3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others 591

ORIGINAL JURISDICTION available, petitioner ought to have been CIVIL SIDE allowed to join the post and paid her DATED: ALLAHABAD 04.08.2003 salary against the same. No objection in law could be taken to it. No one, except BEFORE the petitioner, could be allowed to join THE HON'BLE A.K. YOG, J. the said permanent post. Anybody, if THE HON'BLE UMESHWAR PANDEY, J. manipulated to have joined said post, the same is illegal & void.

Civil Misc. Writ Petition No.11804 of 1991 Constitution of India Article 226-Service- petitioner a Lecturer claiming senior Dr. (Smt.) Shashi Bala Srivastava scale and consequential benefits and …Petitioner privileges-on basis of-notional- Versus functioning-such period, held, to be State of U.P. and others …Respondents counted for purposes of computing seniority, higher scale, annual Counsel for the Petitioner: increments, post retrial benefits etc.-but Sri U.S.M. Tripathi not for any monetary-benefits. Sri P.C. Srivastava Held- Para 28 Sri Shailendra Sri S.L. Yadav We also issue a writ, in the nature of mandamus directing the respondents,

officers, authorities etc. to treat the Counsel for the Respondents: petitioner as deemed appointed with Sri A.K. Mishra effect from 11.12.1981 till defac to S.C. joining the institution on the basis of her appointment letter dated 16.1.1990 Constitution of India Article 226-Service- (Annexure-12 to the Writ Petition Appointment-as Lecturer-on single No.16275 of 1999) and accord all permanent post-petitioners name at consequential benefits and privileges, serial no. 1 in Select List- endorsed by except monetary payments, for the Committee of Management-and period she is notionally treated to be approved by the Vice Chancellor-only working with effect from 11.2.1981 and petitioner could be allowed to join- continue to pay salary along with all joining of any other person illegal and allowances, increments etc. as may be void. available time to time for the period petitioner has defacto worked on the Held-Para 18 basis of joining in pursuance to the appointment letter dated 16.1.1990. It is It is well settled that once Selection made clear that the petitioner will not be Committee recommendation, endorsed entitled to any monetary benefits for the by the Committee of Management, was period she is notionally working. Her approved by the Vice Chancellor, nothing notional functioning in the institution remained in substantive law to with effect from 11.12.1981 is for the accomplish factum of Appointment, purposes of computing seniority, higher except formality of issuing appointment scale, annual increments, post retiral letter-a ministerial act on the part of the benefits etc. Committee of Management. The Committee of Management had no (Delivered by Hon'ble A.K. Yog, J.) authority whatsoever to decline or to h refuse to appoint the petitioner. 1. Dr. (Smt.) Shashi Bala/petitioner Petitioner being at serial no.1 and one represented by Sri Shailendra, Advocate; t permanent post of lecturer being tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 592 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

State of U.P., Director of Education “3. That a Selection Committee was duly (H.E.) and District Inspector of Schools, constituted which made unanimous Deoria, Respondents no.1, 2 & 3 recommendation on 8.9.1981 for the represented by Standing Counsel; appointment of three Lecturers in the Committee of Management Madan order of priority as under :- Mohan Malviya Post Graduate Degree College, Respondent no.4, represented by (i) Dr. (Smt.) Shashi Bala Srivastava, Sri A.K. Mishra, Advocate. (ii) Mr. Alok Mani Tripathi, (iii) Mr. Surendra Nath Singh, 2. Both the writ petitions, noted (iv) Dr. Amar Nath Tripathi, above, are being heard together since they (v) Mr. Prem Kumar Mishra.” emerge from common facts and a dispute between the same parties. “4. That it is clear that the petitioner Dr. (Smt.) Shashi Bala Srivastava was placed Madan Mohan Malviya Post at Serial No.1 in the priority list Graduate Degree College, Bhatpar Rani, recommended by the Selection District Deoria, is an affiliated College of Committee.” Gorakhpur University, governed by the provisions of U.P. State Universities Act, Committee of Management of the College 1973, called- ‘Act 1973’, First Statute, forwarded relevant papers to the Ordinances and Regulations of the University for seeking approval of the University framed under Act, 1973 and Vice Chancellor. U.P. Higher Education Service Commission Act and Rules framed 4. Vice Chancellor of the University, thereunder. Subject of Ancient History accorded approval, modifying the order of was initially granted, provisional preference provided by the Selection affiliation in the College for running Committee, vide order dated December 7, postgraduate classes in the said subject. 1981 (Annexure-1 to the writ petition). Consequently, in June 1981 three posts of lecturers were advertised and several 5. Vice Chancellor, while agreed candidates applied against it. Eligible with recommendation of Selection candidates, including the petitioner were Committee in favour of petitioner’s name called for interview. Selection Committee at Serial No.1; placed Sri Amar Nath on the basis of interview recommended Tripathi at Serial No.2 (instead of Serial names of five candidates in the panel for No.4). Sri Alok Mani Tripathi (who was appointment on aforesaid three posts of at Serial No.2) was brought down to lecturers. Serial No.3; Sri Surendra Nath Singh, candidate at Serial No.3 came down to 3. It is not disputed, that in the said Serial No.4 last chance being offered panel name of the petitioner, Dr. (Smt.) appointment against available three posts. Shashi Bala Srivastava was at serial No.1. 6. The petitioner pleads that in spite Para-3 & 4 of writ petition, not of all statutory essential ingredients being h controverted by any of the respondents, fulfilled for making appointment, the t read:- Management of the College illegally and tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others 593

arbitrarily withheld appointment letter; Directorate of Higher Education and she ran pillar to post and approached all requested for payment of salary in concerned authorities but to no avail. The accordance with law. Reference may be petitioner complains that Management made to the letters dated 5.9.1990 and allowed- Alok Mani Tripathi and Dr. 4.10.1990, Annexures 13 & 14 to the Amar Nath Tripathi (placed at Serial Nos. petition. 2 & 3 by the Vice Chancellor), to join the college. Surendra Nath Singh, (brought 11. The District Inspector of Schools down from Serial No.3 to Serial No.4, by vide letter dated 3.12.1990 asked the the Vice Chancellor) and the petitioner Management to submit papers and were prevented and not allowed to join relevant record (Annexure-15 to the the College. petition). The District Inspector of Schools vide letter dated 28.1.1991, 7. Surendra Nath Singh and the addressed to the Manager of the College, present petitioner filed representations (Annexure-17 to the writ petition) before Chancellor under Section 68 of Act directed the Management to take steps for 1973. The Chancellor, by means of order ensuring payment of salary. The District dated May 18, 1983, allowed petitioner’s Inspector of Schools, however, vide representation, Annexure-2 to the writ impugned order dated March 11, 1991 petition. In pursuance to the said order of (Annexure-19 to the writ petition) held the Chancellor, petitioner again filed that petitioner Dr. (Smt.) Shashi Bala representations before the Management Srivastava could not be paid salary in and the University authorities vide letters absence of a post. dated 27.6.1983, 17.8.1983, 13.2.1984, 15.6.1985, 3.9.1985 12.9.1989 and The petitioner being aggrieved, filed 2.9.1990 (Annexures 3 to 9 to the writ Writ Petition No.11804 of 1991 before petition). this Court and this Court passed an interim order dated 18.4.1991, relevant 8. The petitioner finally succeeded extract of it reads– in her long struggle when Management issued appointment letter dated January “…..The District Inspector of 16, 1990, Annexure-11 to the writ Schools, Deoria is directed to make petition. payment of salary and other dues permissible under law to the petitioner 9. The petitioner, thereafter, filed within three months from the date of representation dated 18.8.1990/Annexure- receipt of a certified copy of this order for 12 to the petition before the District the period commencing from the date Inspector of Schools for payment of when she joined the service.” salary with effect from January 16, 1990 to July 1990, Annexure-12 to the writ 13. The relevant extract of para 3 of petition. the counter affidavit has been filed on behalf of respondents 1,2 and 3 reads- 10. Again a protracted h correspondence took place. Petitioner “3. That Madan Mohan Malviya t approached higher authorities, including Post Graduate Degree College, Bhatpar tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 594 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Rani, District Deoria is aided institution not relate to District Inspector of affiliated to Gorakhpur University the Schools.” post of lecturer of ancient history was advertised by the College, the selection 14. In reply thereto the petitioner proceedings were conducted by the vide para 3 of her rejoinder affidavit institution. The name of Dr. (Smt.) Shashi asserted-“in any circumstances, Amar Bala Srivastava was recommended by the Nath Tripathi could not be allowed to be Selection Committee at Serial No.1 in the absorbed against first sanctioned post. order of priority and the name of Sri Absorption of Mr. Tripathi against the Amar Nath Tripathi was placed at serial single sanctioned post was illegal and no.2. This order of priority was also by being aggrieved against the said the Vice Chancellor, Gorakhpur petitioner field the present writ petition.” University but the Management of the institution ignoring the priority offered 15. The Committee of Management appointment to Sri Amar Nath Tripathi in para 3 of the counter affidavit, sworn whose name was recommended at serial by Sri Bhartendu Misra admits that- “as a no.2. Feeling aggrieved that Dr. (Smt.) matter of fact, the petitioner who was Shashi Bala Srivastava, the petitioner placed at serial no.1 was issued letter of approached the Chancellor of the appointment vide order No.4710 dated University. The reference was called by 9.12.1981 which was duly sent through his Excellency Chancellor and registered post to the petitioner after accordingly a direction was given to offer expiry of more than 25 days time from the appointment of Dr. (Smt.) Shashi Bala date of issuance of the letter of Srivastava. It is reported that Dr. (Smt.) appointment, when the petitioner did not Shashi Bala Srivastava has resumed work join, another order No.4732 dated with effect from 16.1.1990 since there is 3.1.1982 was sent to the petitioner only one post of lecturer of ancient intimating her that in case she failed to history sanctioned in the institution on join within a period of one week then it which one Sri Amar Nath Tripathi was will be treated that she is not interested in offered appointment and is continued to accepting the appointment and she herself be paid his salary. There is no additional will be solely responsible for it. Despite, post of lecturer of ancient history is in the the reminder issued to the petitioner, institution. In the circumstances the since she did not turn up in the institution payment of salary of Dr. (Smt.) Shashi the Committee of Management treated Bala Srivastava is not being made. Since that she is not interested in joining the one payment against one post is already post. The letter of appointment dated being made to Sri Amar Nath Tripathi 9.12.1981 and reminder letter dated and absence of any additional sanctioned 3.1.1982 are enclosed as Annexures 1 & 2 post does not lie in the power of the respectively to this counter affidavit.” District Inspector of Schools to make payment of salary under delegated power 16. Para-4 of her rejoinder affidavit, given to him by Regional Deputy Director in reply to aforequoted para-3 of the for payment of salary to the teacher of counter affidavit, reads- h degree College. Rest of the allegation do t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others 595

“4. That the contents of paragraph disputed and or at any point of time from no. 3 is denied while paras no.7 to 15 of any quarter. writ petition is reiterated while fact placed by respondent no.4, it is clear that 18. It is well settled that once authorities are playing fraud, as they are Selection Committee recommendation, making statement that they issued letter of endorsed by the Committee of appointment in favour of petitioner on Management, was approved by the Vice 9.12.1981 and on 3.1.1982 issued Chancellor, nothing remained in reminder to the petitioner providing 1 substantive law to accomplish factum of week more time for joining of the Appointment, except formality of issuing petitioner but on the same time they are appointment letter-a ministerial act on the also claiming appointment of Amar Nath part of the Committee of Management. Tripathi on 11.12.1981. Therefore, either The Committee of Management had no the claim of opposite party for issuing of authority whatsoever to decline or to letters for appointment on 9.12.1981 and refuse to appoint the petitioner. Petitioner 8.1.1982 are incorrect or claim of joining being at serial no.1 and one permanent of Amar Nath Tripathi on 11.12.1981 is post of lecturer being available, petitioner incorrect, statement is contrary to the ought to have been allowed to join the respondent Management may ask to put post and paid her salary against the same. an explanation that how both the No objection in law could be taken to it. statements are correct, otherwise No one, except the petitioner, could be averment in para under reply is allowed to join the said permanent post. misconceived and deserved to be Anybody, if manipulated to have joined rejected……” said post, the same is illegal & void.

17. The admitted position on 19. Objection raised by the District record… down to the petitioner clearly Inspector of Schools for non-payment of that the Committee of Management had salary to the petitioner on the ground of accepted decision of the Selection non-availability of a sanctioned post is Committee, and the Vice Chancellor had perverse, misconceived and against approved name of the petitioner at Serial record. No.1 in the Panel. There is no doubt that the Committee of Management is guilty 20. It is to be further noted that the of acting arbitrarily playing fraud in District Inspector of Schools passed withholding appointment letter of Dr. aforesaid order without affording (Smt.) Shashi Bala Srivastava with opportunity of hearing to the petitioner ulterior motive to give undue advantage to and thus, being in violation of principle of the candidates lower in rank. Otherwise natural justice is void and non est. also we find that after the matter was finally decided by the Chancellor, 21. Impugned order dated question of validity of appointment of the 11.3.1991, passed by District Inspector of petitioner cannot be reopened. It is also to Schools (Annexure-19 to the writ be noted that the petitioner’s name was petition) is unsustainable, and therefore, h recommended at serial no.1 which is not liable to be quashed. Writ Petition t deserves to be allowed. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 596 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

22. In the result, a writ in the nature allowing her to join and work in the of certiorari, calling for the record of the institution with effect from December case and the impugned orders dated 1981. In Para 13 of the writ petition, it is 11.3.1991, Annexures 19 & 20 to the writ pleaded that-“while on the same time they petition, and all other consequential assisted another candidate who was at orders are hereby quashed. We further serial no.2 for joining working and issue a writ in the nature of mandamus payment of salary since 11.12.1981. The commanding Respondents Nos. 1,2 and 3, petitioner was entitled to allow joining their officers, employees, etc. to ensure either with effect from 11.12.1981 or payment of salary month by month to the prior to that. As in order of merit, she was petitioner giving credit of notional annual above to Dr. Amar Nath Tripathi.” increments, revised pay scales (as may have been enforced from time to time) Again, Para 45, 46 & 47-A of the and also pay all arrears etc. in accordance writ petition read:- with law along with 12% p.m. simple interest due with effect from January’ “45. That in view of these facts and 1990 and Rs.10,000/- as costs within three circumstances this Hon’ble Court may months of receipt of certified copy of this take serious cognizance asking the Judgment and Order. management to provide all benefit to the petitioner given to preferential treatment Facts of Civil Misc. Writ Petition against the respondent no.5 and she must No.16275 of 1999: be treated working against the post got sanctioned one after approval of her 23. The petitioner was constrained appointment by the Vice Chancellor, she to file above petition claiming benefit of is entitled of the benefit in view of the senior scale on the ground of her decision of the Chancellor dated completing five years services in 1995, 18.5.1983 and even prior to that, since the which was rejected by the Principal. The approval given by the Vice Chancellor petitioner again represented the matter dated 7.12.1981 as she was not only before Committee of Management, recommended at serial no.1 but also claiming senior scale and submitted approved at the same position by the Vice reminder again on 27.4.1998. The Chancellor. Management of the institution, vide impugned order dated 9.9.1998 46. That the Committee of (Annexure-1 to the Supplementary Management is guilty of showing Affidavit, accepted today) rejected the disrespect of high degree to decision of claim of the petitioner. The petitioner also His Excellency the Chancellor, seeks quashing of the impugned order Gorakhpur University, Gorakhpur dated dated 24.2.1998 passed by the Principal of 18.5.1983. They also guilty of violating the College refusing selection grade on the order of Vice Chancellor dated the ground that petitioner’s Writ Petition 7.12.1981. They also guilty of introducing No.16275 of 1999 was pending in the unfair practice in the matter of selection Court. The petitioner has again in while providing appointment immediately h paragraphs 13 and 14 of the present to respondent no.5, only because of he is t petition, complained of illegal act of not being relative to the then Manager as well tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others 597

as to the present Manager, i.e. for 26. We are of the view that the extraneous consideration adversely petitioner should not be made to suffer for effecting the career in all respect of the no fault of her and only because of illegal petitioner. and arbitrary acts of the Manager.

47-A. That it is expedient in the 27. In the result, we issue a writ, in interest of justice and equity that this the nature of certiorari, calling for the Hon’ble Court may pass an ad-interim record of the case, and quash the order, objection the counter and impugned order dated 24.2.1998 written Management to allow selection grade and by the Manager to the College Principal promotion on the post of Reader to (Annexure 20 to the Writ Petition petitioner treated his appoint since 1981 No.11804 of 1991) and letter dated as per order of Vice Chancellor dated 9.9.1998 written by the Manager of the 7.12.1981 and order of Chancellor dated College to the petitioner (Annexure-1 to 18.5.1983 or may pass such further order the Supplementary Affidavit) are hereby this Hon’ble Court may deem fit in the quashed. circumstances of the case otherwise it will come irreparable injury to the 28. We also issue a writ, in the petitioner.” nature of mandamus directing the respondents, officers, authorities etc. to 24. The petitioner, therefore, prayed treat the petitioner as deemed appointed for writ of certiorari and also for issuing a with effect from 11.12.1981 till defacto writ of mandamus directing the joining the institution on the basis of her respondents to provide all benefits, appointment letter dated 16.1.1990 including senior scale as announced by (Annexure-12 to the Writ Petition the Government Order dated 7.1.1989 as No.16275 of 1999) and accord all also the benefit as per Government Order consequential benefits and privileges, dated 16.2.1999. except monetary payments, for the period she is notionally treated to be working 25. Learned counsel for the with effect from 11.2.1981 and continue petitioner Sri Shailendra, has made a to pay salary along with all allowances, categorical statement before us that the increments etc. as may be available time petitioner (though entitled to all benefits, to time for the period petitioner has privileges etc. treating her notionally defacto worked on the basis of joining in working on the post at least from the date pursuance to the appointment letter dated with effect from 11.12.1991, i.e., prior to 16.1.1990. It is made clear that the joining by candidates at Serial No.2 & 3) petitioner will not be entitled to any claim arrears and or monetary gain for the monetary benefits for the period she is period for which she has not defacto notionally working. Her notional discharged her duties but this Court may functioning in the institution with effect accord all other benefits and privileges from 11.12.1981 is for the purposes of treating her notionally in continuous computing seniority, higher scale, annual service with effect from 11.12.1991 increments, post retiral benefits etc. h Petitioner whose name is at Serial No.1 in t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 598 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

select list, shall be treated Senior to others ground for proceeding against the in the said select list. accuse. Impugned order quashed.

Held- pare 12 & 15 Both the Writ Petitions, details given above, stands allowed. In the case on hand, in view of the allegations made in the complaint none No order as to costs. of the ingredients are satisfied, in as ------much as, it is not alleged by the ORIGINAL JURISDICTION complainant, respondent no. 2 that he CRIMINAL SIDE had entrusted the amount in question DATED: ALLAHABAD 9.5.2003 with the petitioner or the petitioner having dominion over the said amount dishonestly misappropriated it. The BEFORE learned Magistrate without looking to THE HON’BLE R.K. DASH, J. the accusation and the statutory provision mechanically took cognizance Criminal Misc. Application No. 1191 of 1998 of the offence of criminal breach of trust which in my considered opinion is not Ms. Nina Nagpal …Applicant/Petitioner legally sustainable. Versus Judicial Magistrate-I Meerut and another Added to what has been stated above, …Opposite parties/Respondent the case may be viewed from another angle. For realisation of the amount Counsel for the Petitioner: deposited with the OTCEI, respondent Sri Kushal Kant no. 2 filed a writ petition in the Delhi Sri G.S. Chaturvedi High Court arraying petitioner as one of the respondent and admittedly, the said writ petition is pending for decision. He Counsel for the Respondents: concealed this fact while filing the Sri Ravi Kiran Jain present case. True it is, law is well Sri Ajay Rajendra settled that even if the facts give rise to A.G.A. a civil claim, yet a criminal proceeding is maintainable and both the proceedings Code of Criminal Procedure- section- can simultaneously continue. But so far 482- Circumstances under which the the present case is concerned, as stated power can be exercised- Quashing of earlier, the allegations taken in entirety criminal proceeding under article 226 or do not make out any offence, more so, under section 482 Cr. P.C. awaited well offence under Sections 406 and 420 settled by various decisions of the I.P.C. If on a reading of the complaint Supreme Court that where the ingredients of those two offences would allegation made in the F.I.R. or the have been spelt out, this Court would complaint, even if they are taken on its have been slow to interfere with the face value and accepted in their entirety impugned orders of the learned do not prima-facie constitute any offence Magistrate taking cognizance of the or make out a case against the accused; offence in exercise of inherent power. also where the allegation made in the Rather what appears is that since the F.I.R. or complaint are so absurd and writ petition is pending in the Delhi High inherently improvable on the basis of Court and no early decision could be which no prudent person can reach a obtained, respondent no. 2 adopted this h just conclusion that there is sufficient devise in initiating the criminal proceeding in order to force the t petitioner to refund back the amount. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ms. Nina Nagpal V. Judicial Magistrate-1 Meerut and another 599

Cases referred to: case of the petitioner is that respondent 2002(44) ACC 520 no. 2 agreeing to have dealership (1976) 3 SCC 736 deposited one time non-refundable 1992 Supp (1) SCC 335 admission fee in addition to rupees one lac which was deposited along with the (Delivered by Hon’ble R.K. Dash, J.) application. He also submitted an undertaking to comply with the OTCEI’s 1. Over The Counter Exchange of rules and regulations. On acceptance of India (hereinafter referred to as ‘the his dealership, the OTCEI processed the OTCEI’). New Delhi a company documents and forwarded the same to the incorporated under the Companies Act, Securities and Exchange Board of India 1956 is a recognized Stock Exchange (in short ‘the SEBI’) to register him as a within the meaning of Section 4 of the dealer. The letter however, returned the Security Contracts (Regulation) Act. It same asking the OTCEI to resubmit along has been promoted by premier with the documents with regard to age Government financial institutions like and qualification of respondent no. 2. The Unit Trust of India, Industrial OTCEI in turn vide its letter dated 11th Development Bank of India, Life March, 1996 sought the documents from Insurance Corporation of India and others. respondent no. 2 in support of his age and The OTCEI through advertisement invited experience as required by the SEBI. applications for selection of dealers with While the application of respondent no. 2 stipulation that the applicant shall meet was under consideration of the SEBI the requirement as laid down in clause (8) Respondent no. 2 addressed a letter dated of the Securities Contracts (Regulation) 22nd August, 1996 to the OTCEI stating Rules, 1957. It was further stated that the therein the he had come to know from applicant should be required to pay reliable source that he was not entitled to application fee of rupees one lakh dealership on account of his having adjustable against one time non- crossed the age of sixty five years and, refundable admission fee of rupee six therefore, the admission fee deposited by lakhs for the successful applicant. In case him be refunded to him. In response of an unsuccessful applicant, application thereto, the OTCEI informed him that fee would be refunded to him after upon acceptance of the dealership, it deduction of rupees five thousand towards processed his documents and forwarded processing fee etc. Accordingly to the SEBI for registration of his name as respondent no. 2 applied for the a dealer. But upon review of the dealership and paid application fee of documents, SEBI sought for certain rupees one lac and appeared for computer additional information with regard to his based examination and on the basis of his age and experience and in the meanwhile, performance in the examination, he was he asked for refund of admission fee and requested to appear for interview vide th therefore, the fee being non-refundable letter dated 12 June, 1995. Thereafter, the OTCEI cannot refund the same. In the the OTCEI informed him of his being above backdrop, respondent no. 2, it is selected as a dealer and requested him to alleged, moved the Delhi High Court by h comply with the formalities as mentioned filing a writ petition being civil misc. writ th t in the letter dated 24 August, 1995. The petition no. 1970 of 1997 seeking tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 600 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

issuance of a writ of mandamus for applications for dealership in different release of the fees deposited with the cities, respondent no. 2 and, therefore, the OTCEI together with compensation. former cannot be attributed with any While the said writ petition was pending criminal liability as alleged by respondent adjudication, respondent no.2 moved a no. 2. he further urged that the criminal complaint before the Judicial prosecution allegation in entirety even if Magistrate, Ist Class, Meerut arraying the taken on its face value as alleged in the petitioner and another as accused. complaint, does not make out any offence under Section 406/420 I.P.C. and in that 2. In short, the allegation of view of the matter the court, in order to respondent no. 2 is that in response to the secure ends of justice, should interfere advertisement for appointment of with the said order and quash the same in dealership, he made an application exercise of inherent power. fulfilling all the conditions. Both petitioner and the co-accused had assured 5. On facts, Sri Chaturvedi him that within three months he would get contended that the OTCEI accepted the letter of appointment of dealership. dealership application of respondent no. On their assurance he deposited huge 2, processed all the documents and amount but in fact they had no power of forwarded to the SEBI for registration, appointment of dealership on behalf of the who in turn asked for the details regarding SEBI. It is further alleged that both age and experience of respondent no. 2 petitioner and co-accused hatched a and accordingly communication was conspiracy to cheat respondent no.2 by made with Respondent no. 2 by letter making a false promise that he would be dated 11.3.1996 and he was asked for appointed as a dealer and consequently, supply of necessary documents in support defrauded him of lacs of rupees. thereof. Instead of complying the requirement, he informed the OTCEI to 3. Upon such complaint, the learned return back the deposit. In the Magistrate examinee respondent no.2 circumstances, therefore, no motive can under Section 200 Cr.P.C. and recorded be attributed either to the OTCEI or the his statement. Thereafter, by order dated petitioner and other officials in not 16th March, 1998 he took cognizance of registering him as a dealer on the OTCEI. the offence under Sections 406 and 420 Rather, from the conduct of respondent I.P.C. and issued summons to the no. 2 it appears that initially he intended petitioner and the co-accused for their to have a dealership, but subsequently he appearance. Aggrieved thereby, the changed his mind and asked for return of petitioner by filing this petition has his deposit. The plea taken by him that he prayed for quashing of the complaint as having crossed the age of 65 years was well as the summoning order. not entitled to dealership according to the Rules framed by the SEBI and that is the 4. Shri G.S. Chaturvedi, learned reason why he asked for refund of the Senior Counsel appearing for the deposit is quite false and baseless and petitioner contended that on the basis of therefore, cannot be accepted. Since the h the advertisement by the OTCEI dealership fee paid by him was non- t published in the newspapers inviting refundable, he was intimated accordingly tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ms. Nina Nagpal V. Judicial Magistrate-1 Meerut and another 601

and it was only thereafter that he, moved 7. It is well neigh settled that the the Delhi High Court by filing writ High Court in exercise of inherent power petition no. 1970 of 1997 and concealing conferred by Section 482 of the Code of this fact, he filed the criminal complaint Criminal Procedure (for short ‘Cr.P.C.’) in order to coerce the petitioner and the or extra-ordinary writ jurisdiction under OTCEI to return the non-refundable fee. Article 226 of the Constitution of India The dispute regarding return of the can quash a criminal complaint /FIR if the deposit being a civil dispute and the Delhi allegations taken in entirety do not prima- High Court having taken cognizance facie constitute any offence, or where the thereof, the present criminal proceeding is allegations are absurd and inherently not entertainable in law. improbable or the proceeding is manifestly attended with mala fide or it is 6. Shri Ravi Kiran Jain, learned instituted to wreak vengeance on the Senior Counsel assisted by Shri Ajay accused. There is, however, a note of Rajendra would urge that affidavit sworn caution that such power should be to by Sheo Kumar on behalf of the exercised sparingly and in rarest of rare petitioner in support of the writ petition cases. It needs no emphasis that Section being not in terms of the High Court 482 Cr.P.C. does not confer new power Rules, should be rejected and upon the Court. It only saves the power consequently, the writ petition being not which the Court inherently possessed. As maintainable should be dismissed. It was the section goes, inherent power can be further contended that inherent power can exercised in three circumstances; namely be sought to be exercised if there is no (i) to give effect to any order under the specific provision in the Cr.P.C. to Code; (ii) to prevent abuse of the process challenge a criminal proceeding. But in of the Court or (iii) otherwise to secure the present case the petitioner could have the ends of justice. raised the questions as are being raised here before the learned Magistrate in 8. The legislature in its wisdom has seisin of the case in view of the law laid invested inherent power with the High down by this Court in Bhopal Sugar Court, since it being superior Court will Industries Limited Vs. State of U.P. exercise the same with caution where 2002(44) ACC 520 and it was for the circumstance of the case so warrants. The Magistrate to decide whether the criminal Apex Court in R.P. Kapur (vs) State of proceeding should be allowed to continue Punjab, AIR 1960 SC 866 laid down the or not. Lastly, it was submitted that none following circumstances when the Court of the illustrations given in the celebrated in exercise of inherent power can quash judgement in the case of State of the criminal proceeding: Haryana Vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 apply to the case “(i) where it manifestly appears that there on hand and, therefore, the criminal is legal bar against the institution or complaint filed by respondent no. 2 continuance of a criminal proceeding for should be allowed to be decided on merit want of sanction; by the trial court. (ii) where the allegations in the first h information report or the complaint, even t if they are taken at their face value and tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 602 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

accepted in their entirety, do not is asked to be quashed, the test to be constitute the offence alleged and applied by the Court is as to whether the (iii) where the allegations constitute an uncontroverted allegations as made prima offence but there is no legal evidence facie establish the offence. It is also for adduced or the evidence adduced clearly the Court to take into consideration any or manifestly fails to prove the charge.” special features which appear in a particular case to consider whether it is 9. Further reference may be made expedient and in the interest of justice to also to the observation made n Nagawwa permit a prosecution to continue. This is vs. Veeranna Shivalingappa Konjalgi; so on the basis that the Court cannot be (1976) 3 SCC 736 where the Apex Court utilized for any oblique purpose and held that a criminal proceeding can be where in the opinion of the Court chances quashed in the following circumstances : of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be “1. where the allegations made in served by allowing a criminal prosecution the complaint or the statements of the to continue, the Court may while taking witnesses recorded in support of the same into consideration the special facts of a taken at their face value make out case also quash the proceeding even absolutely no case against the accused or though it may be at a preliminary stage”. the complaint does not disclose the essential ingredients of an offence which 10. The scope and ambit of exercise is alleged against the accused; of inherent power by the Court came to be 2. where the allegations made in the further decided in the celebrated complaint are patently absurd and judgement in the case of State of inherently improbable so that no prudent Haryana vs. Bhajan Lal; 1992 Crl. L.J. person can ever reach a conclusion that 527 and the guidelines laid down therein there is sufficient ground for proceeding and relevant for the purpose are extracted against the accused; here-under. 3. where the discretion exercised by the Magistrate in issuing process is capricious “(1) Where the allegations made in the and arbitrary having been based either on first information report or the complaint, no evidence or on materials which are even if they are taken at their face value wholly irrelevant or inadmissible; and and accepted in their entirety do not prima 4. where the complaint suffers from facie constitute any offence or make out a fundamental legal defects, such as, want case against the accused. of sanction, or absence of a complaint by legally competent authority and the like.” (2) to (4) xxxxxxxxxxxx

In Madhavrao Jiwajirao Scindia (5) Where the allegations made in the vs. Sambhajirao Chandrojirao Angre; FIR or complaint are so absurd and (1988) 1 SCC 692, the Apex Court inherently improbable on the basis of observed thus – which no prudent person can every reach a just conclusion that there is sufficient h “The legal position is well settled ground for proceeding against the t that when a prosecution at the initial stage accused. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ms. Nina Nagpal V. Judicial Magistrate-1 Meerut and another 603

(6) xxxxxxxxxxxxx 13. As regards the offence of (7) Where a criminal proceeding is ‘cheating’, at the outset it may be stated manifestly attended with mala fide and/or that the prosecution allegation taken as a where the proceeding is maliciously whole does not make out such offence. instituted with an ulterior motive for The requirement of the offence of wreaking vengeance on the accused and cheating defined in Section 415 I.P.C. are: with a view to spite him due to private or personal grudge.” “(i) there should be fraudulent or dishonest inducement of a person by 11. Keeping in mind the law deceiving him; enunciated by the Apex Court as discussed above, it is desirable to (ii) (a) the person so deceived should scrutinize the allegations made in the be induced to deliver any property to any complaint in order to find whether the person or to consent that any person shall same constitute offence of ‘criminal retain any property or breach of trust’ and ‘cheating’ punishable under Sections 406 and 420 I.P.C. In (b) the person so deceived should be order to constitute the offence of ‘criminal intentionally induced to do or omit to do breach of trust’ the prosecution must anything which he would not do or omit if prove that the accused was entrusted with he was not so deceived; some property or with dominion or power over it. It is also to be established further (iii) in cases covered by (ii) (b) the act or that in respect of the property so omission should be one which causes or is entrusted, there was dishonest likely to cause damage or harm to the misappropriation or dishonest conversion, person induced in body, mind, reputation use or disposal in violation of legal or property. contract by the accused himself or by someone else which he willingly suffered 14. It is not the case of respondent to do. no.2, the complainant that the petitioner deceived or fraudulently or dishonestly 12. In the case on hand, in view of induced him to deposit any amount with the allegations made in the complaint the OTCEI. From the facts narrated it none of the ingredients are satisfied, in as appears that whatever the petitioner did much as, it is not alleged by the was in her official capacity as General complainant, respondent no. 2 that he had Manager of OTCEI and her personal entrusted the amount in question with the interest was not involved. Why should she petitioner or the petitioner having induce respondent no. 2 to deposit the dominion over the said amount amount with the OTCEI which would not dishonestly misappropriated it. The benefit her personally? The grievance of learned Magistrate without looking to the respondent no. 2 that the petitioner and accusation and the statutory provision other co-accused had assured him that mechanically took cognizance of the after deposit was made, they would offence of criminal breach of trust which handover the appointment letter of h in my considered opinion is not legally dealership within three months is too big t sustainable. a pill to be swallowed. Respondent no.2 is tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 604 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

not an illiterate person having no Magistrate taking cognizance of the experience in contractual transaction. He offence in exercise of inherent power. being a retired officer of the Life Rather what appears is that since the writ Insurance Corporation of India knew petition is pending in the Delhi High quite well that registration of his Court and no early decision could be dealership in the OTCEI would be done obtained, respondent no. 2 adopted this by the SEBI and so far the petitioner is devise in initiating the criminal concerned, she is due discharge of her proceeding in order to force the petitioner official duty as General Manager of the to refund back the amount. OTCEI was required to send all the papers and documents to the SEBI for 16. Regard being had to the facts taking a decision. In view of such back and circumstances of the case as ground facts, I am of the opinion that the discussed above, I would hold that case is squarely covered by illustrations impugned order passed by the Magistrate (1) and (5) as laid down by the Apex taking cognizance of the offence being Court in Bhajan Lal (Supra). Had the unsustainable in law should be set at learned Magistrate looked to all these naught. It is accordingly so ordered. aspects of the case he would have been slow to pass the impugned order taking 17. In the result, criminal misc. cognizance of the offence either under application succeeds and is allowed and Section406 or 420 I.P.C. consequently the impugned order as well as the proceedings in complaint case no. 15. Added to what has been stated 127/9 of 1998 pending in the court of above, the case may be viewed from judicial Magistrate-I, Meerut are quashed. another angle. For realisation of the ------amount deposited with the OTCEI, APPELLATE JURISDICTION respondent no. 2 filed a writ petition in CRIMINAL SIDE the Delhi High Court arraying petitioner DATED: ALLAHABAD 14.5.2003 as one of the respondent and admittedly, BEFORE the said writ petition is pending for THE HON’BLE M.C. JAIN, J. decision. He concealed this fact while THE HON’BLE M. CHAUDHARY, J. filing the present case. True it is, law is well settled that even if the facts give rise Criminal Misc. Writ Petition No. 2517 of 2003 to a civil claim, yet a criminal proceeding is maintainable and both the proceedings Tribhuwan Nath Tripathi …Petitioner can simultaneously continue. But so far Versus the present case is concerned, as stated State of U.P. and another …Respondents earlier, the allegations taken in entirety do Counsel for the Appellant: not make out any offence, more so, Sri G.S. Chaturvedi offence under Sections 406 and 420 I.P.C. Sri Samit Gopal If on a reading of the complaint ingredients of those two offences would Counsel for the Respondents: have been spelt out, this Court would A.G.A. h have been slow to interfere with the t impugned orders of the learned tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Tribhuwan Nath Tripathi V. State of U.P. and another 605

Constitution of India-Article 226- encounter took place on 14th February, Maintainability–Order directing the 2003 at about 11.30 A.M. in the jungle in authorities to lodge F.I.R. and initiate village Abhirawa Pali, Police Station disciplinary action against the petitioner- Held-Petition is totally premature-not Kacaura, District Jalaun in which three maintainable. persons had received injuries and died. First information Reports were lodged Held- Para 8 and cases registered with regard to that incident. One Arvind Kumar Bhautik It is well settled legal position that the made an application on 6th April 2003 to High Court does not ordinarily interfere with the investigation, which is in the Sri G.S. Dinkar, M.L.A. Baberu, District domain of the police after the lodging of Banda. On the basis of the said an F.I.R. concerning commission of a application the latter wrote a letter to the cognizable offence. In the present case, Chief Minister, requesting that the F.I.R. has not yet been lodged and appropriate legal action be taken against the petitioner simply wants to stifle the the concerned police officials as his first step to spark the plugs of criminal machinery by lodging of the F.I.R. In our relative Jagat Aaurwar was shot dead by opinion, the petitioner cannot challenge the police and was intentionally wrongly the authority of the Government identified as Sudhir Nishad and that the directing the lodging of the F.I.R. The said incident was wrongly shown as writ petition as this stage is pre mature, police encounter. In the ultimate result, misconceived and not maintainable some enquiry was conducted by Case Law: AIR 1945 PC 18 Commissioner of Jhansi Division, who AIR 1980 SC 326 submitted a report, finding certain police personnel including the petitioner to be (Delivered by Hon’ble M.C. Jain, J.) negligent in duty with regard to the identification of the third dead person, 1. We have heard Sri G.S. namely, Jagat Ahirwar. As the said letter Chaturvedi learned Senior Advocate for (Annexure 1) has been issued to the the petitioner and learned A.G.A. Director General of Police, Lucknow by the Secretary of Government of U.P. 2. Through this writ petition the Home (Police), the petitioner challenges petitioner has prayed for quashing the the same and contends that the same is order dated 30th April, 2003- annexure 1 arbitrary and is meant to harass him. It is to the writ petition, passed by the also assailed as illegal. Secretary, Government of U.P. Home (Police), Anubhag 4, Lucknow, addressed 4. On the other hand, learned A.G.A. to the Director General of Police, U.P. for has countered the argument of Sri taking disciplinary action and also to Chaturvedi, urging that there is nothing lodge an FIR against the concerned police illegal or arbitrary in the order in question personnel involved in the incident of and the unwarranted attempt of the police encounter dated 14th February, petitioner is simply preempt the lodging 2003. of the F.I.R. against him and consequent investigation. h 3. The facts are that the petitioner is t a Circle Officer of police. A police tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 606 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 5. It was held by Privy Council long requesting the Court to take back in the case of Emperor Vs. Khyaja cognizance of the offence under Nazir Ahmad, AIR 1945 PC 18 that it is section 190 of the Code its duty comes of utmost importance that the judiciary to an end. On a cognizance of the should not interfere with the police in offence being taken by the Court the matters which are within their province police function of investigation comes and into which the law imposes upon them the duty of inquiry. There is a to an end subject to the provision statutory right on the part of the police to contained in section 173 (8), there investigate the circumstances of an commences the adjudicatory function alleged cognizable crime without of the judiciary to determine whether requiring any authority from the judiciary. an offence has been committed and if The functions of the judiciary and the so, whether by the person or persons police are complementary and not charged with the crime by the police overlapping. in its report to the Court, and to award adequate punishment 6. We may also refer to the case of according to law for the offence State of Bihar vs. J.A.C. Saldanna, AIR proved to the satisfaction of the Court. 1980 SC 326 wherein, the Supreme Court held as under: There is thus a well defined and well demarcated function in the field of “There is a clear cut and well crime detection and its subsequent demarcated sphere of activity in the adjudication between the police and field of crime detection and crime the Magistrate." punishment. Investigation of an offence is the field exclusively 7. The decision of the Privy Council in the case of Emperor Vs. Khwaja Nazir reserved for the executive through the Ahmad (supra) was approved. police department, the superintendence over which vests in 8. It is well settled legal position that the State Government. The executive the High Court does not ordinarily which is charged with duty of keep interfere with the investigation, which is vigilance over law and order situation in the domain of the police after the is obliged to prevent crime and if an lodging of an F.I.R. concerning offence is alleged to have been commission of a cognizable offence. In committed it is its bounden duty to the present case, the F.I.R. has not yet investigate into the offence and bring been lodged and the petitioner simply the offence to book. Once it wants to stifle the first step to spark the plugs of criminal machinery by lodging of investigates and finds an offence the F.I.R. In our opinion, the petitioner having been committed it is his duty to cannot challenge the authority of the collect evidence for the purpose of Government directing the lodging of the proving the offence. Once that is F.I.R. The writ petition as this stage is pre h completed and the Investigating mature, misconceived and not t Officer submits report to the Court maintainable. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sachin @ Banti V. State of U.P. and others 607

9. The writ petition is hereby (B) National Security Act- Section 3 (2)- dismissed. Delay in decision of Representation– unexplained unreasonable delay-held------detention order illegal. ORIGINAL JURISDICTION

CIVIL SIDE Held- Para 50 DATED: ALLAHABAD 16.5.2003

In view of our findings on the above BEFORE points in Writ Petition No. 4842 and THE HON’BLE U.S. TRIPATHI, J. 4846, there was un-explained delay on THE HON’BLE D.P. GUPTA, J. the part of Central Government in deciding representation of the petitioner. Habeas Corpus Writ Petition No. 4839 of 2003 Therefore, continued detention of petitioner Rajesh and Subhash have Sachin @ Banti …Petitioner rendered invalid. We also find that there Versus is no force in the writ petition of other State of U.P. and others …Respondents petitioners Sachan, Vinod and Nauratan.

Counsel for the Petitioner: (Delivered by Hon’ble U.S. Tripathi, J.) Sri Swetashwa Agrawal Sri Rishi Chadha 1. The above five writ petitions have been filed separately by each of the Counsel for the Respondents: petitioner for quashing their detention S.C. order dated 16.12.2002 passed by District Magistrate, Rampur, respondent no. 2 (A) National Security Act-Section 3 (2)- under section 3 (2) of National Security Detention order period of detention not specified whether is the detention order Act. bad on this account ? held- No. 2. Each of the petitioner was Held- Para 13 separately served with the grounds of detention, alongwith order of detention, In view of the above decisions, the which stated that on 16.11.2002 at about 5 detaining authority is not under obligation to specify the period of p.m. one Darashan Lal resident of detention and the detention order is not Balmiki Basti, Radha Road, Civil Lines, rendered illegal on account of detaining district Rampur lodged a report at the authority’s failure to specify period of Police Station Civil Lines against the detention in the order. It is also clear petitioners alleging that on 15.11.2002 a that the words ‘during such period as quarrel had taken place between his son may be specified in the order' occurring in section 3 (2) of the Act relate to the Sumit and the petitioners Vinod and delegation/authorization to the District Subhash on playing cricket, which was Magistrate or the Commissioner of the pacified by the people of the Mohalla. But Police and not to the period of detention the petitioners were not happy. On of a detenu. Therefore, we find no force account of above incident, all the in the above detention and hold that the petitioners armed with country made detention is not invalid on account of non mentioning of period of detention of pistols, in order to create terror in the h the detenu. Biradari raided the house of Sumit and t fired on him with intent to kill him. When tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 608 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

hearing sound of fire, his neighbours ‘Birdadari’ and committed atrocities on came to his rescue, the petitioners again persons on petty matters. The incident attacked on them. Due to which Rahul, was committed in the month of Ramjan Vijay, Ram Prasad, Papoo, Deepak and when the people were busy in purchasing Ankush aged about 4 years were badly articles for ‘Roja Aftar’. On account of injured. The petitioners had also cut the the incident in the month of Ramjan telephone wire, so that information of the public order of the society was adversely incident could not be sent to the affected. The people of Muslim authorities concerned. community also became sensitive.

3. On the basis of above report a On 21.11.2002 petitioner Subhash case at crime no. 157 of 2002 under was arrested at 1.30 p.m. in Mohalla sections 147, 148, 149, 307 IPC was Power House, Panwaria along with registered at P.S. Civil Lines, Rampur. On country made pistol and cartridge account of above incident, public order regarding which a case at crime no. 1579 was badly affected and in order to of 2002 under sections 25 Arms Act was maintain public order, police of registered. On 23.11.2002 petitioner neighbouring police stations was called. Vinod and Nauratan were arrested at 4.10 Investigation of the case was done by Sri p.m. On Government Press Road and each Mahabir Singh, Sub Inspector, who had of them were found in possession of a reached the spot at 4.30 p.m. on receiving country made pistol and cartridges, telephonic information. During regarding which cases at crime no. 1548 investigation injured Sumit, Deepak, of 2002 and 1585 of 2002 under section Pappu, Rahul, Ankush and Vijay were 25 Arms Act were registered. Petitioners interrogated on 16.11.2002. The Rajesh @ Boby and Sachin @ Banti were confirmed the incident in their statements taken into police custody and on their and also told that on account of incident a pointing out country made pistols used in sense of terror and insecurity was created the incident were recovered on on the spot. Persons present on the road 27.11.2002 at 2.05 p.m., regarding which started running helter skelter and chaos cases at crime no. 1607 of 2002 and 1608 was created. People closed their doors. of 2002 were registered. The petitioners The people of the locality felt insecure committed dare devil incident dated and could not dare to come out of their 16.11.2002 to show that nobody could houses. Normal flow of life was stopped. dare to raise voice against them. The traffic on the road also stopped on account of incident. 5. The petitioners were detained in jail in district jail Rampur in connection 4. The news of incident was with case crime no. 1571 of 2002. They published in daily news papers ‘Dainik had also moved bail applications in the Jagran’ and ‘Amar Ujala’ with Court on 28.1.2002. There was real photographs, which again created a sense possibility of petitioners being released on of insecurity and terror in the mind of bail and after release on bail, their public. The Local Intelligence Unit also indulging in similar activities prejudicial h submitted a report on 17.11.2002 that to maintenance of public order. t petitioners had created terror in their tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sachin @ Banti V. State of U.P. and others 609

6. On the basis of above materials (b) At the time of passing of detention the detaining authority was satisfied that order, the petitioners were detained in Jail detention of petitioners under section 3 and there was no cogent material or (2) of National Security Act was essential. compelling necessity before the detaining authority to record his satisfaction that the The detention order was approved by petitioners on release on bail would the State Government on 18.12.2002 for a indulge in similar activities prejudicial to period of one year. maintenance of public order.

7. All the five writ petitions were (4) There was delay in deciding connected with each other and detention representation of the petitioners. orders were passed on account of the same incident. Common questions of facts Point No. 1 and law are involved in all the writ petitions and therefore all the writ 8. Learned counsel for the petitions are being disposed of by a petitioners contended that since the common order with the consent of learned impugned detention order did not specify counsel for the parties. the period for which each of the petitioner was required to be detained and therefore We have heard learned counsel for the order was illegal. He further the petitioner, learned A.G.A. and learned contended that in the instant case the Standing Counsel for the respondents and order of detention was passed by the have perused the record. District Magistrate, who was having delegated power under section 3 (2) of Learned counsel for the petitioners National Security Act, which says that the raised following grounds for challenging State Government may direct that during the detention order of the petitioners. such period as may be specified in the order, such District Magistrate or (1) The detaining authority had not Commissioner of Police may also, if mentioned the period of detention in the satisfied as provided in sub section (2), detention order and non mention of the exercise the powers conferred by the said period of detention makes the order sub section. Therefore, the detaining invalid. authority was under obligation to specify the period for which the order of (2) The detaining authority had not detention was passed. supplied the power of delegation under which he was authorised to pass detention 9. Section 3 of National Security Act order and non supply of the above reads as under:- authority rendered detention order invalid. “Power to make orders detaining certain (3) (a) The detention order was passed persons–(1) The Central Government or on a solitary incident, which was only the State Government may- matter of law and order and it had no h effect or impact on public order. (a) if satisfied with respect to any person t that with a view to preventing him tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 610 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

from acting in any manner prejudicial (3) If having regard to the circumstances to the defence of India, the relations prevailing or likely to prevail in any area of India with foreign powers, of the within the local limits of the jurisdiction security of India, or of a District Magistrate or a Commissioner of Police, the State (b) if satisfied with respect to any Government is satisfied that it is foreigner that with a view to necessary so to do, it may, by order in regulating his continued presence in writing, direct, that during such period as India or with a view to making may be specified in the order, such arrangements for his expulsion for District Magistrate or Commissioner of India. Police may also, if satisfied as provided in sub section (2), exercise the powers it is necessary so to do, make an order conferred by the said sub section. directing that such person be detained. Provided that the period specified in (2) The Central Government or the State an order made by the State Government Government may, if satisfied with respect under this sub section shall not, in the first to any person that with a view to instance, exceed three months, but the preventing him from acting in any manner State Government may, if satisfied as prejudicial to the security of the State or aforesaid that it is necessary so to do, from acting in any manner prejudicial to amend such order to extend such period the maintenance of public order or from from time to time by any period not acting in any manner prejudicial to the exceeding three months at any one time. maintenance of supplies and services essential to the community it is necessary (4) When any order is made under this so to do, make an order directing that section by an officer mentioned in sub such person be detained. section (3), he shall forthwith report the fact to the State Government to which he Explanation- For the purpose of this is subordinate together with the grounds sub section, ‘acting in any manner on which the order has been made and prejudicial to the maintenance of supplies such other particulars as, in his opinion, and services essential to the community’ have a bearing on the matter, and no such does not include ‘acting in any manner order shall remain in force for more than prejudicial to the maintenance of supplies twelve days after the making thereof of commodities essential to the unless, in the meantime, it has been community’ as defined in the Explanation approved by the State Government: to sub section 1 of section 3 of the Prevention of Backmarketing and Provided that where under Section 8 Maintenance of Supplies of Essential of the grounds of detention are Commodities Act, 1980 (7 of 1980), and communicated by the officer making the accordingly, no order of detention shall be order after five days but not later than ten made under this Act on any ground on days from the date of detention, this sub which an order of detention may be made section shall apply subject to the h under that Act. modification that, for the words ‘twelve t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sachin @ Banti V. State of U.P. and others 611

days’ the words ‘fifteen days’ shall be “It is plain from a reading of S. 3 of substituted. the National Security Act that there is an obvious fallacy underlying the submission (5) When any order is made or approved that the detaining authority had the duty by the State Government under this to specify the period of detention. It will section, the State Government shall, be noticed that sub –s. (1) of S. 3 stops within seven days, report the fact to the with the words ‘ make an order directing Central Government together with the that such person be detained’, and does grounds on which the order has been not go further and prescribe that the made and such other particulars as, in the detaining authority shall also specify the opinion of the State Government, have a period of detention. Otherwise, there bearing on the necessity for the order. should have been the following words added at the end of this sub section ‘and 9. Section 3 (2) empowers the State shall specify the period of such Government to delegate its power as detention’. What is true of sub section 1 conferred on it under sub section 1 to the of section 3 is also true of sub section 2 District Magistrate or Commissioner of thereof. It is not permissible for the Police, if he is satisfied that the Courts, by a process of judicial circumstances prevailing or likely to construction, to alter or vary the terms of prevail in an area within the local limits of a section. Under the scheme of the Act, the jurisdiction of a District Magistrate or the period of detention must necessarily a Commissioner of Police, makes it vary according to the exigencies of each necessary to delegate the power to them. case i.e. the nature of the prejudicial It further provides that the order of activity complained of. It is not that the delegation shall be in writing and it shall period of detention must in all also specify the period during which the circumstances extend to the maximum District Magistrate or the Commissioner period of 12 months as laid down in S. 13 of Police, is authorised to exercise the of the Act. power of the State Government under sub section (1) of Section 3. Proviso to sub 11. The above question was again section (2) lays down that the delegation considered by the Apex Court in the case should not be for an unlimited period. It of T. Devaki v. Government of Tamil should not be for a period of more than Nadu and others, 1990 SCC (Crl.) 348. three months. Once the State Government’s power under section 3 (1) 12. After discussing the decisions of is delegated to the District Magistrate or the Apex Court in the cases of Gurbux Commissioner of Police, they are Anandram Bhiryani, 1988 SCC (Crl.) authorised to exercise that power on the 914, Ujagar Singh vs. State of Punjab, ground specified in Section 3 (1) of the AIR 1952 SC 350, Suna Ullah Butt v. Act. State of J&K 1973 SCC (Crl.) 138, Suresh Bhojraj Chellani v. State of 10. In the case of Ashok Kumar vs. Maharashtra, 1983 SCC (Crl.) 202 and Delhi Administration and others, AIR A.K. Roy v. Union of India, 1982 SCC h 1982 SC 1143 : 1982 SCC (Crl.) 451 it (Crl.) 152 the Apex Court held as below: - t was held in para 11 As below: tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 612 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

“It is thus clear that the view taken in Point No. 2 Gurbux Bhiryani case (supra) on the interpretation of Section 3 of the 14. The grounds of detention though Maharashtra Act is in correct. This Court does not indicate by which Government has while considering the question of the order the Detaining Authority was validity of the detention order made under authorised to pass order of detention. But different Acts, consistently taken the view his authority have no where been that it is not necessary for the detaining challenged in any paragraph of the writ authority or the State Government to petition. Therefore, the Detaining specify the period of detention in the authority did not disclose his order. In the absence of any period being authorization in his counter affidavit. The specified in the order the detenue is learned A.G.A. has pointed out that by required to be under detention for the Notification No. 111-1-1-80 C x 7 dated maximum period prescribed under the September 13, 2002, published in U.P. Act, but it is always open to the State Extraordinary Gazettee dated September Government to modify or revoke the 13, 2002, (Chapter 4 Part B) in exercise of order even before the completion of the power conferred on him by Sub section 3 maximum period of detention. We are, of Section 3 of National Security Act, therefore, of the opinion that the 1980, the Governor of U.P. was pleased to impugned order of detention is not empower all the District Magistrate of the rendered illegal on account of the State to exercise the powers conferred by detaining authority’s failure to specify sub section 2 of section 3 for a further period of detention in the order". period of three months with effect from September 17, 2002. Fax copy of above 13. In view of the above decisions, notification was also shown. the detaining authority is not under obligation to specify the period of 15. The impugned detention order detention and the detention order is not was passed on 16.12.2002 and therefore rendered illegal on account of detaining on the date of passing the detention order authority’s failure to specify period of the District Magistrate was authorize to detention in the order. It is also clear that exercise power conferred by section 3 (2) the words ‘during such period as may be of National Security Act. Therefore, the specified in the order' occurring in section order of detaining authority was not 3 (2) of the Act relate to the without jurisdiction and non mentioning delegation/authorization to the District his above authority does not invalidate the Magistrate or the Commissioner of the detention order. Police and not to the period of detention of a detenu. Therefore, we find no force in Points No. 3 (a), 3 (b) the above detention and hold that the detention is not invalid on account of non 16. Learned counsel for the mentioning of period of detention of the petitioners contended that incident in detenu. question related to simply law and order problem, as it was a solitary incident and h has no effect or impact on public order. t Therefore, detention order on the basis of tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sachin @ Banti V. State of U.P. and others 613

above incident is invalid. He further 18. In Gulab Mehra vs. State of U.P. contended that a solitary incident was not and others (supra) it was held by the Apex sufficient without any other material on Court that an act whether amounts to a record to record satisfaction of the breach of law and order or a breach of detaining authority that on release on bail, public order solely depends on its extent each of the petitioner would indulge in and reach to the society. If the act is similar activities prejudicial to the restricted to particular individuals or a maintenance of public order. He has group of individuals it breaches the law placed reliance on the decision of Apex and order problem but if the effect and Court and of this Court in Ayya @ Ayub reach and potentiality of the act is so deep vs. State of U.P. 1989 (1) AWC 90, as to affect the community at large and or Vashistha Narain Karwaria vs. State of the even tempo of the community then it U.P., 1991 AWC 558, Seshdhar Misra vs. becomes a breach of public order. Superintendent, Central Jail, Naini and others, 1985 (suppl.) ACC 304, Smt. 19. In Smt. Angoori Devi for Ram Shashi Agarwal vs. State of U.P. and Ratan vs. Union of India, 1989 (26) ACC others, 1988 SCC (Crl.) 178, Rajeev 1 SC the Apex Court observed as below : Bharati vs. District Magistrate, 1995 AWC 120, Surya Prakash Sharma vs. “The impact on ‘public order’ and State of U.P. and others, 1994 SCC (Crl.) law and order’ depends upon the nature of 1691, Dharmendra Suganchand Chelawat the act, the place where it is committed and another v. Union of India and others and motive force behind it. If the act is AIR 1990 SC 1196 and Gulab Mehra vs. confined to an individual without directly State, 1987 SCC (Crl.) 721. or indirectly affecting the tempo of the life of the community, it may be a matter 17. On the other hand, the learned of law and order only. But where the A.G.A. contended that the incident in gravity of the act is otherwise and likely question taken as a whole, in the back to endanger the public tranquility, it may ground in which it was committed, the fall within the orbit of the public order. previous antecedents of the petitioners, This is precisely the distinguishing feature which are clear from the material between two concepts. available on record clearly indicated that incident in question related to public order 20. In T. Devakai vs. Government of and there were sufficient materials before Tamil Nadu and others (supra) it was held the detaining authority to record his that any disorderly behaviour of a person satisfaction that on release on bail, the in the public or commission of a criminal petitioners would indulge in similar offence is bound to some extent affect the activities prejudicial to the maintenance peace prevailing in the locality and it may of public order. also affect law and order but the same need not affect maintenance of public The term ‘public order’ and ‘law and order. There is basic difference between order’ have been considered by the Apex ‘law and order’ and public order’. The Court and this Court in several cases. question whether a man has only h committed a breach of law and order or t has acted in a manner likely to cause tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 614 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

disturbance of the public order, is a 22. In the case of Arun Ghosh vs. question of degree and the extent of the State of West Bengal, AIR 1970 SC, 1228 reach of the act upon the society. A the Apex Court held as below:- solitary assault on one individual can hardly be said to disturb public order in "This Court pointed out the jeopardy so much as to bring the case difference between maintenance of law within the pur view of the Act providing and order and its disturbance and the for preventive detention. Such a solitary maintenance of public order and its incident can only raise a law and order disturbance. Public order was aid to problem and no more. enhance more of the community than law and order. Public order is the even tempo 21. In the case of Sheshdar Misra vs. of the life of the community taking the Superintendent, Central Jail, Naini and country as a whole or even a specified others (supra) a Full Bench of this Court locality. Disturbance of public order is to considered the question of distinction be distinguished from acts directed between law and order and public order against individuals which do not disturb under section 3 of the Act and held: the society to the extent of causing a general disturbance of public tranquility. “Wherein a detention order the It is the degree of disturbance and its detenue was alleged to have committed effect upon the life of the community in a murder of an Advocate at a public place locality which determines whether the as a result of which local residents closed disturbance amounts only to a breach of the doors of their houses and shops and it law and order. was further alleged to have threatened the prosecution witnesses to desist from 23. It means therefore that the tendering evidence in the murder case question whether a man has only pending against him, the two grounds committed breach of law and order or has being intimately connected with incident acted in a manner likely to cause of murder committed on account of disturbance of the public order is a personal animosity and there being no question of degree and the extent of reach material on record to suggest that the of the act upon the society." detenue would have indulged into similar activities of murder, in future, it could not 24. The incident in instant case if be said that the single act of murder had tested on the guidelines laid down in its impact on the society to such an extent above decisions, we find that an as to disturb the normal life of the public. altercation had taken place on 15.11.2002 Merely because the local residents closed at about 5 p.m. between petitioner the doors of their houses and shops did Subhash and Sumit S/o Darshan Lal on not mean that the balanced tempo of the playing cricket. On account of above life of the general public was disturb as a incident all the petitioners to show their result of which the members of the public highhandedness and to create terror in not carry on normal avocation of their their biradari armed with country made life. pistols raided the house of Sumit, S/o h Darshan Lal and fired by country made t pistols in order to kill Sumit. When the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sachin @ Banti V. State of U.P. and others 615

neighbouring persons heard the sound of highhandedness of the petitioners and to fire came to the spot, all the petitioners create tension among the persons of fired on them, due to which Rahul, Vijay, different community clearly indicated that Ram Prasad, Pappu, Deepak and Ankush it affected public order and it was not aged about 4 years were badly injured. simply a question of law and order Not only this, the petitioners before problem. committing the above incident had cut telephone wire, so that the information of 25. It is not disputed that the the incident could not be sent to Higher detention order can be passed against a Authorities. The above incident was person who is detained in jail provided committed in the month of Ramjan when the detaining authority record his the people of Muslim community were satisfaction that there is real possibility of busy in purchasing articles for Roja After. being the detenu released on bail and on The material on record further shows that release on bail he would indulge in the locality in which the incident took similar activities prejudicial to the place had mixed population of Hindus and maintenance of public order. Muslims and the manner in which the dare devil incident was committed by the 26. In the case of Smt. Shashi petitioners created a sense of insecurity, Agarwal vs. State of U.P. and others, chaos and panic amongst the people of the 1988 SCC (Cri) 178 it was held by the locality. The report of Local Intelligence Apex Court that every citizen has right to Unit dated 17.11.2002 placed before the move the Court for bail when he is Detaining Authority also indicated that arrested under the ordinary law of the the petitioners were persons of criminal land and he cannot be interdicted from mentality and on the occasion of "Holi" moving the court for bail clamping an they had also attacked on Sikh order of detention. The possibility of the community, but due to their terror nobody Court granting bail may not be sufficient. could dare to lodge report against them. Nor a bald statement that the person On one side of the locality in which the would repeat his criminal activities would incident in question took place there lived be enough. There must also be a credible people of Muslim community and on information or cogent reasons apparent on other side people of Sikh community were the record that the detenu, if enlarged on residing and they became fear stricken bail, would act prejudicially to the interest and sensitive on account of dare devil of public order. incident committed at public place in broad day light. The injury report and the 27. In the case of Dharmendra statement of injured persons also Sugan Chand Chelawat and another vs. indicated that on account of incident even Union of India and others, (supra) the tempo of life was badly disturbed and Apex Court held as below:- every person of the locality was having sense of fear and insecurity in coming out "The decisions referred to above lead of his house. Therefore, the incident in to the conclusion that an order for question coupled with the circumstances detention can be validly passed against a h and the manner in which it was person in custody and for that purpose it t committed in order to show is necessary that the grounds of detention tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 616 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

must show that (i) the detaining authority 29. In the case of Smt. Kamrunnisa was aware of the fact that the detenu is vs. Union of India, AIR 1991 SC, 1640 already in detention; and (ii) there were the Apex Court held as below:- compelling reasons justifying such detention despite the fact that the detenu "From the catena of decisions is already in detention. The expression referred to above it seems clear to us that "compelling reasons" in the context of even in the case of a person in custody a making an order for detention of a person detention order can validly by passed- (1) already in custody implies that there must if the authority passing the order is aware be cogent material before the detaining of the fact that he is actually in custody, authority on the basis of which it may be (2) if he has reason to believe on the basis satisfied that (a) the detenue is likely to be of reliable material placed before him (a) released from custody in the near future that there is a real possibility of his being and (b) taking into account the nature of released he would in all probability the antecedents activities of the detenue, it indulge in prejudicial activity and (3) if it is likely that after his release from is felt essential to detain him to prevent custody he would indulge in prejudicial him from so doing, if the authority passes activities and it is necessary to detain him an order after recording his satisfaction in in order to prevent him from engaging in this behalf, such an order cannot be struck such activities." down on the ground that the proper course for the authority was to oppose the bail 28. In the case of Surya Prakash and if bail is granted notwithstanding such Sharma vs. State of U.P. and others, opposition to question if before a higher (supra) relying on the principles laid court. down in Rameshwar Shah vs. District Magistrate, Burdwan, AIR 1964 SC, 334 30. In the light of above decisions and Dharmendra Suganchand Chelawat we would consider whether the detaining and another v. Union of India and others, authority was justified in passing the AIR 1990 SC, 1196 the Apex Court held detention order while the petitioners were as below:- in jail.

"The decisions referred to above lead The detaining authority has recorded to the conclusion that an order for his satisfaction in the grounds of detention detention can be validly passed against a as below: person in custody and for that purpose it is necessary that the grounds of detention "At present you along with your must show that (i) the detaining authority associates are detained in District Jail, was aware of the fact that the detenu is Rampur in connection with case crime no. already in detention; and (ii) there were 1571 of 2002 under Sections 147, 148, compelling reasons justifying such 149, 307 IPC and 25 Arms Act. The bail detention despite the fact that the detenu application was moved by you in the is already in detention." Court on 28.11.2002 and there is possibility of allowing it. In case you are h released on bail in the above crime, you t would indulge in similar criminal tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sachin @ Banti V. State of U.P. and others 617

activities and would affect the public Point No. 4 order of the locality." 33. For determining delay we have 31. Therefore, the District to consider each case separately. Magistrate had recorded satisfaction that detenu at the time of passing of order was (1) Habeas Corpus Writ Petition No. detained in jail and had moved bail 4839 Sachin @ Banti vs. State. In this application on 28.11.2002 and there was petition, according to the counter-affidavit real possibility of being him released on of Sri Amar Pal, Deputy Jailor, District bail. The question which remains for Jail Rampur, the petitioner Banti determination is whether there was cogent submitted his representation on material and compelling necessity for 26.12.2002, which was sent to District recording satisfaction by the detaining Magistrate, Rampur on same day. The authority that on release on bail, the District Magistrate rejected it on same petitioners would indulge in similar day, information regarding it was received activities prejudicial to maintenance of in the jail on 28.12.2002 and the detenu public order. was communicated about rejection on same day i.e. 28.12.2002. 32. As mentioned above, the incident in question was not the sole 34. The counter affidavit of Sri S.K. incident, which was committed by the Verma, District Magistrate, Rampur Petitioners. According to report of Local shows that the representation of the Intelligence Unit and other materials on petitioner dated 26.12.2002 was received record, the petitioners were of criminal by him on same day and was rejected on mentality and on the occasion of Holi same day. The other copies of the they also attacked on Sikh Community. representation were sent to State On account of their terror nobody could Government as well as Central dare to lodge report against them and they Government through special messenger were in habit of committing crimes well within time. affecting the maintenance of public order. No doubt, the incident, which took place 35. Counter affidavit of Sri C.P. on Holi had no live link and nexus with Singh, Deputy Secretary, Home and the detention order, but it shows the Confidential, Department, U.P. Civil tendency of the petitioners in indulging Secretariat shows that the representation the acts prejudicial to the maintenance of of the petitioner dated 26.12.2002 was public order. Therefore, there were received in the concerned section of the sufficient materials before the Detaining State Government on 28.12.2002. The Authority to record his satisfaction that State Government sent the copies of the petitioners if released on bail would representation and parawise comments indulge in similar activities prejudicial to thereon to U.P. Advisory Board, vide its the maintenance of public order. letter dated 30.12.2002 and to Central Therefore, the detention order is not Government by letter dated 30.12.2002. invalid on this count. Thereafter, the concerned section of the h State Government examined the t representation and submitted a detailed tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 618 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

note on 30.12.2002 and Deputy Secretary 6.1.2003 and detenu was accordingly examined it on 30.12.2002 and special informed on 6.1.2002. secretary examined it on 30.12.2002 and thereafter, it was submitted to Secretary, 37. Counter affidavit of Sri Surendra who examined it and rejected on Kumar Verma, District Magistrate, 31.12.2002. Rampur shows that representation of the petitioner dated 4.1.2003 was considered 36. The counter affidavit of Sri by him on same day and was rejected by Ramesh Kumar, Under Secretary, him on same day. The remaining copies Ministry of Home Affairs, Government of of representation along with parawise India stated that the representation of the comments were sent to State Government petitioner dated 26.12.2002 was received through special messenger on same day by the Central Government on 6.1.2002 i.e. 4.1.2002. and on concerned desk of Ministry of Home Affairs on 7.1.2002. The 38. Counter affidavit of Sri C.P. representation was immediately processed Singh, Deputy Secretary, Home and for consideration and case of detenu was Confidential Department U.P. Civil put up before the Under Secretary on Secretariat, Lucknow disclosed that 14.1.2002. The Under Secretary representation of the petitioner dated considered it on 14.1.2002 and submitted 4.1.2003 was received in the concerned before Director, Ministry of Home Affairs section of State Government on 6.1.2003. on 14.1.2003. The Director considered the The State Government sent copies of the same and sent to Joint Secretary, Ministry representation and parawise comments of Home Affairs on 14.1.2003. The Union thereon to the U.P. Advisory Board, vide Home Minister considered on 14.1.2002 letter dated 7.1.2003 and to the Central and finally rejected on 17.1.2002. It also Government vide letter dated 7.1.2003. disclosed that 11 and 12 January, 2003 He examined the representation on were holidays. This shows that there was 8.1.2003, the Special Secretary examined no delay in deciding the representation of it on 8.1.2003 and thereafter submitted to detenu by District Magistrate State the Secretary, who examined it on Government and Central Government. 8.1.2003 and submitted to the Higher Authorities for final order of the State (2) Habeas Corpus Writ Petition No. 4840 Government. After due consideration, the of 2003 Vinod vs. State of U.P. and said representation was finally rejected by others. State Government on 9.1.2003.

Counter affidavit of Sri Amar Pal, The counter affidavit of Sri Ramesh Deputy Jailor shows that the petitioner Kumar, Under Secretary, Ministry of submitted his representation on 4.1.2003 Home Affairs, Government of India and the same was submitted to District disclosed that representation of the Magistrate on same day i.e. 4.1.2003. The petitioner dated 4.1.2003 was received by District Magistrate decided the the Central Government on 9.1.2003. It representation on same day and was processed for consideration and was h communicated to the jail Authorities on put up before Under Secretary on t 13.1.2003 as 11 and 12.1.2003 were tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sachin @ Banti V. State of U.P. and others 619

holidays. The Under Secretary considered representation and parawise comments it on 14.1.2003. The Director considered thereon of U.P. Advisory Board, vide it on 14.1.2003, the Joint Secretary letter dated 7.1.2003 and to the State considered it on 14.1.2003 and Union Government, vide letter dated 07.01.2003. Home Secretary on 17.1.2003 and finally Thereafter, the concerned Section of the rejected it on 17.1.2003. State Government examined the representation and submitted detailed note 39. It indicates that there was no on 07.01.2003. The deponent examined it delay in deciding representation by on 08.01.2003 and the Special Secretary District Magistrate, State Government and examined it on 08.01.2003 and thereafter, Central Government. Thus, there was no submitted to the Secretary. The Secretary delay in deciding the representation of the examined it on 08.01.2003 and submitted petitioner. to the higher authorities for final orders of the State Government. After due (3) Habeas Corpus Writ Petition No. 4842 consideration, the said representation was Ramesh vs. State of U.P. finally rejected by State Government on 09.01.2003. Counter affidavit of Sri Amar Pal, Deputy Jailor, Rampur shows that the 42. There is no counter-affidavit on petitioner submitted his representation on behalf of Union of India. The counter- 4.1.2003, which was sent to District affidavit of Sri Amar Pal, Deputy Jailor Magistrate on same day. The District no doubt shows that the information Magistrate rejected it on same day and regarding rejection of representation of communicated on 6.1.2003. The detenu detenu dated 4.1.2003 was received from was informed about this rejection by Central Government on 23.1.2003, vide District Magistrate on 6.1.2003. radiogram dated 21.1.2003. But it is not clear as to when the representation of the 40. Counter affidavit of Sri S.K. detenu was received by Central Verma, District Magistrate, Rampur Government and when it was decided. shows that representation of the petitioner Therefore, the delay in deciding the dated 4.1.2003 was received by him on representation of the detenu by the same day and he rejected it on same day. Central Government un-explained. Thereafter, aforesaid representation was sent through Special messenger to the (4) Habeas Corpus Writ Petition No. State Government as well as the Central 4845 of 2003 Nauratan vs. State of U.P. Government on 5.1.2003. Counter-affidavit of Sri Amar Pal, 41. Counter affidavit of Sri C.P. Deputy Jailor, District Jail, Rampur Singh, Under Secretary, Home and shows that the petitioner submitted his Confidential Department U.P. Civil representation on 04.01.2003 in six copies Secretariat, Lucknow shows that and the same were sent through the representation of the petitioner dated District Magistrate, Rampur by his letter 4.1.2003 was received in the concerned dated 04.01.2003. The representation of h section of State Government on 6.1.2003. the Petitioner was rejected by the t The State Government sent copies of Detaining Authority on same day and tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 620 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

information was received on 06.01.2003, concerned desk in the Ministry of Home which was communicated to the detenu Affairs on 10.01.2003, 11.01.2003 and on 06.01.2003. 12.01.2003 were holidays. The representation was immediately processed 43. Counter-affidavit of Sri S.K. for consideration on 13.01.2003. Under Verma, District Magistrate, Rampur Secretary considered it on 14.01.2003, shows that representation of the petitioner Director considered it on 14.01.2003, dated 04.01.2003 was received by the Jail Joint Secretary considered it on Authorities on 04.01.2003, which was 14.01.2003 and Union Home Secretary considered and rejected by him on same considered and finally decided on day. Thereafter, the aforesaid 17.1.2003. representation was sent though special messenger to the State Government and 46. It also shows that action was Central Government on 05.01.2003. taken on the representation immediately by the authorities concerned and it was 44. Counter-affidavit of Sri C.P. decided without any delay. Singh, Under Secretary Home and Confidential Department, U.P. Civil (5) Habeas Corpus Writ petition No. Secretariat, Lucknow disclosed that 4846 of 2003 Subhash vs. State of U.P. petitioner's representation dated 4.1.2003 and others. along with parawise comments thereon forwarded by the District Magistrate, Counter-affidavit of Sri Amar Pal, Rampur, vide his letter date 4.1.2003 was Deputy Jailor, District Jail, Rampur received in the concerned Section on shows that petitioner submitted his 6.1.2003. The State Government sent representation on 04.01.2003 in six copies copies of representation and parawise and the same has been sent to the District comments thereon to U.P. Advisory Magistrate on same day i.e. 04.01.2003. Board, vide letter dated 7.1.2003 and to The District Magistrate rejected it on the Central Government, vide letter dated same day and communication received on 7.1.2003. The concerned Section of State 06.01.2003. The detenu was Government examined representation and communicated on 06.01.2003. submitted detailed note on 7.1.2003. Under Secretary examined it on 8.1.2003. 47. Counter-affidavit of Sri S.K. Special Secretary examined on 8.1.2003 Verma, District Magistrate, Rampur and Secretary examined on 8.1.2003. The shows that the representation of the above representation was finally rejected petitioner dated 04.01.2003 was received by the State Government on 9.1.2003. by him on same day he considered and rejected it on same day and thereafter 45. Counter affidavit of Sri Ramesh aforesaid representation was sent through Kumar, Under Secretary, Ministry of special messenger to State Government Home Affairs, Government of India, New and Central Government on 05.01.2003. Delhi disclosed that representation of the petitioner dated 04.01.2003 was received 48. Counter-affidavit of Sri C.P. h by Central Government in the Ministry of Singh, Deputy Secretary, Home and t Home Affairs on 09.01.2003, and in the Confidential Department U.P. Civil tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ram Nihor Singh V. Principal Secretary(Law), Sachivalaya and others 621

Secretariat, Lucknow shows that rendered invalid. We also find that there representation of the petitioner dated is no force in the writ petition of other 04.01.2003 was received n the concerned petitioners Sachan, Vinod and Nauratan. section on 06.01.2003. The State Government sent copies of the Accordingly, writ petitions no. 4839 representation and parawise comments of 2003 Sachin Vs. State, 4840 of 2003 thereon to U.P. Advisory Board, vide its Vinod vs. State and 4845 of 2003 Naratan letter dated 07.01.2003 and to the Central vs. State have no force and are; Government, vide letter dated 07.01.2003. accordingly, dismissed Writ petition No. He examined the representation of the 4842 of 2003 Rajesh Vs. State and 4846 petitioner on 07.01.2003 the Special Subhash vs. State are, accordingly, Secretary examined it on 08.01.2003 and allowed. Continued detention of above submitted to the Secretary. The Secretary petitioners is held illegal and respondents examined it on 08.01.2003 and submitted are directed to release them (Rajesh and it to the higher authorities for final Subhash) to set at liberty forth with unless decision by the State Government. After want to be detained in connection with due consideration, the State Government some other case. finally rejected on 09.01.2003. ------ORIGINAL JURISDICTION No counter-affidavit has been filed CIVIL SIDE on behalf of Central Government. DATED: ALLAHABAD 14.5.2003

BEFORE 49. Though para 13 of counter THE HON’BLE M. KATJU, J. affidavit of Sri Amar Pal, Deputy Jailor, THE HON’BLE R.S. TRIPATHI, J. District Jail, Rampur disclosed that representation of the petitioner dated Civil Misc. Writ Petition No. 4274 of 2003 04.01.2003 has been rejected by the Central Government and information was Ram Nihor Singh …Petitioner sent on 07.02.2003 and same was Versus received on 10.02.2003, which was served Principal Secretary (Law), Sachivalaya on the petitioner. But it is not clear as to and others …Respondents

when the representation was received by Counsel for the Petitioners: Central Government and when it was Sri T.P. Singh finally rejected. Thus, the delay in Sri V.K. Singh disposal of representation of the petitioner by the Central Government has not been Counsel for the Respondents: explained. Sri R.K. Saxena S.C. 50. In view of our findings on the above points in Writ Petition No. 4842 Legal Remembrance Manual-7.08 (6) and 4846, there was un-explained delay Extention of age limit–Petitioner on the part of Central Government in completed 60 yrs. as D.G.C. claming deciding representation of the petitioner. continuance beyond 62 yrs. Pursuance of h Therefore, continued detention of G.O. Dt. 11.12.02– whether the extension can be claimed as a matter of t petitioner Rajesh and Subhash have Right ? held–No. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 622 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Held Para 9 & 12 3. It is alleged in paragraph 6 of the writ petition that a permanent vacancy of We see no illegality in the impugned G.O. D.G.C. (Civil) arose and the petitioner dated 11.12.2002. No doubt the note of was asked to take over charge vide letter para 7.08 (6) of the L.R. Manual contemplates continuation of service of a dated 3.2.1990 Annexure 2 to the writ government counsel beyond 60 years but petition. He was appointed as full fledged that does not mean that they have a D.G.C. (Civil) by order dated 31.7.1990 right to continue forever. It is open to Annexure 3 to the writ petition. This the government to fix the age limit and tenure was extended till 31.12.1991 vide they have fixed it at 62 years and we see Annexure 4 to the writ petition and no illegality in the same. thereafter he was given extensions from Thus there is no illegality in the time to time. impugned G.O. dated 11.12.2002. This writ petition and all other similar writ 4. The petitioner’s service came to petitions pending in this Court an end on his completion of his age at 60 challenging the G.O. dated 11.12.2002 years on 2.1.2001 against which he filed reducing the age limit of 62 years are hereby dismissed. writ petition no. 5160 of 2001 which was allowed vide judgment dated 18.5.2001 (Delivered by Hon’ble M. Katju, J.) copy of which is Annexure 8 to the writ petition. 1. This writ petition has been filed against the impugned G.O. dated 5. It may be mentioned that the note 11.12.2003 Annexure 13 to the writ to paragraph 7.08 (6) of the L.R. Manual petition and the impugned order dated states: 1.1.2003 and 13.1.2003 Annexure 11 and 1 to the writ petition. The petitioner has “The renewal beyond 60 years of age also prayed for a mandamus directing that shall depend upon continuous good work, he should be allowed to continue sound integrity and physical fitness of the functioning as D.G.C. (Civil) till the age Counsel.” of 65 years. 6. It appears that it was on the basis Heard learned counsel for the parties. of that note that the Division Bench decided writ petition no. 5160 of 2001 2. The petitioner was appointed as Ram Nihore Singh vs. State of U.P., 2001 A.D.G.C. (Civil), Allahabad by order A.G.J. 896 holding that the petitioner’s dated 23.9.1978 and was given termination of service at the age of 60 appointment letter dated 6.10.1978 vide years was illegal since the note to para Annexure 1 to the writ petition. It is 7.08 (6) itself contemplates continuing the alleged in paragraph 5 of the writ petition service beyond 60 years. that he continued to work as such by virtue of his satisfactory service as 7. However, by the impugned G.O. recommended by the District Judge and dated 11.12.2002 it has been stated that District Magistrate in pursuance of the term of D.G.C. (Civil) can be h various renewal orders issued from time continued till the age of 62 years provided t to time. he is physically fit as certified by the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Raghuraj Pratap Singh V. State of U.P. and others 623

Chief Medical Officer and has done good 11. Learned counsel for the work as certified by the District petitioner stated that some government Magistrate. counsels have continued as such even after the age of 62 years. If that is so their 8. Thus the maximum age limit of term will be deemed to have come to an D.G.C./A.D.G.C. is now 62 years as end forthwith provided they have crossed mentioned in the G.O. dated 11.12.2002. the age of 62 years. Since the petitioner completed 62 years on 1.1.2003 his term was not extended. 12. Thus there is no illegality in the impugned G.O. dated 11.12.2002. This 9. We see no illegality in the writ petition and all other similar writ impugned G.O. dated 11.12.2002. No petitions pending in this Court doubt the note of para 7.08 (6) of the L.R. challenging the G.O. dated 11.12.2002 Manual contemplates continuation of reducing the age limit of 62 years are service of a government counsel beyond hereby dismissed. The interim order if 60years but that does not mean that they any is hereby vacated. have a right to continue forever. It is open to the government to fix the age limit and 13. Let the Registrar General of this they have fixed it at 62 years and we see Court send copy of this judgment no illegality in the same. forthwith to the Law Secretary, U.P. and all District Judges in the State. 10. Learned counsel for the ------petitioner submitted that in the earlier ORIGINAL JURISDICTION G.O. dated 22.12.2001 Annexure 10 to CIVIL SIDE the writ petition the maximum age limit DATED: ALLAHABAD 7.5.2003 was 65 years but now it has been curtailed BEFORE to 62 years. He has submitted that this is THE HON’BLE M. KATJU, J. illegal because this deprived the THE HON’BLE R.S. TRIPATHI, J. government counsels of their vested right to continue till 65 years. We do not agree. Civil Misc. Writ Petition No. 19655 of 2003 It is open to the government to fix the age limit as to when the term of a government Raghuraj Pratap Singh alias Raja Bhaiya counsel shall come to an end. The G.O. …Petitioner dated 22.12.2001 is an executive order Versus and one executive order can be modified State of U.P. and others …Respondents

by another executive order under Section Counsel for the Petitioner: 21 of the General Clauses Act and Article Sri T.P. Singh 166 of the Constitution. Fixing of age Sri Rajiv Gupta limit at 65 years was not done by any Sri Dilip Kumar legislative enactment but only by a G.O., Sri A.K. Singh and hence it can be modified or revoked Sri J.R. Singh Tomar by another G.O. and that is what has been done in this case. We do not agree that Counsel for the Respondents: h any accrued right has been taken away by S.C. t the impugned G.O. dated 11.12.2002. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 624 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

U.P. Gangsters and anti social activities Held- Para 9 (Prevention) Act 1986- Section 7 (4)- order passed of State Govt. under In our opinion the Secretary or even the Section 7 (4) by which petitioner's case Deputy Secretary, U.P. Govt. can pass transferred from Special Judge orders on behalf of the Governor under (Gangster Act) Allahabad to Kanpur the Rules of Business and Standing challenged-Held totally administrative Orders. The impugned order, though it nature-not a quasi judicial-does not has been signed by the Principal effects rights & habilities- No Secretary (Law) U.P. Government, has to interference- be deemed as an order of the Governor. As held by the Supreme Court in Held-para-4 Samsher Singh Vs. State of Punjab (AIR 1974 SC 2192 vide para 35) When a ;civil In our opinion though the dividing line servant takes a decision he does not do between an administrative order and a it as a delegate of his Minister. He does it quashi judicial has become thin but it on behalf of the Government. The has not been totally obliterated. A quashi officers are the limbs of the Government, judicial order affect rights and habitries and not its delegates. but the impugned order does not do so. Case law- AIR 1974 SC 2192 (Vide para 35) Case law: AIR 1970 SC 150, 2002(4) AWC 3221 (Para (Delivered by Hon’ble M. Katju, J.) II), 2001 (2) SCC 186, AIR 1996 S.C. 11

U.P. Gangster and Anti Social activities 1. Heard learned counsel for the (Prevention) Act 1986- Section 7 (1)- petitioner and the learned standing Petitioner challenged order on the counsel. ground that only special court at Allahabad has jurisdiction -Held-order 2. The petitioner has challenged the passed on the report of District impugned order dated 29.4.2003 Magistrate Kelating Law & order point valid-state Govt. can pass such order (Annexure VIII to the writ petition). By under Section 7 (4). the impugned order the State Government has directed that certain criminal cases Held- Para 7 against the petitioner be transferred under section 7 (4) of the Uttar Pradesh In our opinion, the petitioner was a Gangsters and Anti Social Activities resident of Pratapgarh and was elected (Prevention) Act, 1986 from the Court of from Kunda Assembly Constituency, Pratapgarh. His activities relating to the special Judge (Gangsters Act) Allahabad criminal cases are alleged to have arisen to the Court of Special Judge (Gangsters at Pratapgarh and hence the District Act), Kanpur Nagar. Magistrate, Pratapgarh was fully competent to give such a report. 3. Learned counsel for the petitioner has challenged the impugned order Constitution of India Article 166- Whether principal Secretary (Law) can relying upon a Full Bench decision of the pass such order? On behalf of the Court in Ashok Kumar Dixit vs. State of Governor? Held-Order passed by U.P. and another 1987 (24) ACC 169 principal Secretary (Law) under Section and has invited our attention to paragraph h 7 (4) to be deemed as an order of the 64 and 65 of that decision it has been t Governor. observed in paragraph 64 of that decision tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Raghuraj Pratap Singh V. State of U.P. and others 625

that the power under section 7 (4) to or non grant of amenities in a Jail does transfer cases is not unconstitutional. not create any lis. However, in paragraph 65 it has been observed that this power is exceptional in 6. The learned counsel for the nature and cannot be exercised on mere petitioner has submitted that under section humour, whims of fancies. The State 7 (1) only the Special Court which is at Govt. will have to record reasons. Allahabad has jurisdiction over the case. However, section 7 (1) has to be read 4. The State Government has relied along with section 7 (4) which gives upon the report of the District Magistrate, power to the State Govt. to transfer cases Pratapgarh, wherein it has been stated that under the Gangsters Act. the petitioner has to be brought from Kanpur to Allahabad on specific dates and 7. The impugned order was passed this is creating problem of law and order on the basis of the report of the District and security, and traffic is also adversely Magistrate, Pratapgarh and it is alleged by affected causing difficulties for the the petitioner that he did not have any general public. In our opinion an order knowledge about the law and order under section 7 (4) of the Act is an situation at Allahabad or Kanpur. In our administrative order and not a quashi opinion, the petitioner was a resident of judicial order. The learned counsel for the Pratapgarh and was elected from Kunda petitioner has relied upon a decision of Assembly Constituency, Pratapgarh. His the Supreme Court in A.K. Kraipak and activities relating to the criminal cases are others vs. Union of India and others alleged to have arisen at Pratapgarh and (AIR 1970 Supreme Court 150) wherein it hence the District Magistrate, Pratapgarh has been held that the dividing line was fully competent to give such a report. between administrative order and a quashi judicial power has become thin. In our 8. Learned counsel for the petitioner opinion though the dividing line between then submitted that the Principal an administrative order and a quashi Secretary (Law) could not have validly judicial has become thin in our opinion passed the impugned order under section though the dividing line between an 7 (4) and it could be passed only by the administrative order and a quasi judicial Governor. He has relied on Article 166 of order has become thin but it has not been the Constitution of India for this purpose. totally obliterated. A quashi judicial order affect rights and habilities but the 9. In our opinion the Secretary or impugned order does not do so. even the Deputy Secretary, U.P. Govt. can pass orders on behalf of the Governor 5. Learned counsel for the petitioner under the Rules of Business and Standing submits that by the order transferring the Orders. The impugned order, though it case under section 7 (4) from one Special has been signed by the Principal Secretary Judge to another special judge (Gangsters (Law) U.P. Government, has to be Act) a lis is involved because certain deemed as an order of the Governor. As amenities which will be available at the held by the Supreme Court in Samsher h Naini Jail, Allahabad are not available at Singh Vs. State of Punjab (AIR 1974 SC t Kanpur Jail. We do not agree. Mere grant 2192 vide para 35) When a; civil servant tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 626 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

takes a decision he does not do it as a ORIGINAL JURISDICTION delegate of his Minister. He does it on CIVIL SIDE behalf of the Government. The officers DATED: ALLAHABAD 23.5.2003 are the limbs of the Government, and not its delegates. …..Constitutionally the act BEFORE THE HON'BLE RAKESH TIWARI, J. or decision of the official is that of the Minister." Civil Misc. Writ Petition No. 9600 of 1984

10. In our opinion the order under Ram Prasad Prajapati …Petitioner section 7 (4) is an Administrative order Versus and it is well settled that the Court has Labour Court, (U.P.) at Allahabad and very limited scope of interference in another …Respondents administrative orders. The Court cannot sit in appeal over administrative orders Counsel for the Petitioner: Sri R.C. Singh vide P.K. Misra vs. Indian oil Sri Arvind Kumar Corporation, 2002 (4) AWC 3221 (Para

11). The Court can only interfere with the Counsel for the Respondents: administrative orders if they are arbitrary Sri M.B. Saxena or mala fide. In Om Kumar vs. Union of S.C. India, 2001 (2) SCC 386, the Supreme Court referred to the wednesbury Constitution of India Article 226- Principle while discussing the scope of Dismissal-workman found guilty of using judicial review of administrative abusive works-riotous and disorderly decisions. In Tata Cellular vs. Union of violent behaviour-finding recorded by India, AIR 1996 SC 11, it was held that Labour Court-not perverse-cannot be interfered-dismissal order held proper. the scope of such review is limited. In the instant case we do not find any good Held- Para 14 ground for interference with the From the record and the evidence which impugned order. Moreover, writ is a was looked into by the Labour Court discretionary remedy, and we are not to under Section 11-A of the Industrial exercise our discretion in this case. Disputes Act it is noted that the workmen were found responsible in riotous behaviour, beating the officials of We do not find any merit in the writ the company and using abusive language petition and it is dismissed. and slogans. There are findings of fact by ------the Labour Court. The Courts in catena of decisions have held that the punishment of dismissal for using abusive language and beating the superior officers is proportionate to the charge. Case law discussed: 2002 (1985) FLR 949

(Delivered by Hon’ble Rakesh Tiwari, J.) h 1. Heard learned counsel for the t parties and perused the record. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ram Prasad Prajapati V. Labour Court, Allahabad and another 627

This petition arises from an award domestic enquiry by the employer was passed by the Labour Court, Allahabad fair and proper. The Labour Court by its dated 23 Februrary, 1984 in Adjudication interim award held that the domestic Case No. 196 of 1981. The award was enquiry was fair proper and in accordance enforced by publication on the Notice with law. This interim award is also part board under Section 6 (3) of the U.P. of the final award of the Labour Court. Industrial Disputes Act, 1947 on 28.4.1984. 5. By the impugned award the Labour Court has held that the petitioner 2. The dispute arises due to workman misbehaved with the Chief termination of the services of the Executive Officer of the establishment of petitioner on 18.12.1980 by the Company. the company, was involved in the act of Aggrieved by his termination the beating him along with others, instigated petitioner raised an industrial dispute, other workers to indulge in such violent which was referred by the State activity and as such it was not proper to Governement in exercise of the powers keep such a person in service for the under Section 4-K of the Act to the reason that industrial discipline, peace and Labour Court Allahabad where it was harmony have to be maintained and if the registered as Adjudication Case No. 196 workman is let out, indiscipline would of 1981. increase. He found that the punishment of dismissal was not disproportionate, illegal 3. The case set out by the employer and unjustified. The operative portion of was that the workman along with other the findings recorded by the Labour Court workers assaulted the Chief Executive in paras 4, 5 and 6 are as under: Officer of the Company. He was found responsible for riotous and disorderly 4. bl fookn esa ,d izkjfEHkd okn fcUnq bl ckr dks behaviour and was dismissed from service fuf'pr djus ds fy, cuk;k x;k fd ?kjsyw tkap U;k;laxr after holding enquiry. It was also the case vkSj mfpr

ij igqWapk fd vkjksfir Jfedx.k ij yxk;s x;s lHkh vkjksi decision based on facts not pleaded. No fl) gq;sA ;g fu.kZ; esa igys gh ns pqdk gwwa fd tkap dh evidence would be permissible to be led dk;Zokgh U;k;laxr vkSj mfpr

pleaded. Relying the case of Sy. Yakub 6. izfr"Bku ds eq[; dk;Zdkjh vf/kdkjh ds lkFk Vs. K.S. Radhe Krishnan 1964 SC-477 nqO;Zogkj djus esa lEcfU/kr Jfed us Hkkx fy;kA dqN Jfed us eq[; dk;Zdkjh vf/kdkjh dks ekjk ihVk lEcfU/kr Jfed us he submits that the perversity of the order bu ekjus okyksa dks mRrsftr fd;kA esjs fopkj ls bl izdkj would warrants intervention by High ds Jfed dks lsok esa j[kuk mfpr ugha gS] D;ksafd bl izdkj Court under Article 226 of the ds yksxksa ls vuq'kklughurk dks c<+kok feysxkA esjs fopkj ls Constitution of India. It is not denied that lsok eqDr dk vkns'k fdlh izzdkj ls voS/k ;k vuqfpr ugha there was no evidence against the gSA workman to incite the other workers and participate in the beating of the Chief 6. Learned counsel for the petitioner Executive Officer. has denied in his argument that the workman concerned was dismissed from 8. Though it has not been alleged in service for any trade union activity. It is the written statement of the employer that alleged that he was dismissed from the petitioner has incited the other service as he was found responsible to workers but by this the gravity of his organize riotous and disorderly behaviour misconduct is not reduced to an extent and such an act cannot be said to be a that punishment other than dismissal may trade union activity. be given. In paragraphs 1, 2 and 3 of the written statement it has been stated that 7. Learned counsel for the petitioner on 30.5.80 some workmen of the concern submits that in paras 1 and 3 of the along with Ram Prasad, Chandra Bali, written statement filed by the employer it Bhola, Lal Mani Akhaibar and others left has been stated that the petitioner along their place of work and forcibly entered in with others forcibly entered in the office the office of the Chief Executive Officer of the respondents and assaulted the of Company pulled him out of the office, Officer but in the enquiry the Chief man handled him and also assaulted other Security Officer has stated that the officers of the Company. It is also stated workman tried to enter in the gate and that Ram Prasad and six others were there were 200 workers whereas the assaulting the officers in broad daylight in Labour Court in its award held that the presence of several employees of the petitioner was only inciting the workers. company. They were immediately On the basis of these averments the recognized and in view of the seriousness argument advanced by the learned of the miscondenct of involvement in the counsel for the petitioner is that the riotous and disorderly behaviour finding of the labour Court that the collectively and they were charged of the petitioner was inducing the other offence and dismissed from service. There workmen is never pleaded in the written is sufficient evidence on record of statement filed by the employer hence it involvement and participation of the can not be improved by any other worker in the aforesaid acts of misconduct evidence. He has placed reliance on 1982 and argument to the contrary is against h Smt. Bibbe Vs. Smt. Ram Kali, A.W.C. the record. t 665 in which it has been held that a tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ram Prasad Prajapati V. Labour Court, Allahabad and another 629

9. The second argument of the taken before the High Court, it can still in learned counsel for the petitioner is that exercise of power under Article 226 of the even if the charge of inducement is Constitution of India may interfere if it proved dismissal of the petitioner from feels that the punishment is highly service on the background of facts of the disproportionate to the charge/ case is excessive and disproportionate to misconduct. the charge leveled against him. He submits that the background of the case is 12. He further submits that Section explained in para 5 of the award and that 2-A of the U.P. Industrial Disputes Act, the plea of Section 11-A of the Industrial 1947 which is equivalent to Section 11-A Disputes Act was considered by the of the Industrial Disputes Act (Central) Labour Court in para 4 of the award and was inserted by U.P. Act No. 34 of 1978. as such, this Court may interfere in the There is no ban or restriction on exercise matter as the Labour Court in exercise its of Section 11-A of the Industrial Disputes power under Section 11-A of the Act. He submits that by the insertion of Industrial Disputes Act as the same was this Section the powers of the authority pleaded before the Labour Court. The giving the award in the matter of relief quantum of punishment is not has been widened as now the authority proportionate to the charge levelled making the award has power to substitute against the petitioner. In this regard he has the punishment given by the employer placed reliance on AIR 1982 Rama Kant and reinstate the workman on the terms Misra Vs. State of U.P. SC-1552, 1984 and conditions it deems fit and proper. Ved Prakash Vs. M/s Delton Cable SC- 914 and 1989 (i) SCJ 232 Scooter India 13. From perusal of the record it Limited Vs. Labour Court. appears that the Labour Court has recorded a categorical finding regarding 10. However, from the award it is the guilt and participation of the workman clear that the Labour Court has given a in riotous behaviour inciting the workers finding of fact that the punishment was and beating the Chief Executive Officer not disproportionate to the charge levelled of the company. The punishment of against him as such the aforesaid cases of dismissal awarded for such riotous and Rama Kant, Ved Prakash and Scooter disorderly violent behaviour can not be India Limited (Supra) are not applicable said to be too harsh. Peace and harmony to the facts of the present case. are necessary elements for creation of industrial atmosphere conducive for 11. Relying on the case of Dr. production and if this is disturbed the Ramesh Chandra Tyagi Vs. U.O.I., relationship between the master and the 1994 2SCC-416, B.C. Chaturvedi Vs. servant would be strained and production U.O.I., 1995 6 SCC-749, Ram Kishan will suffer. If this is viewed with notional Vs. U.O.I., 1995 6 SCC-157, angle loss in production could be national U.P.S.R.T.C. Vs. Mahesh Kumar loss. The reasons given by the Labour Misra, 2000 (3) SCC-450 and Shiv Court for not reinstating the petitioner are Prakash Rai Vs. State of U.P., 2001 3 cogent reasons. After examining the h UPLBEC 2222 he submits that even if evidence and the arguments I find that the t plea of awarding lesser punishment is not Labour Court has neither committed any tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 630 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

error in law in holding the workman ORIGINAL JURISDICTION guilty and nor the award is perverse. The CIVIL SIDE findings of fact, which are not perverse, DATED: ALLAHABAD 23.5.2003 should not be overturned in exercise of powers under Article 226 of the BEFORE THE HON'BLE RAKESH TIWARI, J. Constitution of India. I am also supported with my view by a recent judgment of the Civil Misc. Writ Petition No 7008 of 1984 Apex Court in 2002 (1985) FLR 949 M/s Esen Dinki Vs. Rajiv Kumar in this Yogesh Chandra Rajvedi …Petitioner regard. Versus II Additional District Judge, Kanpur and 14. From the record and the others …Respondents evidence which was looked into by the Labour Court under Section 11-A of the Counsel for the Petitioner: Industrial Disputes Act it is noted that the Sri Navin Sinha workmen were found responsible in Sri Vipin Sinha riotous behaviour, beating the officials of Counsel for the Respondents: the company and using abusive language Sri P.N. Saxena and slogans. There are findings of fact by Sri S.K. Chaturvedi the Labour Court. The Courts in catena of S.C. decisions have held that the punishment of dismissal for using abusive language U.P. Urban Building (Regulation of and beating the superior officers is Letting & Rent) Control Act 1972-U.P. proportionate to the charge. Act No. 13 of 1972-Section 18 (3)-power of the Execution Court-District 15. For these reasons and as a result Magistrate exercising power of of the aforesaid discussions it is not a fit execution authority-whether can go beyond the terms of judgement/order? case for exercise of powers under Article Held 'No'. 226 of the Constitution of India. The writ petition fails and is dismissed. Held- Para 14

No order as to costs. The District Magistrate while exercising ------power under section 18 (3) of the Act to that of executing Court, cannot go beyond the terms of the order sought to be enforced and he cannot enter into the merit or de-merit of the case. The same view has been held by this court in 1998 (1) AWC 260 Dr. Smt. Keshav Devi Vs. The Addl. District Magistrate (Civil Supply) Lucknow and 1984(1) ARC 327 Abdul Ghafoor Vs. The Rent Control and Eviction Officer/D.S.O. Saharanpur and another. Case law discussed: h 1998 (1) AWC-260 t 1984 (1) ARC-32 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Yogesh Chandra Rajvedi V. II A.D.J., Kanpur and others 631

(Delivered by Hon’ble Rakesh Tiwari, J.) 17.1.83 has chosen to reject the same. The application to my mind is, not 1. Heard the learned counsel for the maintainable. It has therefore, to be parties and perused the records. rejected as not maintainable.

The petitioner has filed the present Order writ petition challenging the judgments The application is a accordingly rejected and order dated 18.6.1983 and 15.2.1984, as not maintainable. The parties are left to Annexure-3 and Annexure-4 to the writ bear their own cost. petition passed by respondents no. 2 and1 S/d D.C. Srivastava respectively. By the aforesaid order dated II Addl District Judge, Kanpur. 18.61983 the Addl. City Magistrate held Dt. 15.2.84. that:- 2. The prayer for restoring "mHk;i{kksa ds fo}kuksa odhyks dh cgl rFkk i=koyh possession over the premises in dispute lk{; ds vk/kkj ij eSa bl fu’d"kZ ij igqapk gwa fd izkFkhZ has been rejected. x.k ;ksxs’kpUnz vkfn ds fo}ku odhy dk ;g rdZ fjohtu esa ftyk tt egksn; us dksbZ LislhfQd vkns’k fn;k Fkk ftlds The brief facts of the case are that the vuqikyu fcuk fdlh vkifRr vkfn dks lqus Hkh gq;s bl U;k;ky; dk drZO; gSA ekuus ;ksX; ugha gSA tSlk fd house in dispute was purchased by the ekuuh; mPp U;k;ky; us viusvkns’k fnuakd 27-1-83 esa father of the petitioner, Satish Chandra, Li"V dj fn;k gSA ;ksxs’kpUnz ds izkFkZuk izi= ds leFkZu esa since deceased, Benami in the name of his dsoy blh ,d rdZ ij cy fn;k tk jgk FkkA tks ekuuh; wife Smt. Sarasdwati Devi, respondent mPp U;k;ky; ds foLrfr ds vkns’k ds ckn fcydqy ekuus no.5. After the death of the father, the ;ksX; ugha izrhr gksrkA vc u ;g ykbZlsUlh gS okn u petitioner and his mother were residing in fdjk;s nkj gSA vkSj u lg xzgLokeh gSA bl lEcU/k esa fd the aforesaid premises. Respondent no. 5 mudks fdl gSfl;r ls dCtk okil fnyk;k tk; mUgksusa u sold the property to respondent no. 3 rks dksbZ lk{; fn;k gS vkSj u rks dkuwu fn[kk;k gSA /kkjk through sale deed dated 23.11.1976 and 18@3@ ij vkns’k ikfjr djus dk vf/kdkj bl U;k;ky; handed over the possession of that dks gh gSA vr% ;ksxs’kpUnz vkfn dks /kkjk 18@3@ dk izkFkZuk premises, which was in her occupation. i= fujLr fd;k tkrk gSA g0 ts0 Mh0 JhokLro vfr0 uxj eft0 rrh;@fd0fu0v0 3. Respondent no.3 after purchasing dkuiqjA fnuakd 18-6-83 " the property and taking over the possession of the portion of respondent By order dated 15.2.1984 it has been held no. 5 moved the release application under that:- section 16 (1) (b) of U.P. Act No. XIII of 1972 against the petitioner on the ground “I have gone through these two that he was an unauthorized occupant. pronouncements and I am not to agree The vacancy in the aforesaid premises with the learned counsel that this court was notified by the Rent Control and after issuing order for restitution on 7.7.78 Eviction Officer and the application for can again pass an order for restitution releases was allowed on 13.4.1977. specially when the R.C.&E.O. acting on Subsequently an order for delivery of h the guide line laid down by the Hon’ble possession was passed on 11.5.1977 and t High Court in the writ petition decided on tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 632 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

the petitioner was dispossessed from the the parties back in the position which they disputed house. could have occupied but for orders dated 4. Aggrieved, the petitioner moved 13th April and 16th June, 1977. an application under Section 16 (5) of the Since the case involved complicated Act for review of the order dated questions of law and jurisdiction I would 13.4.1977, which was dismissed by the leave the parties to bear own costs all Rent Control and Eviction Officer III vide through. order dated 16.6.1977. The petitioner Sd/- S.R. Bhargava, preferred a revision under section 18(1) of II Addl. District Judge, U.P. Act No. XIII of 1992, which was Kanpur. Dt. 7.7.78.” allowed and the order dated 16.6.1977 under section 16 of the Act was set aside 7. Respondent no. 3 challenged the and a finding was recorded that the validity and correctness of the order dated petitioner was not an unauthorized 7.7.1978 passed by the revisional court in occupants as he was a member of the writ petition no. 5590 of 1978, which was family and was in possession from before, dismissed by judgment and order dated the revisional authority had not directed 30.6.1980. He filed special leave petition the Rent Control And Eviction Officer before the Hon’ble Supreme Court, which (RCEO) to restore the possession of the was also dismissed by judgment and order disputed portion to the petitioner vide dated 19.2.1981. Annesure-1. 8. After dismissal of the Special 5. The Court below relied upon the Leave Petition by the Apex Court, admission of Smt. Saraswati Devi in the respondent no. 3 filed a civil suit in the sale deed that the petitioner occupied the court of Munsif, Kanpur arraying Rent portion on her behalf without any Control and Eviction Officer as defendant payment of rent and is not a tenant and no. 2. In the said suit an application for held that this admission is binding upon interim injunction was made restraining her successor in interest and as such the petitioner, which was dismissed by the section 12 (1) (C) of the Act did not apply trial court. Aggrieved, he filed an appeal, to the case. The operative portion of the which was also dismissed by the Ist order passed by the II Addl,. District Additional District Judge, Kanpur vide Judge, Kanpur in Revision No. 99 of 1977 order dated 18.8.1982. The petitioner Yogesh Chandra Rajvedi Vs. Lal Chand again filed another writ petition no 10427 and others is as follows:- of 1982 Lal Chand Vs. Yogesh Chand and others challenging the judgment dated 6. “Revision allowed. Order of the 18.8.1982 of the Additional District Tribunal dated 16th June, 1977 is Judge, Kanpur. The aforesaid writ petition rescinded. Review application of Yogesh was dismissed with the observation that Chandra is allowed. Order of the Tribuanl the petitioner should move an application releasing the premises in occupation of for restoration of possession before Yogesh Chandra is cancelled. Now the respondent no.2. His application under Tribunal has ceased. Hence the Rent section 18 (3) of the Act was dismissed by h Control and Eviction Officer shall Rent Control and Eviction Officer-III, t proceed under Section 18 (3) for placing Kanpur after making enquiry regarding tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Yogesh Chandra Rajvedi V. II A.D.J., Kanpur and others 633

restitution of possession and set aside the family members including Yogesh findings recorded by respondent no.1. By Chanbdra Rajvedi would vacate the other order dated 15.2.1984 petitioner’s portion of the house, which was in their application against the order dated respective possession. It has also 18.6.1983 was also dismissed by mentioned in the sale deed that in the respondent no. 1. even her family members do not vacate their portion, it would be open to 9. The contention of the counsel for respondent no. 3 to get vacated the said the petitioner is that once the orders dated portion through court or in any other 13.4.1977 and 16.6.1977 passed under manner. section 16 of U.P. Act No. XIII if 1972 were set aside by the revisional court 12. The only short question involved under section 18 (1) of the Act by order in this writ petition is whether in the facts dated 7.7.1978, the District Magistrate has and the circumstances of the case stated no power to review the order under above, respondent no. 3 could get the Section 18 (1) and set aside the findings. house vacated now. It is further submitted that the District Magistrate under section 18 (3) has a 13. It is contended by respondent power like executing Court, but it cannot no.3 that Smt. Saraswati Devi was owner set aside the order passed under section of House No.119-69-A Nasimabad, 18 (1) of the Rent Control Act. It is also Kanpur and this question had attained submitted that the District Magistrate finality and cannot be re-agitated in the Under Section 18 (3) of the Act writ petition. It is submitted that Smt. implements and enforce the order made Saraswati Devi was residing as owner in a under Section 16 of the Act. Once the portion of the house in question and District Judge has rescinded the order and Yogesh Chandra Rajvedi and Smt. has directed the applicant to be put back Shankuntala were residing in ground floor in possession, the District Magistrate portion and in first floor portion while enforcing the said order cannot go respectively of the house in dispute. Even beyond the order and sit in appeal over if the petitioner was occupying any the same. Reliance has been placed in this specific portion in the house in dispute, he regard in 1988 (1) AWC 260 and 1984 (1) was only the licensee of Smt. Saraswati ARC327. Devi and this question has already been decided finally between the parties. 10. From the above narration of facts, it is crystal clear that respondent no. 14. It is submitted that the notice of 3 has been making attempt to thwart the the release proceeding was duly served proceedings as contemplated under upon the petitioner, but he did not appear section 18 (3) of U.P. Act No. XIII of to contest the same and as such he was in 1972. unauthorized possession of the portion of the house in dispute and had not right to 11. It appears from the record that in move any application under section 16 (5) the sale-deed it was recited that Smt. of the Act for restoration of possession. h Saraswati Devi had delivered possession The fact that the petitioner was a licensee, t of her portion to the purchaser and other has also been confirmed by the revisional tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 634 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Court. It is stated that the question of restoration of possession to the petitioner 16. For the aforesaid reasons, the whose licensce was revoked, was not writ petition is allowed. The impugned considered by this court nor the question orders 18.6.1983 and 15.2.1984 are of jurisdiction of the revisional court to quashed. The matter is remanded back to pass an order for restoration of possession the court below for fresh decision in for which only the District Magistrate had accordance with law in the light of been authorized under section 18 (3) of observations made above. the Act. ------ORIGINAL JURISDICTION 15. Admittedly the order dated CIVIL SIDE 13.4.1977 and 16.6.1977 passed under DATED: ALLAHABAD 27.05.2003 section 16 of the Rent Control Act, were BEFORE set aside by the revisional Court under THE HON’BLE M. KATJU, J. section 18 (1) of U.P. Act no. 13 of 1972 THE HON’BLE R.S. TRIPATHI, J. by order dated 7.7.1978. As such the District Magistrate had no power to Civil Misc. Writ Petition No.18229 of 2001 review its own order under section 18 (3) of the Act are analogous to the executing M/s C.L. Gupta & Sons and another court and it can only execute, implement …Petitioner and enforce the order by which an order Versus of release or allotment under section 16 of State of U.P. and others …Respondents

the Act is rescinded. Once the District Counsel for the Petitioner: Judge has rescinded the order and has Sri S.P. Gupta directed the applicant to be put back in Sri Suneet Kumar possession, the District Magistrate while Sri U.N. Sharma enforcing the aforesaid order, cannot go beyond it and sit in appeal over it. Under Counsel for the Respondents: the scheme of the Act the powers Sri N. Das exercised by the District Magistrate are Sri A. Pandey subject to the powers of supervision given Sri S.P. Pandey to the District Judge under Section18 (1) Sri Ravi Kant of the Act. The District Magistrate while Sri Amarendra Pandey exercising power under section 18 (3) of Sri R.R. Agarwal the Act to that of executing Court, cannot S. C. go beyond the terms of the order sought to be enforced and he cannot enter into the Constitution of India Article 226-Practice merit or de-merit of the case. The same and procedure unless the decision of view has been held by this court in 1998 administrative authority, arbitrary ground or illegal High Court not to (1) AWC 260 Dr. Smt. Keshav Devi Vs. interfere or to act like court of appeal. The Addl. District Magistrate (Civil Supply) Lucknow and 1984 (1) ARC 327 Held- Para 9 Abdul Ghafoor Vs. The Rent Control and h Eviction Officer/D.S.O. Saharanpur and It is well settled that in administrative t another. matters the Court should not sit in tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Yogesh Chandra Rajvedi V. II A.D.J., Kanpur and others 635

appeal over the decisions of the administrative authorities, but can only interfere where there is total favour of the respondent no.5. It is alleged arbitrariness or illegality vide Tata in paragraph 20 of the petition that the Cellular Vs. Union of India, AIR 1996 SC respondents have acted on extraneous 11. We see nothing arbitrary or illegal in the method adopted by the respondents. considerations in settling the contract in The selection was done by a committee favour of the respondent no.5 at a much of senior officials of the department and lower rate. It is stated in paragraph 12 of the opinion of the Audit Section and the petition that the petitioner’s offer was Finance Controller was also obtained. Rs.75.11 per kg. Where as the offer of the There is no merit in this petition and it is respondent no.5 was 75.10 per kg. dismissed.

5. Counter affidavit has been filed (Delivered by Hon'ble M. Katju, J.) on behalf of respondent no.1 to 4 and we

have perused the same. In paragraph 25 of 1. This writ petition has been filed the same it is stated that the rates for a writ of certiorari to quash the mentioned in paragraph 12 of the writ contract granted in favour of respondent petition are exclusive of expenses and no.5 and for mandamus directing the taxes, and if expenses and taxes are added respondents to execute the contract in then the rate offered by the respondent favour of the petitioner firm. no.5 will be the highest. Annexure-CA-3

is a comparative chart of the petitioner as Heard learned counsel for the parties. well as the respondent no.5. 75.11 per Kg.

but inclusive of taxes and expenses it will 2. The petitioner nos. is a be Rs.8097.77 paisa per quintal. On the partnership firm and petitioner no.2 is a other hand, the rate quoted by the partner of the said firm. The petitioner respondent no.5 is 75.10 per Kg. manufactures and exports brasswares etc. exclusive of taxes and expenses, but it is

Rs. 8501.53 paisa after adding taxes and 3. The respondent no.4 th expenses. Hence if taxes and expenses are Commandant, 11 B. PAC Sitapur issued added the rate quoted by the respondent an advertisement in the newspapers no.5 is higher than that of the petitioner. inviting tenders for sale of mutilated The matter was considered by a empty cartridge cases made of brass. The Committee constituted by the Police petitioner firm submitted its tender. As Head Quarter in which four Officers of per the terms and conditions the tenders the Police Head quarter at Allahabad as were opened on 28.1.2000. There were 26 well as the Commandant, 11th Bn.PAC, firms who submitted their tenders. It is Sitapur were members. The Committee alleged in paragraph 9 of the petition that also obtained the opinion of the Audit the market value of the scraps is Section and Finance Controller, Hence it approximately Rs. 1.5 crore. is alleged that there was full transparency

in the matter. In paragraph 33 of the same 4. On 28.1.2000 the tender forms of it is stated that the respondent no.5 has the 26 firms were opened and it is alleged already filed materials on several dates in paragraph 11 of the writ petition that and there is no malafide. h the petitioner’s bid was the highest.

t However, the contract was settled in tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 636 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

A counter affidavit has also been taxes and expenses should be seen, or the filed by the respondent no.5. rate inclusive of taxes and expenses is to 6. Annexure-CA-1 to the same be seen. When the authorities had adopted contains the terms and conditions. the second alternative it is not for this According to the Clause–12 of the same, Court to sit in appeal over their decision. besides the tender rates the buyers would be charged to trade tax at 5%, 9. It is well settled that in Departmental charge at 5% and Handling administrative matters the Court should charge at 2%. In paragraph 10 of the same not sit in appeal over the decisions of the it is stated that the tender rate of the administrative authorities, but can only petitioner was Rs.75.11 per kg whereas interfere where there is total arbitrariness that of the respondent no.5 was Rs.75.10 or illegality vide Tata Cellular Vs. per kg. Thus the difference was every Union of India, AIR 1996 SC 11. We see small. In paragraph 12 of the same it is nothing arbitrary or illegal in the method stated that the petitioner has been granted adopted by the respondents. The selection recognition certificate for the purchase of was done by a committee of senior raw material at concessional rate vide officials of the department and the Annexure-CA-3 to the affidavit. It is opinion of the Audit Section and Finance alleged that it is not necessary that the Controller was also obtained. There is no highest bidder should always be granted merit in this petition and it is dismissed. the contract. ------ORIGINAL JURISDICTION 7. In paragraph 17 and 18 of the CIVIL SIDE counter affidavit it has been stated that if DATED: ALLAHABAD 20.05.2003 the tender of the petitioner had been BEFORE accepted the State Government would THE HON'BLE S.N. SRIVASTAVA, J. have suffered a substantial loss. As the respondent no.5 will be paying Rs. Civil Misc. Writ Petition no. 38847 of 2002 1,48,77677.05 to the State where the petitioner would have paid only Rs.1, Durgesh Kumar Tiwari …Petitioner 41,71,097.50 paisa. Thus the respondent Versus no.5 will be paying about Rs.7 Lakhs Chief General Manager State Bank of more to the State. India and others …Respondents

8. On the facts of the case we find Counsel for the Petitioner: no merit in this petition. No doubt if the Sri B.D. Mandhyan Sri Khurshad Alam rate exclusive of taxes and expenses is

seen the petitioner rate is slightly higher Counsel for the Respondents: than the rate of the respondent no.5. but if Sri A.K. Misra the taxes and expenses are included vide Annexure-CA-3 to the counter affidavit Constitution of India, Article 226- then the rate of respondent no.5 is higher. Compassionate appointment-philosophy Thus it was the option of the authorities to of appointment foundation of social h which of the two methods should be Justice & right to life-if must prevail over adopted i.e. whether the rate exclusive of technicalities 3 daughter and one son, t alongwith widow-amount of pension tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] M/s C.L. Gupta & Sons and another V. State of U.P. and others 637

sum of Rs.450/- meagre-No due consideration given by the authorities- impugned order rejecting the claims 1. Petitioner, the son of deceased cannot sustain. employee of State Bank of India has invoked the extra-ordinary jurisdiction of Held: Para 7 this Hon. Court under article 226 of the Constitutional philosophy of Constitution for quashment of the appointment on compassionate ground impugned communication dated has its foundation in social justice and 27.8.2002 and for a writ of mandamus for right to life. Having regard to this appointment on compassionate ground. philosophy the social justice must prevail over any technical rule. In the instant case, the deceased employee was 2. Brief facts as are necessary for survived by three daughters and one adjudication of the disputation in the son. Two daughters were married off out present petition are that Sri Hans Nath of whatever the family of the deceased Tiwari a regular employee of State Bank was recipient as terminal benefits. As of India died in harness on 31.1.1997 and stated supra, the pension has now been at the time of his death he was serving as downsized to Rs.450/-. This pension is too meagre to feed one son, one clerk-cum-cashier in the State Bank of unmarried daughter and the widow of India Belthera Road Branch Ballia. The the deceased. By a rough reckoning, if mother of the petitioner sought the family of three is made to sustain compassionate appointment but the same itself on two square meal at the rate of met with disapproval of the Bank Rs.10/- per square meal per head, the authorities and by means of family bereft of other basic facilities would need a sum of Rs.60/- per day and communication dated 25.5.1999, the by this reckoning, the need of the family prayer was declined with cryptic order would aggregate to not less than a sum that indigent circumstances do not exist. of Rs. 1800/- for fooding alone Para 2 of the order enumerated resources excepting other necessities of life. I am, and the fund, which the family was therefore, constrained to observe that possessed of. The family was stated to be while rejecting the request of the petitioner a second time pursuant to the recipient of the following amount in the direction of this Court, the Bank wake of the death of the sole authorities showed their insensitivity at breadwinner: Provident fund- Rs. 1.96 its crudest form and did not seem to act lacs; gratuity-Rs. 1.08 lacs and lump sum like a model and an ideal employer. relief- Rs. 0.20 lacs paid under Staff Rather they seemed to be oblivious that Mutual Welfare Scheme; family pension they were authorities within the Rs. 3,421/- and monthly relief- Rs.500/- meaning of Article 12 of the Constitution and were obligated to act in terms of under staff Mutual Welfare Scheme, avowed objective of social and economic moveable assets valued at Rs. 0.30 lacs justice as enshrined in the Constitution. and immovable property valued at Rs. Case law discussed: 3.00 lacs, agricultural land of 4 Bighas 2002 (2) E.S.C. (Alld.), 1992 (2) ESC- Alld. yielding income of Rs. 5000/- per annum, 2003 (iii) UPLBEC-2055, 2000(iii) ESC-1618 interest income of Rs. 3000/- per month (SC) from investments and terminal dues claim (Delivered by Hon'ble S.N.Srivastava, J.) of life Insurance Corporation of India h Policy of Rs.50,000/- paid to the family t and invested in term deposit with the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 638 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Bank. The Bank authority seemed to have Special Appeal No. 575 of 2000 delivered assessed sufficiency of resources on the by a Division Bench of this Court on basis of the above and converged to the 26.3.2003, decision rendered by a conclusion that the family did not suffer Division Bench of Patna High Court dated from scantiness of resources. Aggrieved, in C.W.J.C. No. 11781 of 2002, Single the petitioner instituted writ petition no. Judge decision in W.P. No. 7222 of 2002 30406 of 2000. This Court, while dated 19.12.2002, Single Judge decision allowing the writ petition issued direction in Manoj Kumar Tiwari v. State of U.P. to the respondent authorities to reconsider and others reported in (2002) 2 E.S.C. the application of the petitioner for (All.), Division Bench decision of this appointment on compassionate ground in Court in Anand Kumar v. Union of India view of the observations embodied in the reported in (2992) 2 ESC (Alld). said judgment dated 9.4.2002. Again, the compassionate appointment was declined 4. From a perusal of the record, it to the petitioner and it is in this backdrop would transpire that the family is leading that the petitioner has preferred the instant a very precarious existence. Before his petition. death, the deceased suffered a protracted illness due to cancer and consequent 3. In the instant petition, the treatment which sapped the family of petitioner has repudiated the contention whatever it had for purposes. It is stated stating that picture drawn by the Bank in para 4 of the writ petition that lump Authorities as to the income has been sum amount of Rs. 1.83 lacs including all magnified beyond all proportions and it retiral benefits and to the exclusion of has been spelt out that the lump sum deduction of loan amount which amount of Rs. 1.83 lacs has been admittedly was sanctioned by the Bank enumerated by the Bank without for treatment of the deceased and further discrediting the liability towards Bank that the family was initially sanctioned Loan. It was further submitted that the pension of Rs. 1267/- which was paid family pension has suffered diminution upto 31.1.2002 and thereafter, it suffered and has been rescheduled to Rs.450/- per diminution and has been reduced to Rs. month on the basis of basic pay with 450/-. The assertion has not been denied effect from 1.2.2002. On the other hand, by the respondent Bank in the counter the learned counsel appearing for the affidavit. In para 14 of the writ petition, it Bank strenuously repudiated the claim of is submitted that the land which has been the petitioner to his claim to appointment taken into consideration adding to the on compassionate ground. However, he source of income is not arable land nor did not repudiate the factum of reduced the same is yielding any income. The pension and other contentions pertaining averments in this para have not bee to income of the deceased family nor did denied. It would thus appear that the Bank he state in justification of the figures authorities have not scanned the entire unfolded in its order by the Bank facts and circumstances in correct authorities. He placed copious reliance on perspective and stampeded into holding various authorities both of this Court and that there existed no indigent h the Apex Court. The cases cited in circumstances. It should not be lost sight t vindication of his hand are the decision in of the fact that the employer in the instant tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Durgesh Kumar Tiwari V. Chief General Manager, S.B.I. and others 639

case is a statutory body within the towards Bank’s loan and that the pension meaning of Article 12 of the Constitution has since suffered diminution and stands and as such, it has an obligation to act in reduced to Rs. 450/- per month only. It is terms of the avowed objective of social also worthy of notice that two of the and economic justice as engrafted in the sisters have already been married off and Constitution. As enunciated by the Apex the third sister has attained marriageable Court in Balbir Kaur and another v. Steel age and therefore, the resources which the Authority of India1 “the concept of social family is possessed of cannot be adjudged justice is the yardstick to the justice to be sufficient to keep the pot boiling. In administration system or the legal justice converging to the sufficiency of and ……and the greatest virtue of law is resources, the Bank authorities have not in its adaptability and flexibility and thus acted like a model and an ideal employer it would be otherwise an obligation for having regard to the avowed objective of the law courts also to apply the law social and economic justice as enshrined depending upon the situation since the in the Constitution and executive law is made for the society and whichever imperviousness and zeal is more than is beneficial for the society, the endeavour apparent on which wrecked the repeated of the aw Court would be to administer requests of the family for compassionate justice having due regard in the appointment. direction.” It is in the context of the above observation that the Court feels disposed 5. On behalf of the Bank authorities, to screen the impugned order qua the the learned counsel has cited series of condition of life in the aftermath of the decisions. The first decision cited is a death of sole bread earner. Upon regard decision rendered by a Division Bench of being had to the factual matrix unfolded this Court in Special Appeal no. 575 of above, it would transpire that the Bank 2000 on 26.3.2003. It was a case in which authorities were swayed to converge to family was receiving a pension of Rs. the conclusion of sufficiency of resources 6000/- per month and in this case the and funds collected from varied sources learned Single Judge upon consideration without delving into its correctness, or of the family resources and the pension reliability. It has not been reckoned with had held that the family could not be said by the Bank authorities whether the to be in distress. Be that as it may, it was resources delineated in para 2 of the a decision rendered in the peculiar facts impugned order were sufficient to keep and circumstances of that case and it the pot of the family boiling and whether cannot be imported to be applied in the the family would face resource crunch facts and circumstances of the present after meeting the liabilities left behind by case. Yet another case cited by the learned the deceased employee. It brooks no counsel is the order passed in Writ dispute upon comparison of the assertions Petition no. 7222 (S/S) of 2002 passed by in the writ petition with the averments in learned Single Judge on 19.12.2002. This the counter affidavit that the family order does not contain any detailed received Rs. 1.83 lacs including all retiral discussion and the learned Single Judge benefits to the exclusion of liabilities converged to the conclusion that the h family was not in distress ostensibly on the basis of income stated to be Rs.6231/-. t 1 (2000) 3 UPLBEC 2055 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 640 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

This order stemmed from peculiar facts Steel Authority of India Ltd and others2 and circumstances of that case and thus that feeling of security drops to zero on cannot be called in aid in vindication of the death of the bread earner and the stand as propounded by the learned insecurity thereafter reigns and further counsel appearing for the Bank that if some lump sum amount is made Authorities. The third authority cited by available with a compassionate the learned counsel is a decision of Patna appointment, the grief stricken family High Court. In this decision rendered in may find solace to the mental agony and C.W.J.C. No. 11781 of 2002. It is again a manage its affairs in the normal course of brief order in which any of the aspects as events. In the instant case, as stated supra, discussed in the ex-cathedra decisions of the family has been received a meagre the Apex court has not been dwelt upon or sum of Rs. 450/- since 1.2.2002 and discussed at length. This decision too is having regard to the liabilities left behind based on peculiar facts and circumstances by the deceased employee, the lump sum of the case and cannot be called in aid to amount of Rs.1.83 lacs and the pension of distract me from the view I am taking in Rs. 450/- being paid to the family since the matter. The fourth authority cited by 1.2.2002 are too paltry to be adjudged as the learned Counsel is Manoj Kumar sufficient to keep the pot boiling. The Tiwari v. State of U.P. and others decided authorities have not given due by single Judge of this Court. It was a consideration to the condition of the matter in which the deceased employee family and by this reckoning, the worked between 1961 to 1973 as Gram impugned order cannot be sustained and Sewak and it was claimed that the family is liable to be quashed. of the deceased. On this ground, the deceased family claimed compassionate 7. Before parting, I would not appointment. It was a decision on peculiar forbear from observing that Constitutional facts and circumstances and does not philosophy of appointment on involve any of the aspects as delineated in compassionate ground has its foundation this petition. The last decision cited by the in social justice and right to life. Having learned counsel is Anand Kumar v. Union regard to this philosophy the social justice of India and others passed in Writ Petition must prevail over any technical rule. In No. 16616 of 2001 decided on 24.1.2002. the instant case, the deceased employee In this case learned Tribunal was satisfied was survived by three daughters and one with the financial condition of the family son. Two daughters were married off out and the Division Bench merely upheld the of whatever the family of the deceased view taken by the Tribunal. This case too was recipient as terminal benefits. As is distinguishable. stated supra, the pension has now been downsized to Rs.450/-. This pension is 6. In the earlier two decisions too meagre to feed one son, one particularly the decision in Smt. Kanti unmarried daughter and the widow of the Srivastava v. State Bank of India Nariman deceased. By a rough reckoning, if the Point Mumbai and others, I have taken a family of three is made to sustain itself on consistent view having regard to the ratio two square meal at the rate of Rs.10/- per h decidendi in Balbir Kaur and another v.

t 2 2000 (3) ESC 1618 (SC) tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Durgesh Kumar Tiwari V. Chief General Manager, S.B.I. and others 641

square meal per head, the family bereft of Rs.60/- per day and by this reckoning, the other basic facilities would need a sum of need of the family would aggregate to not less than a sum of Rs. 1800/- for fooding alone excepting other necessities of life. I Constitution of India, Article 226-Service am, therefore, constrained to observe that law-disciplinary proceeding-initiated in 1967-Petitioner placed under while rejecting the request of the suspension-during pendency of petitioner a second time pursuant to the disciplinary Proceeding the petitioner- direction of this Court, the Bank retired from service in July, 2000-for authorities showed their insensitivity at its unreasonable delay the authorities crudest form and did not seem to act like themselves are responsible-held-for all a model and an ideal employer. Rather practical purpose-the delinquent employee shall be treated in service- they seemed to be oblivious that they suspension order quashed with 75% were authorities within the meaning of past salary. Article 12 of the Constitution and were obligated to act in terms of avowed Held- Para 11 objective of social and economic justice as enshrined in the Constitution. The disciplinary proceedings have illegally been delayed by the respondents themselves and were not 8. In the facts and circumstances concluded within reasonable time and discussed above, the petition is allowed when the petitioner has already retried and the impugned order is quashed and from service in July, 2000 the entire the respondents are directed to offer proceedings deserve to be quashed by appointment to the petitioner having this Court, in the light of the observations given in the Judgement of regard to the financial condition in the N. Radhakishan (supra) and also in light of what has been discussed in the Shatrughan (supra) with the further present petition. direction to the respondents that the ------petitioner should be treated in ORIGINAL JURISDICTION continuous service for all practical CIVIL SIDE purposes and should be paid arrears of DATED: ALLAHABAD 10.4.2003 75% salary of his past salary. The petitioner has already retired from BEFORE service on 31.07.2000 his post- THE HON'BLE R.B. MISRA, J. retirement benefits is also directed to be finalised. Civil Misc. Writ Petition No. 44407 of 1992 Case law discussed: AIR 1988 SC 1833 1998 (3) SCC 123 Shiv Shanker Tiwari …Petitioner J.T. 1998 (6) SC-55 Versus Director of Agriculture, U.P. and others …Respondents (Delivered by Hon'ble R.B. Misra, J.)

Counsel for the Petitioner: 1 In this petition prayer has been Sri Ramesh Upadhyaya made for the writ of certiorari quashing entire proceedings of enquiry initiated Counsel for the Respondents: against the petitioner in sequence to his h Sri N.B. Tiwari suspension and further prayer has been t S.C. made for direction of mandamus to tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 642 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

reinstate the petitioner into service with decided by the Tribunal the petitioner was entire arrears of salary. again placed under suspension by an order dated 02.05.1983 (annexure-2 to the writ (1) Heard learned counsel Sri Ramesh petition) and the Project Officer Upadhyay for the petitioner as well as Agriculture, Varanasi was appointed as learned Standing counsel for the Inquiry Officer. It appears the petitioner respondents. kept on approaching the District Agriculture Officer Gazipur and also the (2) It has been submitted for petitioner Inquiry Officer and the Inquiry Officer that he was suspended in the year 1971 wrote several letters to the District and the disciplinary proceedings were Agriculture Officer Ghazipur one namely initiated, however, before its conclusion 9.2.1987 (annexure no.5 to the writ the petitioner was retired from service on petition) to show the petitioner all the 31.07.2000. documents relied by them in support of the charges yet the concerned documents (3) As contended by the petitioner he were never shown to the petitioner nor its was appointed as Assistant Agriculture copies were ever made available to the Inspector on 20.05.1964 and was posted petitioner. at Ghazipur on -9.06.1994. The petitioner was, however, suspended on 29.01.1971 (5) It was also contended by the and a 'charge sheet' was served on him on petitioner that the delay in conducting the 27.09.1971 without any documents relied enquiry was not due to any fault of the upon. The petitioner made an application petitioner as reflected from the letter on 10.12.1971 requesting for copies of the dated 21.07.1988 (annexure 1 to the documents referred to in the charge sheet supplementary affidavit) by which and as shown in Annexure-8 to the writ subsistence allowance has been raised to petition. Without following the procedure 3/4th. In this letter the Additional Director prescribed by law and in utter disregards of Agriculture (Administration), Lucknow to the principles on natural justice the has specifically written that the delay in petitioner was dismissed by an order the enquiry is not because of any fault of dated 24.07.1976. the petitioner.

(4) The order of dismissal was (6) In the counter affidavit filed by Dr. challenged by the petitioner before the Ashok Kumar Singh on behalf of all the U.P. Public Service Tribunal whereby the respondents in earlier paragraphs efforts order of dismissal was quashed on the have been made to justify the enquiry ground that adequate opportunity was not proceedings which was already quashed given to the petitioner and the documents by the Tribunal. According to the relied in support of the charges were petitioner without showing the documents neither shown nor supplied to the the respondents have erroneously petitioner. The Tribunal directed for mentioned in the counter affidavit that the reinstatement of the petitioner with documents have already been shown to continuity of service with a liberty to the the petitioner in the year 1984 itself and h respondents to conduct the enquiry afresh, all the other 15 letter were wrongly issued t if they so desire, however, case was by the respondents, however, on filing the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shiv Shanker Tiwari V. Director of Agriculture, U.P. and others 643

present writ petition Court was pleased to the court is to balance these two diverse stay the order of suspension and the considerations.(Para 19)" enquiry by observing "there is not only undue delay in concluding the "It is not possible to lay down any departmental proceedings, but prima facie predetermined principles applicable to all it also appears to be abuse of power". cases and in all situations where there is "The respondents are called upon to show delay in concluding the disciplinary cause as to why the said proceedings be proceedings. Whether on that ground the not quashed". disciplinary proceedings are to be terminated each case has to be examined (7) No justification was given in the on the facts and circumstances in that entire counter affidavit for prolonging the case. The essence of the matter is that the enquiry unnecessarily and delaying the court has to take into consideration all enquiry without there being any fault of relevant factors and to balance and weigh the petitioner from 1983 to December, them to determine if it is in the interest of 1992. Even a single word has not been clean and honest administration that the stated in the counter affidavit as well as in disciplinary proceedings should be the supplementary affidavit to justify the allowed to terminate after delay inordinate delay in concluding the enquiry particularly when delay is abnormal and from 02.05.1983 to 01.12.1992. there is no explanation for the delay. (Para 19)" (8) Learned counsel for the petitioner has placed reliance on A.I.R. 1988 "Charges have been framed against S.C.(1833) = J.T. 1998 (3) S.C. 123 State the respondent merely on the basis of the of Andhra Pradesh Vs. Radha-specifically report dated November 7, 1987 from the paragraph 15, 17, 19 and 20. Director General, Anti- Corruption "In considering whether delay has Bureau, which is of general in nature vitiated the disciplinary proceedings the raising accusing fingers on the various Court has to consider the nature of charge, officers of the Corporation, but without its complexity and on what account the any reference to the relevant files and pin delay has occurred. If the delay is pointing if respondent or any other unexplained prejudice to the delinquent official charged was at all concerned with employee is writ large on the face of it. It the alleged deviations and unauthorised could also be seen as to how much construction in multi-storied complex. disciplinary authority is serious in (Para 15)" pursuing the charges against its employee. Disciplinary proceedings should be "If memo of charge had been served allowed to take its course as per relevant for the first time before 1991 there would rules but then delay defeats justice. Delay have been no difficulty. However, in the causes prejudice to the charged officer present case it could be only an unless it can be shown that he is to blame irregularity and not an illegality vitiating for the delay or when there is proper the inquiry proceedings in as much as explanation for the delay in conducting after the Inquiry Officer was appointed h the disciplinary proceedings. Ultimately, under memo no.1412 dated December 22, t 1987, there had not been any progress. If tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 644 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

a fresh memo is issued on the same but copies thereof are not supplied to him charges against the delinquent officer it in spite of his request, and he is, at the cannot be said that any prejudice has been same time, called upon to submit his caused to him. (Para 17)" reply, it cannot be said that an effective opportunity to defend was provided to "The case depended on records of the him. (Para 4)" Departmental only and Director General, Anti Corruption Bureau had pointed out "Preliminary inquiry which is that no witnesses had been examined conducted invariably on the back of the before he gave his report. The Inquiry delinquent employee may, often, Officer, who had been appointed one after constitute the whole basis of the charge- the other, had just to examine the records sheet. Before a person is, therefore, called to see if the alleged deviations and upon to submit his reply to the charge constructions were illegal and sheet, he must, on a request made by him unauthorised and then as to who was in that behalf, be supplied the copies of responsible for condoning or approving the statements of witnesses recorded the same against the bye-laws. It is during the preliminary enquiry nobody's case that respondent at any stage particularly if those witnesses are tried to obstruct or delay the inquiry proposed to be examined at the proceedings. The Tribunal rightly did not departmental trial. (Para 6)" accept the explanations of the State as to why delay occurred. In fact there was "Merely saying that the respondent hardly any explanation worth could have inspected the documents at consideration. In the circumstances the any time is not enough. He has to be Tribunal was justified in quashing the informed that the documents, of which the charge memo dated July 31, 1995 and copies were asked for by him may be directing the State to promote the inspected. The access to record must be respondent as per recommendation of the assured to him. The respondent was not DPC ignoring memos dated October 27, afforded an effective opportunity of 1995 and June 1, 1996. (Para 20)" hearing particularly as the appellant failed to establish that non-supply of the copies (9) In J. T. 1998(6) SC 55 (State of U.P. of statements recorded during preliminary Versus Shatrughan Lal and another) it enquiry had not caused any prejudice to was held; the respondent in defending himself. (Para 8, 10)" "One of the principles of natural justice is that a person against whom an (10) In the present case there is no action is proposed to be taken has to be explanation for the delay in conducting given an opportunity of hearing. This the disciplinary proceedings and the opportunity has to be an effective respondents themselves had written the opportunity and not a mere pretence. In letter dated 21.7.1988 (Annexure-1 to the departmental proceedings where charge- supplementary affidavit) that the delay is sheet is issued and the documents which not because of any fault of the petitioner, h are proposed to be utilised against that rather it is their own fault and that they t person are indicated in the charge sheet could not complete the enquiry. It appears tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shiv Shanker Tiwari V. Director of Agriculture, U.P. and others 645

that till today the documents relied in support of the charges levelled against the petitioner have not been shown to the whether retirement Notice attaining the petitioner. age of Superannuation is correct?

Held- Yes Rule 56(1) provides the age of (11) The disciplinary proceedings have retirement extended from 58 year to 60 illegally been delayed by the respondents year appointed before 5 th November themselves and were not concluded 1985 on regular & permanent post- within reasonable time and when the petitioner appointed on temporary post petitioner has already retried from service after the cut off date. in July, 2000 the entire proceedings Held- Para 6 deserve to be quashed by this Court, in

the light of the observations given in the From the records the petitioner has not Judgement of N. Radhakishan (supra) and been able to conclusively prove that he also in Shatrughan (supra) with the further was a permanent Beldar working in direction to the respondents that the permanent capacity on a permanent petitioner should be treated in continuous post. The appointment of the petitioner service for all practical purposes and being 11.3.1988, which is undisputed, the petitioner is not entitled to any relief. should be paid arrears of 75% salary of his past salary. The petitioner has already (Delivered by Hon’ble Rakesh Tiwari, J.) retired from service on 31.07.2000 his post-retirement benefits is also directed to 1. This petition has been preferred be finalised. for quashing the order dated 17/18.11.1998 (Annexure-3 to the writ In view of the above observations petition) whereby the petitioner was writ petition is allowed. informed that he would retire on attaining ------the age of superannuation on 31.12.98. ORIGINAL JURISDICTION The petitioner was class IV (Group-D) CIVIL SIDE DATED: ALLAHABAD 22.05.2003 employee working in the office of Executive Engineer Lok Nirman Vibhag BEFORE District Bulandshahar. He was retired by THE HON'BLE RAKESH TIWARI, J. the impugned order 18.11.98 on attaining the age of 58 years. The date of birth Civil Misc. Writ Petition No. 44599 of 1998 recorded in his service book was 30.12.1940. By Government Order dated Nazra …Petitioner 28.7.1987 U.P. Fundamental Rules were Versus amended. The amendment was introduced State of U.P. and another …Respondent in the U.P. Fundamental First

Amendment Rule, 1987 and on that basis Counsel for the Petitioner: Sri S.P. Singh Rule 56 (i) was amended which provides that Group-D employees appointed before Counsel for the Respondent: 1985 are to retire from service on the C.S.C. attaining the age of 60 years. The th h amended G.O. dated 28 July, 1987 is as U.P. Fundamental Rule 1987-Rule 56 (i)- under: t Retirement-challenge made on ground tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 646 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 izeq[k lfpoA" "mRrj izns'k] ljdkj 2. This amended G.O. applies to a foRr ¼lkekU;½ vuqHkkx&2 regular permanent employee appointed on la[;k th&2&496@njk&534¼19½57 Group-D post prior to 5th November 1985. y[kuÅ% fnukad 28 tqykbZ] 1987 &&&& 3. The petitioner has filed photocopy vf/klwpuk of service book issued from the office of izdh.kZ the respondents under the signatures of lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk iznRr Assistant Engineer on 30.4.88 in which 'kfDr dk iz;ksx djds jkT;iky Qkbusf'k;y gS.M cqd the age of the petitioner was mentioned as [k.M&nks] Hkkx&nks ls pkj esa fn;s x;s Q.Mkes.Vy :Yl esa 45 years as on 30.12.1985.As per la'kks/ku djus dh n`f"V ls fuEufyf[kr fu;ekoyh cukrs gSa%& certificate issued by the Chief Medical mRrj izns'k Q.MkesUVy ¼izFke la'kks/ku½ fu;ekoyh] Officer and his date of birth was 1987 30.12.1940. It is also apparent from the

perusal of the Photostat copy of the laf{kIr uke 1&¼1½ ;g fu;ekoyh mRrj izns'k vkSj izkjEHk Q.MkesUVy ¼izFke la'kks/ku½ service book that the petitioner’s pay fu;ekoyh] 1987 dgh tk;sxhA fixation was done under the ¼2½ ;g 5 uoEcj] 1985 ls izo‘Rr Superintending Engineer’s circular letter gqbZ le>h tk;sxhA No. 6824/EB-51/84 dated 17.1.1985. The Q.MkesUVy :y 2& QkbusfU'k;y gS.Mcqd [akM&nks Hkkx&2 pay was fixed on 1.1.1984 and was 56 dk la'kks/ku ls pkj esa fn;s x;s mRrj izns'k countersigned by the Assistant Engineer Q.MkesUVy :Yl ds fu;e 56 esa of P.W.D. The petitioner claims that he [k.M¼,½ ds LFkku ij fuEufyf[kr was working as Beldar (Group-D) [kaM j[k fn;k tk;sxk] vFkkZr & employee much before 1.1.84 and in these circumstances his pay was fixed. He further alleges that it means that he was "5 ¼d½&bl fu;e ds vU; [k.Mksa esa vU;Fkk micfU/kr ds permanently working as Group-D flok; izR;sd ljdkjh lsod ml ekg ds ftlesa ;g employee in the department of the vB~Bkou o"kZ dh vk;q izkIr djsa vfUre fnu vijkUg esa respondents much before 1.1.84. lsokfuo`Rr gksxkA mls vf/ko"kZrk ij lsokfuo`fRr ds fnukaWd ds i'pkr ljdkj dh iwoZ Lohd`fr ls yksd vk/kkj ij ftls 4. The last contention of the vfHkfyf[kr fd;k tk;sxk] lsok esa j[kk tk ldrk gS fdUrq petitioner is that he is an illiterate person vfr fo'ks"k ifjfLFkfr;ksa ds flok; mls lkB o"kZ dh vk;q ds and can hardly put his signature. He does i'pkr lsok esa ugha j[kk tkuk pkfg, not have knowledge about the conditions of service in his appointment letter, which ijUrq 5 uoEcj] 1985 ds iwoZ HkrhZ fd;k x;k vkSj has been appended as Annexure-CA-1 lewg "?k" in dks /kkj.k djus okyk dksbZ ljdkjh lsod ml issued on 11.3.1988. From the ekl ds ftlesa ;g lkB o"kZ dh vk;q izkIr djsa] vafre fnu appointment letter of the petitioner vijkUg esa lsok ls fuo`Rr gksxkA Li"Vhdj.k%& mi;qZDr ijUrqd mu ekeyksa ij ykxw ugha gksxk Annexure-CA-1 it appears that he was tgkaW mDr ijUrqd esa fufnZ"V in@inksa dh izfrfLFkfr esa 27 appointed on temporary basis. Clause-VI Qjojh] 1982 ds i'pkr ifjorZu fd;k x;k gks vkSj of the terms and conditions of the appointment letter was that he was mPprj lewg ds in@inksa esa oxhZd`r fd;k x;k gksA" ¼2½ [kaM ¼[k½ fudky fn;k tk;xkA appointed on temporary post. The h vkKk ls] appointment letter is as under: t ch-ds- lDlsuk] tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vibhuti Prasad Mishra V. State of U.P. and others 647

5. Learned counsel for the respondents states that the appointment of "dk;kZy; vf/k'kk"kh vfHk;Urk the petitioner was temporary and that he izkUrh; [k.M yks0 fu0 fo0 cqyUn'kgjA had not been able to establish that his i=kaWd @bZ0 Mcyw0 fnukaWd appointment on Group-D post was permanent and before 5th November, dk;kZZy; vkns'k 1985, as such, he is not entitled to the benefit of the G.O. dated 28.7.1987. He Jh utjk iq= Jh gdheqYyk dh fu;qfDr LFkkbZ fu;fer further contends that the petitioner has not pdnkj ds Jh ljrk jke jke yky iq= Jh jke Lo:i ¼lsok disputed that he was appointed on fuo`Rr½ ds fjDr in ij dk;kZy; vkns'k ds fnukaWd osrueku 11.3.1988. He is not entitled to get any 305-5-330 n0jks0-6-360 n0jks0&6-390 esa dh retrial benefits treating him to be retired at tkrh gSA bUgsa 'kklu }kjk le; le; ij mfpr fu;ekuqlkj the age of 60 years pursuant to the eagxkbZ HkRrk vkfn Hkh fn;k tk;sxkA aforesaid G.O. dated 28.7.1987.

budh fu;qfDr fuEu 'krksZa ij dh tkrh gS A 6. From the records the petitioner ¼1½ budh lsok fdlh Hkh le; fyf[kr :i esa ,d ekg dk has not been able to conclusively prove that he was a permanent Beldar working uksfVl nsdj lekIr dh tk ldrh gS vkSj ;g uksfVl muds in permanent capacity on a permanent }kjk fu;qfDr vf/kdkjh dks fn;k tk;sxk ;k fQj fu;qfDr post. The appointment of the petitioner being 11.3.1988, which is undisputed, the vf/kdkjh }kjk budks fn;k tk,xkA petitioner is not entitled to any relief. ¼2½ bl uksfVl dh vof/k dks tks vf/kdkjh }kjk mudks fn;k tk;sxk ;k muds }kjk vf/kdkjh dks fn;k tk;sxk ,d 7. For all the reasons stated above, the petitioner is not entitled to the benefit ekg gksxhA izfrcU/k ;g gksxk fd ;fn vf/kdkjh pkgs rks of the G.O. dated 28.7.1987 and he has uksfVl ds iwoZ ,d ekg dh vof/k ds LFkku ij osru ns nsaA rightly been retired on attaining the age of 58 years. bl ckr dh fu;qfDr vf/kdkjh dks NwV gksxh fd ;g fcuk

uksfVl ds dk;Z ls eqDr djsa ;k de vof/k dk uksfVl u nsus The petition is dismissed. ij mudks dqN Hkh gjtkuk ugha nsuk gksxk A No order as to costs. ¼3½ budh fu;qfDr ds dk;ZHkkj xzg.k djus gsrq dksbZ ;k=k ------HkRrk ns; ugha gksxk A ORIGINAL JURISDICTION ¼4½ budh lsok ;ksX; fpfdRlk vf/kdkjh ds izek.k i= eq[; CIVIL SIDE fpfdRlk vf/kdkjh ds }kjk izkIr djds dk;Z xzg.k djus ds DATED: ALLAHABAD 23.5.2003 le; izLrqr gksxkA ¼5½ budh lsok ftys ds fdlh Hkh Hkkx esa LFkkukUrfjr dh BEFORE tk ldrh gS A THE HON'BLE R.B. MISRA, J. ¼6½ ;g vLFkkbZ in gSA ¼g0 vkj0ds0 tSu½ Civil Misc. Writ Petition No. 21941 of 2000 vf/k'kklh vfHk;Urk] izkUrh; [k.M lk0fu0fo0] Vibhuti Prasad Mishra …Petitioner cqyUn'kgjA Versus h 10-3-89" State of U.P. and others …Respondents t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 648 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Counsel for the Petitioner: Sri Arun Tandon 2. In this petition prayer has been Sri Dhananjai Rai made for issuance of writ of certiorari to Sri Rajesh Nath Tripathi quash the order dated 7.4.2000 passed by Ekta Kour respondent no. 2 Inspector General of Police, Lucknow Zone, Lucknow and Counsel for the Respondents: order dated 8th November, 1989 passed by S.C. respondent no.3 Deputy Inspector General of Police, Lucknow Zone, Lucknow. Constitution of India Article 226 Further prayer has been made for writ of Principle of Natural Justice Disciplinary proceedings without charge sheet etc. mandamus commanding the respondents without any information to the to treat the petitioner in continuous petitioner-Whether valid? Held-No. service even after 8th November, 1989 and to pay full salary to the petitioner. Further Held- Para 14 prayer has also been made for seeking direction to the respondents to pay the In the present case, it appears that proper efforts was not made to convey difference of salary for the period th th the intimation of suspension, charge between 6 October, 1987 till 8 sheet, disciplinary inquiry being November, 1989 and for payment of the conducted against the writ petitioner by interest at the rate of 24% on the arrears means of communication of the of salary and the difference of salary registered letter or by publishing the unpaid to the petitioner. same in the newspaper, only one mode has been adopted by affixing all the information to the door of the house of 3. Brief facts necessary for the petitioner which was not sighted adjudication of the writ petition was that without asserting that the petitioner was the petitioner was appointed as Sub- residing at the place or not? No notice of inspector in U.P. Police in the year 1987 suspension and charge sheet and day, and when he was posted as Sub-inspector time and place was ever communicated or served personally to the petitioner. in Special Investigation Cell Sahkarita Cases referred to: Mukhyalaya, Sitapur the petitioner left the (i) 1998 (7) SCC 569, (ii) (2002) 1 UPLBEC place of posting on 5.10.1987 after 425, (iii) (2000) 1 UPLBEC 275, (iv) (2003) 1 recording his lefting at serial no. 3 in G.D. UPLBEC 224, (v) (2000) 7 S.C.C. 90, (vi) 2001 of the office at 9.00 p.m. on 5.10.87 for (1) UPLBEC 908, (vii) 2002 UPLBEC 1321, (viii) recording his evidence before Special 1994 (2) SCC 746, (ix) 1994 Supp. (2) SC 256, (x) 1999 (4) AWC 3227, (xi) AIR 1963 SC Investigation Cell Sahkarita Mukhyalaya, 1719, (xii) 1995 Supp. (3) SCC 212, (xiii) AIR Lucknow for 5.10.87 as such the 1960 SC 160, (xiv) 1963 II LLJ 396, (xv) 1962 petitioner was on duty on 5.10.87 and II LLJ 78 SC, (xvi) (2001) 2 UPLBEC 1676 6.10.87.

(Delivered by Hon'ble R.B. Misra, J.) 4. The information of recording his evidence was intimated to the petitioner Heard Sri Rajesh Nath Tripathi and by the Superintendent of Police, Sitapur, Ekta Kour learned counsel for the as such the permission was already h petitioner as well as learned counsel for granted, however without waiting the t the respondents. return of the petitioner, the petitioner was tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vibhuti Prasad Mishra V. State of U.P. and others 649

placed under suspension on the charge respondents have endeavoured to show that the petitioner had not taken that the intimations were sent to the permission prior to leave the office on petitioner by way of affixing the notice at 5.10.87. In the suspension order the the residential address of the petitioner. petitioner was not attached to any place or According to the petitioner no inquiry posted to any office. As contended by the report or any show cause notice in respect petitioner no charge sheet was served to of the dismissal was also intimated to the the petitioner neither any inquiry officer petitioner. According to the petitioner the was appointed nor the petitioner was dismissal order is illegal and the appeal of intimated with regard to the any the petitioner has been dismissed by non- disciplinary proceeding or departmental application of mind. inquiry being conducted against the petitioner till 8.11.89, no information was 6. The counter affidavit has been given to the petitioner, however the filed. According to the respondents the petitioner when unofficially gathered order of suspension dated 6.10.1987 was information about the disciplinary served by the Superintendent of Police, proceeding, he immediately moved an Sitapur to the petitioner and it was the application before the D.I.G. for supply of prime duty of the petitioner to remain notice and charge sheet so that he may present during the period of suspension to participate in the alleged inquiry. After give full cooperation in disciplinary five months the petitioner's service was proceeding against him. According to the dismissed on the ground of unauthorised respondents efforts were made to serve absence for a period of 28 days i.e. from the charge sheet by Special Messenger 7.10.87 to 4.11.87. One charge for and when the petitioner did not receive, unauthorised absence is for a period of the same was pasted at the house of the 5.10.87 and 6.10.87 for which the petitioner. According to the respondents petitioner was on duty for recording the the information about the suspension and evidence before Investigation Cell. The disciplinary proceedings were petitioner has been visiting the police communicated to him through the office for receiving substantial amount Superintendent of Police, Deoria on even then no charge sheet was served to 29.12.1987 as he was continuously absent the petitioner and no notice was ever from the District Headquarters, Sitapur. given to the petitioner before passing of Effort was made to serve the copy of the the dismissal order. show cause notice to the petitioner through Sub Inspector Om Shankar 5. The petitioner has also submitted Shukla, District Sitapur and when the that he was never served charge sheeted petitioner could not be traced out the said and he was not afforded opportunity to Sub Inspector pasted a copy of show file the reply and no opportunity was cause notice at the residence of the afforded to him for adducing evidence or petitioner on 22.4.89 in presence of two cross examine the witnesses. The witnesses. The respondents have documents relied upon by the respondents contended in the counter affidavit that all have not been furnished to him and no the notices and orders were served to the h date, time and place of inquiry was petitioner residence by paste. t intimated to him and by paper work the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 650 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

7. According to the petitioner the Armament Deport, Bombay. He was contents of para 22,23,24,25,26 and 30 of subsequently promoted to the post of Gun the writ petition that no notice nor any Repair Labourer Grade I. He was chargesheet nor the information of the removed from the service which was appointment of the inquiry officer was challenged before the Services Tribunal ever served upon the petitioner or the on the grounds that neither the charge petitioner was never informed the date, sheet nor the show cause notice were ever place and time of enquiry by the inquiry served upon him, therefore, the entire officer for the purpose of his participation proceedings were vitiated. The tribunal and no letter about the disciplinary found that the charge sheet issued to the proceedings were ever sent by registered petitioner by registered post was returned post to the petitioner and the entire with the postal endorsement 'not found', proceedings were taken behind the back while the show cause notice was without involving the petitioner in published straightaway in Dainiki Sagar, violation of para 490 of the Police Navshakti. The Tribunal found the service Regulation. According to the petitioner of the charge-sheet and the show cause the averments made in the above notice on the respondent as insufficient paragraphs of the writ petition were not and, therefore, set aside the order of emphatically denied and reply was given dismissal by which the respondent was only by para 19,20,22 and 25 of the removed from service. In Special Leave counter affidavit by admitting that they petition preferred by the Union of India it have not sent the notices, charge sheet or was contended that the respondent-writ information with regard to the petitioner has been absented himself from disciplinary proceeding by registered post the office unauthorisedly and the service or by publishing the same in the news of charge sheet sent to him by registered paper, as such the endeaverance of the post should be treated as sufficient. The respondents in respect of communication Supreme Court Dinanath Shantaram about the disciplinary proceedings Karekar (Supra) has observed as below: including the notices were in violation of the decision of the Supreme Court in "3. The respondent was an Union of India Vs. Deena Nath, Sant employee of the appellants. His personal Ram reported in 1998 (7) SCC 569 as file and the entire service record was followed by this Court in the judgement available in which his home address also dated 8.12.1999 decided in the case of had been mentioned. The charge-sheet Shobh Nath Goutam Vs. State of U.P. which was sent to the respondent was and others. returned with the postal endorsement "not found". This indicates that the charge- 8. I have heard learned counsel for sheet was not tendered to him even by the the petitioner and perused the documents postal authorities. A document sent by registered post can be treated to have 9. In (1998) 7 Supreme Court been served only when it is established Cases 569 Union of India and others that it was tendered to the addressee. Vs. Dinanath Shantaram Karekar and Where the addressee was not available h others, the respondent was appointed as even to the postal authorities, and the t an unskilled labour in the Naval registered cover was returned to the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vibhuti Prasad Mishra V. State of U.P. and others 651

sender with the endorsement "not found", was retained by the Department, the same it cannot be legally treated to have been should be treated to have been served on served. The appellant should have made the respondent. It is contended that it is further efforts to serve the charge-sheet the communication of the charge-sheet on the respondent. A single effort, in the and the show-cause notice which is circumstances of the case, cannot be material and not its actual service upon treated as sufficient. That being so, the the delinquent. For this proposition, very initiation of the departmental reliance had been placed on the decision proceedings was bad. It was Ex parte of this Court in State of Punjab Vs. Balbir even from the stage of the charge sheet Singh (1976) 3 SCC 242 : 1976 SCC which, at no stage, was served upon the (L&S) 411 : AIR 1977 SC 629. respondent. 7. As would appear from the perusal 4. So far as the service of show-cause of that decision, the law with regard to notice is concerned, it also cannot be "communication" and not "actual service" treated to have been served. Service of was laid down in the context of the order this notice was sought to be effected on by which services were terminated. It was the respondent by publication in a based on a consideration of the earlier newspaper without making any earlier decisions in State of Punjab Vs. Khemi effort to serve him personally by Ram (1969) 3 SCC 28 : AIR 1970 SC 214, tendering the show-cause notice either Bacchittar Singh Vs. State of Punjab AIR through the office peon or by registered 1963 SC 395 : 1962 Supp (3) SCR 713, post. There is nothing on record to State of Punjab Vs. Amar Singh Harika indicate that the newspaper in which the AIR 1966 SC 1313 : (1966) 2 LLJ 188 show-cause notice was published was a and S. Partap Singh Vs. State of Punjab popular newspaper which was expected to AIR 1964 SC 72 : (1964) 4 SCR 733 : be read by the public in general or that it (1966) 1 LLJ 458. The following passage had a wide circulation in the area or was quoted from S. Partap Singh locality where the respondent lived. The judgment: show-cause notice cannot, therefore, in these circumstances, be held to have been "It will be seen that in all the served on the respondent. In any case, decisions cited before us it was the since the very initiation of the disciplinary communication of the impugned order proceedings was bad for the reason that which was held to be essential and not its the charge-sheet was not served, all actual receipt by the officer concerned subsequent steps and stages, including the and such communication was held to be issuance of the show-cause notice would necessary because till the order is issued be bad. and actually sent out to the person 5. Lastly, in order to save the lost concerned the authority making such battle, a novel argument was raised by the order would be in a position to change its learned counsel for the appellant. He mind and modify it if it thought fit. But contended that since the charge-sheet as once such an order is sent out, it goes out also the show-cause notice, at different of the control of such an authority, and stages of the disciplinary proceedings, therefore, there would be no chance h were despatched and had been sent out of whatsoever of its changing its mind or t the office so that no control to recall it modifying it. In our view, once an order is tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 652 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

issued and it is sent out to the government Vs. Managing Director and others, (2000) servant concerned, it must be held to have 1 UPLBEC 541. been communicated to him, no matter when he actually received it." 11. In (2000) 1 UPLBEC 275 9. Where the services are terminated, Shobh Nath Gautam Vs. State of U.P. the status of the delinquent as a and others, dismissal of the Sub government servant comes to an end and Inspector of Police was set aside in nothing further remains to be done in the reference to the non-compliance matter. But if the order is passed and Regulation 490 of U.P. Police merely kept in the file, it would not be Regulations and for non-compliance of treated to be an order terminating mandatory provisions of the procedure services nor shall the said order be prescribed in Regulation 490 and in the deemed to have been communicated. circumstances when notice of show cause 10.Where the disciplinary was not served upon the petitioner proceedings are intended to be initiated directly and for violation of principles of by issuing a charge-sheet, its actual natural justice and depriving the writ service is essential as the person to whom petitioner to defend himself the High the charge-sheet is issued is required to Court in Shobh Nath Gautam has submit his reply and, thereafter, to observed as below : participate in the disciplinary proceedings. So also, when the show- "12. Regulation 490 specifically cause notice is issued, the employee is provides that in the departmental trial of called upon to submit his reply to the a police officer, after the preliminary action proposed to be taken against him. enquiry, charge-sheet shall be framed, Since in both the situations, the employee copy of which shall be given to the is given an opportunity to submit his delinquent, Police Officer shall be asked reply, the theory of 'communication' to submit his reply, it should be oral or in cannot be invoked and "actual service" writing.. If the Officer accepts the charge, must be proved and established. It has no further evidence will be required to be already been found that neither the record, the orders may be passed on the charge-sheet nor the show-cause notice basis of the same but in case of denial, were ever served upon the original evidence will have to be produced to respondent, Dinanath Shantaram prove the charge/charges. It further Karekar. Consequently, the entire provides that the delinquent Police proceedings were vitiated. Officer, if the evidence is produced by the prosecution, shall be allowed to cross- 10. In {(2002) 1 UPLBEC 425} examine the witnesses. He shall also be K.K. Dutta Vs. Managing Director, allowed to inspect the record of the case. U.P. Cooperative Spinning Mills The documents mentioned in the charge- Federation Ltd., Kanpur and another, sheet shall also be supplied to him. dismissal was set aside in reference to Officer shall be at liberty to make his non-communication of the date of inquiry defence and produce such witnesses, he or for recording evidence and the day, desires, in his defence. After the evidence h time and place of inquiry following the is concluded, Superintendent of Police t judgement of Subhash Chandra Sharma shall record findings taking into tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vibhuti Prasad Mishra V. State of U.P. and others 653

consideration the evidence on the record. Vs. Union of India & others, (1994) 2 If he intends to award any major penalty SCC 116, and Union of India & others Vs. i.e., dismissal, removal or reduction in Dinanath Shantaram Karekar & others, rank, the Officer charged shall be (1998) 7 SCC 569, wherein it has been supplied copy of the findings and shall be ruled by the Apex Court that notice called upon to show cause as to why said charge sheet should be served personally, penalty be not awarded to him. After and if they are not served, they should be receipt of the reply, papers are required send under registered cover. Even if to be forwarded, in cases of major service is not effected they may be penalty, to the D.I.G. Police through published in the newspapers." District Magistrate for final orders. The D.I.G. on receipt of the papers, is 12. In (2003) 1 UPLBEC 224 Raj required to supply copy of the findings Bahadur Singh Vs. Director of recorded by the Superintendent of Police, Agriculture, U.P. at Lucknow and to the Officer charged simultaneously others, this court has observed as below : calling upon him to show cause against the imposition of punishment. On receipt The petitioner has placed reliance on of the explanation of the Officer charged, the decision Jagdamba Prasad Shukla he may pass order of punishment. Clause Vs. State of U.P. and others (2000)7 II of the Regulation 490 provides that in S.C.C.90 para 8 any case in which Superintendent of "where the Supreme Court has held Police considers that special that the payment of subsistence circumstances justify a departure from allowance, in accordance with the Rules, any of these rules, he should record to an employee under suspension is not a reasons for him decision act in any such bounty. It is a right. An employee is case, it will be for the Superintendent of entitled to be paid the subsistence Police to show in his finding that the allowance, No justifiable ground has been Officer charged has not been prejudiced made out for non payment of the by this departure from the usual subsistence allowance all through the procedure. In the present case, no reasons period of suspension i.e. from suspension have been recorded by the Superintendent till removal. One of the reasons for not of Police for deviation from the normal appearing in inquiry as intimated to the procedure under the aforesaid Regulation authorities was the financial crunch on and the orders have been passed against account of non payment of subsistence the petitioner without following the allowance and the other was the illness of procedure prescribed under the said the appellant. The appellant in reply to the Regulation and in contravention thereof. show cause notice stated that even if he 15. Even if the petitioner was was to appear in inquiry against medical evading service of charge-sheet and show advice, he was unable to appear for want cause notice issued by the department of of funds on account of non payment of the inquiry officer, if does not give any subsistence allowance. It is a clear case of licence to the respondents to proceed ex breach of principles of natural justice on parte against the petitioner. A reference account of the denial of reasonable h in this regard may be made to the opportunity to the appellant to defend t decisions in Dr. Ramesh Chandra Tyagi himself in the departmental enquiry. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 654 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Thus, the departmental enquiry and the levelled against the petitioner had been consequent order of removal from service accepted by the enquiry officer without are quashed." making any effort to confront the same to The petitioner has also placed the petitioner. Thus, the entire reliance on A.I.R.l999 S.C.l4l6 para 33 proceedings have been conducted in gross Capt. M. Paul Anthony Vs. Bharat Gold violation of equity, fair play and is in Mines Ltd. and another "Where employee breach of the principles of natural was not provided any subsistence justice." allowance during the period of suspension and the adjournment prayed for by him on In respect of change of inquiry account of his illness, duly supported by officer the petitioner has further placed medical certificates, was refused resulting reliance on l994(2) S.C.C. 746 page l2 in ex-parte proceedings against him, the (Registrar of Co-operative Societies appellant has been punished in total Madras and another Vs. F.X. violation of the principles of natural Farnando) where it was held that justice justice and he was literally not afforded must not only be done but must be seen to any opportunity of hearing. Moreover, on be done, therefore, the Supreme Court has account of his penury occasioned by non directed that an another enquiry officer be payment of subsistence allowance, during appointed in order to remove any pendency of departmental proceedings he apprehension of bias on the part of the could not undertake a journey to attend respondent. In l994 Supp.(2) S.C. 256 the disciplinary proceedings from his Para 5 Indrani Bai (Smt.) Vs. Union of home town, the findings recorded by the India and others. The Supreme Court inquiry Officer at such proceedings, has held that which were held ex parte, stand vitiated. "it is seen that right through, the "The petitioner also placed reliance delinquent officer had entertained a doubt on the judgements of this High Court about the impartiality of the enquiry to be 200l(l) U.P.L.B.E.C. 908 K.P. Giri Vs. conducted by the enquiry officer. When State of U.P. and others Para 7 and 8 as he made a representation at the earliest, well as on (2002 U.P.L.B.E.C.l32l requesting to change the enquiry officer, Bajrang Prasad Srivastava Vs. U.P. the authorities should have acceded to the Pariyojana Prabandha U.P. State request and appointed another enquiry Bridge corporation Ltd. and others. It officer, other than the one whose was held in the case of K.P. Giri (Supra) objectivity was doubted." "even in the absence of any reply submitted by the petitioner to the charge- The petitioner has placed reliance on sheet, it was incumbent upon the enquiry l999(4) A.W.C.3227 Para 5 Subhash officer to fix the date in the enquiry and to Chand Sharma Vs. M.D. U.P. Co-Op. intimate the petitioner about the same Spg. Mills Fed. Ltd. In this judgment of which has not been done in the present this Court in which one of us Hon'ble Mr. case.. Moreover, from a perusal of the Justice M. Katju was part has expressed order of dismissal dated 20.3.98 it will be that h seen that the management had produced t the evidence in support of the charges tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vibhuti Prasad Mishra V. State of U.P. and others 655

"In our opinion, after the petitioner requirement of an enquiry of this replied to the charge-sheet a date should character and the requirement must be have been fixed for the enquiry and the substantially fulfilled before the result of petitioner should have been intimated the the enquiry can be accepted." date, time and place of the enquiry and on In S.C. Girotra Vs. United that date the oral and documentary Commercial Bank l995 Supp.(3) SCC evidence against the petitioner should 2l2 the supreme Court set aside the have been led in his presence and he dismissal order which was passed without should have been given an opportunity to giving the employee an opportunity of cross examine the witnesses against him cross examination. In Punjab National and also he should have been given an Bank AIPNBE Federation, AIR l960 opportunity to produce his own witnesses S.C. l60(vide para 66) the Supreme and evidence. If the petitioner in response Court held that in such enquiries evidence to this intimation had failed to appear for must be recorded in the presence of the the enquiry, then an ex-parte enquiry charge sheeted employee and he must be should have been held but the petitioner's given an opportunity to rebut the said service should have not been terminated evidence. The same view was taken in without holding an enquiry. In the present ACC Ltd. Vs. Their Work Man l963 II case, it appears that no regular enquiry LLJ 396 and in Tata Oil Mills Co. Ltd. was held at all. All that was done that Vs. Their Workmen l963 II LLJ 78 S.C. after receipt of the petitioner's reply to the charge-sheet. he was given a show cause In the case of Radhey Shyam Pandey notice and thereafter the dismissal order Vs. The Chief Secretary, State of Uttar was passed. In our opinion, this was not Pradesh, Lucknow and others {(2001) 2 the correct legal procedure and there was UPLBEC 1676} this court (D.B.) has held violation of the rules of natural justice. that:- Since no date for enquiry was fixed nor any enquiry held in which evidence was "The respondents have not conducted led in our opinion, the impugned order is the inquiry according to the proper clearly violative of natural justice. procedure prescribed under Rule 99. No specific date, time and place of inquiry In Meenglas Tea Estate V. was fixed oral and documentary evidence Workmen A I R 1963 S.C. l719,the against the petitioner should have been Supreme Court observed adduced in his presence and he should "It is an elementary principle that a have been given an opportunity to cross person who is required to answer a charge examine the witnesses against him and must know not only the accusation but also he should have been given an also the testimony by which the opportunity to produce his own witnesses accusation is supported. He must be given and evidence. A dismissal order is a major a fair chance to hear the evidence in punishment having serious consequences support of the charge and to put such and hence should be passed only after relevant questions byway of cross complying with the rules of natural examination as he desires. Then he must justice. Since in the present case no h be given a chance to rebut the evidence regular and proper inquiry was held nor t led against him. This is the barest was subsistence allowance paid, hence in tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 656 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

these circumstances, it is clear cause that 13. It was held in (2001) 2 UPLBEC the petitioner had not been afforded a fair 1676/para 25 (Radhey Shyam Pandey opportunity much less a reasonable Vs. The Chief Secretary, State of Uttar opportunity to defend himself that has Pradesh, Lucknow and others) that the resulted in violation of principal of natural respondents have not conducted the justice and fair play. The ex- parte inquiry inquiry according to the proper procedure is illegal and the order of dismissal dated prescribed under Rule 99. No specific 27.3.2001 is quashed." date, time and place of inquiry was fixed. Oral and documentary evidence against In Raj Bahadur Singh (supra) this the petitioner should have been adduced court has observed in para 12 as below : in his presence and he should have been given an opportunity to cross-examine the "(12) I have heard learned counsel witnesses against him and also he should for the petitioner and perused the have been given an opportunity to pleadings of both the writ petitions and produce his own witnesses and evidence. also I have heard learned Standing A dismissal order is a major punishment Counsel for the respondents and I find having serious consequences and hence that proper procedure for making the should be passed only after complying disciplinary inquiry has not been with the rules of natural justice. Since in followed. The petitioner has not been the present case no regular and proper given subsistence allowance and taking inquiry was held nor was subsistence into consideration only the explanation allowance paid, hence in these of petitioner, the dismissal order has circumstances, it is clear cause that the been passed, and no date and time place petitioner had not been afforded a fair has been fixed while making an inquiry. opportunity much less a reasonable The petitioner has not been afforded opportunity to defend himself that has opportunity to adduce the evidence and resulted in violation of principle of natural cross examination the witnesses which justice and fair play. The ex-parte enquiry indicates that the principle of nature is illegal and the order of dismissal dated justice has not been observed, therefore 27.3.2001 was quashed. for lack of opportunity of hearing to the petitioner the dismissal in question based 14. In the present case, it appears on is illegal and erroneous disciplinary that proper efforts was not made to inquiry could not be sustained. The convey the intimation of suspension, dismissal order dated 2.7.1991 is set charge sheet, disciplinary inquiry being aside and petitioner is directed to be re- conducted against the writ petitioner by instated in service with all consequential means of communication of the registered benefits however keeping in view the letter or by publishing the same in the gravity of charges alleged against the newspaper, only one mode has been petitioner it is open to the employer after adopted by affixing all the information to giving charge sheet to hold a fresh proper the door of the house of the petitioner inquiry in accordance with law. With which was not sighted without asserting these observation the writ petition is that the petitioner was residing at the h allowed". place or not? No notice of suspension and t charge sheet and day, time and place was tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vibhuti Prasad Mishra V. State of U.P. and others 657

ever communicated or served personally been afforded to adduce evidences or to the petitioner. The petitioner has not allowed opportunity to cross examine the witnesses. The documents relied by the comfortable days in his service career and respondents have also not been furnished has been only dragged under inquiry for or was shown to the petitioner. In the frivolous allegations for which the present case notice of charge sheet and respondents have not even bothered to inquiry was neither served personally nor conduct the inquiry in accordance with sent by the registered post nor the same law. were published in the news papers even the petitioner was not given proper 16. In these circumstances, the attachment order in respect of the place orders dated 8th November, 1989, 7th and the office in the suspension order April, 2000 and 17th February, 1994 consequently the charge sheet, notice for passed by respondents no. 3, 1 and 2 disciplinary inquiry cannot be deemed or respectively are set aside and the held to have been served upon the petitioner is directed to be treated into petitioner. If the petitioner was evading service and shall be allowed to be given service of notice or charge sheet issued by 75% of the back wages only. The the police department or any of the petitioner is reinstated without information of the inquiry officer, it does consequential benefits of back wages as not give any licence to the respondents to well as increments. All the benefits to be proceed ex parte against the petitioner. given to the petitioner consequent upon Here this is a glaring case where the this order to be finalised within three petitioner has been dismissed from months from this order. service without adopting the proper procedure for dismissal on the aspects of The writ petition is allowed. the lack on the procedure and by not No order as to costs. providing the petitioner proper opportunity of hearing, the dismissal Certified copies of the judgements order and the appellate order both are in delivered today where the State violation of the principles of the natural Government is party may be given to Sri justice and cannot legally be sustained. M.C. Chaturvedi, Addl. Chief Standing counsel free of cost. 15. The allegations against the ------petitioner was not irrespective of the APPELLATE JURISDICTION moral or in respect of the financial CIVIL SIDE irregularities or embezzlement, the DATED: ALLAHABAD 22.05.2003 charges are mainly for absence from duty, BEFORE therefore, this court cannot think even in THE HON’BLE S.P. SRIVASTAVA, J. the present facts and circumstances to THE HON’BLE K.N. OJHA, J. allow the respondents to initiate to give charge sheet afresh to initiate the Special Appeal No. 363 of 2003 disciplinary proceeding because it is irony of fate of the petitioner that since the Committee of Management …Appellant h appointment from the year 1964 as Sub Versus inspector, he could not visualise fortunate Regional Deputy Director of Education t (Basic) Meerut & others …Respondents tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 658 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

has in it the traits and trapping of finality Counsel for the Appellant: and taking into consideration its ultimate Sri S.K. Mishra effect, has to be taken to be in the nature of a final order so as to fall within the definition of the ‘judgment’. Counsel for the Respondents: Case referred: Sri P. Padia AIR 1974 SC 1719 Sri H.R. Misra S.C. (Delivered by Hon'ble S.P. Srivastava, J.)

Rules of Court–Chapter VIII Rule 5– 1. Heard the learned counsel for the Judgment meaning thereof-Impugned order passed by the learned Single Judge appellant. can be said to be a judgment–yes, it has the traits and trappings of finality is a 2. Shri H.R. Misra, the learned final order within the definition of Standing Counsel representing the judgment-Termination order passed respondent nos. 1 and 2 as well as Dr. without inquiry and in utter violation of Padia, learned Senior Advocate, the principles of natural justice, quashed-liberty given to proceed against representing the petitioner–respondent no. the petitioner after holding the regular 3 have also been heard. inquiry as contemplated under the Rules. 3. Perused the record. Held: Para 11 and 15 4. The dispute in this case relates to The learned counsel for the appellant as well as the learned Standing Counsel the appointment and the entitlement of representing, the Regional Director of respondent no. 3 to hold the post of an Education, Meerut, as well as Basic Assistant Teacher in an educational Shiksha Adhikari, Ghaziabad, respondent institution known as Nehru Jai Jawan Jai nos. 1 and 2, respectively have stated Kisan Junior High School, Galand, that they will have no objection to the Ghaziabad, which institution imparts quashing of the aforesaid two orders dated 24.10.2001 and 31.10.2001, as the education up to the standard of class–VIII petitioner had no been afforded any and receives the grant-in-aid from the opportunity of hearing before passing of State. At present an Authorised Controller the said order. He, however, further has been appointed for that institution stated that they may be given liberty to vesting him with the jurisdiction proceed against the petitioner after exercisable by the Committee of holding the regular inquiry, as contemplated under the rules Management.

The impugned order contains the traits, 5. This appeal has been filed by the trappings and qualities and Committee of Management through the characteristics of a final order. Although learned single judge holding that the the expression ‘judgment’ has not been respondents which included the Regional defined either in the Letters Patent or Deputy Director of Education and Basis under the Rules of the Court but whatever tests may be applied, the order Shiksha Adhikari, Ghaziabad were not impugned in the present case clearly entitled to be heard in opposition to the h shows that the order impugned in the writ petition as they had in utter disregard t present case clearly shows that the order of the impugned order dated 22.02.2002 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] C/M V. Regional Dy. Director of Education (Basic) Meerut and others 659

passed by this court had not carried into the petitioner had obtained the interim effect the said order. order by practicing fraud and on the basis of misrepresentation of facts. It is urged 6. It may be noticed that feeling that in the present case the fraud and aggrieved by the interim order dated misrepresentation is writ large yet the 22.02.2002, a Special Appeal had been learned Single Judge has passed the filed, which was registered as Special impugned order without disposing of the Appeal No. 343 of 2002 and was finally application seeking vacation of the disposed of vide the order dated interim order. 21.03.2002, directing that the writ petition be listed on 16.04.2002, indicating the 8. A perusal of the writ petition expectation that the writ petition shall be giving rise to the Special Appeal indicates disposed of as early as possible. The that the main grievance of the petitioner is appellant was given a liberty to move an that absolutely no inquiry, whatsoever, application for vacating the interim order. was held, by the College Management/ Pursuant to the aforesaid order passed by Authorised Controller, which was the the Division Bench disposing of the competent authority under the relevant special appeal, an application seeking rules and even the Basis Shiksha Adhikari vacation of the interim order was filed on concerned, before passing the impugned 16.04.2002. The learned Single Judge order which visited the petitioner with vide the order dated 25.03.2003 had evil consequences. It is further urged that directed the respondents to inform the the services of the petitioner could not be court by the next date fixed as to whether terminated after a long period of 22 years the interim order dated 22.02.2002 with and payment of her salary could not be regard to the payment of current salary of denied after such a long period of regular the petitioner had been complied with or working without affording a reasonable not, providing further that the interim opportunity of being heard to her. order dated 22.02.2002 shall continue to remain operative until further orders of 9. Learned counsel for the this court. The learned counsel for petitioner–respondent has further urged appellant has urged that in spite of the that the District Basis Shiksha Adhikari order passed by the Division Bench for had no jurisdiction to pass the impugned the expeditious hearing of the writ order, as it was only the Managing petition and even fixing a date for its Committee, which could terminate the disposal, nothing was done and the writ services of as person who is an employee petition continues to remain pending of the Institution. undecided. 10. The record indicates that the 7. The grievance raised by the authorized controller had passed an order learned counsel for the appellant is that on on 24.10.2001 wherein it was held that the one hand the writ petition is kept the petitioner had obtained a B.Ed. pending and on the other hand the Degree from a non-existent University appellant is being insisted to comply with and further that she had secured an h the interim order granted in favour of the appointment on the post in question at a t petitioner ignoring altogether the fact that time when she was studying in the same tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 660 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

college. The Basic Shiksha Adhikari was aforesaid aspects before the termination of the further view that being the wife of of her service. the then Manager, she could not be selected by a Selection Committee of 13. It has been urged by the learned which the Manager was a member. It was counsel for the respondent–petitioner that contrary to the statutory provision. On the the impugned order passed by the learned aforesaid findings, holding that the B.Ed. Single Judge cannot fall within the ambit Degree claimed to have been obtained by of the expression “judgment” as the petitioner was a fictitious document, envisaged under Chapter–VIII Rule 5 of her entitlement for getting salary was the Court and in this view of the matter negatived. On 31.03.2001 the Authorised the present Special Appeal cannot be held Controller consequentially passed an to be maintainable. order terminating the services of the petitioner. 14. As pointed out by the Apex Court in its decision in the case of Shanti 11. The learned counsel for the Kumar R. Canji Vs. the Home Insurance, appellant as well as the learned Standing Co. of New York, report in AIR 1974 SC Counsel representing, the Regional 1719 in finding out whether the order is a Director of Education, Meerut, as well as Judgment, it has to be found out that the Basic Shiksha Adhikari, Ghaziabad, order affects the merits of the action respondent nos. 1 and 2, respectively have between the parties by determining some stated that they will have no objection to right or liability. The nature of the order the quashing of the aforesaid two orders will have to be examined in order to dated 24.10.2001 and 31.10.2001, as the ascertain whether there has been a petitioner had no been afforded any determination of any right or liability. opportunity of hearing before passing of the said order. He, however, further stated 15. The impugned order contains the that they may be given liberty to proceed traits, trappings and qualities and against the petitioner after holding the characteristics of a final order. Although regular inquiry, as contemplated under the the expression ‘judgment’ has not been rules into the matter of fraud and defined either in the Letters Patent or misrepresentation and ineligibility of the under the Rules of the Court but whatever petitioner to get an appointment as an tests may be applied, the order impugned Assistant Teacher in the institution. in the present case clearly shows that the Learned counsel for the petitioner has order impugned in the present case clearly urged that taking advantage of her own shows that the order has in it the traits and fraud and misrepresentation the petitioner trapping of finality and taking into is trying to get the salary etc. which will consideration its ultimate effect, has to be cause financial loss to the State taken to be in the nature of a final order so Exchequer. as to fall within the definition of the ‘judgment’. 12. Learned counsel for the petitioner states that the petitioner is ready 16. In view of what has been h to face the full-fledged inquiry into the indicated hereinabove, the objection in t regard to the maintainability of the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] C/M V. Regional Dy. Director of Education (Basic) Meerut and others 661

Special Appeal is clearly devoid of merit and is not at all sustainable. ORIGINAL JURISDICTION CIVIL SIDE 17. Taking into consideration the DATED: ALLAHABAD 1.7.2003 facts and circumstances as brought on record, we are clearly of the opinion that BEFORE THE HON’BLE M. KATJU, J. it will be appropriate that the impugned THE HON’BLE R.S. TRIPATHI, J. orders, which are claimed to have been passed without affording any reasonable Civil Misc. Writ Petition No. 47222 of 2002 opportunity of hearing to the petitioner deserve to be quashed with the liberty to Shaukat Ali …Petitioner the present appellant as well as the Versus present respondent nos. 1 and 2 to hold an Allahabad Development Authority and inquiry into the aforesaid matter of fraud another …Respondents and misrepresentation of facts and other aspects going to the root of the matter Counsel for the Petitioner: after proceeding in accordance with law Sri Sudhir Kumar Sri M.K. Khan ensuring that the entire exercise is

completed within three months from Counsel for the Respondents: today. Sri B.B. Paul Sri A.K. Misra 18. This Special as well as the writ petition shall stand disposed of U.P. Urban Planning and Development accordingly. Act, 1973- Sections 15 (2-A), 2 (ee), 2 (jj), 2 (kk), 33, 35, 36, 37 and 38-U.P. 19. It is, however, provided that the Regulation of building operations Act, salary and other allowances to which the 1958- Ss 5 and 7 (2-(C)- U.P. Water supply and sewerage Act, 1975- Power petitioner is entitled on the basis of the under–Arbitrary exercise of– Illegal- earlier approval of her appointment by the Application for sanction of map-Demand Basis Shiksha Adhikari dated 06.02.1993 notice demanding exorbitant amounts as shall be paid to her henceforth subject to permit fee, water fee, stocking fee, her furnishing adequate security for the division fee, development charges, amount to the satisfaction of the Basis Inspection fee and open area penalty- held arbitrary and illegal. Since no Shaiksha Adhikari, Ghaziabad. The development activity services rendered security may included the amount lying by ADA- cannot charge development with the State to the credit of the charge. petitioner like provident Fund etc. Held- paras 62 and 63 20. The petitioner–respondent shall cooperate in the inquiry. In the present cases we find that the demand is not preceded by any development work which might have Ordered accordingly. been done by the A.D.A. in relation to the ------land in question. h t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 662 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

In view of the above discussion, we are harassment to the public instead of being of the opinion that the impugned agencies of service to the people. demands levied by the A.D.A. are ex facie 4. In writ petition no. 47222 of 2002 unauthorized and illegal and are hereby quashed. the petitioner Shaukat Ali has challenged the impugned demand notice dated (Delivered by Hon’ble M. Katju, J.) 23.10.2002 issued by the Allahabad Development Authority (hereinafter 1. These two writ petitions are being referred to as A.D.A.) copies of which are disposed off by a common judgment. Annexures 7 and 8 to the writ petition.

Heard learned counsel for the parties. 5. A perusal of Annexure 7 to the writ petition shows that the A.D.A. has 2. These two writ petitions as well demanded from the petitioner the as several similar writ petitions listed following amounts, permit fee, water fee, today before us disclose how the local stacking fee, division fee, development authorities in the State are demanding and charges, inspection fee, open area penalty realizing illegal amounts from the citizens etc. The total amount comes to Rs. causing immense harassment and 1,03,281/-. Approximately the same hardship to the common man. amount has also been demanded by the notice, copy of which is Annexure 8. 3. What is happening in Allahabad and other cities of the State is that 6. The facts in writ petition no. whenever a citizen wants to make a 47222 of 2002 are that the petitioner had building on his own land he has to apply acquired a portion of property no.24/30 for sanction of a map under section 15 of Thornhill Road, Allahabad from the the U.P. Urban Planning and recorded owner vide sale deeds Annexure Development Act, 1973 (hereinafter 1 to 4, to the petition. On 24.9.2002 and referred to as the Act), and whenever such 23.10.2002 the petitioner had submitted application for sanction of a map is made two separate applications with maps of the Allahabad Development authority the constructions he wanted to make on immediately sends a bill to the applicant this property. Copies of the receipts of demanding exorbitant amounts before deposit of permit fees are Annexures 5 sanction of the map. These bills have been and 6. In response to these applications, challenged in these two writ petitions and the A.D.A. has issued the impugned in several others connected writ petitions demand notices Annexure 7 and 8. and a perusal of the same shows that almost all these demands are illegal (as 7. As regards the demand for permit will be presently demonstrated). However fees it is stated in para 7 of the petition unless these amounts are paid the map is that the petitioners has already deposited not sanctioned or released, causing great the permit fees vide receipts Annexure 5 harassment to the applicant. Thus the and 6 to the petition. Hence further Allahabad Development Authority, as demand of permit fee is clearly illegal. well as other Development Authorities in h the State, which have been constituted 8. It is stated in para 8 of the petition t under the Act have become agencies of that the A.D.A. itself does not supply any tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shaukat Ali V. Allahabad Development Authority and another 663

water for construction of the building. U.P. Regulation of Building Operations Water supply is done by the Jal Sansthan. Act, 1958. Hence the demand of water fee/charges by A.D.A. is also illegal. 14. A supplementary counter affidavit has also been filed by the A.D.A. 9. As to the demand of stacking fee in writ petition no. 47222 of 2002 and in (Malwa charge), it is alleged in para 9 of para 4 it is admitted that the A.D.A. does the petition that the A.D.A. has not not supply water. However it is alleged rendered any assistance to the petitioner that the A.D.A. is entitled to collect water for raising the constructions. Hence the fee from the parties seeking sanction of demand is illegal. the proposed construction building, and subsequently the same is transferred to the 10. As regards the demand of concerned local authority, the A.D.A. has division charge it is alleged in paras 10 of given a list of the colonies allegedly the petition that this is without any constructed by the A.D.A. statutory sanction and hence it is illegal. 15. Writ petition no. 23281 of 2001 11. Concerning the demand of has been filed against the impugned development charges, petitioners assert in demand notices dated 28.5.2001 issued by para 11 of the petition that the A.D.A. the A.D.A. (annexures 8 and 9 to the does not provide any assistance, much petition) by which demand has been made less development, and hence this demand from the petitioners of various charges. is also illegal. 16. The petitioners in writ petition 12. As regards inspection charges no. 23281 of 2001 purchased a portion of and open area penalty demanded by the house no. 130-A Civil Station Allahabad, A.D.A., the petitioners contended that the through registered sale deeds. The same have no sanction of law, and hence property was initially lease property but in are illegal. 1995 it was converted into free hold property by the District Magistrate, 13. The A.D.A. has filed counter Allahabad. affidavit and it is alleged in para 7 of the same that the demand raised by the 17. The petitioners applied for impugned notices is just and proper. In sanction of a plan to construct a para 11 it is stated that the demand of residential house on the land but no such water charges is referable to section 15 sanction was granted by the A.D.A. (2A) of the Act read with Section 2 (ii) of Subsequently the petitioners raised some the said Act. As regards the demand of construction over the land and also Malwa charges the same is referable to applied on 14.5.99 for compounding the Section 15 (2A) read with Section 2 (kk). constructions under the scheme framed by As regards division charges, inspection the A.D.A. The petitioners no. 1 deposited charges and open space charge it is Rs. 1,18,000 on 11.3.2001 and Rs. 16,000 alleged in para 13 that the same is on 12.5.99 vide Annexure 1 and 2. The h referable to Sections 5 and 7 (2C) of the petitioner no. 2 deposited Rs. 50,000 on t 24.3.2001 and Rs,.16,000 on 12.5.1999 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 664 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

vide Annexure 3 and 4. The petitioner no. property or street of the Mahapalika for 1 also deposited Rs. 6038 towards water storing the building materials. charges with Jal Sansthan Allahabad, on 17.10.2002 while petitioner no. 2 20. It is alleged in para 17 of the deposited Rs. 4704 and Rs. 1175 with Jal petition that the U.P. Urban Planning and Sansthan vide Annexures 6 and 7. In para Development Act, 1973 prescribes the 9 of the petition it is stated that the matter in which permission for raising A.D.A. has issued two separate demand construction is to be granted by the notices dated 28.5.2001 to the petitioners development authority, and the charge or for an amount of Rs. 2,42,457/- and Rs. taxes which can be levied for this 1,17,184/- respectively vide annexure 8 purpose. It is alleged that the Act does not and 9. provide for the levying of any development charges from a person who 18. A perusal of the demand notice raises constructions, and hence the shows that it has demanded Rs. 14152/- as demand is illegal. Section 33 empowers water charges and Rs. 4544/- as malwa the authority to provide amenities or carry charges. A further amount of Rs. 16929/- out development at the cost of the owner has been demanded as sub division only in the event of his default. Section 33 charges while another amount of Rs. has been quoted in para 20 of the writ 96,189/- has been demanded towards petition. In para 21 of the petition it is development charges and Rs. 84645/- has alleged that the A.D.A. has not provided been demanded towards open space any amenity nor has it carried out any charges. development activity in respect of the plots over which the constructions have 19. In para 12 of the petition it is been raised by the petitioners, and all the stated that the demand made by the development activities and the amenities A.D.A. is wholly illegal. As regard the have been provided by the petitioners water charges, it is alleged in para 14 of themselves from their own resources. the petition that the same was already Hence the development charges are deposited by the petitioners with the Jal illegal. As regard the betterment charges Sansthan, Allahabad and hence no further under section 35, the same can be demand can be raised. As regard malwa imposed only if the value of the property charges, the demand is illegal as no has gone up due to the development property of the Nagar Nigam or A.D.A. scheme of the authority. It is alleged that has been utilized by the petitioners for the no such development scheme has been purpose of storage. It is alleged in para 16 initiated by the A.D.A. and as such the of the petition that although Section 302 demand is illegal. It is alleged in para 23 (1) (b) of the U.P. Nagar Mahapalika of the petition that the sub division charge Adhiniyam 1959 permits charge of fee for is not justified as no levy can be imposed the use of land or street vested in the by the A.D.A. under the Adhiniyam or Mahapalika (now Nagar Nigam) for the Regulations. As regard the open space deposit of the building material, no charges a perusal of the demand notice demand can be made in this respect from would indicate that initially the word h the petitioners as they have not used any ‘parking fee’ was printed therein which t has subsequently scored out and the same tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shaukat Ali V. Allahabad Development Authority and another 665

has been substituted as open space open space charges are also permitted charges. It is alleged in para 25 of the under the Act and the Regulations. petition that neither any park has been provided by the A.D.A. ;nor any space or 22. We have also perused the any other ground has been provided to the rejoinder affidavit, and have carefully petitioners or other residents and as such considered the submission of the learned this charge is illegal. It is alleged in para counsel for the parties. 26 that the petitioners have already deposited a substantial amount with the We may deal with the various A.D.A. towards compounding charges but demands made by the impugned notices no amount is payable as malwa charges, seriatim. These demands are : water charges and sub division charges, (i) Water charges development charges or open space (ii) Malwa charges charges. (iii) Sub Division Charges (iv) Development charges 21. A counter affidavit has been (v) Open space charges filed by the A.D.A. and we have perused the same. In para 3 of the same it is stated 23. As regard the water charges it that Nazul plot no. 130-A Civil Station may be mentioned that clause (ii) of Allahabad originally belonged to one R.S. Section 2 of the Act as amended by U.P. David and others and their representative Act no. 3 of 1997 defines water fees as who floated a residential colony thereon follows: without submitting a lay out plan before the competent authority under the U.P. “Water fees’ means the fees levied Urban Planning and Development Act, under Section 15 upon a person or body 1973 and the Rules and Regulations for using water supplied by the Authority framed there under. This residential for building operation or construction of colony did not contain any external and building’. internal development. It also lacked roads, water supply, drainage and sewerage Section 15 (2A) after its amendment system etc. The petitioners raised their by U.P. Act no. 3 of 1997 states: constructions without taking sanction and “The Authority shall be entitled to also applied for compounding. The levy development fees, mutation charges, respondents have relied on the decision stacking fees and water fees in such the Supreme Court in State of U.P. versus manner and as such rates as may be Smt. Malti Kaul 1997 (1) UPLBEC 99. In prescribed.” para 20 of the counter affidavit it is stated that the water charges can be levied by the Water charges are claimed by the development authority under the Act. It is A.D.A. in accordance with the aforesaid stated that charging of malwa provision. The rate calculated is (a) 29 of fees/stacking fee by the development the construction cost of ground floor and authority are referable to the Section 35 to (b) of the construction cost of first floor 38 of the Act, and have rightly been and above. In this connection G.O. dated h demanded. Sub Division charges and 15.5.88 has been filed by the A.D.A. as t Annexure 2 to the Supplementary Counter tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 666 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Affidavit in Writ Petition No. 23244 of paid water charges to the Jal Sansthan, 2001 Smt. Rekha Bhargawa versus and this is not denied. A.D.A. and others. 24. Clause (ll) of Section 2 of the We now come to the second demand, Act was inserted by U.P. Act No. 3 of namely, of Malwa charges. The 1997 which came into effect from 1.5.97. petitioners in writ petition no. 23281 of There was no mention of water fee earlier 2001 in para 14 have alleged that no in the Act. The demand of water fee property or street of the Nagar Nigam or charges pertaining to any period before A.D.A. has been utilized by the 1.5.97 is obviously illegal because clause petitioners for the purposes of storing the (ll) has not been inserted retrospectively. building material and hence the demand is The question, however, remains about the illegal. prospective operation of clause (ll). Staking fee is claimed by the A.D.A. 25. Clause (ll) defines ‘water fee to under Section 2 (kk) read with Section 15 mean’ fee levied under section 15 upon a (2A) of the Act as amended by U.P. Act person or body for using water supplied No. 3 of 1997. The rate calculated is by the Authority for building operation or Rs.11/- per square meter of the proposed construction of building." construction plan vide G.O. dated 5.2.98 which is Annexure 4 to the supplementary 26. It may be seen from the above counter affidavit filed in writ petition no. definition that water fee can only be 23244 of 2001. charges if water is supplied by the A.D.A. It has been admitted in para 4 of the Sub section (kk) of the section 2 as supplementary affidavit of the A.D.D. in inserted by U.P. Act No. 3 of 1997 states: writ no. 47222 of 2002 that the A.D.A. does not supply water to any one. In fact “(kk) ‘stacking fees’ means the fees it is common knowledge that in levied under section 15 upon the person Allahabad, as in other cities in U.P. water or body who keeps building materials on is supplied by the Jal Sansthan constituted the land of the Authority or on a public under the U.P. Water Supply and street or public place.' Sewerage Act, 1975. The A.D.A. has no water works of its own. We can take 27. The above definition clearly judicial cognizance of these facts. Hence mentioned that the stacking fee can only the demand of water charges is clearly be charged for keeping material on the unauthorized and illegal, because section land of the Authority or public place or 2 (ll) states that water fee can be charged street, and it cannot be charged for when the water is supplied by the keeping building material elsewhere (e.g. Authority and not by some other on one’s own land). authority. Moreover, no proof has been furnished by the A.D.A. that it passes on 28. It is alleged in para 14 of the the water fee collected by it to the Jal writ petition no. 23281 of 2001 that no Sansthan. Also, the petitioners have property of the Nagar Nigam or A.D.A. h alleged in the writ petition that they have has been utilized by the petitioners for t stacking the building material. In para 16 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shaukat Ali V. Allahabad Development Authority and another 667

it is alleged that no property or street of incumbent on the A.D.A., if it wanted to the Mahapalika now (Nagar Nigam) has levy staking fee, to have clearly been utilized by the petitioners for the mentioned where exactly did the purposes of storing the building material. petitioners stack their materials, but that has not been done. Hence the allegations 29. The reply to paras 14 and 16 of in paras 14 and 16 of the writ petition the writ petition is contained in paras 21 have to be treated as unrebutted and the of the counter affidavit merely states: demand of stacking fee is thus wholly illegal. Reference by the respondents to “That contents of paragraph 14 of the sections 35 to 38 of the Act are wholly writ petition as stated are not correct and misconceived, as these provisions deal denied. It is added that charging of Malwa with betterment charges which, as a bare fees/stacking fee by the development perusal of section 35 indicates, can only authority is specifically permitted under be levied if any development scheme has U.P. Act No. 3 of 1997 amending U.P. been executed by the Authority in the area Urban Planning and Development Act, in question due to which the value of the 1973”. property has increased or will increase. No such development scheme has been Paragraph 22 of the counter affidavit executed in the area in question, as stated states: in paragraph 21 of the writ petition no. 23281 of 2001 and paragraph 11 of the “That contents of paragraph nos. 15, writ petition no. 47222 of 2002. 16 and 17 of the writ petition as stated are not correct and denied and in reply it is 31. We now come to the third reiterated that demand notice dated demand i.e. of sub division charges. It is 28.5.2001 issued by respondent alleged in para 23 of writ petition no. development authority to the petitioners is 23281 of 2001 that a demand of Rs. just and proper and the same is well 16929/- from petitioner no. 1 and Rs. founded on law and facts involved in the 7837/- from petitioner no. 2 towards sub case." division charges is not justified as no such levy can be imposed by the development 30. A perusal of both the paras 21 authority under the provision of the Act or and 22 of the counter affidavit shows that Regulations framed there under. It is also the allegations of the petitioners in writ alleged that the Development Authority no. 23281 of 2001 that they are not can only realize fee or taxes as provided stacking their building material on the for under the Act and no levy can be land of the authority or public street have made which is not contemplated by the not been specifically denied by the Act. respondents. It is a well settled law of pleadings that a specific averment must be 32. The reply to paras 23 and 24 of given a specific reply, otherwise it will be writ petition no. 23281 of 2001 is deemed to be admitted. When the contained in para 26 of the counter petitioners have specifically denied that affidavit of the A.D.A. It is stated therein h they stacked their materials on the land of that the sub division charge and open t the authority or public place then it was space charge are permissible under the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 668 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Act and the rules and regulations framed to in paragraph 25 of the counter affidavit. there under. However, in the counter Paragraph 25 of the counter affidavit affidavit no specific mention of any states : particular provision of the Act or rules or “That contents of paragraph no. 21 of Regulations has been made. In our the writ petition are denied. It is reiterated opinion the A.D.A. can only levy such that demand of development charge is taxes, fees or charges as are contemplated specifically allowed under U.P. Act no. 3 by the Act. We have not been shown any of 1997." provision of the Act, which permits the levy of sub division charges or open space 35. It is well settled that a bald charges. Even in the amendment to the denial to a pleading will tantamount to an Act by U.P. Act no. 3 of 1997 there is no admission vide Bagat and Co. vs. East mention of open space charges or sub India Trading Co. AIR 1964 SC 538 (para division charges. 11). A specific plea has to be given a specific reply, and a mere bald denial is 33. It may be mentioned that section not sufficient. This is clearly provided for 15 (2A) of the Act refers only to in order 8 Rule 5 C.P.C., and even though development fees, mutation charges, the C.P.C. is not in terms applicable to stacking fee and water charges. There is writ jurisdiction many of its general no mention of open space charges or sub principles apply. In our opinion the division charges in section 15 of the Act. principle of order 8 Rule 5 C.P.C. applies No doubt para 4 of the supplementary to writ petitions also. Hence we are of the counter affidavit mentions that sub opinion that the averments of the division charge is referable to certain petitioners in para 21 of writ petition no. G.Os., but in our opinion a G.O. is not a 23281 of 2001 that the A.D.A. has not statutory provision. Hence the charge is provided any amenity nor carried out any illegal. development activity in respect of the plots in question, and all amenities and 34. As regards section 33 of the Act, development have been provided and in our opinion this provision does not done by the petitioners themselves permit the A.D.A. to levy sub division through their own resources, is correct. charges or open space charges, as a bare perusal of the provision indicates. 36. We now come to the fourth Moreover it has been categorically demand of the A.D.A. i.e. of development asserted in para 21 of writ petition no. charges. We have already mentioned that 23281 of 2001 that the A.D.A. has not in para 21 of writ petition no. 47222 of provided any amenity nor has it has 2002 the petitioners have stated that the carried out any development activity in A.D.A. has not done any development respect of the plots over which work in respect of the plots in question constructions have been raised by the nor provided any amenity and this petitioners, and all the development allegation has not been specifically denied activities and amenities have been by the A.D.A. in its counter affidavit. provided by the petitioners themselves h from their own resources. This allegation 37. Learned counsel for the A.D.A. t in para 21 of the petition has been replied has however, relied on the decision of the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shaukat Ali V. Allahabad Development Authority and another 669

Supreme Court in State of U.P. versus 33 of the Act give the power to the Smt. Malti Kaul 1996 (10) SCC 425. development authority to provide amenities or carry out development at the We have carefully perused the above cost of the owner in the event of his decision. default and to levy chess in certain cases. Under sub section 1 of section 33 if the 38. It may be mentioned that this authority is satisfied after conducting an Court in Smt. Malti Kaul vs. A.D.A. AIR enquiry that any amenity in relation to 1995 All 397 had held that there is no any land in the development area has not statutory provision for realizing been provided in relation to that land, development charges. This court had which in the opinion of the authority, relied on the decision of the Supreme ought to have been provided, then after Court in A.D.A. vs. Sharad Kumar AIR giving opportunity of hearing to the 1992 SC 2038 in which it was held that owner it may impose the development without an express statutory provision charges. Sub section 2 of section 33 authority cannot impose a tax or fee. This contemplates that if any amenity is not court also referred to the decisions in provided and development not carried out Hingir Rampur Coal Co. vs. State of within the time specified the authority Orissa AIR 1961 SC 459, Jagannath may itself provide the amenity or carry Ramanuj Das versus State of Orissa AIR out the development itself or through 1554 SC 400 and Delhi Municipal some agency as it deems fit, and all Corporation vs. Mohd. Yasin AIR 1983 expenses incurred in this work can be SC 617 in which it was consistently held recovered from the owner in the manner by the Supreme Court that there should be indicated in sub section 4. a specific statutory provision empowering the authority to impose a levy, otherwise 40. Thus the Supreme Court has the imposition will be illegal. The A.D.A. held that the power to impose had urged before this Court in Malti development charge/fee is contained in Kaul’s case that development fee can be section 33 of the Act. levied on the basis of the G.O. dated 12.8.1986, but this Court negatived this Section 33 of the said Act states: contention holding that there must be a statutory provision for imposing of the “(1) If the authority after holding a development fee/ charge and since there local inquiry or upon report from any of was none, the said charge/fee is illegal. its officers or other information in its possession, is satisfied that any amenity in 39. Against the decision of this relation to any land in the development Court in Smt. Malti Kaul’s case (supra) area has not been provided in relation to the State Govt. filed an appeal before the that land which, in the opinion of the Supreme Court which was allowed vide Authority ought to have been or ought to state of U.P. vs. Malti Kaul 1996 (10) be provided or that any development of SCC 425. We have carefully examined the land for which permission, approval the decision of the Supreme Court in or sanction had been obtained under this h Malti Kaul’s case. In para 8 of the said Act or under any law in force before the t decision it has been observed that Section coming into force of this Act has not been tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 670 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

carried out, it may, after affording the to be strictly followed before owner of the land or the person providing development charge can be levied. or responsible for providing the amenity a According to that procedure, first the reasonable opportunity to show cause, by development authority has to be satisfied order require him to provide the amenity (after an enquiry or a report or or carry out the development within such information) that some development has time as may be specified in the order. not been done or amenity not provided by the owner. The Authority must then, after (2) If any amenity is not provided or any giving the owner opportunity of hearing, such development is not carried out order him to do so. If after such order the within the time specified in the order, then owner does not comply with it then the the Authority may itself provide the Authority, after giving the owner another amenity or carry out the development or opportunity of hearing, may itself develop have it provided or carried out through the land or provide the amenity, and such agency as it deems fit. realize the cost from the owner. Provided that before taking any action under this sub section, the Authority shall 42. Thus an elaborate procedure has afford a reasonable opportunity to the been laid down in Section 33 which must owner of the land or to the person be complied with before development providing or responsible for providing the charges can be realized. This procedure amenity to show cause as to why such has been given a complete go by the action should not be taken. A.D.A., and instead the invariable practice adopted by it is what whenever (3) All expenses incurred by the Authority an Application is filed for sanction of a or the agency employed by it in providing map (under section 15) a demand for the amenity or carrying out the development charges (and also other development together with interest at such charges) is immediately issued. This is rate as the State Government may be clearly in violation of Section 33. order fix from the date when a demand for the expenses is made until payment may In para 21 of writ petition no. 23281 be recovered by the Authority from the of 2001 it has been stated by the owner or the person providing or petitioner: responsible for providing the amenity as “That the petitioners categorically arrears of land revenue, and no suit shall assert that the development authority has lie in the civil court for recovery of such not provided any amenity nor it has expenses." carried out any development activity in respect of the plots over which the 41. We have carefully perused the constructions have been raised by the said section, which indicates that petitioners, and all the development development charges under section 33 can activities and the amenities have been only be realized if, and only if, the provided by the petitioners, themselves authority does some development work or from their own resources. Thus the some amenity is provided by it. Also, a Development Authority has not incurred h perusal of Section 33 indicates that the any expenses towards the aforesaid head t procedure mentioned in that provision has and in view of which the demand made tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shaukat Ali V. Allahabad Development Authority and another 671

towards development charges is clearly Thornhill Road, Allahabad which is a unjustified in law". The reply to road built during British times (as in well paragraph 21 of the writ petition is known) and it is maintained by the contained in para 25 of the counter P.W.D. The A.D.A. has neither built the affidavit which states: Thornhill Road nor maintains it. In fact it was not even in existence when Thornhill “That contents of paragraph no. 21 of Road was built. No doubt the A.D.A. has the writ petition are denied. It is reiterated power under section 33 to impose that demand of development charge is development charges if it does some specifically allowed under U.P. Act No. 3 development work, but in the case of the of 1997”. petitioners no such development activity has been done by the A.D.A.; nor amenity 43. A perusal of para 25 of the provided by it to the petitioners, and the counter affidavit shows that there is no procedure prescribed in section 33 was specific denial of the factual allegations of clearly not followed. In fact all the the petitioners in para 21 of writ petition development work in the area was done No. 23281 of 2001 that no development by the concerned authorities in Allahabad activity has been done by the A.D.A. nor in British days, as is of common any amenity has been provided to the knowledge. We can take judicial petitioners by the A.D.A. It is well settled cognizance of this fact. that a bald denial will amount to an admission. The averment in para 21 of the 44. The land on which the buildings writ petition no. 23281 of 2001 should in question were built was not developed have been specifically replied to by the by the A.D.A. but by some other agency A.D.A. in its counter affidavit. The or authority (probably the P.W.D.). Hence petitioner has categorically alleged in para in our opinion no development fee/charge 21 of the writ petition that no can be levied in this connection. development work has been done by the A.D.A. on the land in question nor has 45. However, there are some any amenity been provided to the colonies in Allahabad which have been petitioners. It was incumbent on the built by the A.D.A. whose list is given in respondents if it wished to deny the said Annexure SCA to the supplementary allegations to have specifically mentioned counter affidavit in writ petition no. what development activity has been done 47222 of 2002. The A.D.A. can charge by the A.D.A. and what amenity has been development charges in respect of these provided by it to the petitioners in respect colonies which it developed (though even of the petitioners’ land, but that has not here the levy of development charge/fee been done. In the absence of any specific must have some co-relation to the pleadings in the counter affidavit we have expenses incurred by the A.D.A. for the to accept the allegation in para 21 of writ development work it has done, and it petition no. 47222 of 2002 that no should not be arbitrary or exorbitant). It development activity in respect of the can also levy development charge in plots in question was done by the A.D.A. respect of other land in relation to which h nor any amenity provided by it. The it has done some development work. t houses in question are situated at However, even in such cases it must tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 672 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

comply with the procedure laid down in until altered, repealed or amended by any Section 33. competent authority under the Act.

46. We are therefore, of the opinion 49. The Supreme Court in Malti that A.D.A. can levy development Kaul’s case (supra) has referred to clause fee/charge only where some development 8 (vii) of the U.P. ( Regulations of work has been done by the A.D.A. in building operation) Directions 1960 relation to the land in question, and there which states : too, the charge must have some co- relation with the expenses incurred by the "(vii) The applicant has entered into A.D.A. in this connection, and the an agreement with the local body procedure of section 33 must be followed. concerned for the land and for provision of other amenities and has either 47. There are certain colonies in deposited the full estimated cost of the Allahabad which have been developed by development and provision of other bodies other than the A.D.A. e.g. the amenities with that local body in advance Awas Evam Vikas Parishad constituted or has given to it a bank guarantee under the U.P. Awas Evam Vikas equivalent to such cost, or has entered Parishad Act, which is a statutory body. into an agreement with that local body, One fails to understand how the A.D.A. providing that the full cost thereof may be can charge development charges from the realized by it out of the sale proceeds of owners of the building in such colonies the plots that may be sold by the which were not developed by the A.D.A. applicant; and no amenity has been provided to them by it. Hence we make it clear that only Provided that any such agreement where some development work was done between the applicant and the local body by the A.D.A. can it charge development may provide for any part of the charges, and there too the levy should development and provision of other have some co relation to the expenses amenities being carried out by the incurred in the development work, and the applicant himself, however that in respect procedure laid down in section 33 must be of any such part he shall give adequate followed. security to the local body to secure that he shall carry out such part of the 48. In Smt. Malti Kaul’s case development and provide other amenities (supra) the Supreme Court has referred (in in accordance with the approved para 10 of the judgement) to Section 59 standards and specifications to the (1) (c) of the Act which states that any satisfaction of the Controlling Authority." directions or regulations made under the U.P. (Regulation of building operations) A careful perusal of clause (vii) Act, 1958 in force on the date shows that this clause is applicable where immediately before the date of the applicant has entered into an commencement of the Act, shall in so far agreement with the local body concerned as they are not inconsistent with the for development of the land and for h provisions of this Act, continue in force provisions of their amenities. Hence t obviously it has not application where tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shaukat Ali V. Allahabad Development Authority and another 673

there is no such agreement between the Section 2 (gg) which has also been applicant and the local body for the inserted by U.P. Act No. 3 of 1997 as development of the land and for the follows : provision of other amenities. It is not alleged by the respondents in this case “development fee’ means the fee that there was any; such agreement levied upon a person or body under between the petitioners and the local body section 15 for construction of road, drain, concerned for development of the land sewer line, electric supply and water and for provision of amenities. supply lines in the development area by the development authority." 50. In para 21 of the writ petition no. 23281 of 2001 it has been categorically "development with its grammatical asserted that the development authority variations means the carrying out of has not provided any amenity nor has it building, engineering, mining or other carried out any development activities in operations in, on, over or under land, or respect of the plots over which the the making of any material charge in any constructions have been raised by the building or land, and includes re- petitioners, and the development activities development.” and amenities have been provided by the petitioners themselves from their own 54. A careful perusal of the resources. definition of development fee’ shows that it can be levied upon a person or body for 51. We, therefore, clarify that clause construction of road, drain, sewer line, (vii) of the said Directions will only apply electric supply and water supply by the where there is an agreement between the development authority. Thus the A.D.A. applicant and the local body for the can not charge development charge or fee development of the land and for providing when it has not done any development of other amenities. work, and when the road is constructed by the P.W.D., drain and sewer are 52. Moreover the use of the words established by the Municipality (now ‘providing’ that the full cost thereof may known as Nagar Nigam), water supply be realized by it out of the sale proceeds arranged by the Jal Sansthan and Electric of the plots that may be sold by the supply given by the U.P. State Power applicant’ which occurs in clause (vii) Corporation. seems to indicate that this clause really relates to cases of development by a 55. What has been happening in colonizer who develops the land and does Allahabad (and other cities in U.P.) is that plotting on the same and then sells the the A.D.A. or other development plots. Authority invariably demands development charge or other charges in 53. It may be mentioned that sub advance whenever any building is sought section 2 A of section 15 which has been to be constructed in the city, and an inserted by U.P. Act no. 3 of 1997 permits application is made for sanction of the h the authority to levy development fee. map for this purpose, even though the t Development fee has been defined in A.D.A. may not have done any tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 674 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

development work in this connection. officer, but this power is to be exercised This is clearly unauthorized and illegal, only when necessary for the purpose of being directly in contravention of the reaching a decision. language and the scheme of the statute. This will be apparent from a simple 59. In Consumer Action Group V. analysis of the provisions of section 33 of State of Tamilnadu 2000 (7) SCC 425 the the Act which clearly envisages that the Supreme Court held that even though development charge is recoverable only wide power may be conferred by the as, and by way of, recompense for any statute, the power must be exercised development work actually undertaken by reasonably and for the public good. the development authorities upon the default of the owner to carry out his 60. In Maneka Gandhi v. Union of obligations in regard to the proposed India, AIR 1978 SC 597 a seven Judge construction. What was supposed to be Constitution Bench of the Supreme Court recompensed cannot be converted into held that arbitrariness violates Article 14 means of augmenting the revenues of the of the Constitution. It follows that even if A.D.A. which is what the A.D.A. has the A.D.A. has statutory power to levy been actually doing. development fees/charges this power cannot be exercised arbitrarily. 56. As regards the Supreme Court decision in Malti Kaul’s case (supra) a 61. Hence merely because there are careful perusal of the same shows that all statutory provisions enabling the A.D.A. that the Supreme Court has held therein is to levy development charge this does not that there are statutory provisions for mean that the A.D.A. can levy levying development charge. The development charge as of course and in Supreme Court overruled the decision of every case, irrespective of whether it has this Court in Malti Kaul’s case which had done development work or not. In our held that there is no statutory provision opinion the A.D.A. can levy development for levying development charge. fee/charge only when it has done development work in relation to the land 57. However, it is well settled that in question, and that too after strictly existence of power is one thing, and complying with the procedure laid down exercise of that power is another. For in section 33, and the charge/fee must instance, in the Cr.P.C. there is power in have some co-relation with the expenses the police to arrest , but as held by the incurred in this connection by the A.D.A. Supreme Court in Joginder Kumar vs. State of U.P., AIR 1994 SC 1349 (vide 62. In the present cases we find that para 24) this does not mean that the police the demand is not preceded by any can arrest in every case. development work which might have been done by the A.D.A. in relation to the 58. Similarly, in ‘In the matter of ‘k’ land in question. A Judicial Officer, 2001(3) SCC 54 the Supreme Court observed that the superior 63. In view of the above discussion, h courts undeniably have power to pass we are of the opinion that the impugned t strictures on a subordinate judiciary demands levied by the A.D.A. are ex facie tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shaukat Ali V. Allahabad Development Authority and another 675

unauthorized and illegal and are hereby vicinity. Hence in our opinion the demand quashed. of park fee, sub division fee or open space charge is clearly illegal. Moreover, these 64. The last demand which has been charges are not relatable to any statutory challenged is the demand for open space provision under the Act. A G.O. is not charges and sub division charges. We statute and hence it cannot justify such a have not been shown any provision in the levy. A bare perusal of Section 5 and Act which empowers the A.D.A. to levy Section (2-A) of the U.P. Regulation of the open space charge or sub division Building Operations Act, 1958, on which charge. In para 25 of the petition it is the respondents rely, shows that these alleged that neither any park has been provisions do not authorize the concerned provided by the A.D.A. nor any open authority to impose the aforesaid charges. space has been provided to the petitioners. It has not even been alleged by the 66. It is well settled that no tax or respondents that a park has been provided fee can be levied or realized without a in the vicinity of the land in question. In statutory provision, vide Ahmedabad para 27 of the counter affidavit the reply Urban Development Authority v. Sharad to para 25 of the writ petition is as Kumar AIR 1992 SC 2038 (Para 6). Since follows: there is no statutory provision for imposing park fee, open space charge, sub “That contents of paragraph nos. 23, division charge, inspection fee or permit 24 and 25 of the writ petition as stated fee obviously the demands for the same are not correct and denied. It is submitted are illegal, and they are quashed. that sub division charges and open space Moreover, the petitioner in writ petition charges are also permitted under U.P. no. 47222 of 2002 has already paid permit Urban Planning and Development Act, fee as stated in para 4 of his writ petition, 1973 rules and regulations of the and we fail to understand how it can be respondent development authority framed demanded again. hereunder. Rest of the averments and the averments to the contrary are incorrect 67. In view of the above discussion, and denied. True facts have already been the writ petitions are allowed. The stated. impugned demand notices in both these petitioners are quashed. If any amounts Further reply if necessary shall be mentioned in the impugned notices have given subsequently”. been realized from the petitioners they shall be refunded to them forthwith. If the 65. A perusal of para 27 of the refund is not made by the A.D.A. within counter affidavit indicates that the factual one month from the date of this judgment allegation in para 25 of the writ petition then it will have to pay interest at 12% per has not been denied by the respondents annum from the date of realization to the and they have only stated that they have date of refund to the petitioners. power to levy sub division charge and open space charge. They have not denied 68. Before parting with these cases h that no park or open space has been we are constrained to observe that an t provided to the petitioners or in their alarming state of affairs has been tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 676 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

prevailing in this state regarding the not be sanctioned come what may. How manner in which the local bodies in long the citizens of this country will general and the development authorities tolerate this scandalous state of affairs if in particular operate, so much so that the anyone guess. The time has now come Court can take judicial cognizance of this when it has become the duty of the Court fact. Instead of serving as instruments of to intervene in this disgraceful state of looking after the welfare of the citizens, affairs and voice its protest. The Judiciary those in charge of operating such has to speak out on behalf of the people in authorities have made them a tool of such matters and bring them out to the extracting money illegally from citizens, notice of the people at the helm of the by fair means of foul. We have just seen affairs. how a provision which was designed only to enable the development authority to 70. We are also informed that more recompense itself for any expense which often than not when a person applies it might have incurred on the fault of the under section 15 of the Act for sanction of private individual has been used, or rather a plan unless he gives some extraneous misused, and huge demands utterly consideration to the concerned officials illegally have been made against the the application is kept pending for a long common people, for whose welfare these time giving rise to unnecessary hardship authorities were supposed to function. We to the applicant. This is highly can take judicial notice of these facts. We objectionable. The application should, in are reminded of the observation made by our opinion, be decided not later than the celebrated Justice Brandois of the U.S. three months of applying for the same and Supreme Court who remarked ‘A’ Judge it should be allowed or rejected on certain is surely expected to know what every objection criteria (mentioned in the one in society knows’ (see the Legacy of relevant rules) and not arbitrarily or on Holmes and Brandeis’ by Samuel extraneous considerations. If the Konefsky). application complies with the objective criteria mentioned in the relevant rules it 69. It is well known that in U.P. and should be allowed and it should not be perhaps in many other states, whenever a rejected. If there is a defect in the person applies for sanction of a map for application or map the applicant should be constructing a building or room the informed in writing about the defect and authorities demand bribe, otherwise the the relevant rule which the application or map will not be sanctioned and all kinds map allegedly violates, and he should be of hyper technical objections are raised. It called upon the remove the defect. If the is common knowledge that almost every applicant satisfies the concerned authority Municipality or local authority in the that in fact there is no defect in the country has fixed a rate of this bribe for application or map then sanction should sanctioning a map. One has to pay a hefty be granted. If however, the applicant sum of money to the Municipality or cannot satisfy the concerned authority, Development authority officials if one and does not remove the defect within a wishes to get a map sanctioned for reasonable period, then, after giving the h constructing a building or room, and if applicant a personal hearing (if he so t one does not pay this amount the map will desires), the concerned authority can tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Nagar Palika Parishad, Mirzapur and another V. P.O., Labour Court and another 677

reject the application, but in the rejection in filing-Recall application to set aside order he must give reasons and must refer ex-parte award-Rejected-Held-Labour to the relevant rule which will be violated Court rightly rejected no case for condonation of delay out. if the map is sanctioned. This procedure will obviate any misgivings or Held- Para 5 misapprehensions in this connection, and will be conducive to transparency in So far as the order refusing to entertain administration. the application for setting aside the ex- parte award is concerned, in my opinion, 71. Let the Registrar General of this the Labour Court has given sufficient reason to the effect that the employers Court send copy of this judgment have not been able to make out a case forthwith to the Chief Secretary and the for condonation of delay in filing the Urban Development Secretary, U.P. application for setting aside the ex-parte Government, who will communicate it to award, which was admittedly beyond the Chairman and Vice Chairman of all time and the reasons given by them have Development Authorities as well as other not been believed by the Labour Court. This Court in exercise of power under concerned local bodies and authorities in Article 226 of the Constitution of India U.P. with the direction that this judgement will not sit in appeal over the findings should be strictly complied with. recorded by the Labour Court while ------arriving at the conclusion that the ORIGINAL JURISDICTION employers have failed to make out a CIVIL SIDE case. DATED: ALLAHABAD 7.7.2003 (Delivered by Hon’ble Anjani Kumar, J.) BEFORE THE HON'BLE ANJANI KUMAR, J. 1. The employers Nagar Palika Parishad, Mirzapur aggrieved by an award Civil Misc. Writ Petition No. 27882 of 1997 of the Labour Court, U.P., Allahabad dated 13th March, 1995, passed in Nagar Palika Parishad, Mirzapur and another …Petitioners adjudication case No. 38 of 1993, which Versus is an ex-parte award and the order dated th Presiding Officer, Labour Court, 6 June, 1997 refusing to set aside the ex- Allahabad and another …Respondents parte award, approached this Court by means of present writ petition under Counsel for the Petitioners: Article 226 of the Constitution of India, Sri S.N. Shukla copies whereof are annexed as Annexure- Sri C.K. Parekh ‘7’ and ‘11’ to the writ petition.

Counsel for the Respondents: 2. The following reference was Sri R.S. Sharma made to the Labour Court for Sri G.S. Sharma adjudication:- Sri K.S. Rathore

S.C. "D;k lsok;kstdksa }kjk vius Jfed@deZpkjh Jh jke ujk;u] VSDl dysDVj dh lsok;sa 11-11-1976 ls lekIr Constitution of India, Article 226- h fd;k tkuk mfpr rFkk@vFkok oS/kkfud gS ;fn ugha rks t Service Law-Practice of procedure-Delay ? ; tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 678 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

lacaf/kr Jfed@deZpkjh D;k fgrykHk ¼fjyhQ½ ikus dk employers tried to assail these findings vf/kdkjh gS ,oa vU; fdl fooj.k lfgr ?" recorded by the Labour Court, but in vain. In view of the facts and circumstances of 3. The Labour Court has given the the case and the finding recorded by the aforesaid award ex-parte after recording a Labour Court, I do not find any finding that inspite of service of notice justification to interfere with these from the Labour Court by Registered post findings. A/D, nobody appeared on behalf of the employers. The employers thereafter 5. So far as the order refusing to moved a recall application for setting entertain the application for setting aside aside the ex-parte award, which the ex-parte award is concerned, in my application has been rejected by the opinion, the Labour Court has given Labour Court on the ground that no sufficient reason to the effect that the sufficient cause has been given for employers have not been able to make out making the application at the belated a case for condonation of delay in filing stage. The chequered history between the the application for setting aside the ex- parties of the litigation clearly parte award, which was admittedly demonstrates that the workman concerned beyond time and the reasons given by had approached the U.P. Public Service them have not been believed by the Tribunal, which found that the claim Labour Court. This Court in exercise of petition moved on behalf of the workman power under Article 226 of the is not maintainable. Thereafter the Constitution of India will not sit in appeal workman preferred a writ petition before over the findings recorded by the Labour this Court, which also found that the writ Court while arriving at the conclusion that petition is not maintainable, as the the employers have failed to make out a petitioner has a remedy by way of raising case. This being the legal position and for an industrial dispute. The workman the reasons stated above, this writ petition concerned thereafter raised a dispute, deserves to be dismissed. which has been referred to the labour Court, as stated above. 6. However, in the interest of justice and as argued by learned counsel for the 4. The Labour Court has held that employers, the award of the Labour Court inspite of notice being served upon the is modified to the extent that the workman employers, nobody appeared on their concerned will be entitled only half of the behalf to contest the case set up by the wages from the date of termination of his workman and arrived at the conclusion services till the date of the award and that the services of the workman were thereafter he shall be entitled to full back terminated by the employers without wages. complying with the provision of Section 6-N of the U.P. Industrial Disputes Act, 7. In view of what has been stated 1947 and that the workman has completed above, this writ petition has no merit and more than 240 days of working in is accordingly dismissed with the previous calendar year. These findings modification to the extent that the h remain un-assailed. Learned counsel workman concerned shall be entitled to t appearing on behalf of the petitioners- half back wages from the date of tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Jagat Narain Singh V. Director of Education (Secondary) and others 679

termination of his services till the date of three weeks did not communicate the the award and thereafter workman shall decision on the proposal of the be entitled for full back wages. The promotion sent by committee of Management. It would be deemed that interim order, if any, stands vacated. D.I.O.S. had given his concurrence to the However, there shall be no order as to resolution. However, under rule 9 of costs. 1983 Rules framed under the ------commission Act, there was no provision ORIGINAL JURISDICTION for such deemed approval if commission CIVIL SIDE did not communicate its decision within DATED: ALLAHABAD 03.07.2003 a certain time. By virtue of section 32 of the commission Act only those provisions BEFORE of U.P. Intermediate Education Act and THE HON'BLE S.U. KHAN, J. the regulations made there under in so far as they are not in consistent with the provisions of the commission Act or the Civil Misc. Writ Petition No. 27899 of 1998 rules made there under shall continue to be in force for the purposes of selection, Jagat Narain Singh …Petitioner appointment, promotion etc of a teacher. Versus Regulation 6 of chapter 2 having been Director of Education (Secondary) and virtually replaced by rule 9 of 1983 Rules others …Respondents framed under the commission Act ceased to be in force and it was rule 9 of 1983 Counsel for the Petitioner: Rules (as it stood at the relevant time), Sri A.S. Diwekar which covered the situation.

Counsel for the Respondents: (B) Service-Appointment-teacher in C.T. Sri S.C. Mishra Grade-against a substantive vacancy- wrongly made on adhoc basis-prescribed Sri S.K. Pal procedure not followed-such Sri K.R. Singh appointment held illegal. Ms. Manju Chauhan S.C. Held- Para 4

U.P. Intermediate Education Act, In my opinion, Director has rightly Regulations, Chapt.II, Regulation 6 (6)- decided that vacancy was not a short- U.P. Secondary Education Services term vacancy. Director has also rightly Selection Board Act 1982, Sec. 32-U.P. held that appointment of the petitioner Secondary Education Services on ad-hoc basis on the substantive Commission Rules 1983, Rule 9-concept vacancy created by promotion of Ram of deemed approval of appointment-as Raj Singh was illegal as procedure contained in Regulation 6 (6)-has been prescribed under first removal of replaced by Rule 9-by virtue of Sec. 32-in difficulties order under the absence of specific period-plea of ordinance/Act was not followed as held deemed approval-held not sustainable. by the Full Bench of this Court reported in Radha Raijada 1994 (Vol.III) Held-Para 5 U.P.L.E.B.C. 1551. In view of this writ petition filed by J.N. Singh is devoid of Even though under Regulation 6 (6) of any merit and is dismissed. chapter 2 of the regulation framed under Case laws discussed: h U.P. Intermediate Education Act there 1989 (2) UPLBEC 98 was provision that if the D.I.O.S. within 2002 (4) ESC 412 t 1998 (3) UPLBEC 1722 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 680 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

2000 (3) ESC 1990 appeal. The Director was required to 1999 (2) UPLBEC 1420 decide the entire matter afresh. 1992 (2) UPLBEC 1483 2002 (1) SCC 791 and 1999 (3) UPLBEC 1734 3. The brief facts of the case are that 1994 (3) UPLBEC 1551 late Sri R.N. Singh, a teacher in L.T. Grade died in harness on 10.4.1985. (Delivered by Hon'ble S.U. Khan, J.) Committee of Management proposed promotion of Ram Raj Singh, a C.T. 1. J.N. Singh, petitioner in the first Grade teacher and the proposal was sent writ petition and B.P. Singh petitioner in to D.I.O.S. on 19.10.1985. This the second writ petition are rival proposal/recommendation was accepted/ claimants for one post of teacher in Sri approved on 16.3.1988 by the U.P. Laxmi Narain Uchtar Madhyamik Secondary Education services Vidyalay Meja, Allahabad (hereinafter Commission and in pursuance thereof referred to as the college). Director of Ram Raj Singh joined on 25.4.1988. education by order-dated 22.4.1998 has Petitioner R.N. Singh claims to have been negatived the claim of both. The Director appointed on 11.2.1989 on the post of passed the order on appeal of J.N. Singh, C.T. Grade teacher falling vacant due to which was filed in pursuance of promotion of Ram Raj Singh of L.T. judgment-dated 11.11.1997 given in Grade. In the writ petition of J.N. Singh it special appeal, by this court, which was has been stated in para 16 to 19 that Ram filed by J.N. Singh. Judgment of the Raj Singh was promoted on substantive special appeal No. 270 of 1995 is vacancy under first removal of difficulties annexure 7 and consequent order of the order 1981 framed under the U.P. Director is annexure 8 to the first of the Secondary Education Service commission aforesaid writ petitions filed by J.N. ordinance/Act). Meaning thereby that the Singh. promotion of Ram Raj Singh was ad-hoc and to remain in operation until regularly 2. In the judgment of the aforesaid selected candidate selected by the special appeal it was directed that the commission joined. It has further been Director of Education shall decide the asserted in the said writ petition that in appeal after providing opportunity of this manner a short-term vacancy came hearing to the parties. It was observed that into existence in C.T. Grade against “matter should be considered by the which petitioner J.N. Singh was appointed Director of Education who will consider on 11.2.1989. In the counter affidavit on the validity or otherwise of the behalf of the Director and Deputy appointments of the appellant (i.e. J.N. Director of education, it has been stated in Singh) and respondent No. 3 (i.e. B.P. para 4 that on 16.3.1988 approval of Singh). It has been argued on behalf of promotion of Ram Raj Singh was granted J.N. Singh that an earlier order of D.I.O.S. by the commission, under rule 9 of 1983 against B.P. Singh was not challenged rules framed under the Act (as existed at hence it became final. His argument is not the relevant time). Approval of entertain able as in view of the commission was required only if the h observations in the judgment of special promotion was on the post of to be filled t by promotion under promotion quota of tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Jagat Narain Singh V. Director of Education (Secondary) and others 681

40% (as applicable at the relevant time) short-term vacancy. Director has also under chapter 2 Regulation 5 and 6 of the rightly held that appointment of the regulations framed under U.P. petitioner on ad-hoc basis on the Intermediate Education Act. It is, substantive vacancy created by promotion therefore, abundantly clear that promotion of Ram Raj Singh was illegal as of Ram Raj Singh approved by the procedure prescribed under first removal commission was substantive and final in of difficulties order under the nature and not ad-hoc until candidate ordinance/Act was not followed as held selected by the commission joined. by the Full Bench of this Court reported Consequently the vacancy, which in Radha Raijada 1994 (Vol.III) occurred in C.T. Grade due to promotion U.P.L.E.B.C. 1551. In view of this writ of Ram Raj Singh under promotion quota petition filed by J.N. Singh is devoid of and its approval by commission, was the any merit and is dismissed. substantive vacancy and not a short-term vacancy. In the rejoinder affidavit of J.N. 5. As far as the second writ petition Singh in para 3 this fact has not been of B.P. Singh is concerned it is liable to denied that approval-dated 16.3.1988 was be dismissed only on the ground that granted by the commission. However, it according to the said petition he was has been stated therein that it was appointed on 1.9.1986 when there was no wrongly granted by the commission and it vacancy. Ram Raj Singh was selected for ought to have been granted by the appointment by promotion by the D.I.O.S. By way of elaboration it has commission on 16.3.1988 and joined the been stated that if it had been an post on 25.4.1988 hence there cannot be appointment under promotion quota said to be any vacancy before 25.4.1988. names of three persons would have been Even though under Regulation 6 (6) of forwarded. Under chapter 2 Regulations 5 chapter 2 of the regulation framed under and 6 and rule 9 of 1983 rules framed U.P. Intermediate Education Act there under the commission Act only those was provision that if the D.I.O.S. within teachers who possess minimum three weeks did not communicate the qualification for teaching subject decision on the proposal of the promotion concerned and five years experience shall sent by committee of Management. It be considered of promotion. It is quite would be deemed that D.I.O.S. had given possible that apart from Ram Raj Singh his concurrence to the resolution. no other teacher was available for However, under rule 9 of 1983 Rules promotion hence no other name was framed under the commission Act, there forwarded by the committee of was no provision for such deemed management. In any case approval dated approval if commission did not 16.3.1988 granted by the commission was communicate its decision within a certain neither challenged in any of the earlier time. By virtue of section 32 of the writ petition nor in the instant writ commission Act only those provisions of petition, hence its validity can not be U.P. Intermediate Education Act and the questioned by the petitioner J.N. Singh. regulations made there under in so far as they are not in consistent with the h 4. In my opinion, Director has provisions of the commission Act or the t rightly decided that vacancy was not a rules made there under shall continue to tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 682 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

be in force for the purposes of selection, appointment of B.P. Singh in 1986 was appointment, promotion etc of a teacher. against no vacancy. Regulation 6 of chapter 2 having been virtually replaced by rule 9 of 1983 Rules 8. As far as 7th authority, reported in framed under the commission Act ceased 1992(2) UPLBEC 1483 is concerned, it is to be in force and it was rule 9 of 1983 also not applicable to the facts of the case Rules (as it stood at the relevant time), as in that authority the matter pertained to which covered the situation. the valid appointment of teacher in CT Consequently writ petition filed by B.P. Grade before 20.6.1989. In the said Singh is also liable to be dismissed. authority the only question considered was that of applicability of circular dated 6. Learned counsel for the petitioner 20.6.1989. B.P. Singh has cited the following authorities:- 9. The Director in his order dated 22.4.1998 has rightly directed committee (1) 1989(2) U.P. L.B.E.C.98, of management, D.I.O.S., Regional (2) 2002(4) E.S.C. 412, Deputy Director of Education, Joint (3) 1998(3) U.P.L.B.E.C. 1722, Director of Education to take immediate (4) 2000(3) E.S.C. 1670, steps to make the appointment against the (5) 2000(3) E.S.C. 1990. post in dispute. The said directions must (6) 1999(2) U.P.L.B.E.C. 1420, be complied with by the concerned (7) 1992(2) U.P.L.B.E.C. 1483. authorities forthwith. (8) 2002(1) S.A.C. 791 and (9) 1999(3) U.P.L.B.E.C. 1734 Competent authority/body must be passed within six months from the 7. The first authority deals with production of certified copy of this order. promotion under first removal of Difficulties order. In the instant case Accordingly writ petition is allowed promotion of Ram Raj Singh was under as aforesaid. Chapter II Regulation 5 and 6 and rule 9 ------of 1983 Rules, hence the said authority is ORIGINAL JURISDICTION not applicable to the facts of the case. The CIVIL SIDE second authority also deals with ad-hoc DATED: ALLAHABAD 02.07.2003 promotion over and above the 40 % rd th th th th BEFORE quota. The 3 , 4th, 5 , 6 , 8 and 9 THE HON'BLE ANJANI KUMAR, J. authorities deal with the appointment on short terms vacancies, which are not Civil Misc. Writ Petition No. 1256 of 1997 applicable to the facts of the case. Sri Ram Raj Singh was promoted on M/S. Gangeshwar Limited …Petitioner permanent basis in 1988, giving rise to a Versus substantive vacancy. Until acceptance/ Presiding Officer, Labour Court, approval of promotion of Ram Raj Singh Dehradun and another …Respondents under 40% quota by the Commission, no h vacancy either substantive or short term Counsel for the Petitioner: came into existence, hence alleged Sri Vinod Sinha t Sri S.P. Singh tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] M/s Gangeshwar Ltd. V. P.O., Labour Court and another 683

Counsel for the Respondents: 2. This writ petition is listed under Sri B.N. Singh the heading ‘Order’, as there is a stay S.C. vacate application filed on behalf of the contesting Respondent. Leaned counsel U.P. Industrial Disputes Act, 1947-S. 4- appearing on behalf of the petitioner K-Notification dated 18.7.1982- stated that since the writ petition is listed Termination of Service-without payments of gratuity-validity-Tribunal only for orders, this Court should not held retiring workman shall be deemed decide the matter on merits. I find that to be in service and entitled to full wages interest of justice demands that it is in the and all benefits as long as employer does interest of the petitioner as well as the not tender due amount of gratuity to contesting Respondent that the matter him-Termination order-held illegal- may be finally decided, therefore, I have

Held- Para 5 heard learned counsel for the parties on merits. From the reference, it is clear that the services of the workman concerned were 3. The petitioner, by means of terminated by the petitioner-employer st present writ petition under Article 226 of with effect from 1 November, 1986. It the Constitution of India, has challenged is not disputed either before this Court, the award of the labour Court, U.P., or before the labour Court that while rd terminating the services of the workman Dehradun dated 23 May, 1996, passed in concerned, the gratuity, which is found adjudication case no. 139 of 1990, copy due upon the employer, has not been whereof is annexed as Annexure-‘2’ to paid to the workman. In this view of the the writ petition. The following dispute matter, the labour Court found that in was referred to by the State Government terms of the aforesaid Notification “the retiring workman shall be deemed to be in exercise of power under Section 4-K of in service and shall be entitled to full the U.P. Industrial Disputes Act, 1947 wages and all fringe benefits as long as {hereinafter referred to as the ‘Act’} vide the employer does not tender the due its order dated 24th August, 1990, before amount of gratuity to him” and held that the labour Court for adjudication. the termination of services of the workman concerned with effect from 1st "D;k lsok;kstdksa }kjk vius Jfed eksguyky] in November, 1986 is illegal and that the xUuk lqijokbtj dks xzsP;qVh dk Hkqxrku u djds fnukad 1- workman is entitled for gratuity/arrears of gratuity, wages and all fringe benefits, 11-86 ls lsokfuo`Rr fd;k tkuk vuqfpr@vFkok voS/kkfud as if the workman is still in employment. gS? ;fn gkWa] rks lacaf/kr Jfed D;k ykHk@vuqrks"k ¼fjyhQ½ Cases referred: ikus dk vf/kdkjh gS rFkk vU; fdl fooj.k lfgr?" AIR 1960 SC 610

(Delivered by Hon’ble Anjani Kumar, J.) 4. After receipt of the reference, the labour Court issued notices to the parties 1. This writ petition was heard and and the parties concerned have exchanged dismissed by me vide Order dated their affidavits and adduced evidence. The labour Court has relied upon a 02.07.2003 for the reasons to be recorded th later on. Now, here are the reasons for Notification dated 15 July, 1982, copy h dismissing the aforesaid writ petition. whereof is annexed along with the counter affidavit, which is a statement registered t under the provisions of U.P. Industrial tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 684 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Disputes Act, 1947, which provides as been paid to the workman. In this view of under : the matter, the labour Court found that in terms of the aforesaid Notification “the “ ORDER retiring workman shall be deemed to be in service and shall be entitled to full wages 1. The management shall pay the and all fringe benefits as long as the amount of gratuity to a retiring employer does not tender the due amount workmen as may be found due to him of gratuity to him” and held that the by the management on receipt of a termination of services of the workman clearance slip from the workmen in concerned with effect from 1st November, respect of articles of stores, advance 1986 is illegal and that the workman is etc. The workman shall entitled for gratuity/arrears of gratuity, simultaneously vacate his quarter and wages and all fringe benefits, as if the hand over its possession to the workman is still in employment. Learned management. counsel for the petitioner-employer has relied upon a phraseology used in the 2. The retiring workman shall be aforesaid Government Notification, deemed to be in service and shall be referred to above, that at least in the year entitled to full wages and all fringe 1993 the employer has tendered the benefits as long as the employer does amount of gratuity and therefore the view not tender the due amount of gratuity taken by the labour Court in awarding the to him. wages till the date of the award is wholly erroneous. If the language used in 3. Receipt of payment of the amount of paragraph 1 of the aforesaid Notification gratuity found due by the employer compared with the language of Section shall not prejudice the right of the 25-F and Section 6-N of the Industrial workman to raise a dispute about it, if Disputes Act, 1947, which has been he considers the amount disputable interpreted by the apex Court in the case even on vacation of the quarter and of The State of Bombay and others exit from the service. Versus The Hospital Mazdoor Sabha and others, reported in A.I.R. 1960 4. This order shall apply to all workman Supreme Court, 610, it reveals that apex covered by the Wage Board for the Court while interpreting the provision of Sugar Industry and shall remain Section 25-F, which is para materia to the inforce till December 31, 1983.” language used in paragraph 1 of the aforesaid Notification, has held that the 5. From the reference, it is clear that termination of services of the workman the services of the workman concerned concerned without payment of were terminated by the petitioner- retrenchment compensation will be employer with effect from 1st November, illegal. I do not find that the view taken 1986. It is not disputed either before this by the labour Court in interpreting the Court, or before the labour Court that aforesaid provision of the Notification, while terminating the services of the referred to above, suffers from any error, h workman concerned, the gratuity, which much less error of law. In this view of the t is found due upon the employer, has not matter, the argument advanced on behalf tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Bijendra Singh V. State of U.P. and others 685

of the petitioner-employer deserves to be of the material which has been relied rejected and is hereby rejected. No other against the petitioner. argument was advanced on behalf of If the petitioner is found fit for being learned counsel for the petitioner. promoted on the date on which his juniors were promoted, the petitioner 6. In view of what has been stated shall be entitled to all benefits and above, this writ petition has no force and privileges treating notionally promoted is accordingly dismissed. The interim w.e.f. the date his juniors have been order, if any, stands vacated. However, given promotion and place him just above the next person junior to him in the parties shall bear their own costs. the cadre of Superintending Engineer. ------Case law discussed: ORIGINAL JURISDICTION 1998 (6) SCC 720 CIVIL SIDE 1976 (2) SCC DATED: ALLAHABAD 8.7.2003 (Delivered by Hon'ble A.K. Yog, J.) BEFORE THE HON'BLE A.K. YOG, J. 1. Heard learned counsel for the THE HON'BLE UMESHWAR PANDEY, J. petitioner and learned Standing Counsel Civil Misc. Writ Petition No. 24488 of 2001 on behalf of the respondents at length.

Bijendra Singh …Petitioner The petitioner joined as Assistant Versus Engineer in the Department of Irrigation, State of U.P. through Chief Secretary and State of U.P., in December 1966 on adhoc others …Respondents basis. Thereafter he appeared in the competitive Combined State Engineering Counsel for the Petitioner: Services Examination conducted by U.P. Sri Pankaj Mithal Public Service Commission and declared successful in the year 1968 and joined on Counsel for the Respondents: regular basis. His ad-hoc tenure was S.C. added with the tenure on regular basis.

Constitution of India Article 226-Service- Promotion-On post of Chief Engineer- 2. Petitioner was promoted on the denied without plausible justification- post of Executive Engineer on 31.1.1988. while juniors considered- no specific While working as Executive Engineer he denial about merit of petitioner-direction was communicated with certain remarks to consider his case for notional in his service record. Petitioner submitted promotion-with all benefits and a representation. Petitioner was, thereafter privilege. considered for next promotion to the post Held- Para 18 and 19 of Superintending Engineer by the Departmental Promotion Committee and In view of unrebutted pleadings in the promoted on 29.10.1999 to the post of Writ Petition, referred to above, we find Superintending Engineer w.e.f. 12.3.1998. that name of the petitioner has been The petitioner, however, got aggrieved ignored without plausible justification. h when matter of promotion to the post of t Impugned order contains no indication tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 686 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Chief Engineer (Level-II) in the (Appointment by Promotion) Regulations, department arose. 1955 which prescribed that "selection for inclusion in such list shall be based on 3. The petitioner contends that DPC merit and suitability in all respects with did not find favour with the petitioner's due regard to seniority" Mathew, J. in candidature, his candidature ignored and Union of India V. Mohan Lal Capoor promotion to the next higher post denied (1973) 2 SCC 836: 1974 SCC (L&S) 5, to him while juniors considered and has said: (SCC p 856 para 37) accorded promotion. It is also contended that such juniors had much less quality (F) or inclusion in the list, merit and points as compared to the petitioner who suitability in all respects should be the was eligible to get 19 quality points. governing consideration and that seniority should play only a secondary 4. In para 14 to the Writ Petition, it role. It is only when merit and suitability is categorically pleaded that criterion for are roughly equal that seniority will be a promotion to the post in question is determining factor, or, if it is not fairly 'seniority-cum-merit' to be determined on possible to make an assessment inter se of the basis of entries in the Character Roll the merit and suitability of two eligible preceding last ten years. The said para 14 candidates and come to a firm conclusion, has been replied vide para 7 of the seniority would tilt the scale." Counter Affidavit filed on behalf of the contesting respondents (sworn by one 6. Similarly, Beg, J. (as the learned L.B. Singh). The categorical averments in Chief Justice then was) has said: (SCC P. para 14 of the Writ petition to the effect 851, para 22) that promotion was on the basis of criterion 'seniority-cum-merit' has not "22. Thus, we think that the correct been denied. view, in conformity with the plain meaning of words used in the relevant 5. The meaning of expression Rules, is that the 'entrance' or 'inclusion' 'seniority-cum-merit' came up for test for a place on the select list, is consideration before the Apex Court and competitive and comparative applied to the same has been explained in the case of all eligible candidates and not minimal B.V. Sivaiah and others Versus K. like pass marks at an examination. The Addanki Babu and others- (1998) 6 SCC Selection Committee has an unrestricted 720 pp 726 (Paras 9,10 & 11)- which are, choice of the best available talent, from for convenience, reproduced:- amongst eligible candidates, determined by reference to reasonable criteria "9. The principle of "merit-cum- applied in assessing the facts revealed by seniority" lays greater emphasis on merit service records of all eligible candidates and ability and seniority plays a less so that merit and not mere seniority is the significant role. Seniority is to be given governing factor." weight only when merit and ability are approximately equal. In the context of 10. On the other hand, as between h Rule 5 (2) of the Indian Administrative the two principles of seniority and merit, t Service/Indian Police Service the criterion of "seniority-cum-merit" lays tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Bijendra Singh V. State of U.P. and others 687

greater emphasis on seniority. In State of "12. In B.V. Sivaiah (supra) the Mysore V. Mahmood 3 while considering Supreme Court has held that "criterion of Rule 4 (3) (b) of the Mysore State Civil seniority-cum-merit in the matter of Services General Recruitment Rules, 1957 promotion postulates that given the which required promotion to be made by minimum necessary merit requisite for selection on the basis of seniority-cum- efficiency of administration, the senior, merit, this Court has observed that the even though less meritorious, shall have rule required promotion to be made by priority and a comparative assessment of selection on the basis of "seniority subject merit is not required to be made.” It was to the fitness of the candidate to discharge further held in that case that for assessing the duties of the post from among persons the minimum necessary merit, the eligible for promotion." It was pointed out competent authority can lay down the that where the promotion is based on minimum standard that is required and seniority-cum-merit, the officer cannot also prescribe the mode of assessment of claim promotion as a matter of right by merit of the employee who is eligible for virtue of his seniority alone and if he is consideration for promotion. It would be found unfit to discharge the duties of the seen from Rule 16 of the Rules that it does higher post, he may be passed over and not lay down any standard of judging the an officer junior to him may be promoted. minimum merit apart from prescribing the standard of judging unfitness. In other 11. In State of Kerala V. N.M. words of merit of a teacher for the Thomas (1976) 2 SCC 310: 1976 SCC purpose of promotion under rule 16 is (L&S) 227, A.N. Ray, C.J. has thus that no criminal case involving moral explained the criterion of "seniority-cum- turpitude is pending enquiry or trial merit": (SCC p.335, para 38). against him; and/or no disciplinary proceeding is being conducted against "With regard to promotion the him. Absence of the disabilities referred normal principles are either merit-cum- to in clause (b) of the Explanation to Rule seniority or seniority-cum-merit. 16 of the Rules, in our opinion, would be Seniority-cum-merit means that given the taken to be merit for the purpose of giving minimum necessary merit requisite for ad-hoc promotion on the basis of efficiency of administration, the senior "seniority subject to rejection of unfit. though the less meritorious shall have Accordingly keeping in view the priority." distinction, albeit very thin between the principles of "Seniority-cum-merit" and 7. In the case of Manna Prasad "seniority subject to rejection of unfit" Jaiswal Versus District Inspector of we are of the considered view that for the Schools, Deoria and others-1999 purpose of ad-hoc promotion in Section Allahabad civil Journal 1021, (Pr. 12), a 18 of the Act read with Rule 16 of the Division Bench of this Court had the Rules, seniority will prevail except where occasion to explain the meaning of the the senior teacher suffers from any of the expression-"Seniority subject to rejection demerits referred to in clause (b) of the of Unfit"- in the following words- Explanation appended to Rule 16. In so h far as assessment of job performance is t concerned, the same is not comprehended tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 688 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

unwed rule 16 of the Rules and since ad- Para 19,29,30 and 31 of the Writ hoc promotion under Section 18 is Petition have been replied vide para 9, 14 required to be made in the manner & 15 of the Counter Affidavit. prescribed in the Rules aforestated, it would not be permissible to cull out any Contents of para 19 of the Writ other criterion of ad-hoc promotion. On Petition, wherein petitioner has elaborated the admitted facts the order passed by the his character roll entries, have not been District Inspector of Schools, in our denied. opinion, id not suffer from any infirmity and the Learned Single Judge was not 12. The respondents merely right in remitting the mater to the District questioned the propriety of the Petitioner Inspector of Schools with a direction to having knowledge of the confidential re-examine the matter on the basis of entries. Respondents have not, as of fact, comparative assessment of the merits of denied contents of para 19 of the Writ the rival claimants." Petition. How petitioner came to know of the 'entries' is not relevant for our 8. In para 19 of the Writ Petition, purpose. petitioner has given details of the entries awarded to him during 1989-90 to 1999- 13. In para 19 & 21 of the Counter 2000. It shows that the petitioner had Affidavit again it is being alleged that earned three entries for three years 'good', criterion for promotion is the merit and four year's entries 'outstanding', and one that petitioner's name was ignored by the year's entry 'very good'. DPC because of the service record of the petitioner not being up to the mark. 9. Further in para 29 of the Writ Petition it is asserted that on the basis of 14. The respondents have however relevant entries in the Character Roll he not taken the trouble to point out was entitled to 19 points on merit before categorically the material which has been DPC. taken into account against the petitioner or the relevant rule providing for the 10. In para 30 of the Writ Petition it criterion of promotion. is contended that the DPC which met in March, 2000 for considering promotion of 15. In other words it has not been Superintending Engineer to the higher pointed out which year entries have been post, without rhyme or reason, refused to found not good and what was the material recommend the name of the petitioner on on the basis of which the members of the post of Chief Engineer (Civil) level-II DPC did not find the petitioner's and instead recommended name of juniors candidature to be considered for to him. promotion.

11. In para 31 it is also pleaded that 16. Averments in para 29 of the Writ the candidate recommended by the DPC Petition (that petitioner was entitled to 19 has obtained only 18 quality points. quality points on merit, to be awarded on h the basis of service record/Character Roll) t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Rakesh Kumar Singh V. State of U.P. and others 689

have not been specifically denied in para ORIGINAL JURISDICTION 14 of the Counter Affidavit. CIVIL SIDE DATED: ALLAHABAD 11.07.2003 17. Perusal of the impugned order dated September 11, 2000 Annexure 18 to BEFORE THE HON'BLE M. KATJU, J. the Writ Petition also does not disclose as THE HON'BLE R.S. TRIPATHI, J. to which records were taken into account and what was the material on the basis of Civil Misc. Writ Petition No. 29108 of 2003 which members of the DPC ignored the name of the petitioner for promotion. Rakesh Kumar Singh …Petitioner Versus 18. In view of unrebutted pleadings State of U.P. and others …Respondents in the Writ Petition, referred to above, we find that name of the petitioner has been Counsel for the Petitioner: ignored without plausible justification. Sri B. Prasad Impugned order contains no indication of the material which has been relied against Counsel for the Respondents: the petitioner. Sri Subodh Kumar S.C.

19. In view of the above, the Constitution of India-Article 226 impugned order dated September 11, violation of Injunction order-interim 2000 is hereby quashed, concerned injunction-proper remedy is to file respondents and its authorities, servants, application under order 39 Rule 2A of nominees, etc. are directed to consider the C.P.C. and not to file writ petition. The name of the Petitioner within four weeks petition is misconceived and dismissed of the receipt of the certified copy of this with a Special Cost of Rs. 25,000/-

judgment and pass appropriate order in Held- Para 2 accordance with law. If the petitioner is found fit for being promoted on the date If this temporary injunction was not on which his juniors were promoted, the being obeyed then the petitioner should petitioner shall be entitled to all benefits have filed an application under Order 39 and privileges treating notionally Rule 2 A of the CPC, but instead this writ petition has been filed. There can be no promoted w.e.f. the date his juniors have clearer case of abuse of the process of been given promotion and place him just this Court. This writ petition should above the next person junior to him in the never have been filed, and we are cadre of Superintending Engineer. constrained to observe that learned counsel in this case has not given correct 20. Writ Petition succeeds. advice to his client.

No order as to costs. (Delivered by Hon'ble M. Katju, J.)

------1. This writ petition discloses how the process of the High Court is being h abused by filing frivolous writ petitions in t large numbers when there is already a tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 690 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

huge burden on this Court due to the large 3. It is well settled that if there is an arrears. There was a time in this country alternative remedy available this Court when learned counsel used to give correct does not normally interfere in writ advice to clients and the preliminary jurisdiction. In this case not only is there screening of the case was done in the an alternative remedy, that remedy is chamber of the learned counsel itself, and actually being availed of by the petitioner if there was no useful purpose in filing a by filing a civil suit, and in fact the case the learned counsel would frankly petitioner has got a temporary injunction say so to his client. Today this hardly order. This is not an isolated case, and a happens and the learned counsels file all large number of frivolous petitions are kinds of frivolous cases thus causing being filed in this Court. It passes all immense problems to this Court, which is comprehension why such frivolous cases already highly overburdened with the are being filed in this Court, and the time pending cases. has now come when this Court must start taking serious action in such matters 2. This malpractice has been otherwise it will be flooded with Lakhs committed in this case too. The petitioner and Lakhs of frivolous case. has already filed civil suit no. 364 of 2002 for the same relief, which he is claiming 4. We therefore, dismiss the writ in this writ petition. In that suit a petition. We also direct the petitioner to temporary injunction was granted, copy of pay costs of Rs.25,000/= which will be which is Annexure-5 to the writ petition, paid by the petitioner within a month which was passed after hearing both the from today to the State Government, sides. In this temporary injunction order, failing which it will be recovered by the the operative portion of which is on pages District Magistrate Hathras as arrears of 134 and 135 of the writ petition, the land revenue. Learned Standing counsel precise relief which the petitioner is as well as Registrar General of this Court, praying for in this writ petition has been will communicate this order to the District granted in that temporary injunction. The Magistrate, Hathras forthwith. defendant-respondents were restrained ------from withdrawing the amount from the ORIGINAL JURISDICTION respondent Bank and from depositing the CIVIL SIDE same in any other Bank account. If this DATED: ALLAHABAD 16.07.2003 temporary injunction was not being BEFORE obeyed then the petitioner should have THE HON’BLE M. KATJU, J. filed an application under Order 39 Rule 2 THE HON’BLE R.S. TRIPATHI, J. A of the CPC, but instead this writ petition has been filed. There can be no Civil Misc. Writ Petition No. 38343 of 2002 clearer case of abuse of the process of this Court. This writ petition should never M/s Gupta Service Station and another have been filed, and we are constrained to …Petitioner observe that learned counsel in this case Versus has not given correct advice to his client. Indian Oil Corporation Limited and others …Respondent h t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] M/s Gupta Service Station and another V. India Oil Corporation Ltd. and others 691

Counsel for the Petitioners: 2002, 37098 of 2002, 38346 of 2002, Sri Saumitra Singh 38348 of 2002, 38352 of 2002, 41445 of 2002 41447 of 2002, 41448 of 2002 and Counsel for the Respondents: 53829 of 2002 are being disposed off by a Sri R.G. Padia common judgment. Sri Prakash Padia Sri Arun Tandon 2. Heard learned counsel for the S.C. parties.

Constitution of India Article 226- 3. The petitioner has prayed for a Rejection of Tender–Indian Oil Corporation invited tenders to carry writ of certiorari quashing para 11 (c) (iv) petrol/diesel from terminal point to their of the Special Tender Conditions of respective Dealers–Clause (c) (iv) of the Tender No. JOINT/POL/02/16 (Annexure agreement provides that the vehicle 5 to the petition) and for a mandamus should not be more than 15 years old on directing the respondent authorities to date of the tender. Rejection on their permit the petitioner to participate in the ground that vehicle is more than 15 yrs. Old. Whether justified? – yes Tender in question dated 29.7.2002 without placing the restriction that Held : Para 16 vehicles should be less than 15 years old.

In our opinion, there is no merit in these 4. The petitioner no. 1 is a petitions. The matter is purely partnership concern and petitioner no. 2 is contractual and this Court cannot one of his partners doing the business of interfere in such matters. It is for the concerned authorities to decide what maintaining a retail petrol and diesel should be the proper age limit of the outlet at Mughalsarai, District Chandauli vehicles and it is not proper for this for the purpose of transporting petrol and Court to interfere in such administrative diesel from the Indian Oil Corporatrion matters as held by the Supreme Court in Terminals at Chandauli. The petitioner Tata Cellular Vs. Union of India AIR 1996 had also engaged their oil tankers with Supreme Court 11. The Court has very limited scope of judicial review in Hindustan Petroleum Corporation Ltd. Administrative matters. In our opinion, (HPCL). The engagement of the oil there has been no arbitrariness in the tankers had been done by the HPCL by matter and the decision of the calling tenders from various oil tanker respondents has been taken on sound owners. Such tenders have been called reasons, namely, the public safety and every Two/Three years for engaging oil ecology. Cases referred to: tankers for the purpose of transporting (1998) 6 SCC 63 petrol and diesel from the terminals to AIR 1996 SC 11 different petrol and diesel outlets within 2002 (4) AWC 3221 the local area of operation of the 2003 (4) SCC 289 terminals.

(Delivered by the Hon’ble M. Katju, J.) 5. It is alleged in para 5 of the petition that the petitioner’s oil tankers h 1. This writ petition and connected were engaged by the Hindustan Petroleum t writ petition nos. 33665 of 2002, 34179 of Corporations for the past several years on tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 692 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

the basis of tenders, and work orders JOINT/POL/02. For supply location of allotted to them. In the tender number Chandauli, the tender no. specified is JOINT/POL/002, the terms and JOINT/POL/02 which has been issued on conditions of engagement of oil tankers so 29.7.2002, fixing the last date for far as the age of vehicle is concerned, was submission of tender as 21.8.2002, with as follows: new terms and conditions in so far as the age of vehicle is concerned which has AGE OF THE VEHICLE been reduced to 15 years.

“Any quoted vehicle over 20 years 8. Para 11 (c) (iv) of Annexure 5 to old shall be replaced within one year from the petition may be seen in this the date of the Work Order for the connection, which states: Transport Contract. This condition will be superseded by the Court Order/Statutory “Age of the vehicle should not Requirement, wherever applicable. exceed 15 years on the date of opening of However, no further extension of this tender.” time limit will be granted.” 9. A perusal of the above clause 6. On the basis of the above tender, shows that a vehicle which is over 15 three vehicles of the petitioner, which years old, is debarred from participating were more than 15 years old and are in the tender on behalf of its owner. It is running with the Hindustan Petroleum alleged in para 14 of the petition that on Corporation were engaged as stated in the basis of the above condition, the para 9 of the petition. It is alleged in para vehicles of the petitioner referred to above 10 of the petition that the above vehicles shall not be able to be included in the list are in good running condition and having of vehicles for the purposes of qualifying fitness certificates granted by the the tenders, though they are in perfect Regional Transport Authorities under the running condition and having fitness Motor Vehicles Act, vide Annexure-2. certificate, explosive license and permits The vehicles also have necessary issued by the authorities. explosive licence granted by the Deputy Chief Controller of Explosives, 10. It is alleged in para 15 of the Allahabad, vide Annexure-3 to the petition that the operation of the limit of petition. They have also permits granted the petitioner’s vehicles is restricted to the by the Regional Transport Authority vide retail outlets within the jurisdiction of the Annexure-4. concerned oil terminal, and the same never exceeds 50 Kms. 7. In para 13 of the petition, it is alleged that the Indian Oil Corporation 11. It is alleged that there in no age alongwith three other petroleum bar of transport vehicles mentioned in the corporations namely HPCL, BPCL and Motor Vehicles Act or Rules, and as such IBP had called upon tenders for another the age limit of 15 years is only illegal. term of two years from 1.10.2002 to h 30.9.2004 (further extendable for a period t of one year) being general tender no. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] M/s Gupta Service Station and another V. India Oil Corporation Ltd. and others 693

12. It is alleged that the above provisions of the Motor Vehicle Acts or condition is highly unreasonable and Rules are wholly irrelevant. violates the principles of natural justice. 16. In our opinion, there is no merit 13. In our opinion, there is no merit in these petitions. The matter is purely in these petitions. The special tender contractual and this Court cannot interfere conditions, copy of which is Annexure-5 in such matters. It is for the concerned to the petition, embodies the terms on authorities to decide what should be the which the contract can be finalized. If the proper age limit of the vehicles and it is petitioner or any other party does not find not proper for this Court to interfere in any condition mentioned therein as such administrative matters as held by the acceptable, he is not obliged to make a Supreme Court in Tata Cellular Vs. bid for the contract. It is for the concerned Union of India AIR 1996 Supreme Court corporation to decide about the terms and 11. The Court has very limited scope of conditions on which they will give the judicial review in Administrative matters. contract. In our opinion, there has been no arbitrariness in the matter and the decision 14. A counter Affidavit has been of the respondents has been taken on filed by the Indian Oil Corporation sound reasons, namely, the public safety Reference has been made therein to the and ecology. direction of the Supreme Court in M.C. Mehta Vs. Union of India (1998) 6 SCC 17. As held by this Court in 2002 (4) 63 in which direction was issued to AWC 3221, Pramod Kumar Misra Vs. restrict plying of commercial vehicles Indian Oil Corporation Ltd. and others, including Taxis which are 15 years old. In this Court cannot sit in appeal over the para 10 it is stated that the age of 15 years decisions of the Administrative Authority. of vehicles is fixed as per policy guidelines and the judgment of the As Chief Justice Neely observed: Hon’ble Supreme Court. It is a matter of policy involving not only safety of the “I have very few illusions about my traffic and the fact that the petroleum own limitations as a judge. I am not an product is highly inflammable, but the accountant, electrical engineer, financer, object is also to maintain environment and banker, stockbroker or system ecological balance which is one of the management analyst. It is the height of directive principles in the Constitution. It folly to expect Judge intelligently to is alleged that the petitioner has no legal review a 5000 page record addressing the right to have his aged vehicles considered intricacies of public utility operation. It for the contract. is not the function of a Judge to act as a super board, or with the zeal of a 15. In para 14, it is stated that there pedantic school master substituting its is no question of giving any opportunity judgment for that of the administrator.” of hearing in the matter, since a policy decision has been taken. The petitioner 18. In Federation of Railway h has no legal right in his favour. The Officers Association and others Vs. Union t of India, (2003) 4 Supreme Court Cases tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 694 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

289, the Supreme Court observed that the U.P. Industrial Disputes Act, 1947- Court should not ordinarily interfere with Section 6-N-Constitution of India-Article policy matters requiring technical 226-Writ Jurisdiction-Exercise of- Reinstatement-Termination of Services expertise. of petitioner without conducting enquiry-No opportunity to show cause- 19. The submission of learned reinstatement of workman held- legal- counsel for the petitioner that there is no Finding not perverse-No error of law such age restriction in the Motor Vehicles pointed out- Acts or Rules, or that natural justice was Held- Para 8 violated, is wholly misconceived. The

restriction in question has been placed by The law is well established that the a party who wishes to enter into a finding arrived at by the labour court on contract. A contract by its very nature is a the basis of the pleadings and the voluntary bilateral transaction, by which evidence adduced by the parties should two parties enter into an agreement of not be lightly interfered unless the same their own freewill. Hence the corporation are demonstrated to be perverse or suffering from any manifest error of law. can decide the terms on which it is Nothing sort has been pointed out by the agreeable to give the contract, just as the learned counsel for the petitioner that petitioner is free to make a tender or not, the finding recorded by labour court is and neither party can be compelled in this contrary to law. connection. Petitions dismissed. Interim orders (Delivered by Hon'ble Anjani Kumar, J.) vacated. ------1. This petition under Article 226 of ORIGINAL JURISDICTION the Constitution of India has been filed by CIVIL SIDE the petitioners-employer challenging the DATED: ALLAHABAD JULY 11TH, 2003 award of the Labour Court, Varanasi dated 29th August, 1997 passed in BEFORE Adjudication Case No. 179 of 1989. THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 12588 of 1998 2. The following dispute was referred to for adjudication to Labour Ghazipur Central Consumers Co- Court: operative Stores Ltd. and another …Petitioners "D;k lsok;kstdksa }kjk vius Jfed jktsUnz izlkn Versus frokjh] iq= cyHknz frokjh 'kk[kk izcU/kd dh lsok;sa fnukad The Presiding Officer, Labour Court, 21.8.87 ls lekIr fd;k tkuk mfpr rFkk@vFkok oS/kkfud Varanasi and another …Respondents gS ;fn ugha] rks Jfed D;k vuqrks"k ikus dk vf/kdkjh ? gS Counsel for the Petitioners: ?" Sri Ajit Kumar Singh Sri Devendra Pratap Singh 3. After receipt of reference labour court issued notices to the parties. The Counsel for the Respondents: parties have exchanged their pleadings h S.C. and adduced evidence before labour court. t The case set up by the workman- tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ghazipur Central Consumers Cooperative Stores Ltd. & anr. V. P.O., Labour Court. 695

respondent no. 2 is that he was appointed the charges against the workman with the employer on 7th January, 1974 as concerned before the labour court. Branch Manager and since then he was regularly working till 28th August, 1986 5. The labour court directed the when he was suspended to the false parties to produce their relevant allegations regarding embezzlement. No documentary evidence and on 13th charge sheet has been served on him, no March, 1996, which was the date fixed, enquiry officer was appointed, no enquiry the employers' representative made a was conducted to the knowledge of the statement that if domestic enquiry was not workman concerned. The workman found fair and proper, the employer may received a notice to appear on 30th July, be given an opportunity to prove the 1987 for enquiry . The workman charges before the labour court. presented himself but no enquiry was Thereafter, the employer have produced conducted nor any opportunity was given one Bhavan Prakash Lal Srivastava, by the so called enquiry officer. It appears Accountant as witness to prove the that some sort of enquiry report is documents and the charge against the obtained behind the back of the workman workman concerned. The statement of concerned and the workman concerned aforesaid Bhavan Prakash Lal Srivastava has not been supplied even the copies of was completed on 24th April, 1997 and the documents and records. It is on the thereafter 26th August, 1997 was fixed basis of the exparte enquiry report, the for the statement of the workman services of the workman concerned has concerned and his statement was recorded been terminated on 21st August, 1987. on oath but the employers' representative The workman raised the dispute which is Sri S.K. Tripathi had informed the labour referred to labour court which has court that he will not participate in the answered the reference in favour of the enquiry as no employee of the employer workman, thus, this writ petition by has contacted him with records. employer. 6. In this view of the matter, the 4. The employer have also filed their statement of the workman concerned written statement and stated that the remained uncontroverted as no body was workman has been afforded full prepared to cross- examine the workman opportunity and after enquiry services of concerned. The labour court, therefore, workman has been terminated. The case decided to proceed the case on the basis set up by the employer is that the regular of the material available on record. enquiry was conducted against the workman concerned and he was given full 7. The labour court after considering opportunity. It is only when the charges the material on record has arrived at the were proved in the enquiry, his services conclusion that in fact no enquiry what to were terminated. The employer have domestic enquiry was conducted and the further submitted that in case domestic services of the workman concerned were enquiry conducted by the employer was terminated without complying with found not to be in accordance with the provisions of Section 6-N of the U.P. h principles of natural justice, the employer Industrial Disputes Act, 1947. The labour t may be afforded an opportunity to prove Court, therefore, recorded a finding that tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 696 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

neither any opportunity was given, nor the APPELLATE JURISDICTION employer inspite of opportunity being CRIMINAL SIDE given by labour court after coming to DATED: ALLAHABAD 6.5.2003 conclusion that no enquiry was conducted have tried to prove the charges against the BEFORE THE HON'BLE M.C. JAIN, J. workman concerned before labour court. THE HON'BLE K.N. OJHA, J. The labour court, therefore, directed the reinstatement of the workman concerned Criminal Appeal No.2912 of 1980 with continuity of service and full back wages. It is this award which is under Shrilal …Petitioner challenged by means of the present writ Versus petition, as stated above. State of U.P. …Respondent

8. The law is well established that Counsel for the Petitioner: the finding arrived at by the labour court Sri S.S. Tiwari Sri K.K. Srivastava on the basis of the pleadings and the Sri V.K. Sharma evidence adduced by the parties should

not be lightly interfered unless the same Counsel for the Respondent: are demonstrated to be perverse or Sri G.S. Bisaria suffering from any manifest error of law. A.G.A. Nothing sort has been pointed out by the learned counsel for the petitioner that the Indian Penal Code Section 34, 302- finding recorded by labour court is immediate and strong motive to commit contrary to law. crime-presence of two witnesses on place of occurrence well explained-delay 9. In this view of the matter, the in lodging FIR also explained-finding of fault recordes by trial court upheld- finding record by the labour court to the appeal dismissed. effect that no enquiry has been conducted Held-paras 17 and 18 by the employer in the matter of charges On consideration of all relevant and against the workman concerned and that important aspects, we find ourselves in the workman has not been afforded any agreement with the finding of guilt opportunity, whatsoever, remains recorded by the learned trial judge against the two accused appellants. unassailable. No other point has been argued. Resultantly, we subscribe to the view taken by the trial judge and find no merit 10. In view of what has been said in these two appeals. The appellants above, this writ petition deserves to be have rightly been convicted under dismissed and is hereby dismissed. The Section 302 I.P.C. read with section 34 I.P.C. for the murder of Bachchu Singh interim order, if any, stands vacated. with sentence of life imprisonment There will be no order as to costs. awarded to each of them. ------(Delivered by Hon'ble M.C. Jain, J.) h 1. Both these criminal appeals arise t out of the judgment and order dated tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shrilal V. State of U.P. 697

16.12.1980 passed by Sri Bhanwar Singh, insult. Bachchu Singh and Veerpal with the then VIII Additional Sessions Judge, their sister Km. Malti Devi also returned Agra in Sessions Trial No.359 of 1980. home from the fair after this incident. The appellant in Criminal Appeal No.2912 of 1980 is Shrilal whereas Amar 3. Again, Bachchu Singh Singh is the appellant in Criminal Appeal accompanied by some other boys of the No.2952 of 1980. Both of them have been village, went to the fair in the night at convicted under Section 302 I.P.C. read about 9 P.M. to hear the HOLI (songs with Section 34 I.P.C. and sentenced to chanted by the villagers in the fair). After life imprisonment. Both of them were hearing HOLI songs, Bachchu Singh set allegedly armed with knives and out for his village at about 2 A.M. in the committed the murder of Bachchu Singh night. When he reached near the brick- between the night of 4/5.4.1980 at about 1 kiln of Durga Prasad, the two accused O’ clock near the brick-kiln of Durga persons with their other two companions Prasad in village Khera Pangai, P.S. who were putting on red shirts accosted Tajganj, District Agra. The report was Bachchu Singh and killed him with knives lodged on 5.4.1980 at 8.15 A.M. by Shiv and Kachcha half bricks. Bachchu Singh Singh PW 3. The distance of the police raised hue and cry. His shrieks attracted station from the place of occurrence was the witnesses Dal Chand, Niranjan Singh about 5 kms. PW 6 and Darab Singh PW 7 who were going in the night to hear the HOLI songs 2. Broad spectrum of the case may in the Fair. They challenged the assailants be set forth for the appreciation of the viz., the present two appellants and their subsequent discussion. Bachchu Singh two unknown companions. Before they deceased and Veerpal were the nephews would come nearer to the place of of informant Shiv Singh PW 3. On occurrence, the assailants finished their 4.4.1980 at about 10 A.M., they had gone job in the sight of the said witnesses and to see a fair in village Semari Tal. In the escaped towards the west of the place of fair at about 1 P.M., the two accused occurrence. The witnesses saw the appellants teased Km. Malti Devi PW 1- assailants killing the deceased in the torch sister of Bachchu Singh and Veerpal. Km. light as each of them had a torch with Malti Devi complained of it to her him. Amongst the four assailants, present brothers Bachchu Singh and Veerpal who two appellants were very well identified were annoyed on hearing about her by the witnesses, while the remaining two teasing by the accused appellants. They remained unidentified. When the gave a beating to them and insulted them witnesses reached near Bachchu Singh, he for such mis-behaviour. This occurrence was groaning and crying of pain and was witnessed by Udal, Nanhey PW 4 and within a second he breathed his last. Dal Udaibir Singh PW 8. They pacified Chand informed the family members of Bachchu Singh and Veerpal and rescued Bachchu Singh. On receiving information, the accused persons from their clutches. the family members of the deceased After this incident, the accused persons reached at the site of occurrence and saw went away issuing a threat that they Bachchu Singh lying dead in a pool of h would kill Bachchu Singh and Veerpal by blood. Due to fear, no body dared to go to t the same night to take revenge of their the police station in the night to report tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 698 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

about the incident. In the morning, three membranes and brain were congested. constables, who were on duty in fair, The cause of death was coma as a result reached at the site and guarded the dead of injury no.1 (head injury). body. Leaving the dead body to be guarded by them and the family members 5. On the arrest of Amar Singh, his of the deceased and some villagers who bushirt was found to be blood stained had collected their, Shiv Singh PW 3 which was got removed by the reached the police station and lodged the Investigating Officer. F.I.R. at 6.15 A.M., as stated earlier. The investigation was taken up by S.I. Ram 6. The defence was of denial and of Niwas Mishra PW 13. He reached the false implication. According to Amar spot, prepared the inquest report of the Singh, he had been falsely implicated dead body of the deceased and busied because of party factions between Jats and himself with other activities related to the Jatavas of village Pachgai Khera, he being investigation of the case. The dead body Jatav and the deceased being Jat. Shrilal was sent for post mortem which was stated under Section 313 Cr.P.C. that Shiv conducted on 6.4.1980 at 3 P.M. by Dr Singh and others were jealous of him K.P.Singh PW 5. The deceased was 18 because he had constructed two storeyed years of age and about 1½ days had Pakka house. He being a Jatav, his such passed since he died. The following ante prosperity was not digested by them. mortem injuries were found on his person: 7. The prosecution, in all, examined (1) Lacerated wound 1” x 2/10” x upto 13 witnesses. No witness was produced the bone deep upper side head 3” above by the defence. the left ear. 8. None responded from the side of (2) Incised wound 3/10” x 1/10” x 1”on the appellants on the revision of the list. the left (punctured wound) side neck. 1” On record, Amar Singh is represented by below on the outer left ear. Sri S.K.Chaturvedi, Sri Tapan Ghosh and Sri V.K. Sharma, Advocates and appellant (3) Contusion 6” x 2½” on the left side Shrilal is represented on record by Sri angle from mandible extending to the ear. S.S.Tiwari, Sri K.K.Srivastava and Sri V.K.Sharma, Advocates. We have heard (4) Abrasion 4½” x 1½” on the right Sri G.S.Bisaria, learned A.G.A. from the scapular region. side of State. We propose to decide the (5) Abrasion 2” x 1½” on the right side appeals on merits. neck 1” above the clavicle. 9 Having gone through the record (6) Abrasion 1” x ½” on the right outer and evidence and after hearing learned part of the heel. A.G.A., we intend to deal with the important aspects of the matter in 4. Both eyes were blue and swollen. succeeding discussion. On internal examination there was found h a depressed fracture of the left parietal 10. The incident took place at about t bone corresponding to injury No.1. The 1 O’ clock in between the night of tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shrilal V. State of U.P. 699

4/5.4.1980 at the outskirts of village since it was still early in the morning no Semari Tal and the report was lodged by mechanic had turned up till then. Shiv Singh PW 3 on 5.4.1980 at 6.15 Resultantly, he had to leave the cycle at A.M. at P.S. Tajganj. The distance of the the shop of Inder Singh Yadav and had to police station from the place of walk on foot upto the police station occurrence was about 5 kms. We note Tajganj. He reached there at 8.15 A.M. to from the judgment of the lower court that lodge the F.I.R. The F.I.R. mentions this an argument was raised there about late fact too that due to fear none could dare to lodging of the F.I.R. However, on reach the police station in the night to consideration, we find that there was lodge the F.I.R. To come to the point, satisfactory explanation as to why the lodging of the F.I.R. on 5.4.1980 at 8.15 report could not be lodged earlier. The A.M. is very well explained and the incident having been witnessed by defence could not score any point by Niranjan Singh PW 6, Darab Singh PW 7 complaining delay in lodging the F.I.R. and Dal Chand, one of them, namely, Dal Chand rushed to inform the family 11. The second aspect is of motive. members of the deceased. The distance of It is found that both the appellants Shrilal the house of the deceased from the place and Amar Singh had immediate and of occurrence was about 1½ furlongs. strong motive against the deceased. Km. Having reached there, Dal Chand narrated Malti Devi PW 1, Veerpal Singh PW 2 the incident to the family members of the and Udai Veer Singh PW 8 are the deceased whereafter they rushed to the witnesses of the earlier incident which site of occurrence finding the victim to be took place on 4.4.1980 at about 1 P.M. in dead. It has come in the evidence of the the fair of Semari Tal. Km. Malti Devi eyewitnesses and also Shiv Singh PW 1 is the own unmarried sister of the informant PW 3 that half of the dead body deceased and Veerpal Singh PW 2 is the of the deceased was lying in the Nali and brother of the deceased. It had so half of it was outside. Naturally, it was happened in the fair at about 1 P.M. that decided to remove the dead body from the the accused appellant Amar Singh had Nali and keep at even place. On being placed his foot on the Chappal of Km. taken out from the Nali, it was placed on Malti Devi. At this mischief, she had the chak road. Obviously, it must have raised objection. Amar Singh was at that consumed sometime. Still, it was dead of time accompanied by Shrilal. In night. Not even Shiv Singh, as stated by consequence of the objection raised by him, was prepared to go to the police Km. Malti Devi, both of them had started station at that hour out of fear which was abusing her and when she disclosed their at a distance of about 5 kms. The report mischief and misbehaviour to her was got written by him by Kalyan, as he brothers-Bachchu Singh deceased and himself suffered some injury in his finger Veerpal Singh PW 2, they took ill of it while operating his tractor earlier. and gave beating to both of them. Further, the cycle which Shiv Singh used Bachchu Singh had even given shoe for reaching the police station went out of beating to Amar Singh as stated by order in the way due to chain breaking as Veerpal Singh PW 2. He (Veerpal Singh h stated by him. He went to the shop of one PW 2) had also beaten him up. Udaibir t Inder Singh Yadav in Semari Tal but Singh PW 8 and Udal Singh had tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 700 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

intervened in the matter and got them appellants. They got an opportunity the separated. However, the two accused same night and by joining their two appellants had taken this insult deep associates murdered Bachchu Singh upon inside and while going away, both of whom they could lay hands that very them issued threat that they would kill night. They were in search of an Bachchu Singh by night. This earlier opportunity which came handy to them as incident is found mentioned in the F.I.R. he had again gone to the fair in the night. too. It is noted from the impugned The evidence adduced by the prosecution judgment that the defence wanted to make about the earlier incident was perfectly capital out of an admission of Km.Malti believable and the accused appellants, as Devi that that day she had attended the we said, had a very strong motive to school and school hours were 12 to 2 commit this crime. P.M. It was reasoned that it being so, she could not at all be present in the fair at 12. Thirdly, the eyewitness account about 1 P.M. However, it was crystal rendered by Niranjan Singh PW 6 and clear that she, a girl aged about 12 years Darab Singh PW 7 was capable of only, happened to say so under some inspiring confidence. Both of them had confusion. 4.4.1980 was actually a been named as such in the F.I.R. It holiday, being Good Friday. Therefore, consistently flows from their testimony there could be no question of school being that the occurrence took place around 2 open on that day. The learned trial judge O’ clock in the night. Both of them had has well dealt with this aspect of the started from their village at about 1.45 matter while rejecting the argument of the A.M. and within a few minutes had defence that Veerpal Singh PW 2 fully reached near the place of occurrence corroborated the version of Km. Malti where they heard cries of a lad in distress. Devi PW 1 as regards the earlier incident, The distance of their village from the spot he having also joined Bachchu Singh was less than half km. Within seconds deceased in beating the two appellants they reached the site and saw the accused when Km. Malti Devi had complained to appellant killing the deceased. As per the them about the mischief of one of them post mortem report and the statement of Amar Singh in placing foot on her Dr K.P.Singh PW 5 also, killing could Chappal. The testimonial assertions of the have taken place at about 2 O’ clock in sister and brother were corroborated by the night. It is there in the testimony of the independent witness Udaibir Singh Niranjan Singh PW 6 that, he PW 8, who had intervened and separated accompanied by Darab Singh PW 7 and the two parties. It is there in his testimony Dal Chand, was going towards Semari Tal too that the two appellants had left the to enjoy songs in the fair. He (Niranjan scene, saying that they would avenge Singh) had a torch and lathi whereas themselves of the insult by killing Darab Singh and Dal Chand had torches. Bachchu Singh and Veerpal Singh by Keeping of torches at that hour of night night. This witness is neither inimical to was natural. The cries of a lad in distress the accused appellant nor friendly to the had attracted these witnesses. From a members of the family of the deceased. distance of 10-20 paces that Niranjan h No time gap had intervened which could Singh PW 6 saw the accused appellants t heal up the bruised feelings of the accused near the brick-kiln killing the deceased. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Shrilal V. State of U.P. 701

As regards the place of occurrence, Darab the side of State that Shrilal was a wealthy Singh PW 7 also gave the same version. man and he might have exercised his The site plan prepared by the influence on Niranjan Singh and Investigating Officer shows that the way succeeded in winning him over. There is from Pachgai (village of these witnesses) no evidence in this behalf and, really to Semari Tal goes north-south from the speaking, it is difficult to find any brick-kiln of Durga Prasad. evidence regarding the winning over of a witness by the accused. But it is crystal 13. We note that Niranjan Singh PW clear that Niranjan Singh PW 6 had 6 tried to help the accused appellant deliberately omitted to identify Shrilal in Shrilal while in the witness box by the Court to provide him a defence base. omitting to identify him in the Court. A He as well as Darab Singh PW 7 had careful reading of his statement makes it flashed their torches on hearing cries of a abundantly clear that he did so in an boy and had then witnessed the incident attempt to provide Shrilal accused a base of the assaulting of the deceased by four to create a dent in the prosecution version persons out of whom two were the present so far as he was concerned. At the start of appellants. Amar Singh was assaulting the his statement, Niranjan Singh PW 6 had deceased with a knife and Shrilal accused named both the accused appellants and appellant with brick. The testimonial two unknown persons as the assailants of assertions of Niranjan Singh PW 6 and the deceased Bachchu Singh. He stated Darab Singh PW 7 taken together that Amar Singh and an unknown person conclusively proved the involvement of with red shirt were assaulting the both the accused appellants in committing deceased with knives whereas Shrilal and murder of Bachchu Singh. It may also be another unknown person with red shirt stated at the risk of repetition that both of were assaulting the deceased with bricks. them had strong motive to commit this Though Shrilal accused appellant was crime and they were together in the fair present in the Court, but he defaulted in the preceding day where the earlier not identifying him. He did so incident with that Km.Malti Devi PW 1 deliberately. Shrilal was the resident of had taken place and they had been beaten his village as admitted by him in his up and insulted by Bachchu Singh and cross-examination. It could not at all be Veerpal Singh PW 2 over the issue of believed that he (Niranjan Singh PW 6) mischief played by them with Km.Malti did not know Shrilal accused appellant Devi. living in the same village. Niranjan Singh PW 6 clearly stated that Amar Singh 14. The presence of both these appellant was one of the assailants who witnesses at the scene of occurrence is was assaulting Bachchu Singh with knife, well explained that they were going to but assumed a lukewarm posture as hear Bhajans at Semari Tal Fair. The regards Shrilal accused appellant by enjoyment of hearing songs/Bhajans is omitting to identify him in the Court, usual source of entertainment for the though stating that he and one unknown villagers. It is also gleaned from the person with red shirt were assaulting the testimony of the two witnesses that h deceased with bricks. An argument was interesting Bhajans were chanted only t raised before the learned trial judge from after midnight, though the programme tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 702 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

started at about 11 P.M. Thus, there was by knife as well as brick. The ante- nothing unnatural if these two witnesses mortem injury nos. 1 and 3 could be were going to hear Bhajans from their caused by brick blows. Injury no.1 was a village at about 1.45 A.M. Giving knife lacerated wound which had caused blows to the deceased by Amar Singh was depressed fracture of parietal bone spoken not only by Darab Singh PW 7 but capable of being caused by brick blow. by Niranjan Singh PW 6 too (who The impact of other blows might have developed a soft corner for Shrilal by resulted in contusions and abrasions as omitting to identify him in Court to found on the dead body of the deceased. provide a base for defence). The Thus, the ocular and medical evidence testimony of Darab Singh PW 7 is completely reconcile. The halves of clinching and beyond ray of doubt against Kachcha bricks were found lying by the Shrilal too that he used brick in killing the Investigating Officer near the dead body deceased. and they were blood stained as per the report of Chemical Examiner. The human 15. An argument was also raised blood was found on these Kachcha bricks before the learned trial judge from the as per the report of Chemical Examiner side of accused that there was only one on record. knife injury sustained by the deceased whereas according to Niranjan Singh PW 16. Fourthly, it is also pertinent to 6 and Darab Singh PW 7, Amar Singh state that the bushirt (Ext. I) was got and one another unknown person attacked removed by the Investigating Officer the deceased with knives. We note that from the person of the accused appellant Darab Singh PW 7 stated that in his Amar Singh when he was arrested and he presence Amar Singh gave only one knife was brought to the site of occurrence. The blow which struck the neck of the accused appellant Amar Singh admitted deceased. Incised wound found on the that bushirt to be belonging to him, but person of the deceased was on the neck. It his explanation was that after getting could be caused by knife. Suffice it to say bushirt removed from his person, it was in this regard that it is just possible that stained with blood from the dead body. blow (s) given by the other person missed The learned trial judge rightly rejected the target and did not strike on the person this explanation observing that the of the deceased. A look at the post Investigating Officer could not have dared mortem report shows that four assailants to do so in the presence of so many including present two appellants had villagers who had collected at the site of targeted the head of the deceased and occurrence when the investigation was possibility cannot be ruled out that some going on. We also note that it was not blows missed the target. The point of the even suggested to the Investigating matter is that the present two accused Officer, Ram Niwas Mishra PW 13 in his appellants and two unknown persons cross-examination. It exposes the acted in concert. Amar Singh used a knife hollowness and falsity of this contention. and Shrilal made use of brick in For the first time, this contention was assaulting the deceased. The deceased did raised by him in his statement under h sustain injuries capable of being caused Section 313 Cr.P.C. t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Jyoti alias Jannat and another V. State of U.P. and others 703

17. On consideration of all relevant ORIGINAL JURISDICTION and important aspects, we find ourselves CIVIL SIDE in agreement with the finding of guilt DATED: ALLAHABAD 11.08.2003 recorded by the learned trial judge against the two accused appellants. BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE R.S. TRIPATHI, J. 18. Resultantly, we subscribe to the view taken by the trial judge and find no Civil Misc. Writ Petition No. 21541 of 2003 merit in these two appeals. The appellants have rightly been convicted under Section Jyoti alias Jannat & another…Petitioners 302 I.P.C. read with section 34 I.P.C. for Versus the murder of Bachchu Singh with State of U.P. and others …Respondents sentence of life imprisonment awarded to each of them. Counsel for the Petitioners: Sri B.B. Paul 19. In view of the above discussion, we dismiss both these appeals No.2912 of Counsel for the Respondents: 1980 and 2952 of 1980 and affirm the Sri N.S. Chahar S.C. conviction of the accused appellants

Shrilal and Amar Singh under Section 302 Constitution of India-Article 21- Section I.P.C. read with Section 34 I.P.C. and 3 of Indian Majority Act 1875-a person in sentence of life imprisonment awarded to the age of 18 years is major, and he/she each of them. They are on bail. They shall may live with any body. In a free be arrested and lodged in jail to serve out democratic and secular country no body the sentence of life imprisonment. The has any right to interfere in his/her Chief Judicial Magistrate, Agra shall affairs.

cause them to be arrested and lodged in Held- Para 2 jail. Once a person becomes a major that 20. The office shall send the copy of person cannot be restrained from going this judgment along with the record to the anywhere or living with any body. lower court to ensure compliance under Individual liberty under Article 21 has intimation to this Court within two the highest place in our Constitution.

months. (Delivered by Hon'ble M. Katju, J.) ------

Heard counsel for the parties.

1. The petitioners as well as the mother of petitioner no. 1 have appeared before us. Petitioner No. 1 is a major as is evident from her High School Certificate filed as annexure 2 to the writ petition, h which shows that her date of birth is 20.7.1984. Thus she is over 19 years of t age. According to the provisions of the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 704 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Indian Majority Act, 1875, a person who 5. Let a certified copy of this order is 18 years of age is major vide Section 3 be given to the learned counsel for the of the said Act. The law deems that a petitioners on payment of usual charges major understands his/her welfare, hence today itself. a major can go wherever he/she likes and ------live with any body. This is a free, ORIGINAL JURISDICTION democratic and secular country. Hence if CIVIL SIDE a person is a major even parents cannot DATED: ALLAHABAD 23.07.2003 interfere with that individual. BEFORE THE HON'BLE M. KATJU, J. 2. The petitioners who appeared THE HON'BLE R.S. TRIPATHI, J. before us have stated that they are living with each other of their own free will. In Civil Misc. Writ Petition No. 31015 of 2003 the counter affidavit which has been filed it has been stated that a First Information Chandra Charu Mishra …Petitioner Report has been lodged under Section 363 Versus and 366 I.P.C. That may be so, but once a The State of U.P. & others …Respondents person becomes a major that person cannot be restrained from going anywhere Counsel for the Petitioner: or living with any body. Individual liberty Sri A.P. Tewari under Article 21 has the highest place in Sri S.S. Tripathi

our Constitution. Counsel for the Respondents:

S.C. 3. Under the facts and circumstances of this case, the writ petition is allowed. A Constitution of India, Article 14- cut of mandamus is issued to the respondents date G.O. dated 1.7.01 providing revision not to harass or threaten the petitioners the pay scale w.e.f. 1992-Petitioner and allow them to live peacefully with retired on 30.6.01-whether can claim the each other. The Senior Superintendent of benefit of such G.O.? Held- 'No', Police Agra and Superintendent of Police recording the reason for fixing the cut of date-not necessary. Firozabad will ensure compliance of this order. Held- Para 3

4. The petitioners have stated that Even if no reason has been given for the they need security to go from here to basis of a cut off date, the Court cannot Firozabad as they have apprehension interfere in such matters. It is for the administration to fix the cut off date and about their safety. The Court Officer of the Court should not interfere in such this Court will contact the local police for administrative matters as held in the providing security to them at Allahabad aforesaid decisions. Some persons are and for their journey to Firozabad. Further bound to have a grievance by a cut off the petitioners shall be provided security date, but that would not make it at Firozabad, by the police authorities arbitrary, vide Dr. Ami Lal Bhat v. State of Rajasthan (supra) concerned there. Case law discussed: h J.T. 1991 (6) S.C. 400 t 2000 (3) SCC 736 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Chandra Charu Mishra V. The State of U.P. and others 705

1996 (9) SCC 133 Dr. Ami Lal Bhat v. State of Rajasthan, J.T. 1997 (6) SC 72 J.T. 1997 (6) S.C. 72, Union of India v. 1994 (4) SCC-212 Sudhir Kumar Jaiswal, 1994 (4) S.C.C. 1990 (3) SCC-398 212, etc. that even if no reason has been

given for the basis of a cut off date, the (Delivered by Hon'ble M. Katju, J.) Court cannot interfere in such matters. It

1. Heard learned counsel for the is for the administration to fix the cut off petitioner. date and the Court should not interfere in such administrative matters as held in the aforesaid decisions. Some persons are The petitioner has challenged the bound to have a grievance by a cut off impugned G.O. dated 20.7.2001, 8.8.2001, 3.9.2001 and 20.12.2001 on the date, but that would not make it arbitrary, ground that they are ultra vires Article 14 vide Dr. Ami Lal Bhat v. State of of the Constitution. The petitioner has Rajasthan (supra)

also prayed for a mandamus directing the respondent to fix the pension of the 4. Petition is dismissed. petitioner according to revised pay scale ------ORIGINAL JURISDICTION given by the fifth pay Commission. CIVIL SIDE DATED: ALLAHABAD 24.07.2003 2. The petitioner was appointed as Assistant Teacher in Government Model BEFORE School on 4.1.1967 and was confirmed on THE HON'BLE ANJANI KUMAR, J. 1.7.1971. He was provided selection Grade from 4.1.1983 and the pay scales Civil Misc. Writ Petition No. 14755 of 1998 were revised by the pay Commission in 1986 and 1996. The petitioner retired on General Manager/Managing Director, and another …Petitioners 30.6.2001. By the impugned G.O. a Versus teacher who was in service on 1.7.2001 is Presiding Officer, Labour Court, Kanpur entitled to get the benefit of the revised and another …Respondents pay scale from 1.1.1996. Counsel for the Petitioners: 3. Admittedly, the petitioner retired Sri S.N. Singh on 30.6.2001 and hence he was not governed by the said G.O. Learned Counsel for the Respondents: counsel for the petitioner submitted that Sri A.K. Sharma the cut of date i.e. 1.7.2001 is ultra vires S.C. Article 14 of the Constitution. We do not agree. Cut off dates have been upheld in Constitution of India-Article 226-14- several decisions of the Supreme Court Service Law-Termination order attendant worked for more than 240 days in a e.g. All India Reserve Bank Retired calendar year-Labour Court given award Officers Association v. Union of India, for reinstatement with full back wages- J.T. 1991 (6) S.C. 400, State of Punjab v. challenged on the basis of no work no J.L. Gupta, 2000 (3) S.C.C. 736, pay-question whether workman entitled h Multipurpose Health Workers Association for full back wages or otherwise? Reason t v. State of Haryana, 1996 (9) S.C.C. 133, for not giving full back wages well tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 706 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

discussed-Award modified accordingly The following dispute was referred with half of the back wages. for adjudication to the labour court:

Held- Para 5 D;k lsok;kstdksa }kjk Jfed Jh ohjsUnz flag iq= Jh " Lastly, it has been submitted by the j{kiky flag] vVs.Ms.V dks fnukad 13.10.93 ls dk;Z ls learned counsel for the petitioner that i`Fkd@oafpr fd;k tkuk mfpr ,oa oS/kkfud gS? ;fn ugha] the workman concerned has not worked rks lacaf/kr Jfed D;k fgrykHk@{kfriwfrZ ikus dk vf/kdkjh gS from the date of termination till the date fdl frfFk ,oa vU; fdl fooj.k ds lkFk?" of award. Therefore, on the basis of principle of 'No work No Pay', the labour court has definitely committed error in 3. The labour court issued notice to granting reinstatement with full back the parties, namely, workman and the wages at the rate of Rs.600/- per month employer. The parties have exchanged from the date of termination till the date their pleadings and adduced the evidence. of reinstatement. In my opinion, this The labour court has categorically argument deserves to be accepted. It is not disputed that the workman recorded a finding after considering the concerned had admittedly not worked evidence on record that from the perusal during all these period and considering of Ext. 25 to Ext. 45, it is apparent that the interest of justice, the award of the the workman concerned has worked from labour court is modified to the extent the year 1991 to 12th October, 1993 when that instead of payment of back wages his services were terminated. Thus, he has at the rate of Rs. 600/- per month, the workman concerned is entitled for the worked for more than 240 days in the back wages at the rate of Rs.300/- per proceeding calendar year. The labour month from the date of termination till court has also recorded a finding that it the date of award. will not make any difference whether the nature of the appointment of the workman (Delivered by Hon'ble Anjani Kumar, J.) concerned was temporary in nature and further there was direction from the State 1. Heard learned counsel for the of terminate the services of the temporary parties. workman, like the respondent no. 2. Thus, the labour court directed after holding that Learned counsel appearing for the the termination of the services of the parties agreed that instead of deciding the workman concerned with effect from 13th stay vacation application, the writ petition October, 1993 is illegal and directed the itself may be heard and decided on merits. reinstatement of the workman concerned with continuity of service and back wages 2. The petitioners aggrieved by the at the rate of Rs.600/- per month. award of the Labour Court-IV, Kanpur dated 17th January, 1998 passed in 4. Learned counsel for the petitioner Adjudication Case No. 60 of 1996, tried to assail the findings arrived at by (Annexure '3' to the writ petition), have the labour court but, in my opinion, has approached this Court by means of this not been able to demonstrate that the writ petition under Article 226 of the finding recorded by the labour court Constitution of India. suffers from error of law much less h manifest error of law so as to warrant an t interference by this Court in exercise of tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] G. M./Managing Director and another V. P.O., Labour Court, Kanpur and another 707

powers under Article 226 of the ORIGINAL JURISDICTION Constitution of India. CRIMINAL SIDE DATED: ALLAHABAD 25.07.2003 5. Lastly, it has been submitted by the learned counsel for the petitioner that BEFORE THE HON'BLE R.K. DASH, J. the workman concerned has not worked THE HON'BLE UMESHWAR PANDEY, J. from the date of termination till the date of award. Therefore, on the basis of Criminal Misc. Writ Petition No.249 of 2003 principle of 'No work No Pay', the labour court has definitely committed error in Vishal Yadav …Petitioner granting reinstatement with full back Versus wages at the rate of Rs.600/- per month State of U.P. and others …Respondents from the date of termination till the date of reinstatement. In my opinion, this Counsel for the Petitioner: argument deserves to be accepted. It is not Sri K.K. Dwivedi disputed that the workman concerned had Sri Prem Prakash admittedly not worked during all these period and considering the interest of Counsel for the Respondents: Sri G.S. Chaturvedi justice, the award of the labour court is Sri Samit Gopal modified to the extent that instead of Sri Surendra Singh, A.G.A. payment of back wages at the rate of Sri Amarjeet Singh, A.G.A. Rs.600/- per month, the workman Sri S.K. Saxena concerned is entitled for the back wages at the rate of Rs.300/- per month from the Code of Criminal Procedure, Section 24 date of termination till the date of award. (8)-appointment of Special Public Prosecutor-person appointed has due 6. In view of what has been stated qualification and experience- above, this writ petition deserves to be appointment can not be quashed-on the ground of endorsement made by dismissed and is hereby dismissed except Principal Secretary the appointment has with the modification that instead of been made without-consideration of payment of back wages at the rate of suitabilidy of law department-However Rs.600/- per month, the workman such practice not to be adopted in concerned is entitled for the back wages future. at the rate of Rs.300/- per month from the Held- Para 11 & 14 date of termination till the date of award. The interim order, if any, stands vacated. The respondent no.4 having a long There will be no order as to costs. experience of working as Legal ------Advisor/Public Prosecutor with Central Buearo of Investigation and after laying down his office actively practicing in the Courts of law as an Advocate, has if been appointed as Special Public Prosecutor under sub Section (8) of Section 24 of the Code, there is no scope to challenge h his such appointment on the ground of t non eligibility or arbitrariness. tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 708 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

The record dealing with the appointment appointed the respondent no.4 as Special of respondent no.4 as Special Public Public Prosecutor to conduct and Prosecutor in the aforesaid murder trial prosecute the case when it was transferred of Nitish Khatara also shows that the appointment of Sri Saxena was made in from Ghaziabad to the Courts at New pursuance of an endorsement/direction Delhi. The petitioner has taken several of Principal Secretary to the Chief grounds for challenging the appointment Minister. This endorsement was made on of respondent no.4 as Special Public the letter of Sri Saxena dated Prosecutor and stated that the respondent 23.10.2002. It appears that without no.4 wrote a letter to the Secretary, Chief making any scrutiny as to the suitability of the person for such appointment Minister for soliciting his appointment; through the Law Department, the that the appointment of respondent no.4 is Government Orders dated 24.10.2002 not in accordance with the provisions of were taken out. It is unusual and we sub Section (8) of Section 24 of the Code accordingly suggest that the as he lacked qualifications of the practice Government should not adopt such at Bar as an Advocate for a period of ten method of appointment by ignoring all the norms. years and that his appointment was in Case law discussed: contravention to the rules and regulations AIR 1992 SC pg. 1213 and JT 2001 (i) SC 236 contained in Chapter VII of the U.P. cited/referred. Legal Remembrancer Manual. Para-7.08 of Chapter VII of the aforesaid Manual (Delivered by Hon'ble Umeshwar Pandey, J.) provides that no one would be eligible for appointment as State counsel after 1. The petitioner an accused of attaining the age of 62 years and the date murder case crime no.192 of 2002, Police of birth of respondent no.4 being Station Kavi Nagar district Ghaziabad, 23.11.1936 had already attained the under Article 226 of the Constitution of aforesaid maximum age of 62 years long India, has challenged the appointment of before his present appointment under respondent no.4 as Special Public challenge. It is though provided under sub Prosecutor, under Section 24 (8) of the Section (9) of Section 24 of the Code yet Code of Criminal Procedure (for short the no serving officer would be deemed to be ‘Code’) to conduct the Trial of the in practice as an Advocate. It would be aforesaid case before the Additional violative to the Advocates Act as well as Sessions Judge, Patiyala House Courts, Article 14 of the Constitution of India. New Delhi. Therefore, the enabling sub Section (9) as aforesaid could not be attracted in the 2. It is stated that by an order, the case of present appointment of respondent Apex Court on the petition of the no.4. The respondent no.4 had been in full complainant of the case directed transfer time employment of the Central Bureau of the Sessions Trial from the Court of for Investigation as Legal Advisor/Public Sessions Judge, Ghaziabad to the Court of Prosecutor and he could not be deemed to Additional Sessions Judge, Patiyala be a practicing Advocate within the House Courts, New Delhi. The meaning of sub Section (8) of Section 24 respondent no.1, while had assigned the of the Code. The petitioner has thus, h job of prosecuting the trial earlier to one contended that the aforesaid appointment t Public Prosecutor at Ghaziabad, it later on of respondent no.4 as Special Public tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vishal Yadav V. State of U.P. and others 709

Prosecutor to conduct the case against the sub Section (9) of Section 24 of the Code petitioner on behalf of the State of U.P. is threadbare and has stressed that this wholly arbitrary and has been made on enabling clause does not go to alter the extraneous consideration. It being illegal meaning/definition of word ‘Advocate’ as and against the provisions of Section 24 has been projected in the Advocates Act. (8) of the Code, should be quashed and a Learned counsel for the petitioner has mandamus commanding the respondents further emphasized that this sub Section should be issued by the Court that (9) of Section 24 of the Code is also not respondent no.4 be not treated as Special violative to Article 14 of the Constitution Public Prosecutor to appear and conduct of India. the aforesaid criminal case before the Additional Sessions Judge, Sri S.N. 5. Sub Sections (8) and (9) of Dhingra at Patiyala House Courts, New Section 24 of the Code are the relevant Delhi. provisions for the purposes of appointing a person as Special Public Prosecutor by 3. Learned counsel for the petitioner the Central Government or the State while arguing the matter before us, has in Government as the case may be. The the first place challenged the appointment provisions of the aforesaid two sub of respondent no.4 as Special Public Sections (8) & (9) of Section 24 of the Prosecutor in the said murder case on the Code are reproduced below :- ground that he does not possess requisite qualifications for such appointment under “(8). The Central government or the sub Section (8) of Section 24 of the Code. State government may appoint, for the He is not an Advocate having experience purposes of any case or class of cases, a of ten years practice as his enrolment as person who has been in practice as an such with the Bar Council, Delhi was advocate for not less than ten years as a done only in the year 1994 when he laid Special Public Prosecutor. his office of legal advisor with C.B.I. on (9) For the purposes of sub Section his retirement. Learned counsel has also (7) and sub Section (8), the period emphasized that the period during which during which a person has been in the respondent no.4 worked as Legal practice as a pleader, or has rendered Advisor/Public Prosecutor in the C.B.I. (whether before or after the could not be counted even with the help commencement of this Code) service as a of deeming clause of sub Section (9) to be Public Prosecutor or as an Additional a period spent in practice as an Advocate. Public Prosecutor or other Prosecuting The enabling clause of sub Section (9) of Officer, by whatever name called, shall Section 24 of the Code would not legally be deemed to be the period during which be available in the matter of respondent such person has been in practice as an no.4. advocate.”

4. On the other hand, learned 6. The provisions of sub Section (9) counsel for the respondents while aforesaid were not available in the Code replying to the submissions made on prior to the Cr.P.C. (Amendment) Act, h behalf of the petitioner in the aforesaid 1978 (Act No.45 of 1978), which became t context has tried to make the provision of applicable with effect from 18.12.1978. In tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 710 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

the pre-amendment period sub Section (6) of the Government does have special of Section 24 of the Code dealt with such experience in the prosecution branch and appointment of a Special Public if by virtue of adding sub Section (9) Prosecutor. The said sub Section (6) of aforesaid to the Code, the benefit of such the Code was as below :- experience was sought to be taken by the legislature for prosecuting a special case “(6) The Central Government or the or group of cases by such persons, the State Government may appointment, for said amendment or addition in the Code the purposes of any case or class of could not be taken to have come in cases, an Advocate who has been in conflict either with the provisions of the practice for not less than ten years, as a Advocates Act or with Article 14 of the Special Public Prosecutor.” Constitution of India. This deeming clause of sub Section (9) of Section 24 of 7. From the above, we find that prior the Code also does not confer a serving to 1978 amendment the Central Public Prosecutor/Legal Advisor etc. a Government or the State Government, for liberty to practice in Courts as an the purposes of any case or class of cases, Advocate. The meaning given to the could appoint a person as Special Public functions of a Public Prosecutor in sub Prosecutor only if he has been in practice Section (9) as an Advocate, is confined for not less than ten years as an Advocate. only for the purposes of appointment of Such appointment of a person having such person as Special Public Prosecutor rendered service as a Public Prosecutor or under sub Section (8) of Section 24 of the as an Additional Public Prosecutor or as Code. It has absolutely no other an Assistant Public Prosecutor or other significance as to occasion a conflict prosecuting officers etc. was not possible. between this sub Section (9) and the By virtue of 1978 amendment this provisions of the Advocates Act or Article enabling clause of sub Section (9) was 14 of the Constitution of India. added and the experience of the persons having been in service as Public 8. Before 1978 amendment, the Prosecutor etc. was deemed to be an emphasis under sub Section (6) of Section experience of practice as an Advocate. 24 of the Code was on the candidate being This sub Section however, does not an Advocate in practice and not in appear to have come in conflict with the practice as a Government servant. The provisions of the Advocates Act. It is only underlying object in enacting the with a view of taking benefit of the provisions of sub Section (6) was that experience of a person serving as Public only an Advocate of ten years standing Prosecutor etc. for a long drawn period of and experience at the Bar should be time, this amendment was introduced and chosen for appointment as a Special the appointment of such person as Special Public Prosecutor. It could not then be Public Prosecutor has been facilitated. It attributed to the legislature that, when it is not to the effect to altogether change implied the language ‘an Advocate who the definition of Advocate as appearing in has been in practice for not less than ten the Advocates Act. The Public Prosecutor years’, it intended that even a full time h or Legal Advisor working on full time employee of the Government governed by t basis with any department or corporation service rules would also be eligible or tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Vishal Yadav V. State of U.P. and others 711

would satisfy the requirement of sub we have not to go and borrow the Section (6) of Section 24 of the Code. expression and its meaning as defined in This intent/view of legislature however, Section 2 (a) of the Advocates Act, on further consideration by it was not because the expression finds a deeming found tenable thus, only the amended provision under sub Section (9) of Section Section 24 of the Code has come into 24 of the Code for the purposes of existence. After such amendment, the enabling a person having experience of earlier view/intent of the legislature was service as Public Prosecutor etc. for being given a gobye. The period of service of a appointed as Special Public Prosecutor by person as a Public Prosecutor, Additional the Government under sub Section (8) of Public Prosecutor, Assistant Public Section 24 of the Code. Therefore, the Prosecutor or other prosecuting officer by principle of law, which is available in the whatever name called, has been deemed aforesaid case of Kumar Padma Prasad to be the period during which such person (supra) is of no application in the present has been in practice as an Advocate. This facts situation of the case. In Satish deeming provision added to the Code Kumar Sharma’s case also the Hon’ble being not in any manner in conflict with Apex Court while dealing with the the provisions of Advocates Act and availability of the benefit of the exception Article 14 of the Constitution of India, contained in para-2 of Rule 49 of the Bar cannot be said to be violative of those Council of India Rules, 1975 has held that provisions. Sub Section (9) of Section 24 a person getting fixed salary under the of the Code thus, is not liable to be employment of a corporation governed by declared ultra virus. service rules could not get the benefit of the said exception and his enrolment as an 9. The petitioner’s learned counsel Advocate with the Bar Council is liable to support his submission, in the aforesaid for termination. In this case the very context has cited the case law of Kumar enrolment with the Bar Council and Padma Prasad Vs. Union of India and entitlement of a full time salaried others reported in AIR 1992 SC, page employee to practice as an Advocate 1213 and the case of Satish Kumar before the Court was under challenge. Sharma Vs. The Bar Council of Under these circumstances, the person Himachal Pradesh reported in JT 2001 under full time employment with a (1) SC, page 236. corporation seeking benefit of the exception of Rule 49 aforesaid has been 10. In Kumar Padma Prasad’s case refused that benefit by the Apex Court. It (supra), the Hon’ble Apex Court has was not in the nature of such a dispute as elaborated upon the expression ‘judicial we are having in the present case. The officer’ as used in Article 217 (2) (a) of facts situation of the present case thus, do the Constitution of India and has given its not attract application of principle of law meaning with the help of the expression laid down in Satish Kumar Sharma’s case ‘judicial service’ as defined under Article (supra). 236 (b) of the Constitution of India. But in the present context while deriving 11. The respondent no.4 having a h meaning of the word ‘Advocate’ used in long experience of working as Legal t sub Section (8) of Section 24 of the Code, Advisor/Public Prosecutor with Central tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 712 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Buearo of Investigation and after laying 13. From the side of the petitioner, down his office actively practicing in the an argument in respect of arbitrary Courts of law as an Advocate, has if been fixation of remuneration payable to appointed as Special Public Prosecutor respondent no.4 was advanced and it has under sub Section (8) of Section 24 of the been contended that the remuneration Code, there is no scope to challenge his made permissible to Sri S.K. Saxena, is such appointment on the ground of non extremely exorbitant and unreasonable. eligibility or arbitrariness. The details of remuneration that have been made admissible to Sri S.K. Saxena 12. Besides the above, the find place in the draft notification of Greh respondent no.4 through his (Police) Anubhag-3. This notification is Supplementary Affidavit, has filed several part of the record of Law/Home copies of Notifications in Annexures-B & Department of the Government of C which go to show that he on many respondent no.1. On our having occasions, by the Central Government and summoned the aforesaid record of the the administration of Union Territory of appointment of Sri S.K. Saxena, the same Delhi, was appointed as Special Public has been made available for perusal. The Prosecutor under the aforesaid provisions aforesaid notification and the letter of Sri of sub Section (8) of Section 24 of the S.K. Saxena dated 6.11.2002 show that Code as well as under sub Section (I) of the remuneration payable to respondent Section II of the Terrorist and Disruptive no.4 has been divided in several heads. Activities (Prevention) Act, 1987. These The one time fees is the sum of Notifications are of post amendment dates Rs.25,000/- whereas per day fees, clerical of 1978 when sub Section (9) of Section charges and junior attending Court is 24 of the Code had already come into Rs.14,300/-. The conferencing fees for existence. Obviously, these appointments each conference is Rs.2,200/-. This fees is of the respondent no.4 while he was in besides the travel and daily allowance, service and thereafter have been made by which has been claimed by Sri Saxena the respective Governments with the aid towards his remuneration. It appears that of the enabling clause of sub Section (9) the Government of respondent no.1 has of Section 24 of the Code. Therefore, the consented to such demand of fees of Sri present appointment of the respondent Saxena and it has been duly notified. The no.4 as Special Public Prosecutor under per day appearance of respondent no.4 to sub Section (8) of Section 24 of the Code, conduct the trial of the murder case if has been made with the aid of sub entails an expenditure of about more than Section (9) of Section 24 of the Code, the Rs.16,000/- besides the one time fees of same does not appear to be arbitrary or Rs.25,000/-. This definitely appears to be illegal. He is having long experience of quite exorbitant and we hereby direct that conducting cases for the prosecution instead of taxing the Government before the Courts in Delhi. His exchequer so unreasonably the respondent appointment as Special Public Prosecutor no.1 would reduce per day appearance by respondent no.1 in any case does not charge including the clerical charges and appear to be illegal or irrational. the fees of junior of respondent no.4 in h the aforesaid Sessions Trial case by t Rs.8,000/- from the total of the aforesaid tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ashok Chaturvedi, Chairman and others V. State of U.P. and another 713

daily expenditure of Rs.16,000/-. In case, APPELLATE JURISDICTION the respondent no.4 expresses his CRIMINAL SIDE reluctance on agreeing to such term and DATED: ALLAHABAD 23.05.2003 condition of the reduced remuneration, the respondent no.1 would be at liberty to BEFORE THE HON’BLE R.K. DASH, J. engage some other suitable counsel to prosecute the trial Criminal Misc. Application No. 4729 of 2000

14. The record dealing with the Ashok Chaturvedi, Chairman and others appointment of respondent no.4 as Special …Applicants Public Prosecutor in the aforesaid murder Versus trial of Nitish Khatara also shows that the State of U.P. and another …Respondents appointment of Sri Saxena was made in pursuance of an endorsement/direction of Counsel for the Applicants: Principal Secretary to the Chief Minister. Sri S.S. Nigam This endorsement was made on the letter Sri Ramesh Sinha of Sri Saxena dated 23.10.2002. It appears Counsel for the Respondents: that without making any scrutiny as to the Sri Dilip Gupta suitability of the person for such Sri Rajiv Gupta appointment through the Law AGA. Department, the Government Orders dated 24.10.2002 were taken out. It is Criminal procedure code-Section 482-bar unusual and we accordingly suggest that of second revision-whether application the Government should not adopt such u/s 482 Cr.P.C. maintainable when method of appointment by ignoring all the revision against order of magistrate norms. dismissed-in circumstances of the case- held-yes.

15. However, looking to the facts Held: Para 3 and circumstances of the present case that the respondent no.4 possess due Order of the Magistrate taking qualification and experience for his such cognizance of the offence having been appointment as Special Public Prosecutor dismissed in revision can move this court in a sensational murder case, we are not under section 482 Cr. P .C. Judicial opinion of various High Courts on this inclined to quash his aspect is not unanimous. appointment/Notification dated 26.11.2002 (Annexure-2 to the writ Code of Criminal Procedure Section 482, petition) and the writ petition as such Indian Penal Code Section 304-A- having no merits, is hereby dismissed. petition for quashing of proceeding- order of Magistrate issuing process ------should show application of judicial mind, though he is not required to give reasons. 1994 (4) SCC 655 referred to. h Held: Para 11 t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 714 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

It is true, law does not envisage that the due to rash and negligent act of all the Magistrate should record the reasons of accused persons and requested to pardon his satisfaction before issuing process, them. The complainant approached the but scrutiny of the order must show that he applied judicial mind to find whether District Magistrate, Ghaziabad and prima-facie case is made out of the requested the police to enquire into the complaint or other materials for incident but it was to of no effect. It was proceeding against the accused. thereafter that he moved the court by case law discussed: filing complaint. Learned Magistrate upon AIR 1977 SC-987 examination of the complainant and the 1997 Cr.L.J. 1519 1994 (4) SCC 655 witness produced by him took cognizance AIR 1992 SC 1815 of the offence under Section 304-A.I.P.C. 2002 (6) SCC 670 and Summoned all the accused persons. Thereupon, the accused persons filed a (Delivered by Hon'ble R.K. Dash, J.) petition to recall the order of cognizance and the same having been rejected, they 1. Naresh Kumar Shukla (hereinafter approached the Sessions Court in revision referred to as ‘the deceased’), a chemical which also did not yield desired result. engineer joined as a trainee on 28.4.1996 Aggrieved by the order of the revisional with M/s. Flex Industries Limited, Noida court, they filed present petition under in the newly created district of Gautam Section 482 Cr.P.C. seeking quashing of Budh Nagar. He in course of employment the proceedings in the com[plaint case in the industry met with an accident bearing no.627 of 1996 pending in the resulting in his death. Respondent no.2, court of Chief Judicial Magistrate, father of the deceased filed a complaint Ghaziabad. before the Chief Judicial Magistrate, Ghaziabad alleging that the petitioners 2. Sri Gopal S. Chaturvedi, learned being the officials of the said industry had Senior Counsel appearing for the assigned creation of a plant imported from petitioner contended that even if the France and asked the deceased to work allegations made in the complaint are over time. After the tragic incident the taken in entirety and on their face value complainant visited the premises of the do not make out any offence under industry and came to know that heavy Section 304-A I.P.C. and since the steel roller which was kept at a height of deceased was a young engineer and met 1.5 meter supported by two wooden with tragic death due to accident in the stakes on both sides suddenly feel down factory, the learned Magistrate made on the deceased who was sitting on the emotional approach to the case and floor and making some adjustment of the without there being sufficient ground for bracket of the roller. The deceased was proceeding against the accused persons immediately rushed to a Nur Singh Home took cognizance of the aforesaid offence where he breathed his last. Further case and issued process for their appearance. It of the complaint is that on being asked as is true, while taking cognizance of the to how the deceased was asked to sit and offence, the Magistrate is not required to work on a small and narrow place, give reasons, but his order must show that h accused Anil Gupta and Mahabir Saran he applied judicial mind to fined if prima- t Confessed that the accident took place facie case is disclosed from the averments tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ashok Chaturvedi, Chairman and others V. State of U.P. and another 715

made in the complaint and the statements Magistrate taking cognizance of the of the complainant and his witness if any, offence having been dismissed in revision for proceeding against the accused. In the can move this court under section 482 Cr. case on hand, the impugned order, P .C. Judicial opinion of various High annexure-4 does not reveal that the Courts on this aspect is not unanimous. learned Magistrate made a judicial Some say that in view of the legislative approach to the case and was satisfied intention enacting Section 397 (3) second from the available materials that prima– revision in the garb of a petition under facie case under Section 304-A I.P.C. is Section 482 Cr. P.C. is not maintainable. made out. In that view of the matter, it Others have taken contrary view was urged that the criminal complaint observing that where the order of the sub- being the outcome of anger of the ordinate court is wrong and illegal and if complainant, order of the Magistrate allowed to remain grave injustice would taking cognizance of the offence under ensue, the Court for the ends of justice Section 304-A I.P.C. and consequent should invoke inherent power and quash order issuing notice to the accused the said order. Experience shows that persons should be quashed. sometimes Sessions Judge’s order is wrong, illegal and perverse. So, if the said Per contra, learned counsel appearing order is not interfered with when for the complainant would strenuously challenged in view of the embargo placed urge that law does not mandate that the by Section 397(3), it will cause Magistrate should pass a detailed order irreparable injury to the person aggrieved about his satisfaction before taking and consequently justice will be a cognizance of the offence and therefore, casualty. The question has been settled at the impugned summoning order, rest by the Supreme Court in the case of annexure-4 which is the based on Krishnan Vs Krishnaveni, AIR 1997 SC satisfaction of judicial conscience cannot 987 = 1997 Cr. L. J. 1519 Where the be scraped or rejected. As to the factual Court observed thus: aspect of the case, he submitted that since death of the deceased was as a result of “Ordinarily, when revision has been the accident, occurred due to rash or barred by Section 397 (3) of the Code, a negligent act of the accused persons and person –accused/complainant–cannot be at this stage when cognizance of the allowed to take recourse to the revision to offence has only been taken, the Court the High Court under Section 397 (1) or should be loathe to interfere with the under inherent powers of the High Court impugned order and bring the criminal under Section 482 of the Code since it proceeding to a halt in exercise of may amount to circumvention of the inherent power. provisions of Section 397 (3) or Section 397 (2) of the Code. It is seen that the 3. Before adverting to the arguments High Court has suo moto power under advanced by the counsel appearing for the Section 401 and continuous supervisory parties, at the outset it is desirable to jurisdiction under Section 483 of the decide the question, though not raised by Code. So, when the High Court on h the complainant whether the petitioners, examination of the record finds that there t whose revision against the order of the is grave miscarriage of justice or abuse of tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 716 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

the process of the courts or the required should be exercised sparingly and in statutory procedure has not been complied rarest of rare case. On a bare reading of with or there is failure of justice of order the FIR or the complaint where the Court passed or sentence imposed by the finds that no offence is made out and magistrate requires correction, it is but the continuance of the criminal proceeding duty of the High Court to have it will cause unnecessary harassment to the corrected at the inception lest grave accused, it would be justified to exercise miscarriage of justice would ensure. It is, inherent power and bring the proceeding therefore, to meet the ends of justice or to to a close. Reference in this context may prevent abuse of the process that the High be made to a decision of the Supreme Court is preserved with inherent power Court in the case of State of Bihar Vs and would be justified, under such Murad Ali Khan, 1994 (4) SCC 655 circumstances, to exercise the inherent where the Court observed: power and in an appropriate case even revisional power under Section 397(1) “It is trite that jurisdiction under read with Section 401 of the Code……” Section 482 Cr. P.C., which saves the inherent power of the High Court, to 4. So far the present is concerned, make such orders as may be necessary to for the reasons to follow I would old that prevent abuse of the process of any court notwithstanding the bar of second or otherwise to secure the ends of justice, revision as envisaged in Section 397 (3), has to be exercised sparingly and with it is a fit case where this Court in exercise circumspection. In exercising that of inherent power should upset the order jurisdiction the High Court Should not of the Magistrate taking cognizance of the embark upon an enquiry whether the offence under Section 304-A I. P.C. and allegations in the complaint are likely to quash the criminal proceedings. be established by evidence or not. That is the function of the trial Magistrate when 5. The grievance of the petitioners in the evidence comes before him. Though it the present case is that since the facts is neither possible nor advisable to lay narrated in the complaint do not constitute down any inflexible rules to regulate that any offence, more so an offence under jurisdiction, one thing, however, appears Section 304-A I.P.C. and this aspect of clear and it is that when the High Court is the matter having not been considered called upon to exercise this jurisdiction to both by the Magistrate as well as the quash a proceeding at the stage of the revisional court, this Court would be well Magistrate taking cognizance of an within its jurisdiction to consider the same offence the High Court is guided by the and quash the impugned order consequent allegations, whether those allegations, set criminal proceedings in exercise of out in the complaint or the charge-sheet inherent power. do not in law constitute or spell out any offence an that resort to criminal 6. Inherent powers are in the nature proceeding would, in the circumstances, of extra- ordinary power to be used amount to an abuse of the process of the sparingly for achieving the object as court or not.” h mentioned in Section 482 Cr. P.C. It is the t settled position of law that such power tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ashok Chaturvedi, Chairman and others V. State of U.P. and another 717

7. Keeping in mind the aforesaid deceased was as result of any rash or dictum of law, it is necessary to elude to negligent act of the accused persons. To the allegations made in the complaint bring a case within the purview of Section petition. Admittedly, the complainant was 304-A I.P.C., it must be shown that the not an witness to the incident. As alleged, act was a rash or negligent. An act would he alongwith others visited the site where be construed ‘rush’, if is done without due the accident occurred. In paragraph 12 of care or caution. ‘Negligent act’ means, an the complaint petition, it is stated: act done without exercise of reasonable and proper care and precaution to guard "There the complainant and his against any injury. companions were shown a steel roller which was kept at height of 1.5 meter 9. In the case on hand, the case as supported by two wooden stakes on both narrated in the complaint does not sides the weight of that roller as mention remotely suggest that the accused person on is 1.8 tones. There was no blood spot had neglected their duty and failed to take on the site. There was no crack or damage proper care and precaution in the factory on the floor. The entire site of accident premises resulting in the accident. Had was cleaned and the entire evidence of the the learned Magistrate taken care to fined accident were removed/washed away the out from the complaint petition as well as accused persons. the statement of the complainant as to if a prima-facie offence under Section 304-A That on the site the accused no. 5 and I.P.C. is made out, he would have been 7 Mr. Gupta pointed towards the same slow to take cognizance of the said roller which was kept on wooden stakes offence and issued process against the and its weight was 1.8 tones. Further Mr. accused persons. Gupta informed that Naresh was sitting on the floor and making some adjustments 10. It is the right of everyone to relating to mounting of the roller on the Bering an offender to justice; equally it is left bracket. He said that the bracket on right of every person that he is not Naresh's left side broke down and pointed unnecessarily harassed by false and his finger towards a broken steel bracket frivolous persecution. It cannot be lost which appeared to have been welded and sight of that a person passes thought fabricated out of the solid steel bars. The mental agony when asked to face a complainant and his companions notices criminal charge and if the offence is non- that the broken bracket had a welded joint bail able, he is sent to prison till bail which appeared to be a fresh welding. As granted by the court. Besides, long drawn per Mr. Gupta the body of Late Naresh adjudicatory process makes him was crushed by this heavy steel roller financially cripple which ultimately which fell down as the left bracket broke affects is in jeopardy, the duty of the court down on which this roller was kept…" becomes onerous. As has been well said, judicial process should not be an 8. Even assuming that the aforesaid instrument of oppression or needless allegations are true, yet it cannot be said harassment. h by any stretch of imagination that the t accident and consequent death of the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 718 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

11. Law confers a right on a person 12. Similar view was also taken in wronged either to approach the police or the later decision in the case of K.M. file a complaint in the court seeking legal Mathew vs. K.A. Abraham, (2002) 6 SCC action the person who violated law. When 670 a complaint is filed, the Magistrate on examining the complainant and his Coming to the case on hand, the witnesses, if any present, should be impugned order which is cryptic in nature satisfied whether there is sufficient does not show the required satisfaction of ground for proceeding against the person the learned Magistrate while taking complained of. It is true, law does not cognizance of the offence under Section envisage that the Magistrate should record 304-A I.P.C. the reasons of his satisfaction before issuing process, but scrutiny of the order 13. Regard being had to the facts must show that he applied judicial mind and circumstances of the case as to find whether prima-facie case is made discussed above, I am of the considered out of the complaint or other materials for opinion that there being no case under proceeding against the accused. In this Section 304-A I.P.C., the order of the context reference may be made to a Magistrate taking cognizance of the said decision of the Supreme Court in the case offence is illegal and unsustainable in of Punjab National Bank Vs. Surendra law. In such view of the matter, the said Prasad Sinha, AIR 992 SC 1815 where order and the consequent criminal the Court observed--- proceeding in complaint case no.627 of 1996 are quashed. However, when the “There lies responsibility and duty complainant has lost his son, a young on the Magistracy to find whether the engineer, which loss cannot be concerned accused should be legally compensated by any means, in my responsible for the offence charged for opinion, for doing complete justice, the only on satisfying that the law costs accused persons, petitioners here-in liability or creates offence against the should pay a sum of rupees five lacs to juristic person or the person impleaded, the complainant as a solace. It is there only process would be issued. At accordingly, so ordered. The amount shall that stage the Court would be circumspect be paid within four weeks hence. In the and judicious in exercising discretion and event, payment is not made within the should take all the relevant facts and stipulated time, on approach being made circumstances into consideration before by the complainant, the District issuing process lest it would be an Magistrate, Gautam Budh Nagar shall instrument in the hands of the private recover the said amount as arrear of land complainant as vendetta to harass the revenue and pay the same to him. persons needlessly. Vindication of majesty of justice and maintenance of law 14. The criminal misc. application and order in the society are the prime thus succeeds and is allowed with above object of criminal justice but it would not observation and direction. be the means to wreak personal ------h vengeance xxxxxxx” t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Surendra Kumar V. State of U.P. and others 719

ORIGINAL JURISDICTION our society and are harassing and CIVIL SIDE terrorizing the law abiding citizens. If this DATED: ALLAHABAD 04.08.2003 trend is not stamped out with an iron hand the situation will get out of control and BEFORE there will be total lawlessness and jungle THE HON'BLE M. KATJU, J. THE HON'BLE R.S. TRIPATHI, J. raj in the State.

Civil Misc. Writ Petition No. 33347 of 2003 2. The petitioner has alleged that he is a tenant of a shop in Agra City under Surendra Kumar …Petitioner Police Station Aitmadaula, Agra for Versus which he pays Rs.2000/= per month to the The State of U.P. & others …Respondents landlord on the basis of registered rent deed vide Annexure-1 to the writ petition. Counsel for the Petitioner: The petitioner carries on the business of Sri A.K. Upadhyay jute bags in the aforesaid premises and Sri R.S. Srivastava also resides there.

Counsel for the Respondents: 3. It is alleged in paragraph 6 of the S.C. petition that on 2.7.2003 when the

petitioner was carrying on his business in Constitution of India Article 226 Realisation of Goonda Tax by Anti Social the said premises the respondents no. 7 to elements-no such tax known in the eye 18 came to his shop with the common of law. Demand of such gunda tax is thus object of realizing gunda tax and wholly illegal and arbitrary. Directions demanded a sum of Rs. 1000/= and in given to the State Authorities to protect case of non-payment of the same the citizens from such anti social threatened to evict him and also make him elements. suffer dire consequences. Since the Held- Para 5 petitioner did not pay the aforesaid gunda tax as demanded by the respondent no. 7 No such tax is known to the law as to 18 they threatened to evict the gunda tax. We have heard of income tax, petitioner forcibly from the premises and sales tax, house tax etc. but this is a hence the petitioner on 2.7.03 went to totally new and illegal phenomenon lodge an FIR but the respondent no.5, the which has appeared in society, and unless this gunda tax disappears we will Station House Officer, Police Station hold the Government authorities to task Aitmadaula, Agra refused to lodge the for such illegal demands. Such gunda tax FIR and hence the petitioner gave a reminds one of the 'protection money' written complaint dated 3.7.03 to the SSP, demanded by the Mafia in America. Agra vide Annexure-4. It is alleged in paragraph 9 of the writ petition that since (Delivered by Hon'ble M. Katju, J.) the petitioner did not pay the gunda tax as

demanded by the respondent no. 7 to 18 1. This petition discloses an they again on 16.7.03 forcibly entered alarming state of affairs prevailing in the into his rented premises and demanded State of Uttar Pradesh. It appears that all h gunda tax from the petitioner again. The kinds of ruffians, gundas, hooligans and petitioner then sent a complaint by means t other anti social elements are at large in tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 720 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

of Speed Post to the Chief Minister, U.P. longer by this Court. It is the duty of this at Lucknow vide Annexure5 to the writ Court under Article 226 of the petition. Despite these representations and Constitution to uphold the law. If the complaints to the Chief Minister, District allegations in the petition are correct it Magistrate, SSP, Agra etc. no action was shows that the district authorities in Agra taken against the respondent no. 7 to 18. are either deliberately or due to inability The respondents No. 7 to 18 again came failing to uphold the law in district Agra, on 28.7.2003 to the premises of the and are not protecting the citizens. petitioner and demanded Rs. 3 Lakhs as gunda tax and threatened to kill him and 5. No such tax is known to the law his family members if he did not pay the as gunda tax. We have heard of income same. These respondents were armed with tax, sales tax, house tax etc. but this is a pistols, katta, knife, lathi and danda etc. totally new and illegal phenomenon and they forcibly snatched a golden chain which has appeared in society, and unless of two tolas and one golden ring by this gunda tax disappears we will hold the pointing pistols on the chest of the Government authorities to task for such petitioner and also snatched a sum of Rs. illegal demands. Such gunda tax reminds 3200/= kept in the pocket of his shirt and one of the 'protection money' demanded also abused him. They said they realize by the Mafia in America. gunda tax from all the persons running industries and that the police cannot do 6. List this petition on 11th August, anything against them as the Police 2003 before us on which date we have Station is in their pocket and they also already directed the Principal Home send the weekly gunda tax to the police Secretary and the Director General of and as such no proceedings will be Police, U.P. to appear before us in another initiated against them by the Police. The case and they must explain to us as to petitioner again sent a written complaint why law is not being enforced and gunda to the Chief Minister of Uttar Pradesh, tax is demanded all over the Uttar Pradesh Chief Secretary, U.P., Inspector General from the peaceful and law abiding citizens (Police), Kanpur Region, Kanpur, Deputy (especially businessmen) and why no Inspector General (Police), Agra Region, action is taken against the criminals, Agra, the SSP, Agra SP, Agra the City hooligans, and other anti-social elements Magistrate, Agra etc. but to no avail and in the State who by their anti-social no action has been taken against the activities are not allowing law abiding respondent no. 7 to 18 and the lives of the citizens in the State to live peacefully. petitioner and his family members are in danger. It is alleged that respondent no. 5 7. Learned standing counsel will the Station House Officer of Police send a copy of this order to the Principal Station Aitmadaula, Agra is in collusion Home Secretary, Uttar Pradesh and with the respondent no. 7 to 18. Director General of Police, U.P. forthwith. If the allegations made in the 4. If the aforesaid allegations are petition are correct criminal proceedings correct it shows that an alarming state of will be initiated against the respondent no. h affairs is prevailing in the State of Uttar 7 to 18 and disciplinary action must be t Pradesh which cannot be tolerated any taken against the respondent no. 6 the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Babboo Khan V. The District Judge, Rampur and others 721

Station House Officer, Aitmadaula, Agra. (Delivered by Hon’ble Anjani Kumar, J.) Full security and protection must be provided to the petitioner till further 1. Heard learned counsel for the orders petitioner and Shri Nazar Bokhari for the respondents. Let a copy of this order be issued to learned standing counsel free of charge 2. By means of this writ petition, today. petitioner has challenged the order passed ------under Section 4 of U.P. Public Premises ORIGINAL JURISDICTION (Eviction of Unauthorised Occupants) CIVIL SIDE Act, 1972 in Case No. 20 of 1984 P.S- DATED: ALLAHABAD 08.05.2003 Kotwali, District-Rampur dated 7th May, 1984. whereby the prescribed authority BEFORE THE HON'BLE ANJANI KUMAR, J. after hearing the petitioner and State has passed the order of eviction of the Civil Misc. Writ Petition No. 961 Of 1985 petitioner from the premises in question, which is admittedly a public premises. In Babboo Khan …Petitioner appeal the appellate authority affirmed the Versus findings of the prescribed authority and The District Judge, Rampur and others directed for eviction of the petitioner from …Respondents the premises in question.

Counsel for the Petitioner: 3. Learned counsel for the petitioner Sri N.A. Kazmi has contended that a perusal of Section 4 Sri Nazar Bokhari of U.P. Public Premises (Eviction of

Counsel for the Respondents: Unauthorised Occupants) Act, 1972 S.C. provides that the notice in the manner prescribed should have been served on the Constitution of India, Article 226- petitioner before the proceedings are Findings of fact-interference in- writ initiated. Section 4 is reproduced below:- jurisdiction-only when such findings are perverse having error of law. “4. Issue of notice to show cause against order of eviction.- (1) If the Held- Para 9 prescribed authority, either of its own Other argument advanced by learned motion or on an application or report counsel for the petitioner assailing the received on behalf of the State findings of the prescribed authority as Government or the corporate authority, is well as of the appellate authority also of opinion that any persons are in deserves to be rejected. It is settled that unauthorised occupation of any public the findings of fact arrived at, are not to be easily interfered with under Article premises and that they should be evicted, 226 of the Constitution, unless the same the prescribed authority shall issue in the are demonstrated to be perverse, or manner hereinafter provided a notice in suffers from manifest error of law. writing calling upon all persons h Case law discussed: concerned to show cause why an order of AIR 1975 All 315 (FB) relied on eviction should not be made. t 1984 All LJ pg. 1022 referred to tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 722 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

(2) The notice shall- notice issued under S. 4 of the Act was not a valid notice and was not in (a) specify the grounds on which the the prescribed form as it did not order of eviction is proposed to be made; disclose the ground upon which it has and been issued. Before us however, the learned Standing Counsel contended (b) require all persons concerned, that is that the notice, if read as a whole, to say, all persons, who are, or may be, in clearly confirmed to the requirements occupation of, or claim interest in, the of S. 4 of the Act. public premises, to show cause, if any, against the proposed order on or before 8. We do not agree. The notice has been such date as is specified in the notice, quoted above and it is obvious that a being a date not earlier than ten days from vital requirement of S. 4 is missing. the date of issue thereof. The notice does not profess, directly or indirectly, to state the ground upon (3) The prescribed authority shall cause which the eviction of the petitioner is the notice to be served either personally being sought. In our opinion the on all those persons concerned or by provisions of S. 4 are mandatory and having it affixed on the outer door or a valid notice specifying the grounds some other conspicuous part of the public on which the order of eviction is premises and in any other manner, proposed to be made is sine qua non provided in the Code of Civil Procedure, for an order of eviction. We do not 1908. agree with the learned Standing Counsel that the notice if read as a (4) Where the prescribed authority knows whole can be construed to be a valid or has reasons to believe that any persons notice under S. 4 of the Act. It does are in occupation of the public premises, not disclose the grounds on which then, without prejudice to the provisions eviction is sought. It is not in the of sub-section (3), he shall cause a copy prescribed form either. The defects of the notice to be served on every such invalidate the notice ab initio.” person by registered post or by delivering or tendering it to that person or in such 5. Much emphasis has been laid on other manner as may be prescribed.” the manner of service of notice as observed by the Division Bench, as in the 4. Learned counsel for the petitioner present case it is not disputed that parties relied upon a decision of Division Bench had knowledge of the proceedings and has of this Court reported in 1984 All. L.J. also contested the proceedings. A Full page 1022; Bikarama Versus IV Bench of this Court consisting of five Additional District Judge, Varanasi Judges in a case reported in AIR 1975 and others. Para 7 and 8 on which Allahabad 315 (FB); Gyan Singh learned counsel has placed reliance are Versus The District Magistrate, Bijnor quoted below: and others, has explained the purpose of “7. Learned counsel appearing for the notice wherein it has been held by full h State of U.P. before the Courts below bench that once the party concerned t fairly conceded that the impugned acquires the knowledge of the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Babboo Khan V. The District Judge, Rampur and others 723

proceedings though mandatory, the information to the members to attend the purpose of notice stood served. meeting convened for the purpose of considering the motion of no-confidence, 6. Paragraphs 15 and 19 of the and once it is established that the member aforesaid case are being quoted here-in- concerned had notice and had acquired below :- knowledge of the date and time of the meeting convened for considering the “15. We, however, do not agree with motion of no-confidence, the purpose for the observations of the learned Judge that which notice is required to be sent would the actual service of the notice of the be fulfilled and the member concerned meeting should be proved. It would be will not be entitled to any relief from this sufficient compliance with the provisions Court under Article 226 of the of Section 87-A (3) if notice is sent to the Constitution for nullifying the members and the members acquire proceedings of the meeting. knowledge about the time, date and place of the meeting. The facts involved in 19. The President is elected by the Vishwanath Tripathi’s case 1968 All WR members of the Municipal Board in 114 are different than those available in accordance with Section 43 of the Act. A the present case. The observations of R. member of the Board or any elector, who S. Pathak, J., that Section 87-A (3) was is not less than 30 years of age is qualified mandatory in its entirety does not to be chosen as President of the Board. represent correct view for the reasons Thus a non-member may be elected stated earlier. If notice is sent by President of the Board. But once an registered post and publication of the elector is elected President he becomes notice is done, the legal fiction enacted by member of the Board ex-officio under the legislature would at once come into Section 49 of the Act which lays down play and thereupon every members shall that the President of a Board if he is not be deemed to have received notice even already a member of the Board shall be though a member may not have actually ex-officio member of the Board. The received the same. On the material on President presides over the meetings of record of that case, R.S. Pathak, J. held the Board. All questions which come up that neither the notice of the meeting was before the meeting of the Board are actually served upon one of the petitioners decided by majority of the members at the nor the notice was published in any other meeting. Section 92 of the Act lays down manner as directed by the District that in case of equality of the Board the Magistrate, therefore the meeting was not President of the Board shall have a second validly constituted. The learned Judge or casting Board these provisions clearly further held that even if the member had indicate that a President is a member of knowledge of the meeting he was under the Board for all purposes even though he no obligation to take notice and for that may not be an elected member of the reason he was not disentitled to relief Board. Section 87-A (3) enjoins a duty on under Article 226 of the Constitution. We the District Magistrate to convene a are not in agreement with this view of the meeting for consideration of the motion of h learned Judge. As already stated the no-confidence against the President. It t purpose of sending notice is to give further lays a duty on him to send notice tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 724 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

of the meeting by registered post to every argued that this Nazool property, which is member of the Board at his place of under the management of the local body residence. The District Magistrate concerned and the local body would not therefore must send notice of the meeting let out the same on a higher rent or to the President also by registered post at premium and petitioner who has also his place of residence even though he may submitted an application for allotment not be an elected member. The motion of may also be allowed to offer before this no-confidence is directed against the Court and if this is the only criteria, his President he is the most affected party in case may also be considered. However, if the matter. He is entitled to take part in the respondents are inclined to let out or the debate at the meeting and to defend lease out the property in question for rent, himself. Thus, principles of natural justice the application of the petitioner may also require that he should be given notice of be considered in accordance with law. the meeting so that he may get an opportunity of defending himself.” 10. In view of what has been stated above, the writ petition is dismissed. 7. Here in the present case, it has not ------been disputed by the petitioner that he had ORIGINAL JURISDICTION knowledge of the proceedings and he CIVIL SIDE contested the proceedings. This aspect of DATED: ALLAHABAD 14.07.2003 the matter has not placed before the BEFORE Division Bench relied by the counsel for THE HON'BLE ANJANI KUMAR, J. the petitioner. Civil Misc. Writ Petition No. 3734 of 1985 8. In this view of the matter, in view of the Full Bench referred to above, which Sri Deo Narain Misra …Petitioner is binding on me and couple with the fact Versus that the decision of Division Bench relied The Director of Education, Allahabad and on by learned counsel for the petitioner others …Respondents does not apply to the facts of the present case. Therefore, this argument deserves to Counsel for the Petitioner: be rejected. Sri Daya Shanker Sri K.D. Tripathi

Sri B.B. Jauhari 9. The argument having failed, other Sri S.K. Mehrotra argument advanced by learned counsel for Sri U.N. Khare the petitioner assailing the findings of the prescribed authority as well as of the Counsel for the Respondents: appellate authority also deserves to be Sri V.S. Dwivedi rejected. It is settled that the findings of Sri R.S. Dwivedi fact arrived at, are not to be easily S.C. interfered with under Article 226 of the Constitution, unless the same are Constitution of India-Article 226-U.P. demonstrated to be perverse, or suffers State University Act 1977-petitioner h from manifest error of law. That having appointed clerk in Sanskrit Maha not been shown, learned counsel lastly Vidyalaya prior to grant in add- Whether t petitioner entitled for payment from tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Sri Deo Narain Misra V. The Director of Education, Allahabad and others 725

Government fund? Held- appointment Mahavidyalaya, Rajapur, Banda on 1st not in accordance with the Act and the November, 1981 through its Manager and rules-no approval of concerning he was working when the institution was authorities-Held not entitled for any relief. brought on the list of grants-in-aid and was recognized. Therefore, the petitioner Held- Para 4 is entitled for salary with effect from 12th April, 1982. The order dated 12th April, Learned counsel for the petitioner has 1982 is an order which is issued by the miserably failed to demonstrate that State Government that there shall be one while appointing the petitioner, the post of Clerk in the institution which are procedure prescribed under the Statute has been followed and that the recognized by the Government under appointment made by the committee of Clause (a) and, therefore, any management is ever approved by the appointment to such a post in accordance authorities, namely, Inspect of Sanskrit with the U.P. State Universities Act as far Pathshala or the Deputy Director of as it is applicable to the institution Education (Sanskrit), the authorities who governed by the U.P. State Universities can perform the statutory function under the Act. Act, 1973 and so far as it is applicable to the Sanskrit Pathshala recognized and (Delivered by Hon'ble Anjani Kumar, J.) governed by the statute framed under the Act, shall be paid salary from the State 1. Heard learned counsel for the exchequer only when the procedure parties. prescribed under law is followed for appointment and the appointment is 2. The petitioner, who alleges approved by the authorities concerned. himself to be an employee, by means of The aforesaid Government Order which this writ petition under Article 226 of the has been relied upon by the petitioner Constitution of India, has challenged the clearly states that no payment shall be order dated 13th March, 1985, (Annexure made to any person who is appointed and '11' to the writ petition), passed by the is working contrary to the aforesaid Deputy Director of Education (Sanskrit), Government Order dated 12th April, U.P., Allahabad, the opposite part no.2, 1982. Annexure '2' to the writ petition and is further seeking a mandamus for annexes documents wherein the Selection payment of salary from the State of U.P. Committee purports to appoint the under the provisions of the state petitioner. The Selection Committee has Universities Act with effect from 12th been constituted by the managing April, 1982 to 31st March, 1985 and committee of the college and this continue to pay future salary till he appointment has no statutory force or continues in service. The writ petition was sanction on the basis whereof petitioner filed in the year 1985 and no interim order can claim any statutory force or sanction was granted. on the basis whereof petitioner can claim any statutory right which can be enforced 3. The case set up by the petitioner under Article 226 of the Constitution of in the writ petition is that the petitioner India. h was appointed as Clerk by the Managing t Committee in Sri Tulsi Smarak Sanskrit tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 726 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

4. Learned counsel for the petitioner Constitution of India, Article 226- has miserably failed to demonstrate that Regularisation & payment of Salary- while appointing the petitioner, the Equal pay for equal work Daily Wage/Muster roll employees- working in procedure prescribed under the Statute U.P. Jal Nigam as class IV employee for has been followed and that the 10 year-Representation for appointment made by the committee of regularization of service-Order by Chief management is ever approved by the Engineer (Personal) for regularization authorities, namely, Inspect of Sanskrit grant of minimum wages as given to Pathshala or the Deputy Director of regular employees-Order not approved by State Government Relying on apex Education (Sanskrit), the authorities who Court's decision in Putti Lal's case order can perform the statutory function under of Chief Engineer rescinded with out the Act. affording opportunity of hearing to petitioners-held, U.P. Jal Nigam framed 5. In this view of the matter and Schemes duly approved by State particularly with regard to this assertion Government for regularization of those employees who had put five years of that the petitioner though claims for the service-Hence Puttilal's case which payment of salary from the State of U.P. relates to regularization rules of State but has not impleaded the State of U.P. as Government, held, not applicable to daily one of the respondents in the writ petition, wages/muster roll employees of Jal the petitioner is not entitled for any relief Nigam-directed to from scheme and the writ petition deserves to be consistent with best policy for regularization of those muster roll/daily dismissed. wages employees with five years or more service in department-secondly, 6. In the result, the writ petition fails daily wages/muster roll employees, held, and is hereby dismissed. The Interim entitled to minimum of pay scale and order, if any, stands vacated. There will allowances as admissible to their regular be no order as to costs. counterparts- payment was made bonafide, order granting minimum of pay ------scale and dearness allowance-Hence no ORIGINAL JURISDICTION recovery can be made-Impugned order CIVIL SIDE dated 22.8.2002 quashed-Equal pay for DATED: ALLAHABAD 18.7.2003 equal work. Cases referred: BEFORE (2002) UPCBEC 1595 THE HON’BLE S.N. SRIVASTAVA, J. (2001) 2 SCC 62 AIR 1991 SC 420 Civil Misc. Writ Petition No. 47316 of 2002 (1998) 9 SCC 595 SLP (Civil) 14326 of 2001 Ram Dulare Shukla …Petitioner 1979 ALJ 1184 Versus JT 1995 (1) SC 24: 1979 ALJ 184 (DB) The Managing Director, U.P. Jal Nigam 1996 AWC 94 Lucknow and others …Respondents (Delivered by Hon’ble S.N. Srivastava, J.) Counsel for the Petitioner: Sri H.C. Shukla 1. This petition and other connected h Counsel for the Respondents: petitions have been filed for the relief of a Sri A.K. Misra writ of mandamus commanding the t Sri Sabhajeet Yadav tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others 727

respondents to regularise the service of 4. Heard learned counsel and the petitioners who are languishing in the perused the materials on record. The department in the uncertainty of adhocism learned counsel for the petitioner for years together. premised his argument by submitting that the impugned order thereby earlier order 2. All the petitions may be different granting minimum of the wages in factual aspect but the subject matter of admissible to a regular employee was impugnment in this batch of the petition rescinded without affording opportunity i.e. the order dated 22.8.2002 passed by of hearing and the petitioners were the Chief Engineer, (Personal), U.P. Jal entitled to hearing. It was submitted by Nigam, Lucknow is identical by ;which the learned counsel that under the order earlier order dated 12.10.2001 passed by dated 12.10.2001 issued by the Chief managing Director was rescinded on the Engineer (Personnel), Uttar Pradesh Jal ground that the earlier order aforesaid Nigam, Head Office, Lucknow petitioners granting minimum of the wages at par were given minimum of the pay scale with regular employees militated against along with other allowance admissible to the mandate embodied in the decision of the regular employees with effect from the Apex Court in Civil Appeal No. 3634 1.10.2001 and that this order was given of 1995 State of U.P. v. Putti Lal and by effect to in respect of all the muster roll an incompetent authority. employees on the rolls of Jal Nigam since long. It was further submitted that the 3. The factual matrix of the present impugned order has the effect of affecting case in writ petition no. 15617 of 2003 is their salaries and as a consequence thereof that the petitioner entered the service on their status and livelihood have also come 1.4.1989 as Runner/Chaukidar and in the to suffer and without opportunity of course of time, he represented to the hearing on such order could be passed. It authorities on several dates seeking was also can vassed that the impugned regularisation of his service in one of the order has its foundation in three grounds – vacant posts in the department. (1) The judgment of Apex Court in State Ultimately, certain employees invoked the of U.P. versus Putti Lal1 by which Apex extra ordinary jurisdiction of this Court in Court has held that before regularization Lucknow Bench and pursuant to the no employee could be given minimum directions issued by the Lucknow Bench pay scale and as such the order dated of this Court, minimum of pay scale to all 12.10.2001 was contrary to the terms of muster roll employees was granted vide the Judgement of Apex Court (2) it has memorandum dated 12.10.2001. not been issued with prior approval of the Subsequently, on the basis of decision of State and the competent authority and (3) the Apex Court in Putti Lal, the order dated 12.10.2001 has not been aforestated office memorandum was issued in accordance with law and rescinded and the muster roll employees submitted that none of the grounds cited were relegated to status quo ante. It is in in the impugned order were potent enough this back ground that the petitioner has to warrant cancellation of earlier office preferred the instant petition for relief of order inasmuch as in State of U.P. versus h mandamus.

t 1 (2002) 2 UPLBEC 1595 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 728 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Putti Lal (supra) the Apex Court had final. He further contended that under the directed to pay minimum of the pay scale policy of the State of Uttar Pradesh, U.P. to the employees who are working for a Jal Nigam framed a scheme to regularise long time and are discharging similar its work charge employees who had functions as regular employees and completed the span of five years of further that the direction given by the service in unbroken continuity in .U.P. Jal office order dated 12.10.2001 to pay Nigam on 1.4.1985. The State allowance in addition to the minimum of government accepted this scheme and the pay scale received reinforcement from 2163 posts were further created. various other decisions of the Apex Court. Subsequently, on 3.12.1988 2500 posts It was lastly convassed that in order to created to regularise services of daily effectuate the order dated 12.10.2001 the wage/work charge employees who had competent authority had sanctioned completed five years of service in Jal various funds which was released by the Nigam and the Board in the meeting dated Government and it has no grounding in 18.11.1989 created 5918 posts for the fact to say that the order had not regularization of daily wage/ muster roll/ received approbation of the competent work charge employees. Thus, total authority or the State government and as 10,581 posts were created by the U.P. Jal such the order dated 12.10.2001 lacked in Nigam for regularization of daily validity and the impugned order is vitiated wage/muster roll/work charge employees in law. who have completed five years of service until 31.3.1989. 9642 muster roll/work 5. In reply to the same Sri A.K. charge employees service were Misra, learned counsel for opposite regularized. Subsequently those persons Parties relying upon counter affidavits were also allowed revised pay scale filed in some of the writ petitions subject to the condition that they fulfill including writ petition no. 47316 of 2002 requisite qualification. It has been pointed contended that the Jal Nigam was out that matter is still sub judice. He established by the State of Uttar Pradesh further contended that the provisions of under section 3 of the U.P. Water supply notification dated 21.12.2001 providing and Sewerage Act, 1975 (hereinafter regularization cannot be called in aid for referred to as the Act). It was further applicability to U.P. Jal Nigam as this contended that sections 8 and 89 of the Regularisation Rule is intended for Act envisaged that the Nigam may application to the daily wages employees appoint such employees as it may of the State Government and not the daily consider necessary provided the wage employees of U.P. Jal Nigam. The appointment of such employees shall learned counsel further canvassed that the specify their terms and conditions decision in State of U.P. versus Putti Lal determined with the approval of the State (supra) relates to the workers of Forest government as a matter of policy and in department and orders passed relating to case if any question arises whether any the Forest department cannot be imported matter is or is not a matter as respects for application on the ground of parity which the State government may issue a with the employees of U.P. Jal Nigam h directions under sub section (1) the which is a separate and district entity t decision of the State government shall be different from the State government. He tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others 729

draw a distinction stating that petitioners time for regularization of the work have been harnessed to work on particular charge/muster roll employees out of projects run under U.P. Jal Nigam in the which only 9642 have been regularized work charge establishment and since and they are being paid regular pay scales. wages are paid from the funds allocated Certain posts out of the posts created are for a particular project, it cannot be still vacant with the department. From the assumed that the work of work charge perusal of the counter affidavit it is employee employed for a particular manifestly clear that U.P. Jal Nigam was project is of permanent nature and brought into being to resolve problem of consequently by reason of being a muter drinking water in small townships below roll employee, they are not entitled to get 2000 population under the 8th five year salary at part with the regular employee of plan while the urban water supply the Jal Nigam. Since some of the works schemes are financed by the State and allotted to the petitioners, proceeds the Central Government. It brooks no dispute submission, include installation of the that Ganga Action Plan –I and Ganga hand pump, management of drinking Action Plan- II are also run by U.P. Jal water in the pilot districts of U.P. from the Nigam and these schemes are perpetual U.P. Jal Nigam has now been assigned to and permanent in nature. Similarly rural the U.P. Gramin Paye Jal Mission (Jal drinking water scheme and human Nidhi) constituted by the State resource development area also being run government. Similarly by government by the U.P. Jal Nigam. All these schemes order dated 5.1.2002 work of water are of permanent nature. supply and sanitation mission has been taken over from Jal Nigam and has been 7. In view of the contention of the entrusted to Swajal Pariyojana learned counsel that drinking water has Prabandhan Unit, U.P.. Theatre and work come to the recognised as fundamental of installation of hand pumps in all the 70 right and further that burgeoning crisis of districts of Uttar Pradesh was pollution has added wide dimension to the decentralized and entrusted to Gramin cumbersome task of providing potable Panchayats of the State and 10% work of water in the State of U.P., the work of the installation of hand pumps under the Jal Nigam is not likely to decrease but Government order dated 7.1.2002 has would rather increase manifold. It is in the been entrusted to U.P. State Agro contest of the above contention that I feel Industrial State Corporation. It is in the called to examine the question of regular back drop of the above submissions appointment of the adhoc employees learned counsel for opposite Parties languishing in a state of uncertainty for propounded that the petitioners are not years together. In A.P. Pollution Control entitled to be regularized. Board II v. Prof. M.V. Nayudu (Retd.) and others2, the Apex Court held that the 6. I have scanned the submissions right to access to drinking water is made across the bar in all its pros and fundamental to life and there is a duty on cons. From the facts stated above it is the state under Article 21 to provide clean clear that according to stand taken in the drinking water to its citizens. In Subhas h counter affidavit of the U.P. Jal Nigam 10,581 posts were created from time to t 2 (2001) 2 SCC 62 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 730 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Kumar vs. State of Bihar3, the relevant drinking water to the urban population or observation of the Apex Court was that rural population or formulated as a nodal the right to live is a fundamental right authority under the Ganga Action Plan-I under Article 21 of the Constitution and it or Ganga Action Plan-II, converge to one includes the right of enjoyment of common object of accomplishing the goal pollution free water and air for full of providing clean drinking water to the enjoyment of life. In the prevailing people of Uttar Pradesh. The argument of situation, clean and pure drinking water Sri A.K. Misra, learned counsel for qua the depleting resources and opposite Parties that the work and the proliferation of population growth has schemes run by the U.P. Jal Nigam are attained the dimension of a challenge and not of permanent nature, in my considered the State too is striving hard and has view does not commend itself for spared no efforts to fling its all resources acceptance in the perspective of facts in providing clean and pure drinking stated supra. In fact the work of the U.P. water. The contention of the learned Jal Nigam is, by all reckoning of counsel carries some substance that with permanent nature and with burgeoning depleting resources the resolution of population and expanding need of the water problem cannot be measured in humanity, it is not difficult to visualize terms of months or years and it should be that U.P. Jal Nigam is not going to fall taken to be a perennial and continuing short of work/projects and schemes would process with proiferation of population be available in planty to meet the future growth. With pure and clean water being needs of the population with crisis of declared as fundamental right, the State is acute water shortage depending with each called upon to strain more and more its passing year qua the depleting resources existing resources to the fullest and in the and in the circumstances having regard as circumstances it would be day dreaming fundamental right, U.P. Jal Nigam is to expect that the State would not need the under a duty to grapple with the services of the existing employees and prospective need of the people of the that they would be surplus with coming to State of U.P. for provision of clean an end the existing project. Therefore, the drinking water. plea of the U.P. Jal Nigam that the Jal Niam assigns different projects a limited 9. The order of 12.10.2001 passed life and duration and limited work and by the Chief Engineer (Personnel), U.P. that the appointments are made project Jal Nigam providing minimum of the pay wise and to endura for the period the scale and other allowances to petitioners concerned project subsists, is illusory and who according to the averments made in does not commend to me for acceptance. the petitions are languishing in precarious existence for more than ten years, was 8. It admits of no doubt that the U.P. rescinded in view of the ratiocination Jal Nigam was established to carry out the flowing from the judgement in State of scheme to provide clean drinking water to U.P. vs. Putti Lal (supra) as well as on the people residing in Uttar Pradesh. All the premises that it was not given such schemes whether it is to provide approbation by the competent authority h and the State of Uttar Pradesh. Learned counsel for petitioners placed evidence on t 3 AIR 1991 SC 420 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others 731

the judgement in State of U.P. versus a single shall can be parted with in favour Putti Lal (supra) in which Apex Court has of any person. Moreover, opposite Parties provided minimum of the pay scale to the have not dwelt upon this aspect in the employees of the Forest department. The counter affidavit as to who is the ground for cancellation of the order dated competent authority in the U.P. Jal Nigam 12.10.2001 that in view of the judgment and how the payments were made in of Apex Court petitioners are not entitled compliance of the order of Chief Engineer to get minimum pay scale does not (Personnel) in the event of absence of survive. The other reason given in the approval from the State Government. It impugned order that it was not sanctified would be pre-emptive of the duties of the by approval of the competent authority Court to wander off into this aspects and and the State of Uttar Pradesh also has no it is for the authority of the Nigam to grounding in the fact having regard to the consider and decide the same. fact that the order dated 12.8.2001 was levied in implementation and each and 10. The second aspect which is very every muster roll employee working in relevant for the purposes of the present the establishment since long was paid case is that all the petitioners have put in minimum of the pay scale equivalent to more than ten years and they have the regular employees who are actually worked in unbroken continuity. discharging similar functions. More Sri A.K. Misra, learned counsel for passing bald order by the Chief Engineer opposite Parties, has admitted before this (Personnal) of U.P. Jal Nigam will not Court that all these persons are actually vivify the contention and put life into the working and they have not been declared order. It is not disputed that the payment surplus. As held supra, the work of U.P. has to be made by the State government Jal Nigam is of permanent nature and its and by this reckoning, it will not be statutory function is to provide clean difficult to visualise the paper must have drinking water to the citizens of Uttar been set in motion for go ahead by the Pradesh through various projects in the competent authority to the State Urban as well as in rural areas. It is also government and after necessary sanction apparent from the counter affidavit that given by the competent authority and since 1985 up to now the U.P. Jal Nigam approbation accorded by the State has framed a number of schemes for government the payment could possibly regularization of the muster roll work be made. It admits of no doubt that the charge employees, which were petitioners must not have been paid subsequently approved by the State minimum of the pay scale merely on the government. It is also apparent and point of the order passed by the Chief admitted in this counter affidavit that Engineer (Personnel). The opposite 10581 posts were already created out of Parties have not brought any document to which more than 939 posts are still vacant show as to how the actual payments came and the criteria for regularization in U.P. to be made. In my view this being a Zal Nigam under various schemes since matter involving finances, unless the very beginning is continuous services for approval comes from the competent five years. In this perspective U.P. Jal h authority of U.P. Jal Nigam studded with Nigam is enjoined to frame a fresh t approbation of the State Government, nor scheme and create remaining posts tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 732 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

according to their requirements with were entitled to salary and allowances at approval of the State Government to par with regularly appointed clerks in the regularize those persons who are working department. While setting aside the for more than five years approved by the judgment of the High Court the Apex State Government. In the perspective of Court directed as under : the facts (supra) it is quite clear that the U.P. Jal Nigam under a policy has in the “The direction issued by the High post framed schemes duly approbated by Court in favour of the respondents the State of U.P. for regularization of entitling them to get the salary and those employees who had put in five allowances as regularly appointed years of services and by this reckoning, employees is set aside and instead. It is the argument of Sri A.K. Misra that putti directed that the respondents will be lal’s case which relates to regularization entitled to get the minimum of the pay rules of the State Government is not scale available to the Ledger intended for application to the daily keepers/ledger clerks with permissible wage/muster roll employees of the Jal allowances on that basis and the Nigam does commend to me for difference between the emoluments acceptance. In the circumstances, already paid to each of the respondents direction is rendered necessary that the and those payable to them pursuant to the U.P. Jal Nigam may take requisite steps present order will be payable to the for framing of fresh scheme consistent respondents for a period of three years with its post policy for regularization of prior to the filling of the writ petition and those muster roll /daily wage employees thereafter minimum salary in the time who had completed five years or more scale of ledger keepers/ledger clerks with service in the department. appropriate allowances thereon shall be available to the respondents so long they 11. So far as minimum of the pay work as daily wage ledger keepers/ledger scale is concerned, the Apex Court in both keepers. the cases cited across the bar held the consistent view that daily wage 12. At this stage, this Court takes employees working since long and notice of the decision rendered by the discharging same work at par with Apex Court in Chandra Shekhar Azad regularly appointed employees are University Agra. & Tech. V. Dainik entitled to minimum of the pay scale. The Wetan Bhogi Karamchari Sang and question posed before this court is others5. The decision of the Apex Court is whether in the light of various decisions excerpted below : of the Apex Court, the petitioners are entitled to other allowances as well or not. “In view of the limited notice that In State of Punjab and others v. Devinder had been issued in this case, the question Singh and others4 the Apex Court was for our consideration is whether a daily seized of the case of daily wage ledger wager, on being directed to be paid at the keepers/Ledger clerks on the question whether those daily wage Ledger clerks h 5 Special Leave to Appeal (Civil) No. 14326 t 4 (1998) 9 SCC 595 of 2001 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Ram Dulare Shukla V. The Managing Director, Jal Nigam, Lucknow and others 733

minimum off the scale of pay would also as well as allowances and that cannot be be entitled to the dearness allowances. reduced without giving opportunity of The judgement of this Court in hearing. It is settled in law that salary Dhirendra Chamoli v. State of U.P. cannot be reduced without giving (1996) SCC 637, Surendra Singh v. opportunity of hearing. Reference in the Engineer-in-Chief (1996) 1 SCC 039, context of proposition may be made to a UPIT Deptt Contingent Paid Staff decision of this Court in Mohan Singh v. Welfare Asso. V. Union of India (1987) Chandrika Bari6. It was a case in which supp SCC 668 and Daily Rated Casual state government as well as Inspector Labour v. Union of India (1988) 1 SCC General of Police interpreted R. 22 and R. 1221 support the contention that dearness 30 of the Fundamental Rules in allowances should also be payable to a petitioner’s favour and fixed their salary daily wager. in the next higher stage and the petitioners Mr. Pramod Swarup, learned counsel continued to draw the same for a appearing for the University, however, considerable period of time. The relevant says that while granting relief of dearness observation of the Division Bench as allowances, the financial burden on the contained in para 9 of the said decision is State should also be looked into and in excerpted below : support of the case, he placed reliance on the decision of this Court in State of “…..It was, therefore, not open to the Haryana v. Jasmer Singh (1996) 11 SCC State Government to recover the amount 77) and Daily R.C. Labour, P & T Deptt. paid to the petitioners merely because V. Union of India (AIR 1987 SC 2342). some different view was possible on the Having examined the aforesaid decisions interpretation of the Rules. It is well relied upon by the learned counsel we are settled principle that wages paid to an of the view that these decisions are of no employee by an employer voluntarily in application to the point in issue. bona fide manner with out there being any We, therefore, see no infirmity with element of fraud or misrepresentation, can the judgement requiring our interference not be recovered from the employee under Article 136 of the Constitution of subsequently merely on the ground that India. The Special Leave petitions some mistake of interpretation of rules accordingly stand dismissed. might have been committed by the employer for which the employee could 13. Learned counsel for petitioners not be held responsible….” further urged that since the order passed by the Chief Engineer (Personnel) was 14. The question posed on the court given effect to by the impugned order now is whether any recovery could be without affording opportunity of hearing made in case payment was made bona to petitioners, any alternation in the salary fide by the authority concerned ? It is would amount to reduction of salary and crystal clear that the order is not traceable further no recovery could be made from for its basis to any misrepresentation or the petitioners for any money already paid fraud or that any fraud was practiced by as wages on the basis of the impugned the petitioners. As a matter of fact, the h order as petitioners have been paid salary which includes minimum of the pay scale t 6 1979 All.L.J. 1184 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 734 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

petitioners have no art or part to play nor till all the persons entitled under the is it borne out from the record that the scheme mentioned above, are order has its genesis in the considered for regularisation. misrepresentation or fraud of the parties. Besides, the law is very clear that no (4) In view of the assertions that all the recovery could be made from the petitioners are discharging functions petitioners unless any misrepresentation at par with similarly situated regular or fraud is borne out from the record (see employees, the authorities shall go JT 1995 (1) SC 24, 1979, ALJ 184 (DB) into the matter and shall pay and 1996 AWC 94). minimum of the pay scale plus dearness allowances pending 15. As a result of foregoing regularisation . They shall not be paid discussions, Impugned order dated any other allowances. 22.8.2002 is quashed and the writ petitions are allowed studed with the (5) There shall be no order as to costs. following directions. ------ORIGINAL JURISDICTION (1) The U.P. Jal Nigam shall frame CIVIL SIDE requisite ;scheme consistent with its DATED: ALLAHABAD 04.08.2003 policy as done in the past, for BEFORE regularisation of Daily wage/muster THE HON'BLE RAKESH TIWARI, J. roll work charge employee who have already completed five years of Civil Misc. Writ Petition No.12643 of 1998 service in the department for regularisation . For this purpose, they Amar Babu Srivastava …Petitioner will also create additional posts in Versus addition to the 939 vacant posts State of U.P. and others …Respondents created earlier according to their requirements and submit such scheme Counsel for the Petitioner: within two months. The State Sri I.N. Singh Government shall pass appropriate Sri Ajay Yadav orders in accordance with law and Sri Siddharath communicate its decision within two Sri Narendra Mohan

months from the date of receipt of Counsel for the Respondents: scheme from the Jal Nigam. S.C.

(2) No recovery of any amount paid as Service law-Salary-Junior Division Clerk, salary under the orders of the Opp. N.C.C. at Allahabad-Transferred order of Parties shall be made from the Transfer dt. 22.5.1987 not served on petitioners. In view of what has been Petitioner-could not joined as observed above in the body of this Transferred post-admittedly petitioner judgment. presented himself on 3.6.1988 for joining at Mirzapur-Since then entitled for salary with all consequential benefits h (3) No fresh appointment shall be made not for period 27.5.1987 to 27.10.1997. t in U.P. Jal Nigam in class 4 category tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Amar Babu Srivastva V. State of U.P.and others 735

Held- Para 9 The order of this Court passed in Writ Petition No.10824 of 1987 is as under:- The facts narrated above, show that the “Heard Sri S.K.Garg, learned counsel petitioner was not at fault that the order of transfer dated 22.5.1987 was not for petitioner and learned Standing served on him and as such he did not Counsel. join the transferred post of posting at Petitioner has challenged the Mirzapur. It is not denied that the impugned order of transfer Annexure-1 to petitioner was present himself on the petition by which he was transferred 3.6.1988 for joining at Mirzapur, since from Allahabad to Mirzapur. then he was entitled for the salary and all consequential benefits because he Petitioner is a Junior Division Clerk was not permitted to work and as such in NCC, which is transferable post, and his salary for the period 27.5.1987 to hence this court cannot interfere in the 27.10.1997 cannot be withheld. transfer matter because transfer is an exigency of Government. However, I am (Delivered by Hon’ble Rakesh Tiwari, J.) informed that the petitioner is not being permitted to join either at Mirzapur or at 1. Heard the counsel for the parties Allahabad. I direct the authorities and perused the record. concerned to give the petitioner a posting within a month of production of a By means of this writ petition, the certified copy of this order before him. petitioner has challenged the order-dated Petition is finally disposed of. 30.3.1998 by which his salary for the Sd/-M.Katju,J. period 27.5.1987 to 27.10.1997 has been 24.4.1997.” withheld. 4. In pursuance of the aforesaid 2. The case of the petitioner is that order, the petitioner submitted he was working as Junior Division Clerk, representations before the respondents on N.C.C. Allahabad and subsequently he 3.10.1991at Allahabad as well as was made permanent. By the order-dated Mirzapur i.e. the place where he was 22.5.87 he was transferred from transferred, but there he was not permitted Allahabad to Mirzapur, but the transfer to join on the ground that his case is order was not served upon him. pending in the Court. Thereafter, the transfer order was published in the Newspaper “Amrit 5. Aggrieved, the petitioner wrote to Prabhat” on 31.5.87, which was various authorities vide letters dated challenged by means of Writ Petition 12.3.1989, 3.10.1991, 3.7.1993, 16.1.1995 No.10824 of 1987. The order of transfer and 8.4.1997 praying that he may be was stayed by an interim order dated permitted to join at either of the places i.e. 24.6.1987. at Allahabad or at Mirzapur. Copies of letters are annexed as Annexure-5 to 3. The petitioner thereafter served Annexure-9 to the writ petition. the certified copy of the interim order on the respondent on 26.6.1987, but he was 6. By the order-dated 24.4.1997 this h not permitted to join at Allahabad. Court had directed the authority t concerned to permit the petitioner to join tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 736 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

either at Allahabad or at Mirzapur within alleged that the petitioner made a request one month from the date of the order. The to permit him to join duty either at petitioner served the aforesaid order dated Allahabad or at Mirzapur. 24.4.1997 upon the respondents on 26.4.1997, but no action was taken, hence 9. The facts narrated above, show he filed contempt application no.2201 of that the petitioner was not at fault that the 1997. After issuance of the notices in the order of transfer dated 22.5.1987 was not contempt petition, the petitioner was served on him and as such he did not join directed to join his duties at Mirzapur the transferred post of posting at vide order dated 22.10.1997, Annexure- Mirzapur. It is not denied that the 11 to the writ petition. In pursuance petitioner was present himself on thereof the petitioner joined at Mirzapur 3.6.1988 for joining at Mirzapur, since on 28.10.1997, but the respondents were then he was entitled for the salary and all not paying his salary. He approached this consequential benefits because he was not Court by means of Writ Petition No.2673 permitted to work and as such his salary of 1998, wherein this Court directed the for the period 27.5.1987 to 27.10.1997 respondents to pay current salary to the cannot be withheld. petitioner vide order dated 27.1.1998. In so far as the past salary is concerned, the 10. It appears that the respondents respondents were directed to take decision are habitual of not complying the order of within a period of 45 days, but they have this Court only after contempt neither paid the current salary nor the past proceedings are initiated against them. salary to the petitioner. Aggrieved the petitioner filed Contempt Application 11. For the reasons stated above, the No.638 of 1998. writ petition is allowed with costs assessed at Rs.1000/- directing the 7. In the aforesaid contempt respondents to make payment of the past application, notices were issued to the salary for the period 27.5.1987 to respondents by this Court. After receipt of 27.10.1997 with 10% compound interest notices, they have paid the salary to the with half yearly rest, to the petitioner petitioner on 28.2.1998 for the period within two months from the date of 28.10-.1997 to 31.12.1997 and was production of a certified copy of the directed the petitioner to submit his order. In case respondents 2,3 and 4 fail to representation for payment of his past make payment to the petitioner within the salary. In compliance of the order, the allowed by this Court, an adverse entry be petitioner made a detailed representation recorded in their service books. requesting the authority for payment of ------his past salary. The representation was also rejected by order-dated 30.3.1998, which is impugned in the writ petition.

8. The counsel for the respondents submits that the respondents have not h denied the allegation contained in Para 5 t of the writ petition, wherein it has been tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Jai Karan Singh V. Principal, Sri Singheshwari Inter college and others 737

ORIGINAL JURISDICTION the enquiry was not fixed and the CIVIL SIDE opportunity of hearing was not properly DATED: ALLAHABAD 01.08.2003 afforded to him, therefore, the termination order and the approval of BEFORE the termination by the District Inspector THE HON'BLE R.B. MISRA, J. of Schools is not legally sustainable.

Civil Misc. Writ Petition No. 23333 of 1990 (Delivered by Hon'ble R. B. Misra, J.)

Jai Karan Singh …Petitioner 1. Heard Sri D. K. Srivastava, Versus learned Counsel for the petitioner and Sri Principal, Sri Singheshwari Inter College, S.S. Sharma, learned Standing Counsel and others …Respondents for the State respondent.

Counsel for the Petitioner: 2. In this petition the order dated Sri D.K. Srivastava 1.6.1990 dismissing the service of the

petitioner by the Principal, Sri Counsel for the Respondents: Sri S.S. Sharma Singheshwari Inter College, Tetri Bazar, S.C. Siddharthanagar has been challenged.

U.P. Intermediate Education Act, 1921- 3. Petitioner was given a charge Regulations 35 and 36- Natural Justice- sheet for unauthorized absence and for Dismissal from Service for misconduct of coming late several days and for dereliction of duty, disobedience, irregularities and disobedience. The insubordination and indiscipline- principal of the college served a notice to Reinstatement on written apologies-No improvement-Termination of Service- the petitioner and after obtaining his Admittedly no enquiry as per Regulation explanation the dismissal order dated 35 was conducted-No Inquiry Officer 1.6.1990 was passed. According to the appointed-charge sheet and evidences petitioner his services were if at all could relied upon with supporting documents only be terminated on the basis of was not served not allowed to adduce disciplinary enquiry conducting under evidences and cross examine witnesses- No date, time and place of enquiry fixed- Regulation 35 of Chapter III of the U.P. No proper opportunity of hearing Intermediate Education Act, 1921 (in afforded -Order of Termination as well as short called 'Act'), which was brought on approval by D.I.O.S. set aside. 10.3.1975 by notification No. 7/562-V-8 dated 10.3.1975, according to which for Held-Para 7 the serious complaints and allegations the Principal of the college was to appoint a However, the enquiry in accordance to senior most teacher as an Inquiry Officer. the Regulation 35 and 36 of the 'Act' was not properly conducted, no Inquiry Regulation 35 of 'Act' reads as below: - Officer namely senior most teacher was "35. On receipt of adverse report appointed and the charge sheet and regarding complaint or charges of serious evidences relied upon with supporting nature, the Committee shall appoint the documents was not served and the Principal or Headmaster as Enquiry h petitioner was not allowed to adduce the Officer in respect of teachers and other evidences and to cross-examine the t witnesses. The date, time and place of employees (or Manager himself would tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 738 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

enquire into if he has been delegated with punishment to be imposed on the the rights under the rules by Committee) employee. and in case of Principal or Head Master a (2) Clause (1) shall not apply where the small sub-committee be appointed which person concerned has absconded, or will have instructions to present the report where it is for other reasons impracticable as soon as possible. to communicate with him. In respect of Fourth class employees (3) All or any of the provisions of clause Principal/Headmaster may appoint a (1) may for sufficient reasons to be senior teacher as Enquiry Officer." recorded in writing be waived where there is difficulty in observing exactly the Regulation 36 of 'Act' reads as below: - requirements thereof and those requirements can in the opinion of the "36. (1) The grounds on which it is inquiring authority be waived without proposed to take action shall be reduced injustice to the person charged." in the form of a definite charge or charges which shall be communicated to the 4. According to the petitioner a employee charged and which shall be so proper enquiry by a duly appointed clear and precise as to give sufficient Inquiry Officer in reference to the indication to the charged employee of the regulation 35 of the 'Act' was to be made facts and circumstances against him. He in consonance to the principle of natural shall be required within three weeks of justice. Here, the petitioner was charge the receipt of the charge-sheet to put in a sheeted by the principal of the said written statement of his defence and to college himself and the enquiry was made state whether he desired to be heard in by himself as an interested party and after person. If he or the inquiring authority so obtaining the explanation the principal desires, an oral enquiry shall be held in himself has passed the dismissal order respect of such of the allegations as are against the petitioner without affording not admitted. At that enquiry such oral him opportunity of hearing, therefore, the evidence will be heard as that inquiring dismissal order is not legally sustainable. authority considers necessary. The person charged shall be entitled to cross-examine 5. The counter affidavit reveals that the witnesses, to give evidence in person, the petitioner was suspended on and to have such witnesses called as he 29.4.1983 and a charge sheet dated may wish; provided that the enquiring 26.7.1983 was served to him on 28.7.1983 authority conducting the enquiry may for in respect of disobedience, indiscipline sufficient reasons to be recorded in and for dereliction of duty. The petitioner writing, refuse to call a witness. The tendered an unconditional apology with proceedings shall contain a sufficient assurance to the principal by his letter record of the evidence and statement of dated 28.7.1983 (Annexure-C.A.5 to the the findings and the grounds thereof. The counter affidavit) that he shall not make inquiring authority conducting the enquiry any mistake in future, on such assurance may also, separately from these the suspension of the petitioner was proceedings, make his own revoked and he was reinstated and h recommendation regarding the deployed again in the said college. The t petitioner thereafter started committing tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Jai Karan Singh V. Principal, Sri Singheshwari Inter college and others 739

same mistakes including gross opportunity of hearing the service of the insubordination and disobedience, petitioner was rightly terminated. therefore, on 18.4.1984 the petitioner was again suspended and charge sheeted and 6. The endeavourance has been in response to that the petitioner tendered made on the part of the petitioner to his written apology dated 24.7.1984 controvert the contents of the counter (Annexure-C.A.7 to the counter affidavit) affidavit and to reiterate the averments of and a sympathy was shown keeping in the writ petition. view the written apology and assurance of the petitioner to improve himself and the 7. I have heard learned counsel for petitioner was again kept in service, the parties, I find that undisputedly the however, the petitioner did not improve petitioner was charge sheeted three times and had committed the same blunder of for dereliction of duty, disobedience, insubordination, indiscipline and insubordination and indiscipline and was dereliction of duty i.e. the misconduct as placed under suspension and keeping in had been committed by him as such he view the repeated written apologies of the was third time suspended on 20.11.1985 petitioner after showing sympathetic (Annexure-C.A.8 to the counter affidavit). consideration, the petitioner was re- Third time also a written apology dated instated and deployed three times, but in 23.1.1986 was tendered by the petitioner the last he did not show any improvement. and keeping in view his apology on However, the enquiry in accordance to the humanitarian consideration the petitioner Regulation 35 and 36 of the 'Act' was not was kept again in service. Despite his all properly conducted, no Inquiry Officer assurances and written apologies given namely senior most teacher was appointed three times the petitioner did not improve and the charge sheet and evidences relied himself and was indulged in same upon with supporting documents was not irregularities of disobedience, served and the petitioner was not allowed indiscipline, dereliction of duty and to adduce the evidences and to cross- insubordination, therefore, he was called examine the witnesses. The date, time and for explanation on 16.10.1989 and was place of the enquiry was not fixed and the suspended on 19.10.1989 and charge opportunity of hearing was not properly sheeted on 30.3.1990. No explanation was afforded to him, therefore, the termination submitted by the petitioner, despite order and the approval of the termination reminder letters given by the principal. by the District Inspector of Schools is not The petitioner submitted his explanation legally sustainable. Therefore, the dated 5.5.1990, which was not found termination order dated 1.6.1990 and the satisfactory, therefore, the Principal in approval thereof by the District Inspector order to afford opportunity of hearing of Schools are set aside. However, issued another letter dated 18.5.1990 to keeping in view the serious charges the petitioner and the petitioner's service against the petitioner the petitioner is not was terminated. According to the to be reinstated and the enquiry therefor respondent the principal was the has to be conducted under the provisions competent authority to terminate the of Regulation 35 and 36 of the 'Act' by the h petitioner, therefore, after affording him principal by appointing a senior most t teacher of the college as inquiry Officer, tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 740 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

who will give the same charge sheet to the ORIGINAL JURISDICTION petitioner with supporting documents and CIVIL SIDE evidences to be relied upon and the DATED: ALLAHABAD 13.08.2003 petitioner shall be under the obligation to receive the same and shall also be under BEFORE THE HON'BLE M. KATJU, J. obligation to know the date fixed to give THE HON'BLE R.S. TRIPATHI, J. explanation, and avail the opportunity of rendering documents and evidences and Civil Misc. Writ Petition No. 28946 of 2003 to cross examine the witnesses. Therefore, the proper date, time and place for Managing Director U.P. Co-Operative finalization of the enquiry shall be fixed Bank and another …Petitioners and after affording proper opportunity of Versus hearing the inquiry shall be concluded by Chairman, U.P. State Minorities Commission and others …Respondents the Inquiry Officer. The petitioner is

expected to cooperate in the inquiry and Counsel for the Petitioners: shall be in touch to the principal to know Sri B.P. Singh the dates and shall not take unnecessary S.C. adjournments and shall render all possible co-operations to finalize the enquiry. The Counsel for the Respondents: enquiry report submitted by the Inquiry Sri R.N. Singh Officer, shall be perused and shall be sent Sri C.M. Rai to the District Inspector and after approval Sri G.K. Singh of the same a proper order shall be passed Sri A.P. Sahi in respect of the petitioner within six S.C. months from the date of production of certified copy of this order to the principal Constitution of India Article 226-U.P. of the said college and to the District Commission for minorities Act 1994 Sec. Inspector of Schools. 9 (C)- power of Commission- Order pass attaching Bank Account-Whether the Commission has power to pass such In view of the above observations order? Held-'No' writ petition is disposed of. Commission are only recommendatory 8. Copy of this order be given free body-not empowered to pass such of cost to Sri S. S. Sharma, learned order/ Direction. Held- Para 4 Standing Counsel and on payment of Unfortunately, we find that these bodies usual charges to the learned counsel for are often going beyond their jurisdiction the petitioner within one week. by passing orders staying termination of ------service of some Government employee passing injunction orders or closing the accounts etc. which is not within their jurisdiction at all. These Commissions should act within their jurisdiction and not do as they release. Case law: h J.T. 1996 (10) S.C. 287 t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] M.D., Cooperative Bank & anr. V. Chairman, State Minorities Commission & others 741

(Delivered by Hon'ble M. Katju, J.) temporary or permanent. The powers of the Minorities Commission are mentioned 1. The Petitioner has challenged the in Section 9 of the U.P. Commission for impugned order dated 8.5.2003 Minorities Act, 1994. Section 9 (c) speaks (Annexure-17 to the petition) and the of the power to make recommendations summons dated 4.6.2003 (Annexure-18 to for the effective implementation of the petition). safeguards for the protection of the interest of the minorities by the Heard learned counsel for the parties. Government.

2. By the order dated 8.5.2003 the 6. There is no clause is Section 9 Chairman, U.P. State Minorities which permits the Minorities Commission Commission has directed the U.P. Co- to pass an order of the kind which has operative Bank, Bareilly to close the been passed in this case. We therefore disputed account. direct the Minorities Commission, Scheduled Caste Commission and 3. Learned counsel for the U.P. Backward Caste Commission that they Minorities Commission Sri G.K. Singh must confine themselves to their stated that the impugned order has been jurisdiction and not pass orders beyond withdrawn. Hence this petition has their jurisdiction. become infructuous. However, we with to clarify that the U.P. Minorities 7. Let the Registrar General of this Commission, Backward Caste Court send a copy of this order to the U.P. Commission and Scheduled castes Minorities Commission, U.P. Backward Commission are only recommendatory Caste Commission and U.P. Scheduled bodies and they can only make Caste and Scheduled Tribes Commission recommendations to the Government. forthwith. Petition disposed off. ------4. Unfortunately, we find that these ORIGINAL JURISDICTION bodies are often going beyond their CIVIL SIDE jurisdiction by passing orders staying DATED: ALLAHABAD 28.07.2003 termination of service of some BEFORE Government employee passing injunction THE HON’BLE M. KATJU, J. orders or closing the accounts etc. which THE HON’BLE R.S. TRIPATHI, J. is not within their jurisdiction at all. These Commissions should act within their Civil Misc. Writ Petition No. 12643 of 2000 jurisdiction and not do as they release. Himalay Ayurvedi Medical College and 5. In All Indian Overseas Bank another …Petitioner Scheduled Castes and Scheduled Tribes Versus The Chancellor and others…Respondents Employees Welfare Association vs. Union of India, J.T. 1996 10 SC 287. The Counsel for the Petitioners: Supreme Court observed that the Sri T.P. Singh h Scheduled Caste Commission has no Sri Anupam Kumar t power of granting injunctions, whether Sri Niraj Tiwari tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 742 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Sri K.S. Kushwaha concerned authority and not by this Sri Shashi Nandan court in the matter of grant of affiliation. Sri Kirtika Singh Case law discussed: Sri P.S. Baghel 1991(3) SCC87; 1992 (4) Sec 401

Sri V.M. Zaidi (Delivered by Hon’ble M. Katju, J.)

Counsel for the Respondents: Sri Neeraj Tripathi 1. This is an application for Sri U.N. Sharma Review/Recall of our judgment dated S.C. 13.05.2003.

(A) Practice & Procedure Interim Order– 2. It has been stated in the passed by the Court–Comes to end application that the Court did not automatically when final judgment considered various submission of the passed–fact that SLP against such petitioner in the aforesaid judgment. We interim order dismissed–of no benefit to do not agree. petitioner. 1992 (4) Sec 401 relied upon. 3. It has been clearly stated in the Held-Para 5 aforesaid judgment dated 13.05.2003 that the petitioner was granted affiliation to The interim order dated 11.09.2002 the Kanpur University only from automatically came to an end when the 01.07.1996 to 30.06.1998. judgment dated 13.05.2003 was passed. Hence the petitioner cannot derive and any benefit from the fact that the SLP 4. It has been contended that an against the interim order was dismissed interim order was passed in this case on by the Supreme Court. 11.09.2002 that the students of the petitioner no. 1 shall be permitted to (B) Educational Institution Affiliation– appear in the examination and their result cannot be granted to every institution– each institution has to be considered will be declared. Against that interim separately by concerned authority. –High order an SLP has been dismissed by the Court cannot pressur of the said Supreme Court. authority. 5. In our opinion and appeal is a Held: paras 6 and 7. continuation of the original proceedings.

It is not for this Court to grant affiliation. The interim order dated 11.09.2002 The relevant authority under the U.P. automatically came to an end when the State Universities Act grant affiliation judgment dated 13.05.2003 was passed. and this Court cannot usurp the power of Hence the petitioner cannot derive and the said authority. any benefit from the fact that the SLP against the interim order was dismissed We have already mentioned in our judgment that merely because affiliation by the Supreme Court. was granted to other institutions, some with retrospective effect, this does not 6. It is not for this Court to grant mean affiliation should also be granted affiliation. The relevant authority under h to the petitioner Each. Institution has to the U.P. State Universities Act grant t be considered separately by the tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Himalaya Ayurvedic Medical College and another V. The Chancellor, and others 743

affiliation and this Court cannot usurp the institutions to appear at the examinations, power of the said authority. it would amount to encouraging and condoning the establishment of 7. We have already mentioned in our unauthorized institutions. The court judgment that merely because affiliation declared that the jurisdiction of this Court was granted to other institutions, some under Article32 or of the High Court with retrospective effect, this does not under Article 226 of the Constitution mean affiliation should also be granted to should not be frittered away for such a the petitioner Each. institution has to be purpose. In A.P.Christians Medical considered separately by the concerned Educational Society v. Government of authority and not by this court in the A.P. a similar request made of behalf of matter of grant of affiliation. the institution and the students for permitting them to appear at the 8. No Doubt we have held in examination even though affiliation had Committee of Management v. Chancellor not been granted, was rejected by this in Writ Petition No. (M/B) 5881 of 2002 Court. The Court observed that any decided on 11.11.2002 by the Lucknow direction of the nature sought for Bench of this Court that either permanent permitting the students to appear at the affiliation should be granted or the examination without the institution being application for affiliation should be affiliated or recognized would be in clear rejected, but grant of temporary or transgression of the provision of the Act provisional affiliation is not legal. This and the regulations. The court cannot be a however, does not improve the case of the party to direct the students to disobey the petitioner in any way. It is not for this statute as that would be destructive of the Court to grant affiliation, as that the rule of law. The Full Bench noted these function of the concerned authority under decisions and observations and yet it the Act. granted relief to the students on humanitarian grounds. Court cannot grant 9. It was entirely the petitioners’ relief to a party on humanitarian grounds fault that it admitted students or continued contrary to law. Since the students of them before 01.07.1996 and after unrecognized institutions were legally not 30.06.1998. In State of Tamil Nadu V. St. entitled to appear at the examination held Joseph Teachers Training Institute, 1991 by the Education Department of the (3) SCC 87 the Supreme Court observed government, the High Court acted in vide paragraph 6:- violation of law in granting permission to such students for appearing at the public “6. The practice of admitting examination. The directions issued by the students by unauthorized education Full Bench are destructive of the rule of institutions and then seeking permission law. Since the Division Bench issued the for permitting the students to appear at the impugned orders following the judgment examination has been looked with of the Full Bench, the impugned orders disfavour by this Court. In are not sustainable in law.” N.M.Nageshwaramma v. State of A.P. h this Court observed that if permission was 10. In Guru Nanak Dev University t granted to the students of an unrecognized v. Parminder Kr. Bansal and others 1992 tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 744 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

(4) SCC 401the Supreme Court APPELLATE JURISDICTION observed:- CRIMINAL SIDE DATED: ALLAHABAD 23.08.2003 “We are afraid that this kind of administration of interlocutory remedies, BEFORE THE HON’BLE M.C. JAIN, J. more guided by sympathy quite often THE HON’BLE M. CHOUDHARY, J. wholly misplaced, does no service to anyone. From the series of orders that Criminal Appeal No. 2464 of 1980 keep coming before us in academic matters, we find that loose, ill-conceived Gainda Alias Govardhan and Others sympathy masquerades as interlocutory …Appellants (In Jail) justice exposing judicial discretion to the Versus criticism of degenerating into private The State …Opposite Party benevolence. This is subversive of academic discipline, or whatever is left of Counsel for the Appellants: it, leading to serious impasse in academic Sri G.S. Chaturvedi life. Admissions cannot be ordered Sri R.S. Yadav without regard to the eligibility of the Sri P.C. Tewari candidates. Decisions on matters relevant Counsel for the Opposite Party: to be taken into account at the A.G.A. interlocutory stage cannot be deferred or decided later when serious complications Criminal Trail–Benefit of doubt–FIR might ensue from the interim order itself. antiedated-infirmities and incongruities In the present case, the High Court was in the prosecution" case and evidence– apparently moved by sympathy for the findings of the trail court based on candidates than by an accurate assessment incorrect reading of evidence and of even the prima facie legal position. grounds which are not tenable -not safe to hold accused appellants guilty of Such orders cannot be allowed to stand. charges leveled against them – appeal The court should not embarrass academic allowed –accused acquitted of charges authorities by themselves taking over leveled against them. their functions.” Held: Para 21 and 22 11. There is no force in this petitioner and it is rejected. In view of above infirmities and incongruities in the prosecution case and ------evidence, it would not be safe to hold any of the accused appellants guilty of the charge leveled against them, and they are entitled to benefit of doubt.

The appeal is allowed and the findings of conviction and sentence recorded against the accused appellants are hereby set aside. The accused are hereby acquitted of the charge leveled against h them. t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Gainda alias Goverdhan and others V. The State 745

(Delivered by Hon'ble M. Chaudhary, J.) there were bandits inside the house. In the meanwhile one of the bandits fired with 1. This is an appeal from the gun hitting Reoti Devi and sustaining the judgment and order dated 30th of October gunshot injuries she fell down. 1980 passed by II Additional sessions Immediately Virendra Kumar and his Judge, Aligarh in Sessions Trail No. 412 brother Suresh ran towards ‘abadi’ in the of 1977 State Vs. Genda alias Goverdhan village. On hearing the hue and cry many & others convicting the accused of the co-villagers namely Shyam Lal, appellants under Section 396 Indian Penal Suraj Singh, Lachchman Prasad, Chattar Code and sentencing each of them to Singh, Mahavir Prasad and Jwala Prasad undergo imprisonment for life there under rushed to the scene of occurrence. Sujan and accused Sheorab Singh and Fateh Singh set fire to the heap of ‘karab’ lying Singh under Section 25 of the Arms Act on the chabutra of Gram Panchayat which also and sentencing each of them to emanated sufficient light. Gopal and undergo one year’s rigorous Jwala Prasad holding licensed firearms imprisonment there under making both fired shots and the bandits also fired. In the sentences to run concurrently. the meanwhile some police personnel who were on patrol duty also reached 2. Co-accused Prahlad was not tried there and fired shots. After the rapine the along with Co-accused above named as he bandits ran away with the looted property. was reported having died. Other co- Somehow the co-villagers and the police accused who were tried along with the personnel caught hold of four of the accused above named were acquitted. bandits in the millet filed of Pyarey Lal situate nearby and the remaining 5-6 3. Relevant facts of the case giving succeeded in making their escape good. rise to this appeal necessary for disposal On being enquired four persons of the appeal are being recapitulated as apprehended told their names as Sheroab follows: During the night between 13th Singh, Fateh Singh, Prahlad and Suraj and 14th of September, 1976 Pyarey Lal Pal. Sheorab Singh was found in was sleeping in the ‘baithak’ of his house possession of a single barrel gun no. HIM at village Sokhna and his sons Virendra 05373 and five live cartridges, and Kumar and Suresh at the chabutra in Prahlad and Fateh Singh each in frond of his house and his sons Virendra possession of a countrymade pistol and Kumar and Suresh at the chabutra in front four live cartridges Suraj Pal was of his house and other family members in possessed of a lathi. Virendra Kumar separate apartments inside the house. At alongwith some of the co-villagers and about 11:00 p.m. some dacoits entered the the police personnel taking the four house and started plundering the goods. bandits apprehended and the arms and At that time two lanterns were lighted one ammunition recovered from them went to in the chappar of Pyarey Lal and the other the Police Station Hathras Kotwali situate in the Verandah of the house of Keshav at a distance of some four miles there adjoining thereto. As the bandits started from and lodged and FIR of the said ransacking the house Smt. Reoti Devi dacoity with the police (Ext ka 1) and also h aunt of Virendra Kumar came out of the handed over the four bandits apprehended t house and informed Virendra Kumar that tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 746 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

and the arms and ammunition recovered of dacoity inside the house and prepared from their possession to the police there. their memos (Exts ka 8 & ka 11). He also recorded statements of the witnesses and 4. The police registered a crime did other necessary things. against the four bandits apprehended and seven unknown under Section 395 read 8. Autopsy conducted on the dead with Section 397 IPC and against Sheorab body of Reoti Devi by Dr. S.K. Saxena, Singh and Fateh Singh under Section 25 Medical Officer M.S. Hospital Aligarh on of the Arms Act also (Ext Ka 3) HM 14th of September 1976 at about 4:00 p.m. Jayanti Prasad made entry in the general revealed multiple ante mortem gunshot diary regarding registration of the crime wounds. The doctor opined that the death (Ext ka 4). He also prepared memo of the was caused due to shock and hemorrhage arms and ammunition allegedly recovered as a result of ante mortem gunshot from the four bandits apprehended on the injuries sustained by her. (Ext Ka 21). spot and handed over to him by virendra Kumar at the police station (Ext Ka 2). 9. It appears that accused Genda @ Goverdhan was arrested by the police 5. It appears that injured Reoti Devi Stations Hathras Kotwali and Sansni on was rushed to Bagla Civil Hospital, 26th November 1976 and challaned under Hathras soon after the incident and she Section 399, 402 and 307 IPC and under died in the Hospital the same night at section 25 of the Arms Act (registered as about 3:40 a.m. ON receiving information Crime No. 00 of 1976) at Police Station at the police station regarding the death of Sasni. One being inquired by the police Reoti Devi in the Hospital the police Genda @ Goverdhan confessed that he altered the crime under Section 396 IPC participated in the said dacoity. Since the (Ext ka 5). involvement of accused Genda @ Goverdhan came to light he was made 6. Sub-inspector K.S. Dubey to ‘baparda’ soon after the arrest and taken whom investigation of the crime was to police station Sasni where he was kept entrusted went to Bagla Civil Hospital in the lockup. Accused Genda @ and drew inquest proceedings on the dead Goverdhan was lodged in District Jail, body of Reoti Devi and prepared the Aligarh in connection with the said inquest report (Ext ka 14) and other dacoity on 27th of December 1976. He necessary papers (Exts ka 15 & ka 16) was subjected to test identification and handed over the dead body in a sealed proceedings in connection with the said cover along with necessary papers to CP dacoity with murder on 10th January 1976. Ram Sewak and another for being taken IN all six witnesses were produced to for its postmortem. identify him as a participant in the said dacoity and he was identified as such by 7. Then the Investigating Officer four of them namely Virendra Kumar, visited the place of occurrence, inspected Hari Singh, Pyarey Lal and Jwala Prasad. the site and prepared its site plan map (Ext ka 27). He also collected ashes of 10. After completing the h “karab” burnt from the chabutra, investigation and obtaining necessary t inspected the lanterns lighted at the time sanction of the District Magistrate, tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Gainda alias Goverdhan and others V. The State 747

Aligarh to prosecute accused Sheorab entry regarding registration of the crime Singh, Fateh Singh and Prahlad under made by him. He also proved memo of Section 25 of the Arms Act the police the arms and ammunition allegedly submitted charge sheets against the recovered from the four bandits accused accordingly. apprehended on the spot and handed over to him by Virendra Kumar, the first 11. The accused pleaded not guilty informant. Pw4 constable Ram Sewak is denying the alleged occurrence altogether one of the two police officials to whom and stating that they had been got dead body of Reoti Devi in a sealed cover implicated in the case falsely on account along with necessary papers was handed of enmity and village party factions. over to be taken for its post mortem. PW7 Accused Genda @ Goverdhan denied his SI Harish Chand who drew inquest arrest as alleged by the prosecution stating proceedings on the dead body of Smt. that the police caught him from his house Reoti has proved the inquest papers. and took him to the police station and a PW10 Dr. S.K. Saxen who conducted false case was foisted against him He also autopsy on the dead body of Reoti Devi stated that the police took his photographs has proved the post mortem report. PW11 and the police station and he was also SI Om Prakash who alongwith the police shown to the witnesses there. Accused force arrested co-accused Netrapal on Sheroab Singh stated that accused Fateh 02.11.76 and accused Genda @ Singh happens to be his ‘saru’, that Fateh Goverdhan alongwith others on 26.11.76 Singh along with his brother Mathura has deposed thereabout. PW12 Radha Prasad and Suraj Pal had come to his Mohan, PW13 CP Khen Chand and house to attend the function of betrothal PW16 SI Ashfaq Ahmad are witnesses ceremony of his son, that the police went relating to idenfitication of looted articles to his house and nabbed them from there allegedly recovered from co-accused and took them to the police station. Netrapal. PW14 SI Kripa Shanker is the Accused Suraj Pal and Fateh Singh also investigating officer who investigated the stated likewise. Accused Suraj Pal also crime in main. PW15 Executive stated that he was possessed of his Magistrate C D Bhargava conducted licensed gun and the police also took his identification parade of co-accused Nathu gun. Ram and Devendra. PW17 Rishikesh Sharma, Reader of the court of Executive 12. In order to bring the charge Magistrate proved identification memo of home to the accused the prosecution the idenfitication parade held of accused examined Virendra Kumar (PW1), Pyarey appellant Genda @ Goverdhan PW 18 SI Lal (PW3), Sujan Singh (PW5) and Ram Saran had accompanied SI Om Lachhman Prasad (PW6) as eye witnesses Prakash (PW11) in the police force of the concurrence. Testimony of the arresting co-accused Netrapal. PW8 SI remaining witnesses excepting SI Om Prem Pal. PW9 SI Bengali Babu, PW19 prakash, the arresting office (PW11) and HC Amar Pal Singh and PW20 constable PW 18 SI Ram Saran who accompanied Biharilal are the witnesses of link him in the police force is more or less of evidence. h formal nature. PW2 SI Jayanti Prasad, the t then HM proved the check report and GD tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 748 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

13. The Accused examined Babu 16. Factum of the dacoity at the time Lal (DW1), Jitendra Singh (DW2) and and place as alleged by the prosecution is Dharmendra Swaroop (DW3) in their not disputed. It is also not disputed that defence. DW1 Babu Lal, the village Smt. Reoti Devi sustained grievous Pradhan stated that on hearing the due and injuries at the hands of the bandits in the cry he also reached the scene of said dacoity and succumbed to the injuries occurrence but by that time the bandits sustained the same night. The only had fled away after ransacking the house, question for consideration is if the that he did not see any of the bandits there accused appellants participated in the said and that he saw Reoti lying injured and dacoity and accused appellant Sheorab Keshav also having received injuries. Singh and Fateh Singh were apprehended DW2 Jitendra Singh, Pradhan of village on the spot and arms and ammunition Parsara stated that at about 3-4 a.m. the were recovered from their possession as alleged night the police came to his alleged by the prosecution. village and nabbed Sheorab Singh, Mathura Prasad, Fateh Singh and Suraj 17. Now taking up the case of Pal from the house of Sheorab Singh and accused Genda @ Goverdhan, his case took them alongwith the licensed gun of rests on the evidence of two identifying Suraj Pal to the police station. DW3 witnesses namely Virendra Kumar (PW1) Dharmendra Swarup, the then Arms and Pyarey Lal (PW3). PW1 Virendra Cleark district Etah state that Suraj Pal Kumar stated in his examination-in-chief was license holder of gun no. 05373 since that while he was standing along the the year 1964 till the time of the alleged banquette of ‘dodah’ standing around his occurrence. field he saw the bandits running away after ransacking the house in the moon 14. On an appraisal of the parties light and in the light of the fire ablaze. At evidence and after hearing the parties’ the time his statement was being recorded counsel learned Additional Session Judge he also laid hand on accused Gendra held accused Genda @ Goverdhan, standing in the dock stating that he had Sheorab Singh, Fateh Singh and Suraj Pal identified him as such in the identification guilty of the charge leveled against them parade held in the District Jail. But he and convicted them accordingly and could not withstand his cross-examination sentenced thereunder. as he stated in his cross-examination that the banquette of ‘dodah’ where he took Feeling aggrieved by the impugned shelter was at a distance of about 50-60 judgment and order the accused paces from the house of Sujan Singh. As appellants preferred this appeal for stated by PW1 Virendra Kumar house of redress. his uncle Sujan Singh is situate adjacently to his house. He also stated that the police 15. None appeared for the appellants personnel were standing at a distance of though represented on record by Shri G.S. some 60-70 paces from his house and at a Chaturvedi, Sri R.S. Yadav and Sri P.C. distance of about 10-15 paces from the Tewari Advocates. We heard the learned place where he alongwith some of the Co- h AGA. The appeal is being decided on villagers was standing. Hans Gross in his t merits. book ‘Criminal Investigation’ edited by tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Gainda alias Goverdhan and others V. The State 749

N.C. Adam, 5th Edition published in the 18. Taking the case of accused year 1962 at pages 159-160 observed that appellants Fateh Singh, Sheorab Singh if the eyesight is normal and the light is and Suraj Pal there is evidence of good, one is able in broad daylight to Virendra Kumar (PW1), Pyarey Lal recognize a person he has seen only once (PW3) Sujan Singh (PW5) and Lachhman from a distance of 16 yards. In the instant Prasad (PW6). Out of these four witnesses case the witness had seen the dacoits PW6 Lachhman Prasad has not supported running away from a distance of 50-60 the prosecution case against any of the paces (equal to 125 feet as one pace is accused appellants as he stated in his taken to be equal to two and a half feet) examination-in-chief that the alleged and hence could not be in a position to night when the bandits were running away mark the features of the dacoits so as to four of them were apprehended by some identify them at the identification parade of the co-villagers and the police held more than four months after the personnel and the bandits apprehended occurrence. Regarding testimony of PW 3 told their names as Sheorab Singh, Fateh Pyarey Lal admittedly he remained Singh, Prahlad and Suraj Pal; but he could confined in his ‘baithak’ through out the not identify and of them standing in the time his house was ran sacked he also dock. He stated that the four bandits admitted that his baithak in which he was apprehended and the arms and confined was bolted from outside by the ammunition recovered from them were bandits and that it was opened after handed over the police at the police departure of the bandits from the scene station; but the prosecution did not care to and it was thereafter that he went out of get his signatures proved on the memo of his house. He had no opportunity to see arms and ammunition allegedly recovered any of the bandits while they were from the four persons apprehended on the ransacking the house. He himself got spot prepared by the police at the police frightened as the shots were being fired station. However this witness Lachhman by the bandits and hence he could not Prasad stated in his cross-examination have seen the bandits and mark their that he did not remember if the sub- features from the window in the ‘baithak’ inspector obtained his signatures on any while they were running away so as to paper as witness. identify them in the identification proceedings held after four months of the 19. Now remains the testimony of dacoity. He further stated in his PW1 Virendra Kumar, PW3 Pyarey Lal deposition that he was about 64 years old and PW 5 Sujan Singh. PW1 Virendra and short sighted. In view of above state Kumar stated in his examination-in-chief of evidence the Court finds that the that four persons namely Sheorab Singh, learned Additional Sessions Judge failed Fateh Singh, Prahlad and Suraj Pal were to appreciate the evidence of the two apprehended while fleeing away after identifying witnesses in its true ransacking the house and a single barrel perspective and there is no justification to gun and five live cartridges were uphold the conviction of accused Genda recovered from the possession of Sheorab @ Goverdhan. Singh and one country made pistol and h four live cartridges from the possession of t each of accused Fateh Singh and Prahlad tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 750 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

and a lathi from the possession of Suraj allegedly recovered from the bandits Pal. However he identified Suraj Pal and apprehended. Sheorab Singh while standing in the dock correctly, but laid his hand on Mathura 20. Besides it there were some 9-10 Prasad takeing him to be Fateh Singh bandits in all as PW1 Virendra Kumar arrested on the spot. It appears that arms stated that while dacoits were fleeing and ammunition allegedly recovered from away after ransacking the house four were the four persons apprehended were not apprehended on the spot and 5-6 got proved by this witness Virendra succeeded in making their escape good; Kumar (PW1). PW3 Pyarey Lal stated but strangely enough no stolen article was that he was confined in his ‘baithak’ recovered from the possession of any of through out the time his house was the four bandits allegedly apprehended on ransacked as it was bolted from outside the spot. Forthermore, FIR of the dacoity by the bandits and it was after departure lodged at the police station appears to be of the bandits that the door was opened ante timed. Because PW3 Pyarey Lal at and it was thereafter that he went out of whose house the dacoity was committed his house and that he saw the bandits stated that soon after the dacoity he went apprehended near the field and by that to the police station to inform the police time the police personnel present there thereabout and he also told the Inspector had taken the arms and ammunition at the police station that Smt. Reoti Devi allegedly recovered from their possession had died in the Hospital, that thereafter he in their custody. He identified accused alongwith the inspector went to the Suraj Pal and Sheorab Singh correctly but village, that when they were going to the laid his hand on Mathura Prasad taking village Virendra Kumar met them on the him to be Fateh Singh. PW5 Sujan Singh way and that after seeing the dead body of identified accused Sheorab Singh, Fateh Reoti Devi Virendra Kumar went to the Singh and Suraj Pal in the dock but he police station. A perusal of the post stated in his cross-examination that he mortem report goes to show that Smt. was short sighted and could recognize a Reoti Devi died in the Hospital at about well known person in broad daylight from 3:40 a.m. It is true that the fact the Reoti a distance of 3-4 feet only. Hence it is Devi died in the Hospital does not find difficult to believe that he would have mention in the FIR; but the fact remains recognized the bandits allegedly that according PW1 Virendra Kumar he apprehended by the co-villagers on the had scribed the report after the dacoity in spot in the night hour and seen by him for the village itself. If Virendra Kumar went the first time so as to identify them more to the police station to hand over the than three and a half years after the written report of the dacoity after seeing dacoity as statement of this witness Sujan the dead body of his aunt Reoti Devi in Singh (PW5) was recorded on 27.3.80. He the Hospital apparently the FIR of the also stated that when the bandits were occurrence having been lodged at the apprehended by the police personnel he police station at about 1:30 a.m. becomes reached at that place subsequently and by ante timed. And if the FIR is shaken then that time the police personnel had taken the very basis of the prosecution case h possession of arms and ammunition stands knocked out. On this score also t authenticity of the prosecution case falls tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Krishna Sahkari Avas Samiti Ltd. V. District Magistrate, Bareilly and others 751

to the ground. Thus findings of the trail Counsel for the Respondents: court bases on incorrect reading of Sri Manish Goyal evidence and ground which are not Sri R.P. Goyal tenable cannot be upheld. S.C.

21. In view of above infirmities and U.P. Co-operative Societies Act, 1965, incongruities in the prosecution case and Section 65- Power to appoint receiver– under the Act only the Registrar evidence, it would not be safe to hold any Cooperative Societiy empowered to of the accused appellants guilty of the supersede-or-suspend the management charge leveled against them, and they are of society–District Magistrate can not entitled to benefit of doubt. interfere in any manner.

22. The appeal is allowed and the Held Para 9

findings of conviction and sentence In our opinion the District Magistrate can recorded against the accused appellants not be allowed to do anything he are hereby set aside. The accused are pleases. In a democracy the District hereby acquitted of the charge leveled Magistrate can exercise only such against them. They are on bail. Their bail powers as are granted to him by the law. bonds are hereby discharged. No power has been given to the District Magistrate under the Co-operative Societies Act to suspend or supersede a 23. Let a copy of this judgment society or to appoint a Receiver in alongwith record be sent to the lower respect of a society or to order an court incorporating necessary entry in the enquiry against the society or its relevant register and reporting compliance officials. within two months. ------(Delivered by Hon'ble M. Katju, J.) ORIGINAL JURISDICTION CIVIL SIDE Heard the learned counsel for the DATED: ALLAHABAD 14.08.2003 parties.

BEFORE 1. This writ petition has been filed THE HON’BLE M. KATJU, J. THE HON’BLE R.S. TRIPATHI, J. against the impugned orders of the respondents no. 1,2 and 3 mentioned in Civil Misc. Writ Petition No. 14362 of 2003 the letter dated 21.03.2003 (Annexure-1 to the Writ petition). Krishna Sahkari Avas Samiti Limited …Petitioner We have heard the learned counsel Versus for the parties. District Magistrate, Bareilly and others …Respondents 2. The Petitioner is a Housing

Cooperative Society registered under the Counsel for the Petitioner: U.P. Cooperative Societies Act Sri Triloki Nath (hereinafter referred to as the Act). As Sri K.N. Singh h stated in paragraph 8 of the writ petition, t the term of the elected Committee of tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 752 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Management of Society is till the year 6. Sri Manish Goel, the learned 2005. counsel for the respondent has submitted that under Section 3(2) of the Act the 3. It is alleged in paragraph 10 of the State Government by general or special writ petition that suddenly on 22.03.2003 order can confer on any person all or any a letter from the Additional City of the powers of the Registrar. He has Magistrate (II) Bareilly addressed to the invited our attention to the Notification Secretary of the society was received in dated 24.06.1969 published in U.P. the office of the society informing that Gazette, Part I dated 5th July, 1969. In that under the direction of the Minister of notification it is mentioned that the Cooperative Department, Government of Governor of U.P. has conferred the power U.P., the District magistrate, Bareilly has of the Registrar under the Act to be appointed the Additional City Magistrate exercised as follows: (II) Bareilly, respondent no. 2 as Receiver of the society and also the conduct an “An officer for the time being holding enquiry against the society on some the post of District Magistrate of a complaint made to him. True copy of the District shall exercise the powers of the letter dated 21.03.2003 is Annexure no. 1 Registrar under Section 70, 71 and 98 of to the writ petition. the Act in respect of the disputes relating to the Constitution of the Committee of We have seen the letter dated Management or election or appointment 21.03.2003 which has been challenged in of any office-bearer or a delegate of a Co- this writ petition. operative Society, other than an apex Co- operative Society, having headquarters 4. Sri Triloki Nath, the learned within the district.” counsel for the petitioner has submitted that the order date 21.03.2003 is wholly 7. Sri Goel has submitted that since illegal as the District Magistrate Bareilly the power under Section 98 of the Act has and Additional City Magistrate (II), also been conferred on the District Bareilly have no jurisdiction to pass such Magistrate hence in view of the Section an order appointing a Receiver for the 98(1)(e) of the Act, the District society and ordering for an enquiry. Magistrate can supersede the Committee of Management under Section 35 of the 5. Under Section 65 of the U.P. Act and can appoint an Administrator. Cooperative Societies Act, 1965, it is the Registrar of co-operative Societies or a In our opinion the submission of Sri person authorized by him on his behalf Goel is wholly misconceived. who can hold an enquiry Under Section 35 of the Act, the Registrar can supersede It may be mentioned that Section 3 or suspend the Committee of (2) of the Act states:- Management. Under Section 35 (3) of the Act, where the Registrar has superseded “The State Government may, for the the Committee of Management, he may purpose of this Act, also appoint other h appoint an Administrator. persons to assist the Registrar and by t general or special order confer on any tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Mehndi Hussain V. P.O., Central Industrial Tribunal cum Labour Court and another 753

such person all or any of the powers of dated 21.03.2003 is quashed, no order as the Registrar.” to cost. ------8. It may be noted that Section 3 (2) ORIGINAL JURISDICTION of the Act permits the conferment of any CIVIL SIDE power of the Registrar on any other DATED: ALLAHABAD 29.9.2003 person. Section 98 (1) of the Act does not BEFORE deal with the powers of the Registrar at THE HON'BLE RAKESH TIWARI, J. all. It is a provision for an appeal against the order of the Registrar. Hence the Civil Misc. Writ Petition No. 8317 of 1998 Notification dated 24.06.1969 relied on by Sri Manish Goel can only be relatable Mehndi Hussain …Petitioner to Section 98 (2) (b) of the Act which Versus state that if a decision or award was made Presiding Officer, Central Industrial by a person or authority other than the Tribunal-Cum-Labour Court, Kanpur and another …Respondents Registrar then an appeal against that decision will lie to the Registrar. In view Counsel for the Petitioner: of the Notification dated 24.06.1969 read Sri S.A. Gilani with Section 3 (2) of the Act, this will mean that an appeal will lie to the District Counsel for the Respondents: Magistrate against an order made by a Sri Vipin Sinha person or authority other than the Sri Navin Sinha Registrar, in view of the above S.C. notification. Hence we do not at all agree with the submission of Sri Goel, that the Constitution of India Article 226, Labour District Magistrate has power to & Service-backwages or compensation- supersede or suspend a society registered lies in discretion of Labour Court- under the Co-operative Societies Act or to interference under Article 226 not proper- appoint a Receiver or such society. Held- Para 8 9. In our opinion the District Magistrate can not be allowed to do In view of the admission of the anything he pleases. In a democracy the petitioner himself that he had in his District Magistrate can exercise only such own foolishness submitted a forged School leaving certificate no relief can be powers as are granted to him by the law. granted. The compensation of Rs. No power has been given to the District 10,000/- awarded to him on the basis of Magistrate under the Co-operative wages in 1972 is sufficient. The question Societies Act to suspend or supersede a of back wages or compensation lies in society or to appoint a Receiver in respect the discretion of Labour Court and this of a society or to order an enquiry against Court has no right to intefere as held by Supreme Court in case of M.P. State the society or its officials. Electricity Board Vs. Jarina Bee ( Smt.) (2003) 6 SCC-141. For the reasons given above, the writ Case law discussed: h petition is allowed the impugned order 2003 (6) SCC 141 t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 754 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

(Delivered by Hon’ble Rakesh Tiwari, J.) Government of India vide its order dated 28.5.1982 for adjudication to the Central 1. Heard counsel for the parties and Government Industrial Tribunal-Cum- perused the record. Labour Court, Kanpur where it was registered as Adjudication Case No. 170 This writ petition has been filed of 1984. The Tribunal vide its award challenging the validity and correctness of dated 22.11.1984 upheld the termination the award dated 17.3.1997 passed by the of the workman. The said award was Presiding Officer, Central Government challenged by the workman by means of Industrial Tribunal-Cum-Labour Court, writ petition no. 1493 of 1985 which was Kanpur Nagar in Industrial Dispute No. finally decided vide judgment dated 2nd 170 of 1984 (hereinafter called as May 1994. The matter was remanded C.G.I.T.). The petitioner has prayed that back to the C.G.I.T. After remand the compensation of Rs. Ten thousand management filed an additonal written awarded to him in lieu of reinstatment of statement stating therein that the bank had service be enhanced to Rs.2.5 lacs. lost confidence in the workman.

2. The petitioner, who is an Ex- 4. Thereafter the Tribunal by the military person was appointed as Armed impugned order dated 17.3.97 came to the Guard on 15.1.1970 on temporary basis at conclusion that there was no proof that Allahabad Branch of the State Bank of school leaving certificate was forged by India and subsequently he was selected workman but as the matter was very old for the post of Armed Guard and was and the concerned workman had also appointed on substantivee basis on attained the age of superannuation, a sum probation in the same branch on 9.7.1971. Rs.10,000/- was awarded by way of The contention of the petitioner is that he compensation in lieu of reinstatement. was charged of having submitted a fabricated and forged certificate on 5. The compensation of Rs. Ten 9.7.1971 allegedly issued by the Principal, thousand awarded by the Tribunal as R.R.K. Secondary School, Dalipur, compensation has also been paid to the District Pratapgarh. His services were workman and the award has been terminated w.e.f. 5.2.1972 on this ground. implemented. He had already put in 15 An FIR was lodged under Sections years of service in the army and was 467,468,420 and 471 IPC against the engaged by the bank under welfare petitioner. He was chargesheeted and scheme of the army for its discharged thereafter acquitted by the Chief Judicial employees. Magistrate, Allahabad vide his judgment and order dated 27.3.1979. After acquittal 6. From perusal of record it appears the petitioner approached the Bank for his that the petitioner had acknowledged that reinstatement and he was informed that his School Leaving Certificate was his services were terminated w.e.f. forged. This acknowlegement has been 22.2.1972. made in letter dated 20.12.71 and has been appended as Annexure-CA-4 to the h 3. The petitioner raised an Industrial counter affidavit.The relevant extract of t Dispute which was referred by the Central tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Radhey Shyam V. Chief Engineer and another 755

letter dated 20th December, 1971 is as 9. For these reasons it is not a fit under: case for interference under Article 226 of the Constitution of India. The Petition is “(2) In this connection, I may add dismissed. No order as to cost. that I do not know about its genuineness ------as the signature of the Head Master of the ORIGINAL JURISDICTION institution was neither made before me on CIVIL SIDE the certificate nor I yet recognize the DATED: ALLAHABAD 08.09.2003 specimen of his signature. I submitted the BEFORE certificate to the Bank in full confidence THE HON'BLE RAKESH TIWARI, J. of its being genuine and had no intention to defraud the bank. My intention had Civil Misc. Writ Petition No. 17480 of 2000 never been to obtain any appointment in the bank by way of fraudulent methods. I Radhey Shyam …Petitioner am victim of my own foolishness that I Versus believed the school teacher under the Chief Engineer & another …Respondents influence of the old established traditions of teachers of the schools, who it appears Counsel for the Petitioner: to had misguided me and sent me a forged Sri R.K. Mishra certificate, for the reasons best known to him.” Counsel for the Respondents: S.C.

7. It appears that the School Leaving Service-Transfer/adjustment-of class IV Certificate of the petitioner was a employee-outside the Division-against fabricated one either by the petitioner policy of State Govt.-where class IV himself or by the teacher.His services employees were already excess of were terminated before confirmation of sanctioned posts- the order cancelling his service. He would be deemed to have petitioner's confirmation already stayed continued on probation. by this Hon'ble Court- which is pending- act respondents faulty- cannot be valued-hence, quashed. 8. In view of the admission of the petitioner himself that he had in his own Service-Transfer/adjustment-of class IV foolishness submitted a forged School employee outside the Division- leaving certificate no relief can be transfer/adjustment order other class IV granted. The compensation of Rs. employee either stayed or cancelled- impugned order can not sustain-hence, 10,000/- awarded to him on the basis of quashed. wages in 1972 is sufficient. The question of back wages or compensation lies in the Held- Para 10 discretion of Labour Court and this Court has no right to intefere as held by There is another important factor Supreme Court in case of M.P. State bearing on the case of the petitioner that he has been adjusted/transferred when Electricity Board Vs. Jarina Bee ( Smt.) adjustment/transfer orders of other ( 2003) 6 SCC-141. class IV employees working in the h Allahabad Circle have been either stayed t by order dated 5.2.2000 of this Court tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 756 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

passed in Writ Petition No. 7940 of 2000 any surplus class IV employees in and Writ Petition No. 7941 of 2000 or Allahabad Circle. cancelled by order dated 31.3.2000 of respondent no. 1 (Annexure-6 to the writ petition). Therefore, the 3. Aggrieved by their adjustment/transfer order impugned in adjustment/transfer order dated 5.2.2000 respect of the petitioner can not be said Sri Virendra Kumar and Sri Raj Kishore to be valued. Bharti filed Civil Misc. Writ Petition No. 7940 of 2000 and Sri Shiv Kumar and Sri (Delivered by Hon'ble Rakesh Tiwari, J.) Harish Chandra filed Civil Misc. Writ Petition No. 7941 of 2000 before this 1. Heard counsel for the parties and Court. By order dated 15.02.2000 the perused the record. effect and operation of the aforesaid order No. 206 dated 5.2.2000 of respondent 2. The petitioner was working in the no.1 was stayed by this Court. office of Superintending Engineer, Rural Engineering Service, Allahabad Circle 4. It is further alleged that (hereinafter called as R.E.S.) since appointment order dated 9.1.1991 and the 1.12.1987 against a substantive post on confirmation order dated 27.4.1996 in adhoc basis. He was appointed on respect of the petitioner was cancelled 9.1.1991 against a vacant substantive post arbitrarily and without giving opportunity of peon, a class IV post in the office of of hearing by order dated 16.3.2000 of Superintending Engineer, R.E.S. and was respondent no.2 which is as under: confirmed on the post vide Order No. 81 dated 27.4.1996 (Annexure No.2 to the "dk;kZy; v/kh{k.k vfHk;Urk] xzkeh.k vfHk;a=.k lsok] writ petition). Five persons namely, Sri ifje.My&bykgkcknA Gyan Dutt Kushwaha, Sri Shiv Kumar, Sri Harish Chandra Pal, Sri Virendra i=kad% 933@xzk0v0ls0@LFkk@O;k0i0@99-2000 Kumar and Sri Raj Kishore Bharti who fnukad 16-03- were appointed in other circle in regular 2000 vacancies, were the adhoc appointees. All dk;kZy;&vkns'k of them were working as peon/class IV employees and got their transfers from Jh jk/ks';ke fo'odekZ] pijklh ftudh fu;qfDr osru other circles and joined the Allahabad Øe 305&360 esa vf/k'kk"kh vfHk;Urk] xzkeh.k vfHk;U=.k circle of R.E.S. on 16.6.1994, 5.5.1999, lsok] iz[k.M& okjk.klh ds vkns'k la[;k lh&20 fnukad 8.5.1999,1.7.1993 and 12.7.1996 12&11&87 }kjk rnFkZ@vLFkkbZ :i ls dh x;h Fkh rFkk ftudh fofu;ferhdj.k gsrq p;u lfefr xfBr dj v/kh{k.k respectively. It is alleged that since there vfHk;Urk xzkeh.k vfHk;a=.k lsok] ifje.My] bykgkckn ds were only four sanctioned class IV posts vkns'k la0&4951 fnukad 9&1&91 }kjk mDr p;u lfefr in the Allahabad Circle office of R.E.S. ds laLrqfr ds vk/kkj ij prqFkZ Js.kh ds vkoafVr inksa ds Sri Shiv Kumar, Sri Harish Chandra Pal, fo:) vkns'k ds fuxZr frfFk ls fu;fer ,oa vLFkkbZ :i ls Sri Virendra Kumar and Sri Raj Kishore fu;qfDr fd;k x;k Fkk] ds lEcU/k esa lUnfHkZr vkns'k ds Øe Bharti who were earlier transferred from esa eq[; vfHk;Urk iwohZ {ks= ¼xzkeh.k vfHk;a=.k lsok] m0iz0 other circles to Allahabad Circle vide y[kuÅ ds i= la0-4282 fnukad 9&2&2000 ds }kjk order dated 5.2.2000 passed by funsZ'k fn;k x;k Fkk fd mDr vkns'k 'kklukns'k la0 h respondent no.1 so that there may not be 15@18@86-O;k-1-1989 fnukad 7&8&89 }kjk vf/klwfpr½ t m0iz0 yksd lsok vk;ksx ds ckgj inksa ij ¼f}rh; la'kks/ku½ tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 3 All] Radhey Shyam V. Chief Engineer and another 757

1989 ds vuq:i ugha gSA ;g fu;ekoyh 1&10&86 ls iwoZ "dk;kZy; eq[; vfHk;ark] xzkeh.k vfHk;a=.k lsok] iwohZ {ks= rnFkZ fu;qDr deZpkfj;ksa ds fofu;fefrdj.k gsrq izHkkoh gSA m0iz0 y[kuÅA

vr% Jh jk/ks';ke fo'odekZ] pijklh ds fofu;fefrdj.k gsrq i=kad% 506/xzk0v0ls0/22-LFk0-2/LFkkuk0 fd;k x;k vkns'k la0&4951 fnukad 9&1&91 ,rn~}kjk lek;kstu/99-2000 fn0 fujLr fd;k tkrk gSA QyLo:i Jh jk/ks';ke fo'odekZ rnFkZ gks tkrs gSaA ftuds dkj.k Jh fo'odekZ] pijklh dks bl dk;kZy; vkns'k dk;kZy; ds vkns'k la0&81 fnukad 27&4&96 }kjk ftudk uke Øe la0 4 ij vafdr gS dk fd;k x;k LFkkbZdj.k vkns'k Hkh ,rn~}kjk fujLr fd;k tkrk gSA bl dk;kZy; ds vkns'k la0&206/xzk0v0ls0/22- g0 LFkk0-2/LFkkuk0-lek;kstu/99-2000 fn0 5-2-2000 v/kh{k.k vfHk;Urk ds vkaf'kd la'kks/ku esa fuEufyf[kr prqFkZ Js.kh deZpkfj;ksa dk xzkeh.k vfHk;a=.k lsok] muds uke ds lEeq[k LrEHk 4 esa vafdr ifje.My esa fd;k ifje.My&bykgkcknA x;k lek;[email protected] ifje.My Lrj ls izkIr lwpuk " dks leh{kk djus ,oa izkIr izfrosnuksa ij lE;d :i ls fopkj djus ds mijkUr fujLr fd;k tkrk gSA 5. Aggrieved by order dated 16.3.2000 the petitioner filed Civil Misc. Ø0 uke dk;Zjr@LFkku Lkek;kstu@ Writ Petition No. 14662 of 2000 before la0 LFkkukUrj.k this Court in which order was stayed by dk LFkku this Court by order dated 29.3.2000. 1 2 3 4 1- Jh Kku flag iz[k.M&bVkok ifj0&QStkckn 6. Respondent no. 1 thereafter by the 2- Jh f'ko dqekj ifj0&bykgkckn ifj0&okjk.klh impugned order dated 31.3.2000 3- Jh gfj'pUnz iky ifj0&bykgkckn ifj0&okjk.klh cancelled the order of transfer/adjustment dated 5.2.2000 in respect of aforesaid Sri ¼v:.k dqekj xxZ½ Shiv Kumar and Sri Harish Chandra Pal eq[; vfHk;Urk] and the petitioner was adjusted/transferred xzkeh.k vfHk;a=.k lsok] iwohZ {ks=] to Varanasi Circle of Rural Engineering m0iz0 y[kuÅA" Service inspite of the fact that this Court by its order dated 29.3.2000 had stayed 8. It is contended by the counsel for the operation of order dated 16.3.2000 the petitioner Sri R.K. Mishra that the cancelling the confirmation and regular present writ petition is not infructuous appointment of the petitioner treating the because the impugned order dated petitioner as adhoc employee. 31.5.2000 of respondent no. 1, so far as the petitioner is concerned, is not a mere 7. Aggrieved by aforesaid order transfer order and even if it could be dated 31.3.2000 the petitioner filed the considered a transfer order for the sake of present writ petition before this Court. argument, though not admitted, then a The Court by its order dated 11.4.2000 class IV employee like the petitioner stayed the effect and operation of the could at most be transferred within a aforesaid order dated 31.3.2000 Division and not out of the Division in connecting W.P. No.14662 of 2000 with view of the policy of the State the present Writ Petition. The order dated Government as contained in letter No. 31.3.2000 is as under: 16/3/80 dated 28.5.1981 which provides h that a class IV employee can not normally t be transferred out of a district, and, if tp :\ \a l la h a b a d h ig h c o u rt .n ic . in 758 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

necessary, can be transferred within a 10. There is another important factor Division when the posts are available in bearing on the case of the petitioner that the Division level cadre. It is stated that he has been adjusted/transferred when the impugned order is an adjustment-cum- adjustment/transfer orders of other class transfer order and the fate of the present IV employees working in the Allahabad writ petition is dependent on the success Circle have been either stayed by order or failure of W.P. No. 14662 of 2000 dated 5.2.2000 of this Court passed in Radhey Shyam Vishwakarma Vs. Writ Petition No. 7940 of 2000 and Writ Superintending Engineer and another filed Petition No. 7941 of 2000 or cancelled by by the petitioner before this Court, order dated 31.3.2000 of respondent no. 1 wherein the order dated 16.3.2000 (Annexure-6 to the writ petition). cancelling the appointment and the Therefore, the adjustment/transfer order subsequent order making the petitioner a impugned in respect of the petitioner can confirmed class IV employee in the not be said to be valued. Allahabad Circle of R.E.S. is under challenge and this Court has stayed the 11. By order dated 11.4.2000 passed operation of the order dated 16.3.2000 by by this Court the respondents were its order dated 29.3.2000. Therefore, if the directed to file counter affidavit within aforesaid W.P. No. 14662 of 2000 two months, but no counter affidavit has succeeds and the petitioner will be treated been filed even after a lapse of more than as appointed on regular basis and a two years. confirmed employee against the substantive/vacant post in the Allahabad 12. Transfer/adjustment order is also Circle of R.E.S., and the question of against policy decision of transfer dated adjustment/transfer of the petitioner will 28.5.1981. The petitioners are low paid not arise and the impugned order in the employees and the order impugned will present writ petition is liable to be cause prejudice to them hence, such order quashed by this Court. is liable to be quashed.

9. It is submitted that the question of 13. The writ petition is allowed. The adjustment/transfer of peons, class IV order dated 5.2.2000 is quashed. No order employees, working in the Allahabad as to cost. Circle of R.E.S. arose because the number ------of class IV employees in the Allahabad Circle were in excess of sanctioned posts which is due to the fault of the respondents because they transferred many class IV employees at their requests from other circles where they had been appointed against vacancies in that circle to Allahabad circle ignoring the fact that whether there was a vacancy or not in the Allahabad Circle. h t tp :\ \a l la h a b a d h ig h c o u rt .n ic . in