| SooperKanoon Citation | sooperkanoon.com/1115930 |
| Court | Himachal Pradesh High Court |
| Decided On | Sep-27-2012 |
| Case Number | CWP No.: 2514 of 2012-B |
| Judge | DHARAM CHAND CHAUDHARY |
| Appellant | Dharmender Kumar |
| Respondent | State of Himachal Pradesh Through Principal Secretary and Others |
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]oral: dharam chand chaudhary, j. by means of the present writ petition, following reliefs have been claimed: âi) that impugned communication dated 20.10.2011 may kindly be quashed and set aside. ii) that contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue. 1 whether the reporters of local papers may be allowed to see the judgment? yes. iii) that the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â 2. the factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Oral:
Dharam Chand Chaudhary, J.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
By means of the present writ petition, following reliefs have been claimed:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p style="text-align: justify;">Oral:<p style="text-align: justify;"> Dharam Chand Chaudhary, J.</p><p style="text-align: justify;"> By means of the present writ petition, following reliefs have been claimed:</p><p style="text-align: justify;"> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p style="text-align: justify;"> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p style="text-align: justify;"> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p style="text-align: justify;"> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p style="text-align: justify;"> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p style="text-align: justify;"> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p style="text-align: justify;"> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p style="text-align: justify;"> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p style="text-align: justify;"> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p style="text-align: justify;"> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p style="text-align: justify;"> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p style="text-align: justify;"> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p style="text-align: justify;"> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p style="text-align: justify;"> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p style="text-align: justify;"> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p style="text-align: justify;"> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p style="text-align: justify;"> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'dharmender-kumar-vs-principal-secretary', 'args' => array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) ) $title_for_layout = 'Dharmender Kumar Vs State of Himachal Pradesh Through Principal Secretary and Others - Citation 1115930 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1115930', 'acts' => null, 'appealno' => 'CWP No.: 2514 of 2012-B ', 'appellant' => 'Dharmender Kumar', 'authreffered' => null, 'casename' => 'Dharmender Kumar Vs. State of Himachal Pradesh Through Principal Secretary and Others', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Himachal Pradesh', 'court_type' => 'HC', 'decidedon' => '2012-09-27', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'DHARAM CHAND CHAUDHARY', 'judgement' => '<p>Oral:<p> Dharam Chand Chaudhary, J.</p><p> By means of the present writ petition, following reliefs have been claimed:</p><p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.</p><p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.</p><p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.</p><p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â</p><p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.</p><p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.</p><p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.</p><p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.</p><p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.</p><p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.</p><p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-</p><p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â</p><p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.</p><p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.</p><p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.</p><p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.</p><p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'State of Himachal Pradesh Through Principal Secretary and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'dharmender-kumar-vs-principal-secretary' $args = array( (int) 0 => '1115930', (int) 1 => 'dharmender-kumar-vs-principal-secretary' ) $url = 'https://sooperkanoon.com/case/amp/1115930/dharmender-kumar-vs-principal-secretary' $ctype = ' High Court' $content = array( (int) 0 => '<p>Oral:<p> Dharam Chand Chaudhary, J.', (int) 1 => '<p> By means of the present writ petition, following reliefs have been claimed:', (int) 2 => '<p> âi) That impugned communication dated 20.10.2011 may kindly be quashed and set aside.', (int) 3 => '<p> ii) That contract of the petitioner may kindly be renewed as the post is still lying vacant as other similar situated persons have been allowed to continue.', (int) 4 => '<p> 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.', (int) 5 => '<p> iii) That the respondents may be directed that after re-engaging the petitioner, he may be given all consequential benefits.â', (int) 6 => '<p> 2. The factual position as emerges from the perusal of the record is that the petitioner was appointed as driver on contract basis in the year 2003 in the office of 3rd respondent initially for a period of one year renewed subsequently on year to year basis. He was deputed with the vehicle attached to the office of Chief Medical Officer, Haroli, District Una. On 16/17.10.2006, a criminal case under Section 307 and 308, IPC read with Section 25 and 27 of the Arms Act was registered against the petitioner vide FIR No.217/6 in Police Station, Haroli. Since he was arrested by the police in that case, his services were terminated by the respondents-State. The petitioner was tried in the Court of learned Additional Sessions Judge (Fast Track Court) Una in the said criminal case. However, vide judgment dated 30.5.2009 (Anneuxre P/1), the petitioner was acquitted from the charge levelled against him. No appeal was preferred against the aforesaid judgment, Annexure P/1 in this Court. As per settled legal principles, on acquittal from the charge levelled against the petitioner, he was entitled to be reinstated as driver.', (int) 7 => '<p> 3. Against termination of his services, he filed Original Application No.3667 of 2006 in the erstwhile Himachal Pradesh Administrative Tribunal which was disposed of vide judgment dated 4.1.2008 with the direction to release the due and admissible amount payable to him. Since this judgment of the learned erstwhile Tribunal was not complied with by the respondents, on abolition of the Administrative Tribunal, the petitioner filed Contempt Petition in this Court which was registered as COPC No.6/2009. Since the amount due and payable to the petitioner was disbursed during the pendency of the contempt petition, therefore, a coordinate Bench of this Court disposed of the contempt petition vide order dated 31.7.2009. As it was further urged by learned counsel for the petitioner that the post against which the petitioner was appointed as driver on contract basis is still lying vacant and irrespective of his being acquitted from the charge, he has not been re-instated, learned Single Judge observed that the petitioner may approach the respondents by filing an appropriate representation and that if any such representation is filed, the respondents will consider the same sympathetically in accordance with law.', (int) 8 => '<p> 4. However, the petitioner submitted the representation to the respondents and when it was not decided, he approached this Court again by filing CWP No.1259 of 2010 with a prayer to issue a direction to the respondents to renew the contract of the petitioner and release all admissible consequential benefits to him. The representation made by the petitioner pursuant to the order passed by learned Single Judge in Contempt petition No.6 of 2009 on 31.7.2009 was also annexed to the writ petition No.1259 of 2010 as Annexure P/3 and as the representation of the petitioner was pending consideration before the respondents, therefore, the writ petition was disposed of by a Division Bench of this Court on 6.4.2010, vide judgment Annexure P/2 with a direction to the 2nd respondent to consider the representation with notice to the petitioner and pass appropriate orders in accordance with law within a period of two months from the date of production of a copy of this judgment by the petitioner.', (int) 9 => '<p> 5. However, when this order was also not complied with, the petitioner filed contempt petition No.381 of 2011. During the pendency of the contempt proceedings, a letter/order dated 20.10.2011, annexure P/5 was placed on record by the respondents-State. In view of this order, the contempt petition was disposed of with liberty reserved to the petitioner to challenge the same in appropriate proceedings. This has led in filing the present writ petition.', (int) 10 => '<p> 5. It has been claimed that pursuant to the judgment dated 6.4.2010, Annexure P/2 of this Court passed in earlier writ petition bearing registration No.1259 of 2010, the case of the petitioner for re-instatement as driver was recommended by the 2nd respondent to the 1st respondent. Reliance in this behalf has been placed on the letters Annexure P/3 and P/6. It has been contended that the first respondent instead of according approval has rejected the case of the petitioner on altogether different ground that he used the official vehicle unauthorisedly for commission of offence on 16.10.2006 vide order dated 20.10.2011, Annexure P/5. It has further been claimed that his co-accused Varinder Singh working as Patwari was re-instated after the judgment dated 30.5.2009 passed by the learned Additional Sessions Judge (Fast Track Court), Una, Annexure P/1. The action on the part of the respondents in not reinstating the petitioner as driver has led in filing the present petition.', (int) 11 => '<p> 6. The defence of the respondents as emerges from the reply, in a nutshell, is that the contract of the petitioner was not renewed by the respondents after the year 2007 and he has no right to be reinstated as a driver. Furthermore, the vacancy of driver in the office of third respondent had to be treated fresh and can only be filled up as per proper procedure and with the approval of the competent authority. The petitioner was found to have used the official vehicle for the commission of the offence on 16.10.2006 unauthorisedly and as such, he being not a fit person cannot be reinstated. The impugned order dated 20.11.2011, Annexure P/5 in this writ petition is stated to be absolutely correct and valid.', (int) 12 => '<p> 7. The petitioner has placed on record Annexure P/7 dated 1.8.2012, the information obtained under Right to Information Act to show that in the office of third respondent, there exists six vacant posts of drivers. After perusing the record and taking into consideration the rival contentions of both the parties, I find that the present case is a case of violation of the principles of natural justice and discriminatory treatment having been meted out to the petitioner. As a matter of fact, the record of Contempt Petition No.6 of 2009 reveals that the plea of the respondents qua the petitioner having taken the official vehicle on 16.10.2006 without seeking the permission of his superiors to village Badera, his native place and used the same for the commission of offence raised in reply to the writ petition is not available to them for the reason that similar plea having been raised in reply to O.A No.3667 of 2006 also was appropriately dealt with by the erstwhile Administrative Tribunal in its judgment dated 30.5.2009 , Annexure P/1 and thereafter, observed as follows:-', (int) 13 => '<p> âThe respondents have not even conducted inquiry about alleged misuse of the Government vehicle by the applicant by, taking away the same unauthorisedly on his own from the premises of the CHC, Haroli with the purpose to commit an offence at his native place Badehra. It is settled law that mere lodging of an FIR against an employee cannot be taken to be conclusive proof of his alleged misconduct, as such, person is presumed to be innocent unless held guilty by a court of law.â', (int) 14 => '<p> 8. Not only this, but the petitioner was also acquitted of the charges framed against him in the criminal case by the competent Court. Even if the petitioner has used the official vehicle unauthorisedly on 16.10.2006 and this fact was in the notice of respondents, it is not understandable as to what prevented them from conducting an inquiry in this behalf as is observed by the erstwhile Administrative Tribunal also. Without holding an inquiry, respondents are not at all justified in taking the stand that the petitioner had used the official vehicle unauthorisedly and as such he is not entitled to be reinstated as driver. Otherwise also the letters Annexure P/3 and P/6 addressed by the second respondent to first respondent amply demonstrate that a conscious decision was taken qua the reinstatement of the petitioner as driver against the post lying vacant and thereby formal approval was sought in this behalf from the first respondent. As is apparent from the letter annexure P/3, the first respondent has principally agreed for the reinstatement of the petitioner. Not only this, but as per the report sought by the second respondent from the office of the third respondent regarding the work and conduct of the petitioner, it finds recorded therein that the same always remained praiseworthy. Surprisingly enough, the first respondent while dealing with annexure P/3 and P/6 has ignored all these aspects and refused to accord the approval qua the reinstatement of the petitioner on altogether different issue that he used the government vehicle on 16.10.2006 at his own and without the permission of the competent authority which as a matter of fact was raised for the first time in reply to the Original Application and dealt with appropriately by the erstwhile Administrative Tribunal in its judgment rendered in OA No.3667 of 2006.', (int) 15 => '<p> 9. The plea that the contract between the petitioner and respondents came to an end on 23.10.2007 is also not available to the respondents because during this period, the petitioner was facing criminal trial and he otherwise was not entitled to be reinstated during the pendency thereof. In the changed circumstances, when the petitioner has been acquitted in that case by a competent court, he is entitled to be reinstated as driver on contract basis as has already been held in this judgment supra.', (int) 16 => '<p> 10. This is not a case of fresh appointment of the petitioner because he had to remain away from his employment/job on account of the disability he sustained due to the registration of a criminal case against him. The stand of the respondents that irrespective of vacancy available, the same is required to be filled up as per the procedure and after obtaining the approval of the competent authority and that the petitioner cannot be reinstated against the same is also without any substance. The petitioner has been paid wages upto 23.10.2007 and thereafter, till the conclusion of the trial, neither he was in job nor has he claimed his reinstatement retrospectively. It is only after his acquittal, he pursued his remedy qua his reinstatement as driver on contract basis. He is entitled to be reinstated and the rejection of his claim in this behalf on the grounds as raised in the impugned order annexure P/5 is not legally sustainable. The impugned order annexure P/5 dated 20.10.2011 is thus hereby quashed. The learned counsel representing the petitioner has very fairly restricted the relief sought to the extent of reinstatement of the petitioner without back wages.', (int) 17 => '<p> 11. In view of the above observations, the writ petition succeeds and the same is accordingly allowed. Consequently the impugned order annexure P/5 dated 20.10.2011 is quashed. There will be a direction to the respondents No.1 and 2 to reinstate the petitioner as driver in the office of the third respondent within a period of one month from the date of production of a copy of this judgment before the second respondent. However, the respondents are at liberty to conduct an enquiry if still feel that the official vehicle was unauthorisedly used by the petitioner at his own on 16.10.2006 and without the permission of his officer-in-charge. The petitioner though is not entitled to back wages but the period during which he remained out of job shall be counted towards seniority and grant of pensionary benefits etc.', (int) 18 => '<p> 12. The writ petition is disposed of in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. No order as to costs.', (int) 19 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 20 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109