
High Court of Judicature at Allahabad