# Jai Shanker Mishra v. State of U.P. and others

- **Citation:** (2001) 2 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-03-24
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-shanker-mishra-v-state-of-u-p-and-others-39807
- **Pages:** 3

## Text

2All] Jai Shanker Mishra V. State of U.P. and others

130
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By the Court

1. Heard Sri Siddarth Srivastava,
learned counsel for the Petitioner, Sri
R.K. Tewari, learned counsel for the
Respondent and perused the record.

2. Jai Shanker Mishra (petitioner)
filed this petition under Article 226,
Constitution of India in March,1998 after
serving a copy this petition, as required
under Rules of Court in the office of
Chief Standing Counsel.

3. No Counter Affidavit has been
filed in spite of opportunity to the
respondent.

4. Perusal of the order passed by the
concerned Government authority dated
18th March, 1998 shows that petitioner
was restrained from discharging his duties
on
the
allegation
that
some
First
Information Report (no details given) was
lodged against him on the ground of
obtaining initial appointment with the
help of alleged forged document (no
details given). In pursuance, thereof,
impugned order dated 24th March, 1998
(Annexure-1 to the Writ Petition) has
been consequently issued by Prabhari
Chikitsa
Adhikari/Medical
Officer,
Rajkiya Homeopathic Chikitsylay Kathari
Maharajganj
on
the
ground
that
appointment
of
the
petitioner
was
suspicious and he was not an employee of
the Department.

5. Earlier Petitioner was asked not to
discharge his duties till conclusion of an
alleged enquiry on the allegation of his
appointment
being
doubtful.
This
compelled him to file writ petition no.
11917 of 1993 (Jai Shankar Mishra
Versus State of U.P. and others). In the
said petition an interim order was passed,
which reads:-
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

131
"It is decided that the respondent
shall
decide
and
dispose
of
the
representation of the petitioner dated
01.02.1993 pending before the respondent
no. 2 within two months from the date a
copy of this order is presented before him.
The petitioner is entitled to salary and
employment admissible to him under
Rules be paid regularly meanwhile."

6. Petitioner contends that in
pursuance of the said interim order his
salary was paid initially till August 1997
but it was stopped arbitrarily and illegally.
There is no explanation as to why the
respondents did not approach in the
earlier writ petition for modifying interim
order.
Respondents
thus
acted
in
Contempt and their conduct was nothing
short of an attempt to over reach interim
order in that case. This is not having been
done an action of the respondents in
stopping the salary and the impugned
orders
cannot
be
justified,
which
obviously suffer from malice on record.

7. Petitioner as raised grievance for
non-payment of salary by filing several
representations (Annexure Nos. 7,8 and 9
to the writ petition). There being no
respite, he was constrained to file petition
in March,1998.

8. As noted above, no Counter
Affidavit
has
been
filed
by
the
Respondents
and
learned
Standing
Counsel is not in a position to assist the
court and inform the court as to what has
been the fate of the enquiry/proceedings
initiated on the basis of First Information
report - referred to in the impugned order
dated 18th March, 1998 (Annexure-2 to
the Writ Petition),

9. Petitioner has stated in Para 3 of
the writ petition that the impugned orders
dated 24.03.1998 and 18.03.1998 were
passed illegally and arbitrarily without
giving proper opportunity of hearing.
From the documents annexed with the
petition, particularly the impugned orders
(Annexure-1 and 2 to the Writ Petition), it
is apparent that petitioner was given no
opportunity before aforesaid orders were
passed. More than two years have
elapsed.

10. I sent for the file of above
mentioned writ petition no. 11917 of
1993, Jai Shankar Mishra versus State of
U.P. and others. The record, placed before
the court today, of the said petition shows
that no Counter Affidavit has been filed
on behalf of the respondents. This petition
is also decided along with this petition.

11. Learned counsel for the Parties
(in both the petitions) are present and
agree to it. With their consent both the
petitions are finally decided. No doubt, it
is a serious matter and Court cannot
ignore that an employee, who has
obtained appointment on the basis of
fraud
by
manufacturing
or
forging/fabricated documents should be
dealt severely, he deserves no leniency
and in no case entitled to relief by
invoking
this
Court
extra-ordinary
discretionary jurisdiction under Article
226, Constitution of India.

12. But at the same time, a person
should not be allowed to be irreparably
injured compelling him to starve by
forestalling hearing of the case merely
because respondents do not choose to file
their reply.
2All] Bekaru V. Shri Shiv Murat and others

132
13. Perusal of the impugned order
dated 18th March 1998 (Annexure-2 to the
Writ Petition) does not refer to any
'Particular
document'
or
'Act'
in
connection with the appointment the
petitioner, which have been alleged to be
fabricated or forged. Even if the First
Information Report was lodged, the
petitioner could not be thrown out of job
unless he was made to face disciplinary
enquiry as may be contemplated under
law and finally after opportunity being
afforded his services terminated. Asking a
Government employee not to discharge
his duty and throw him on the street, in
not warranted under law.

14. In view of the above, the
impugned orders dated 24.03.1998 and
18.03.1998 (Annexure-1 and 2 to the Writ
Petition) cannot be sustained and liable to
be quashed.

15. Consequently, the aforesaid
impugned orders are hereby quashed and
directions are issued to the respondents to
allow the petitioners to join duties on his
post, pay future salary month by month in
accordance with law alongwith other staff
and arrears of salary as may be found due
to him, within two months.

16. It is made clear that this
judgement
does
not
preclude
the
respondents from taking suitable action,
in
accordance
with
law
and
hold
disciplinary
enquiry
as
may
be
permissible and warranted in the facts of
the case.

17. Writ Petition stands allowed
subject to direction and observation made
above.

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