# Chaturbhuj Pandey v. VI A.D.J

- **Citation:** (2012) 2 ILRA 1028
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-17
- **Bench:** Satya Poot Mehrotra, Het Singh Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaturbhuj-pandey-v-vi-a-d-j-42285
- **Pages:** 7

## Headnote

(A). Constitution of India, Article 226Writ Petition-alternative remedy-inspite
of statutory remedy of revision-petition
pending since long pleading exchange
between the parties-petition can be
decided
on
merit.
2 All] Kamal Jeet Singh V. The General Officer Commanding In Chief and others
1029
Held: Para 26

However, the present Writ Petition is
pending since 2007. Affidavits have been
exchanged between the parties. In the
circumstances, we are of the view that it
will not be appropriate to dismiss the
Writ
Petition
on
the
ground
of
availability of alternative remedy of filing
revision under Rule 15 of the Rules,
1937, i.e. the Cantonment Fund Servants
Rules 1937.

(B) Practice of Procedure-requirement of
recording reasons-even administrative
authority is bound to record reason in
support
of
its
conclusions-appeal
dismissed confirming order passed by
disciplinary
authority-no
reasons
recorded for its satisfaction-held-order
not sustainable-quashed.

Held: Para 15

It is further relevant to note that the
Appellate
Authority
has
merely
reproduced the charges against the
petitioner and the gist of the Inquiry
Report. The Appellate Authority has not
dealt with the various grounds raised by
the petitioner in his Appeal No. reason
has
been
given
by
the
Appellate
Authority for agreeing with the order of
the
Disciplinary
Authority
and
for
differing from the recommendation made
by
the
Principal
Director,
Defence
Estates,
Central
Command.
In
our
opinion,
the
order
passed
by
the
Appellate Authority is not a speaking
order.
Case law discussed:
(2008) 3 Supreme Court 469; (2009) 4
Supreme Court Cases 240

## Text

1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Chaturbhuj Pandey Vs. VI A.D.J.,
Kanpur & Ors. 2005 (60) ALR 697, Hira
Lal & Ors. Vs. Ram Das 2006 (3) ARC
657 and Saadat Ali Vs. J.S.C.C.,
Moradabad & ors. 2006 (2) ARC 208.

25. Applying the dictum laid down in
the above authorities, it is evident from the
order sheet that written statement was taken
on record by the Court below on 5th
February, 1988 and thereafter 8th April,
1988 was fixed for final hearing. Therefore
it is 8th April, 1988 which, in my view,
would be the date of "first hearing" by
which time the petitioner ought to have
make payment in order to claim benefit
under
Section
20(4)
C.P.C.
which
admittedly he has failed.

26. Moreover, even if I consider the
order dated 8th April, 1988 passed by
Court below permitting the petitioner to
tender amount of rent [by allowing his
application 6-C] in one week, and further
indulgence is allowed to the petitioner,
that would also make no difference in the
present case since in the entire month of
April, 1988 no compliance was made by
the petitioner. The actual payment for the
first time was made by him only on
23.5.2000, which is much beyond the date
of "first hearing", which according to me
would be 8th April, 1988.

27. Hence default on the part of
petitioner stand proved and also that he
did not pay entire rent etc on first date of
hearing. The findings recorded by Courts
below against the petitioner therefore
cannot be said erroneous in any manner.

28. The judgment cited by petitioner
in Ved Prakash Wadhwa (supra) has
already been discussed above but that
does not lend any support to him in any
manner. So far as rest of the judgments in
Bimal Chand Jain (supra) of Apex
Court and two jugments of this Court i.e.
Ram Autar Dubey (supra) and Gulam
Mohiuddin Khan (supra) are concerned,
having gone through the same, I do not
find that these judgments reflect light
upon the question as to what would be the
date of first hearing in the present case.
Hence
these
judgments
have
no
application to the present case.

29. No other argument advanced.

30. In the result the wit petition
being devoid of merits is dismissed.

31. Interim order, if any, stands
vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2012

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE HET SINGH YADAV, J.

Civil Misc. Writ Petition no. 39386 of 2007

Kamal Jeet Singh

 ...Petitioner
Versus
The General Officer Commanding In
Chief And Others

 ...Respondents

Counsel for the Petitioner:
Sri Siddhartha

Counsel for the Respondents:
Sri Mohd. Isa Khan
S.C.

(A). Constitution of India, Article 226Writ Petition-alternative remedy-inspite
of statutory remedy of revision-petition
pending since long pleading exchange
between the parties-petition can be
decided
on
merit.
2 All] Kamal Jeet Singh V. The General Officer Commanding In Chief and others
1029
Held: Para 26

However, the present Writ Petition is
pending since 2007. Affidavits have been
exchanged between the parties. In the
circumstances, we are of the view that it
will not be appropriate to dismiss the
Writ
Petition
on
the
ground
of
availability of alternative remedy of filing
revision under Rule 15 of the Rules,
1937, i.e. the Cantonment Fund Servants
Rules 1937.

(B) Practice of Procedure-requirement of
recording reasons-even administrative
authority is bound to record reason in
support
of
its
conclusions-appeal
dismissed confirming order passed by
disciplinary
authority-no
reasons
recorded for its satisfaction-held-order
not sustainable-quashed.

Held: Para 15

It is further relevant to note that the
Appellate
Authority
has
merely
reproduced the charges against the
petitioner and the gist of the Inquiry
Report. The Appellate Authority has not
dealt with the various grounds raised by
the petitioner in his Appeal No. reason
has
been
given
by
the
Appellate
Authority for agreeing with the order of
the
Disciplinary
Authority
and
for
differing from the recommendation made
by
the
Principal
Director,
Defence
Estates,
Central
Command.
In
our
opinion,
the
order
passed
by
the
Appellate Authority is not a speaking
order.
Case law discussed:
(2008) 3 Supreme Court 469; (2009) 4
Supreme Court Cases 240

(Delivered by Hon'ble Satya Poot
Mehrotra, J.)

1. We have heard Shri Siddharth,
learned counsel for the petitioner and Shri
Mohd. Isa Khan, learned counsel for the
respondents. The Affidavits have been
exchanged between the parties, and with
the consent of learned counsel for the
parties, the Writ Petition is being disposed
of at this stage.

2. The petitioner has filed the
present Writ Petition under Article 226 of
the Constitution of India, interalia,
praying for quashing the order dated
14.6.2004 ( Annexure No. 6 to the Writ
Petition) passed by the respondent no.2
(Cantonment Board, Meerut) and the
Appellate Order dated dated 27.4.2007 (
Annexure No. 8 to the Writ Petition)
passed by the respondent no. 1 (General
Officer, Commanding-In-Chief, Central
Command, Lucknow Cantt).

3. As per the averments made in the
Writ Petition, the petitioner was appointed
on the post of Pound Keeper on 2.8.1976.
The petitioner was promoted/appointed as
Stenographer by Office Order dated
20.5.1983. Thereafter, the petitioner was
further promoted in the Supervisory
Grade by the Cantonment Board and was
posted as Accountant and further on
10.12.1998, the petitioner was posted as
Revenue
Superintendent
in
the
Cantonment Board, Meerut. While the
petitioner
was
posted
as
Revenue
Superintendent, Meerut, he was placed
under suspension on 7.11.2002, and an
inquiry was ordered against the petitioner,
and the Memorandum of Charge dated
4.12.2002 was served upon the petitioner.
Copy of the Memorandum of Charge has
been field as Annexure No. CA-2 to the
Counter Affidavit filed on behalf of the
respondents.

4. Four charges were levelled
against
the
petitioner
in
the
said
Memorandum, namely,
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"Article No. 1:- Shri Kamal Jeet
Singh while functioning as Revenue
Superintendent
during
the
period
03.12.1998 to 7.11.2002 has committed
gross misconduct unbecoming of public
servant; thus violated the provisions of
Rule 3 of CCS (Conduct) Rules, 1964.

Article No. 2:-That during the
aforesaid period and while functioning in
the aforesaid office, the said Sri Kamal
Jeet Singh has misused his official
position for personal monetary gain in
violation
of
the
provisions
of
Contonments Act, 1924.

Article No.3:- That during the
aforesaid period and while functioning in
the aforesaid office, the said Shri Kamal
Jeet
Singh
has
received
illegal
gratification for transfer of liquor shop
which is in gross violation of conduct
rules and his conduct is unbecoming of
public servant.

Article No. 4:- That during the
aforesaid period and while functioning in
the aforesaid Office, the said Shri Kamal
Jeet Singh was found involved in allowing
illegal hoardings in Cantt Area without
permission of the Competent Authority
and without deposit of revenue in Cantt
Fund treasury. He thus committed gross
misconduct and is guilty of misuse of
official position for personal monetary
gains in violation of provisions of CCS (
Conduct) Rules, 1964."

5. The inquiry proceedings were
thereafter
conducted
against
the
petitioner. The Inquiry Officer submitted
his report, copy whereof has been filed as
Annxure No. 3 to the Writ Petition.

6. As regards, the charge contained
in Article no.1, the Inquiry Officer found
the petitioner guilty.

7. As regards, the charge contained
in Article No.2, the Inquiry Officer found
the petitioner "guilty ( to be partially
blamed)."

8. As regards, the charge contained
in Article No. 3, the Inquiry Officer
dismissed the said charge.

9. As regards, the charge contained
in Article No.4, the Inquiry Officer held
the petitioner "guilty ( to be partially
blamed)."

10. It further appears that the matter
was
thereafter
placed
before
the
Cantonment Board. The Cantonment
Board in its meeting held on 24. 9.2003
resolved that the Inquiry Report be given
to
the
petitioner
to
make
his
representation/ submission in writing to
the
Disciplinary
Authority,
if
the
petitioner wished to do so. Copy of the
Inquiry Report was accordingly sent to
the petitioner whereupon the petitioner
made his representation dated 27.10.2003,
copy whereof has been filed as Annexure
No.4
to
the
Writ
Petition.
After
submission of the representation by the
petitioner, the matter was placed before
the Cantonment Board alongwith Office
Note. Being Disciplinary Authority, the
Cantonment Board on 14.6.2003 passed
the resolution awarding punishment to the
petitioner.
The
said
resolution,
as
contained in Annexure No. 6 to the Writ
Petition, is as under:

"364.
Considered
in
details.
Resolved that Shri Kamal Jeet Singh be
reverted one grade below in non-
2 All] Kamal Jeet Singh V. The General Officer Commanding In Chief and others
1031
supervisory post alongwith withholding of
02
annual
increments
without
commutative effect. The pay & allowances
for the period of suspension be restricted
to the subsistence allowance already paid
and the period of suspension be treated as
ECL. Further resolved that he be reinstated in the service with immediate
effect."

11. The petitioner thereafter filed an
appeal before the Appellate Authority as
per the provisions contained in Rule 14 of
the Cantonment Fund Servants Rules,
1937 ( hereinafter also referred to as "the
Rules, 1937"), framed in exercise of the
powers conferred by Section 280 of the
Cantonments Act, 1924. Copy of the
Appeal has been filed as Annexure No. 7
to the Writ Petition.

12. It appears that the Appeal
submitted by the petitioner was processed
by the Director, Defence Estates, Central
Command, as well as the Principal
Director,
Defence
Estates,
Central
Command,
and
they
made
recommendations
that
the
Appeal
submitted by the petitioner be allowed. It
was
specifically
stated
in
the
recommendations that the charges against
the petitioner did not stand proved. The
Appellate Authority, thereafter considered
the matter and passed the order dated
27.4.2007 rejecting the Appeal submitted
by the petitioner. In the said order, the
Appellate
Authority
referred
to
recommendation made by the Principal
Director,
Defence
Estates,
Central
Command and observed that: " As per the
findings of PDDE CC vide note sheet No.
13 dated 06 Sept. 05, the charges against
the appellant do not stand proved fully,
however, the seriousness of charges
proves that case of Shri Kamaljeet Singh
does not merit reversion to his earlier
post
or
scale
of
pay."
(Emphasis
supplied).

13.

A
perusal
of
the
recommendation made by the Principal
Director,
Defence
Estates,
Central
Command shows that the Principal
Director,
Defence
Estates,
Central
Command was in agreement with the
note/ finding of the Director, Defence
Estates, Central Command that " the
charges against the charged official (-i.e.
the petitioner-) do not stand proved."
(Emphasis supplied).

14. Thus, the Appellate Authority
has
not
correctly
appreciated
the
recommendation made by the Director,
Defence Estates, Central Command which
was agreed to by the Principal Director,
Defence Estates, Central Command.

15. It is further relevant to note that
the Appellate Authority has merely
reproduced the charges against the
petitioner and the gist of the Inquiry
Report. The Appellate Authority has not
dealt with the various grounds raised by
the petitioner in his Appeal No. reason
has been given by the Appellate Authority
for agreeing with the order of the
Disciplinary Authority and for differing
from the recommendation made by the
Principal
Director,
Defence
Estates,
Central Command. In our opinion, the
order passed by the Appellate Authority is
not a speaking order.

16. Learned counsel for the
petitioner has placed reliance upon the
Judgement in Divisional Forest Officer,
Kothagudem
and
others
Vs.
Madhusudhan Rao, (2008) 3 Supreme
Court Cases 469, wherein the Apex Court
1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
has held as under( paragraphs 19 and 20
of the said SCC):

"19.
Having
considered
the
submissions made on behalf of the
respective parties and also having regard
to the detailed manner in which the
Andhra Pradesh Administrative Tribunal
had dealt with the matter, including the
explanation
given
regarding
the
disbursement of the money received by the
respondent, we see no reason to differ
with the view taken by the Administrative
Tribunal and endorsed by the High Court.
No doubt, the Divisional Forest Officer
dealt with the matter in detail, but it was
also the duty of the appellate authority to
give at least some reasons for rejecting
the appeal preferred by the respondent. A
similar duty was cast on the revisional
authority being the highest authority in
the Department of Forests in the State.
Unfortunately,
even
the
revisional
authority has merely indicated that the
decision of the Divisional Forest Officer
had been examined by the Conservator of
Forests, Khammam wherein the charge of
misappropriation was clearly proved. He
too did not consider the defence case as
made out by the respondent herein and
simply endorsed the punishment of
dismissal though reducing it to removal
from service.

20. It is no doubt also true that an
appellate or revisional authority is not
required to give detailed reasons for
agreeing and confirming an order passed
by the lower forum but, in our view, in the
interests of justice, the delinquent officer
is entitled to know at least the mind of the
appellate or revisional authority in
dismissing his appeal and/or revision. It
is true that no detailed reasons are
required to be given, but some brief
reasons should be indicated even in an
order affirming the views of the lower
forum." (Emphasis supplied).

17. Learned counsel for the
petitioner further placed reliance upon the
Judgement in Chairman, Disciplinary
Authority, Rani Laksmi Bai Kshetriya
Gramin Bank Vs. Jagdish Sharan
Varshney & Others, (2009) 4 Supreme
Court Cases 240, wherein the Apex Court
has held as under ( paragraph 5 of the said
SCC):

5.In our opinion, an order of
affirmation need not contain as elaborate
reasons as an order of reversal, but that
does not mean that the order of
affirmation need not contain any reasons
whatsoever. In fact, the said decision in
Prabhu Dayal Grover's case [(1995) 6
SSC 279)] has itself stated that the
appellate
order
should
disclose
application of mind. Whether there was
an application of mind or not can only be
disclosed by some reasons, at least in
brief, mentioned in the order of the
appellate authority. Hence, we cannot
accept the proposition that an order of
affirmation need not contain any reasons
at all. That order must contain some
reasons, at least in brief, so that one can
know whether the appellate authority has
applied its mind while affirming the order
of the disciplinary authority." (Emphasis
supplied).

18. It is, thus, evident that even if
the Appellate Authority agrees with the
order of the Disciplinary Authority, it
(Appellate Authority) is required to give
its reasons, though brief reasons, so that
the delinquent officer may know that the
Appellate Authoity has applied its mind in
2 All] Kamal Jeet Singh V. The General Officer Commanding In Chief and others
1033
dismissing his Appeal and in affirming
the order of the Disciplinary Authority.

19. In the present case, we find that
the Appellate Authority has rejected the
Appeal filed by the petitioner and has
upheld the order of the Disciplinary
Authority dated 14.6.2004, despite the
recommendations to the contrary made by
the Principal Director, Defence Estates,
Central Command and the Director,
Defence
Estates,
Central
Command.
However, the Appellate Authority has not
given any reason for agreeing with the
order of the Disciplinary Authority and
for
differing
from
the
said
recommendations made by the Principal
Director,
Defence
Estates,
Central
Command and the Director, Defence
Estates, Central Command. The Appellate
Authority has also not dealt with the
various grounds raised in the Appeal
submitted by the petitioner.

20. In view of the above, the order
dated 27.4.2007 passed by the Appellate
Authority is liable to be quashed.

21. Before parting with the case, we
may refer to one submission made on
behalf of the respondents that against the
order dated 27.4.2007 passed by the
Appellate Authority, the petitioner has got
further remedy of filing revision under
Rule 15 of the Rules, 1937, i.e. the
Cantonment Fund Servants Rules, 1937,
and therefore, the Writ Petition be
dismissed on the ground of availability of
alternative remedy.

22. We have considered the
submission made by the learned counsel
for the respondents.

23. Rules 14 and 15 of the Rules,
1937 are reproduced below:

" 14. (1) Any servant on whom any
of the penalties specified in rule 11 has
been imposed by the Board shall, within
thirty days of the date of delivery of the
copy of the documents showing the
grounds on which the penalty has been
imposed, be entitled to appeal to the
Officer
Commanding-in-Chief,
the
Command, and the decision of the Officer
Commanding-in-Chief,
the
Command
shall, subject to the provision of rule 15,
be final.

(2) A copy of the order passed by the
Officer
Commanding-in
Chief,
the
Command shall be delivered to him
personally or by registered post.

15.(1) Any person on whom penalty
has been imposed by the Board and who
is aggrieved by the order of the Officer
Commanding-in-Chief,
the
Command
under rule 1 4 may, within thirty days of
the delivery to him of such order, submit
an application to the Central Government
which may, after inquiry as it deems fit,
revise such order, if it is satisfied that the
Board or the said Officer has acted
illegally with material irregularly.

(2) Every such application shall be
accompanied by a copy of the order of the
Officer
Commanding-in-Chief,
the
Command against which application is
made and shall be submitted through the
Board and the Officer Commanding-inChief, the Command. While forwarding
the application, the Board shall attach
thereto the whole proceedings together
with the service book of the servant, if
any."
1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

24. Thus, a person aggrieved by an
order passed in the appeal under Rule 14
of the Rules, 1937 may file revision under
Rule 15 of the said Rules.

25. Hence, it was open to the
petitioner to file Revision under Rule 15
of the Rules, 1937 against the order dated
27.4.2007
passed
by
the
Appellate
Authority.

26. However, the present Writ
Petition is pending since 2007. Affidavits
have been exchanged between the parties.
In the circumstances, we are of the view
that it will not be appropriate to dismiss
the Writ Petition on the ground of
availability of alternative remedy of filing
revision under Rule 15 of the Rules, 1937,
i.e. the Cantonment Fund Servants Rules
1937.

27. In view of the above discussion,
the Writ Petition filed by the petitioner
deserves to be allowed and the order
dated 27.4.2007 passed by the Appellate
Authority (Annexure No. 8 to the Writ
Petition ) is liable to be quashed, and the
matter is liable to be remitted to the
Appellate Authority for considering the
Appeal of the petitioner afresh in
accordance with law and keeping in view
the observations made in this Judgement.

28. The Writ Petition filed by the
petitioner is accordingly allowed. The
order dated 27.4.2007 ( Annexure No. 8
to the Writ Petition) passed by the
Appellate Authority is quashed. The
matter is remitted to the Appellate
Authority for considering the Appeal
submitted by the petitioner afresh in
accordance with law and keeping in view
the observations made in this Judgement.

29. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 55323 of 2004

Smt. Shushila Devi

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel or the Petitioner:
Sri R.N.Singh
Sri B.R.Singh
Sri R.N.Tripathi
Sri S.C.Dubey
Sri S.K. Srivastava

Counsel for the Respondent:
C.S.C.
Sri Pushpendra Singh

Constitution of India, Article 226-Family
Pension-husband
of
petitioner
transferred from Chunar to Ballia in the
year 1978-since then where-about not
known-claim
of
family
pension
on
presumption of civil death-authorities
required the degree from Court-heldonce admittedly petitioner's husband
drawn salary upto 14.06.1977-burden of
proof
lies
who
contradicted
the
presumptions
of
Civil
death
under
Section
108
Evidence
Act-direction
issued accordingly.

Held: Para 6

Section 108 of the Act provides that the
question is whether a man is alive or
dead, and it is proved that he has not
been heard of for seven years by those
who would naturally have heard of him if
he had been alive, the burden of proving