Sunday 5 May 2013

Uttar Pradesh: RTI helped in getting family pension/benefits

"RTI helped in getting family pension/benefits"

It is submitted that no date, time and
place was fixed for holding enquiry and the father of the petitioners was never
given any opportunity nor the termination order has ever been communicated
to the father of the petitioners, which has been communicated to the
petitioners on 8.6.2011 under the Right to Information Act. It is also
submitted that had it been supplied to the father of the petitioners, then the
same would have been challenged by him. The petitioners' father expired in
2004 and according to his date of birth, he would have retired in 1998. Father
of the petitioners was waiting for the decision of the trial of the criminal trial
and he was also under the impression that as and when the trial is decided, the
disciplinary proceedings would be undertaken against him.



Counsel for the petitioners has argued that principles of natural justice were
not followed and the father of the petitioners was not given any opportunity of
hearing before terminating his services. The aforesaid contention has been
denied in the counter affidavit by saying that no record with respect to the
disciplinary proceedings of the father of the petitioners is available with the
opposite parties. Therefore, at the moment the stand of the opposite parties is
that enquiry was held in accordance with law and the principles of natural
justice were followed, but the termination order goes to indicate that no such
enquiry was held and neither any opportunity was given to the father of the
petitioners nor there is any such finding in the impugned order. It has only
been said that in accordance with Resolution No.5 of the Managing
Committee, the services of the father of the petitioners were terminated. In
absence of any documents with the opposite parties, who are custodian of the
record, an adverse inference has to be drawn against them. The trial was
pending against the father of the petitioners since 1979 and the same has not
been decided and the services of the father of the petitioners were terminated
on 31.12.1981. If the order would have been communicated to the father of
the petitioners, then the same would have been put to challenge by him. It
appears that the said order was never supplied to the father of the petitioners
and in absence of which, the same could not be challenged. The impugned
order, which has been supplied to the petitioners under the Right to
Information Act, also does not indicate that this order is an original order,
which was passed against the father of the petitioners. The said order is in the
form of information and in absence of any original order on record, it has to
be presumed that principles of natural justice were violated and they were not
followed and the termination order was passed against the father of the
petitioners. The trial had abated and there is no conviction of the petitioners'
father and he expired in 2004. Thereafter, the petitioners started searching for
relevant documents and information from the opposite parties and they also
made a representation for release of retiral dues of their father. The retiral
dues were not released, so they filed writ petition and pursuant to the direction 
of this Court the representation of the petitioners was considered and rejected
by the opposite parties by means of order dated 11.4.2012. Since the trial had
abated, therefore, the validity of the termination order has to be looked by this
Court. On the face of it, the record reveals that service of the father of the
petitioners were terminated in utter defiance of the principles of natural
justice. The termination order, therefore, is illegal and cannot be sustained in
law.

Writ petition is accordingly allowed and the orders dated 8.6.2011 and
31.12.1981 are hereby quashed. Opposite parties are directed to release the
suspension allowance of the father of the petitioner up till 31.12.1981 and
after 31.12.1981 the petitioner would be entitled to 25% of the back wages
upto 1998, i,e, the date of retirement of the father of the petitioner. It is
alleged that certain rent is outstanding against the petitioner. In case any rent
is outstanding against the father of the petitioner, the same shall be adjusted
towards the payment, which is to be made to the petitioner and thereafter the
petitioner will vacate the premises in question within fifteen days after
payment. The question of payment of CPF will be examined by the opposite
parties and a decision may be taken in that regard at the earliest and the
security fee amounting to Rs.602.42/- along with interest, if any, shall also be
released by the opposite parties.

Judgment;Court No. - 22
Case :- SERVICE SINGLE No. - 8855 of 2011
Petitioner :- Naseem Ahmad & Ors.
Respondent :- Kheri-Pilibhit Upniveshan Sahkari Sangh Ltd. & Ors.
Petitioner Counsel :- A.P. Singh
Respondent Counsel :- C.S.C.,K.S.Pawar,Rakesh Kumar,S. Pawar
Hon'ble Satyendra Singh Chauhan, J.
Through this petition, the petitioners have challenged the orders dated
8.6.2011 and 31.12.1981, which have been supplied to the petitioner through
the Right to Information Act.
The facts, in nut shell, are that father of the petitioners was initially employed
as Seasonal Cane Clerk in 1957 and thereafter he was promoted to the post of
Cane Clerk. On 2.4.1966 the father of the petitioners was again promoted to
the post of Accountant-cum-Head Clerk. Thereafter, in March, 1979, he was
placed under suspension and an FIR was lodged at Case Crime No.20 of 1979
under Sections 409/420 IPC. The trial remain pending and the father of the
petitioners died on 1.12.2004, as a consequence thereof, the criminal trial
pending against him was abated. After the death of the father of the
petitioners, the petitioners moved a representation to the opposite parties for
releasing the retiral dues of their father in the form of Gratuity, suspension
allowance and CPF. The said representation was decided by means of order
dated 11.4.2012 and it was said that the petitioners were not entitled for leave
encashment, Gratuity and CPF. The petitioners also moved an application
under the Right to Information Act on 8.6.2011 and they were informed that
services of thier father were terminated vide order dated 31.12.1981. The
aforesaid orders have been put to challenge in this petition.
Submission of counsel for the petitioners is that before terminating the
services of the father of the petitioners, no enquiry as contemplated under law
was held and the principles of natural justice were violated as before
terminating his services, no opportunity of hearing was given to him. He
further submits that the charges levelled in the criminal case as well as in the
departmental proceedings are more or less the same and, therefore, the
opposite parties ought to have waited for the decision of the criminal trial
instead of deciding the disciplinary proceedings and thereby terminating the
services of the father of the petitioners. It is submitted that no date, time and
place was fixed for holding enquiry and the father of the petitioners was never
given any opportunity nor the termination order has ever been communicated
to the father of the petitioners, which has been communicated to the
petitioners on 8.6.2011 under the Right to Information Act. It is also
submitted that had it been supplied to the father of the petitioners, then the
same would have been challenged by him. The petitioners' father expired in
2004 and according to his date of birth, he would have retired in 1998. Father
of the petitioners was waiting for the decision of the trial of the criminal trial
and he was also under the impression that as and when the trial is decided, the
disciplinary proceedings would be undertaken against him.
Counsel for the opposite parties has filed counter affidavit, in which it hasbeen stated that representation of the petitioners was decided by means of
order dated 11.4.2012 and the opposite parties came to the conclusion that
leave encashment, Gratuity and CPF was not available to the petitioners, but
no record was available with the opposite parties with respect to disciplinary
proceedings of the father of the petitioners. Whatever information furnished to
the petitioners, was only available with the opposite parties that services of
their father were terminated on 31.12.1981. It has also been stated that
petitioners are not entitled for Gratuity nor they are entitled for CPF as there
are less than ten employees in the society. Therefore, the provisions of the
Payment of Gratuity Act are not applicable. Apart from it, it has also been
submitted that there is no provision for payment of CPF as there is no
contribution on behalf of the father of the petitioners as provided under Rules
201 to 204 of the U.P. Cooperative Societies Rules, 1968. It is submitted that
the termination order was passed during the pendency of the criminal trial as
there was a charge of embezzlement against the father of the petitioners and
thereafter his services were terminated.
I have heard counsel for the parties and perused the record,
The validity of the termination order has been put to challenge by way of this
petition. 
Counsel for the petitioners has argued that principles of natural justice were
not followed and the father of the petitioners was not given any opportunity of
hearing before terminating his services. The aforesaid contention has been
denied in the counter affidavit by saying that no record with respect to the
disciplinary proceedings of the father of the petitioners is available with the
opposite parties. Therefore, at the moment the stand of the opposite parties is
that enquiry was held in accordance with law and the principles of natural
justice were followed, but the termination order goes to indicate that no such
enquiry was held and neither any opportunity was given to the father of the
petitioners nor there is any such finding in the impugned order. It has only
been said that in accordance with Resolution No.5 of the Managing
Committee, the services of the father of the petitioners were terminated. In
absence of any documents with the opposite parties, who are custodian of the
record, an adverse inference has to be drawn against them. The trial was
pending against the father of the petitioners since 1979 and the same has not
been decided and the services of the father of the petitioners were terminated
on 31.12.1981. If the order would have been communicated to the father of
the petitioners, then the same would have been put to challenge by him. It
appears that the said order was never supplied to the father of the petitioners
and in absence of which, the same could not be challenged. The impugned
order, which has been supplied to the petitioners under the Right to
Information Act, also does not indicate that this order is an original order,
which was passed against the father of the petitioners. The said order is in the
form of information and in absence of any original order on record, it has to
be presumed that principles of natural justice were violated and they were not
followed and the termination order was passed against the father of the
petitioners. The trial had abated and there is no conviction of the petitioners'
father and he expired in 2004. Thereafter, the petitioners started searching for
relevant documents and information from the opposite parties and they also
made a representation for release of retiral dues of their father. The retiral
dues were not released, so they filed writ petition and pursuant to the directionof this Court the representation of the petitioners was considered and rejected
by the opposite parties by means of order dated 11.4.2012. Since the trial had
abated, therefore, the validity of the termination order has to be looked by this
Court. On the face of it, the record reveals that service of the father of the
petitioners were terminated in utter defiance of the principles of natural
justice. The termination order, therefore, is illegal and cannot be sustained in
law.
Writ petition is accordingly allowed and the orders dated 8.6.2011 and
31.12.1981 are hereby quashed. Opposite parties are directed to release the
suspension allowance of the father of the petitioner up till 31.12.1981 and
after 31.12.1981 the petitioner would be entitled to 25% of the back wages
upto 1998, i,e, the date of retirement of the father of the petitioner. It is
alleged that certain rent is outstanding against the petitioner. In case any rent
is outstanding against the father of the petitioner, the same shall be adjusted
towards the payment, which is to be made to the petitioner and thereafter the
petitioner will vacate the premises in question within fifteen days after
payment. The question of payment of CPF will be examined by the opposite
parties and a decision may be taken in that regard at the earliest and the
security fee amounting to Rs.602.42/- along with interest, if any, shall also be
released by the opposite parties.
Order Date :- 17.4.2013
Rao/-
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