# Ajay Kumar Sharma v. State Govt. of U.P. and others - **Citation:** (2000) 2 ILRA 21 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2000 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-sharma-v-state-govt-of-u-p-and-others-39440 - **Pages:** 3 ## Text 2All] Ajay Kumar Sharma V. State Govt. of U.P. and others 21 not be temporary or adhoc as it will frustrate the very purpose of the rules 'namely to save the family from distress'. 6. Ajay Kumar Sharma (petitioner), son of the deceased employee Shyam Bihari Lal Sharma, has filed this petition challenging the validity of the impugned order of termination of service dated 7.7. 97 passed by the District Development Officer Haridwar (annexure-5) to the writ petition. 7. The impugned order shows that the authority passing the impugned order has relied upon the provision of U.P. Temporary Government Employees (Termination of Service) rules 1975. As stated above and not disputed on behalf of the respondent, the impugned order of termination could not be passed under aforesaid rules in the facts of the instant case in as much as the petitioner is to be treated as permanent. Further, the counter affidavit (para-8) shows that the termination of the petitioner cannot be justified on the ground that it cast stigma if the 'veil' is lifted and true nature of the termination is being ascertained. It is well settled, now that court can always x-ray the facts and find out the correct nature of the termination order and if it is found that it is penal in nature, the same cannot be sustained if passed in violation of principle of natural justice or the relevant rules requiring opportunity of hearing or termination is or punishment to the delinquent employee. 8. In view of the above impugned order dated 7.7.97 (annexure-5) passed by the respondent no.3 (District Development Officer, Haridwar) is nearby set-aside, the respondents are directed to ignore the impugned order as being ab-initio treat the petitioner in service continuously and pay salary as well as arrears as may be due in accordance with law giving benefit of increment etc. within two months of the receipt of a certified copy of this judgement and continue to pay few salary month by month as is being paid to other similarly stress employee in the department. It is further made clear that it any person has been appointed on the post held by the petitioner, he shall not be thrown on street and will be adjusted in accordance with law. If there is no post a supernumerary post shall be sanctioned to safeguard the interest of a person who is not before this court. This order is passed in consonance with the order dated 13.8.97 passed by this court on the writ petition which provided that any appointment made on the post held by the petitioner shall be subject to the final result of the writ petition. 9. Petitioner shall be entitled to the salary only with effect from the date of actual joining of the duty in pursuance to this Judgement, copy of this Judgement be filed before the concerned authorities within six weeks from today. The question of arrear of salary for absentee period may be considered by the authorities in accordance with law, namely whether he has been employed gainfully or not during the period in question. The writ petition stands allowed subject to the observations made above. No order as to costs. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( 68'+,5 1$5$,1 - 7+( +21·%/( 68'+,5 1$5$,1 - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 9HG 3UDNDVK 7\DJL 3HWLWLRQHU 9HUVXV ,VW $'- 3LOLEKLW DQRWKHU «5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHU 6KUL .. $URUD &RXQVHO IRU WKH 5HVSRQGHQWV 6& 6KUL $. *R\DO INDIAN LAW REPORTS ALLAHABAD SERIES [2000 22 6HFWLRQ RI 83 8UEDQ %XLOGLQJ 5HJXODWLRQ RI OHWWLQJ 5HQW DQG (YLFWLRQ $FW LQ RUGHU WR FODLP WKH EHQHILW RI VHFWLRQ RI WKH $FW WKH WHQDQW LV QRW UHTXLUHG WR GHSRVLW WKH DPRXQW RI KRXVH DQG ZDWHU WD[HV DV ZHOO DV WKH DPRXQW RI (OHFWULFLW\ FKDUJHV +HOG )RU FODLPLQJ WKH EHQHILW RI VHFWLRQ RI WKH $FW D WHQDQW LV QRW UHTXLUHG WR GHSRVLW WKH DPRXQW RI KRXVH DQG ZDWHU WD[ 6LPLODUO\ WKH WHQDQW ZKLOH FODLPLQJ WKH EHQHILW RI 6HFWLRQ RI WKH $FW LV QRW UHTXLUHG WR GHSRVLW WKH HQWLUH DPRXQW RI HOHFWULFLW\ FKDUJHV 7KH SHWLWLRQHU KDYLQJ GHSRVLWHG WKH HQWLUH DPRXQW RI UHQW DV FODLPHG LQ WKH UHOLHI FODXVH μE¶ RI WKH SODLQW LV HQWLWOHG WR WKH EHQHILW RI SURYLVLRQ RI 6HFWLRQ RI WKH $FWSDUD 7 &DVHV UHIHUUHG $&- SDJH $5& SDJH By the Court 1. This writ petition is directed against the judgment of the Judge Small Causes Court dated 30.8.1991 decreeing the suit for recovery of arrears of rent and ejectment against the petitioner and the order of the revisional court dated 21.2.1998 affirming the findings recorded by the trial court. 2. Briefly stated the facts are that the landlord-respondent filed suit for recovery of arrears of rent and ejectment with the allegation that the petitioner was a tenant of the disputed accommodation on monthly rent of Rs.50/- besides he was liable to pay Rs.20/- per month as electricity charges and Rs.7.50 per month towards house and water tax as part of rent. The tenant failed to pay arrears of rent after September 1982. He gave a notice demanding arrears of rent and terminating the tenancy. The petitioner, after having received it, did not comply with the same. The petitioner contested the suit. It was alleged that the rate of rent was Rs.20/- per month. He admitted his liability to pay electricity charges at the rate of Rs.20/- per month as well as water tax and house tax. He denied that he had received any notice. The trial court recorded a finding that the petitioner had received the notice. The rate of rent was Rs.50/- per month and in addition to it Rs.20/- per month as electricity charges and Rs.7.50 per month towards house and water tax as part of the rent. This finding has been affirmed by the revisional court. 3. The petitioner had also claimed the benefit of provision of Section 20(4) of the Act. He alleged that he had deposited rent at the rate of Rs.50/- per month on the date of first hearing with interest and the cost of the suit. The petitioner has been denied the benefit of this provision only on the ground that he had not deposited the amount of electricity charges along with the rent. 4. The core question is whether the petitioner is liable to deposit electricity charges as well to get the benefit of the provisions of subsection (4) of Section 20 of the Act. There was no written agreement between the parties to show that Rs.20/- per month was being charged towards electricity charges as part of the rent. The plaintiff and defendant both appeared in the witness box. The plaintiff as P.W.4 stated that the defendant was liable to pay Rs.50/- per month as the rent of the accommodation, Rs.20/- per month towards electricity charges and Rs.7.50 per month towards house tax. She nowhere stated that the electricity charges and the amount towards house and water tax formed part of the rent. It was not the case of the plaintiff that the defendant was liable to pay Rs.77.50 as rent which included the amount of electricity charges, house and water tax. The plaintiff filed the suit claiming the amount of rent Rs.2,015/- under clause (b) and Rs.720/- towards electricity charges under clause (d) of the relief mentioned in the plaint. 5. Section 105 of the Transfer of Properties Act defines the lease. The lessor is entitled to get consideration for the lease from the lessee which is agreed between the parties. In case a 2All] Ved Prakash Tyagi V. Ist A.D.J., Pilibhit and another 23 lessor provides other amenities or furniture in addition to the accommodation which has been let out, unless the intention of the parties is that the amount fixed for providing such amenities be also treated as rent, the amount taken separately for furniture and other amenities may not form part of rent. Normally the electricity charges are taken by the landlord for the purpose that he is providing electricity to the tenant and for such facility he has to pay the amount of electricity charges to the Electricity Board or such authority from whom the electricity connection has been taken and the landlord is liable to pay for the consumption of electricity by the tenant. In absence of any specific agreement or proof in this respect it cannot always be termed that the amount of electricity charges forms part of the rent. 6. Learned counsel for the respondent has placed reliance upon the decision Puspa Sen Gupta v. Susma Ghose, 1990 ACJ 607, wherein it has been held that the additional sum of Rs.8/- per month agreed by the tenant to be paid to the landlord may. Amount as part of the rent. This was based on the interpretation of the provision of sub-section (3) of Section 8 of the West Bengal Premises Rent Control Act. This case has no application to the facts of the present case where the plaintiff has to prove that the amount was liable to be paid by the petitioner as part of the rent 7. The next question is as to whether the tenant is also liable to deposit the amount of electricity charges for claiming the benefit of sub-section (4) of Section 20 of the Act. Section 7 of the Act provides that water tax shall form part of the rent. In Kumud Kumar Kaushik v. IV Additional District Judge, Ghaziabad and others, 1991 (2) ARC 354, it has been held that for claiming the benefit of Section 20(4) of the Act a tenant is not required to deposit the amount of house and water tax. Similarly, the tenant while claiming the benefit of Section 20(4) of the Act is not required to deposit the amount of electricity charges. The petitioner having deposited the entire amount of rent as claimed in the relief clause 'b' of the plaint, is entitled to the benefit of provision of Section 20(4) of the Act. 8. In view of the above, the writ petition is partly allowed. The orders passed by the courts below dated 30.8.1991 and 21.2.1998 in respect of ejectment of the petitioner are hereby quashed. 9. Considering the facts and circumstances of case the parties shall bear their own cost. $33(//$7( -85,6',&7,21 $33(//$7( -85,6',&7,21 &,9,/ 6, &,9,/ 6,'( '( '$7(' $//$+$%$' )(% '$7(' $//$+$%$' )(% %()25( %()25( 7+( +21·%/( 1.0,75$ &- 7+( +21·%/( 1.0,75$ &- 7+( +21·%/( 656,1*+ - 7+( +21·%/( 656,1*+ - 6SHFLDO $SSHDO 1R RI 6DQMHHY .XPDU 'XEH\ «3HWLWLRQHUV 9HUVXV 'LVWULFW ,QVSHFWRU RI 6FKRROV (WDZDK DQG RWKHUV «5HVSRQGHQWV &RXQVHO IRU WKH $SSHOODQW 6KUL