# Commissioner Of Income Tax-1 Agra & Ors v. Central Administrative Tribunal & Ors - **Citation:** (2016) 4 ILRA 1039 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-12 - **Bench:** Tarun Agarwala, Prabhat Chandra Tripathi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/commissioner-of-income-tax-1-agra-ors-v-central-administrative-tribunal-ors-43623 - **Pages:** 5 ## Headnote to its original number, recalling a previous dismissal order from 2008. Paragraph 2: Background of the case: Respondent No. 2 was suspended in 1986 for alleged fraud but remained suspended for five years without a charge-sheet. In 1992, the CAT ordered the department to initiate and conclude the enquiry within a strict timeline. 1040 INDIAN LAW REPORTS ALLAHABAD SERIES Paragraph 3: The department initiated the enquiry in 1993 in New Delhi. Respondent No. 2 (residing in Allahabad) informed the Enquiry Officer he could not travel or afford lodging due to non-payment of his subsistence allowance. The department ignored his request to hold the enquiry in Allahabad or release his funds. Paragraph 4: Due to the respondent's absence, an ex parte enquiry was held. He was found guilty and dismissed in 1994. His subsequent appeal was dismissed in 2003. Paragraph 5: In 2004, the CAT quashed the dismissal, ruling that the ex parte enquiry violated the principles of natural justice. It ordered a fresh enquiry and the payment of subsistence allowance. Paragraph 6: The Court establishes that non-payment of subsistence allowance during a departmental enquiry is a per se violation of natural justice, citing several Supreme Court precedents. Paragraph 7-8: The Petitioners (Department) argued that the allowance was stopped because the respondent failed to provide a "non-employment certificate" under Fundamental Rule 53(2). The Court rejects this plea, stating that non-submission of the certificate is not a fatal ground to deny subsistence. Paragraph 9-10: The Court highlights the "misery and plight" of the respondent, who was kept in limbo from 1986 to 1993. It rules that forcing an employee to travel for an enquiry without paying their subsistence allowance is a violation of natural justice. Paragraph 11: The Court dismisses the writ petition, upholds the Tribunal's order, and directs the department to conclude any fresh enquiry within four months. Petition Dismissed Case Laws Cited:- 1.Ghanshyam Das Srivastava v. State of M.P., 1973 SCC (L & S) 289. 2.Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And another, [1999 (2) ESC 1009 SC]. 3.Jagdhamba Prasad Shukla v. State of U.P. & others, [2000 (4) ESC 2431 SC]. 4.Shafi Ullah Ansari v. Union of India & others, (O.A. No. 269/91, Allahabad C.A.T., 11.09.2000). 5.State of Punjab & others v. K.K. Sharma, [2003 SCC (L & S) 18]. 6.Anwarun Nisha Khatoon v. State of Bihar & others, [(2002) 6 SCC 703]. ## Text 4 All. Commissioner Of Income Tax-1 Agra & Ors. Vs Central Administrative Tribunal & Ors. 1039 30. Having regard to the overall facts and circumstances of the case, it emerges out that this case does not fall within the category of the rarest of rare cases where capital sentence is indispensable. This Court is reluctant in endorsing the death sentence. We modify the judgment and order passed by the court below substituting the death sentence into life imprisonment under section 302 IPC and direct that the appellant shall not be released from the prison till the rest of his life. All the sentences awarded under different sections of IPC shall run concurrently. 31. Resultantly the reference pursuant to the order dated 24.6.2015 fails and is hereby dismissed. The appeal is partly allowed with the aforementioned modifications in the judgment and order dated 22.6.2015 & 24.6.2015 passed by the Additional Sessions Judge, (FTC) Orai . 32. The office is directed to transmit the lower court record forthwith for necessary compliance. 33. Judgment be certified and be placed on record. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 12.04.2016 BEFORE THE HON'BLE TARUN AGARWALA, J. THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Writ A No.- 3260 Of 2005 Commissioner Of Income Tax-1 Agra & Ors. ...Petitioners Versus Central Administrative Tribunal & Ors. ...Respondents Counsel for the Petitioners: Shri Govind Krishna, Shri Bharat Ji Agarwal Counsel for the Respondents: S.C., Shri Ashish Srivastava, Shri P.C. Jain Held - Paragraph 1: The Court condones the delay in filing the restoration application and restores the writ petition to its original number, recalling a previous dismissal order from 2008. Paragraph 2: Background of the case: Respondent No. 2 was suspended in 1986 for alleged fraud but remained suspended for five years without a charge-sheet. In 1992, the CAT ordered the department to initiate and conclude the enquiry within a strict timeline. 1040 INDIAN LAW REPORTS ALLAHABAD SERIES Paragraph 3: The department initiated the enquiry in 1993 in New Delhi. Respondent No. 2 (residing in Allahabad) informed the Enquiry Officer he could not travel or afford lodging due to non-payment of his subsistence allowance. The department ignored his request to hold the enquiry in Allahabad or release his funds. Paragraph 4: Due to the respondent's absence, an ex parte enquiry was held. He was found guilty and dismissed in 1994. His subsequent appeal was dismissed in 2003. Paragraph 5: In 2004, the CAT quashed the dismissal, ruling that the ex parte enquiry violated the principles of natural justice. It ordered a fresh enquiry and the payment of subsistence allowance. Paragraph 6: The Court establishes that non-payment of subsistence allowance during a departmental enquiry is a per se violation of natural justice, citing several Supreme Court precedents. Paragraph 7-8: The Petitioners (Department) argued that the allowance was stopped because the respondent failed to provide a "non-employment certificate" under Fundamental Rule 53(2). The Court rejects this plea, stating that non-submission of the certificate is not a fatal ground to deny subsistence. Paragraph 9-10: The Court highlights the "misery and plight" of the respondent, who was kept in limbo from 1986 to 1993. It rules that forcing an employee to travel for an enquiry without paying their subsistence allowance is a violation of natural justice. Paragraph 11: The Court dismisses the writ petition, upholds the Tribunal's order, and directs the department to conclude any fresh enquiry within four months. Petition Dismissed Case Laws Cited:- 1.Ghanshyam Das Srivastava v. State of M.P., 1973 SCC (L & S) 289. 2.Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And another, [1999 (2) ESC 1009 SC]. 3.Jagdhamba Prasad Shukla v. State of U.P. & others, [2000 (4) ESC 2431 SC]. 4.Shafi Ullah Ansari v. Union of India & others, (O.A. No. 269/91, Allahabad C.A.T., 11.09.2000). 5.State of Punjab & others v. K.K. Sharma, [2003 SCC (L & S) 18]. 6.Anwarun Nisha Khatoon v. State of Bihar & others, [(2002) 6 SCC 703]. (Delivered by Hon'ble Tarun Agarwala, J. & Hon'ble Prabhat Chandra Tripathi, J.) 1. Heard the learned counsel for the parties. 2. Cause shown is sufficient. 3. The Delay Condonation Application No.356917 of 2013 is allowed. 4. The delay in filing the restoration application is condoned. 5. Cause shown is sufficient. 4 All. Commissioner Of Income Tax-1 Agra & Ors. Vs Central Administrative Tribunal & Ors. 1041 6. The Restoration Application No.356921 of 2013 is allowed. The order dated 15.05.2008 is recalled and the writ petition is restored to its original number. 7. We have heard Sri Ashok Kumar, the learned Advocate along with Sri Ashish Agrawal, the learned counsel for the petitioners and Sri Sunil Kumar, the learned Advocate along with Sri Ashish Srivastava, the learned counsel for the respondent no.2. 8. Upon a charge of defrauding the Income Tax Department by issuing forged refund vouchers and getting them encashed the respondent no.2 was suspended in the year 1986 and continued to remain suspended for five long years. No disciplinary proceedings was initiated, as a result, the respondent no.2 filed Original Application No.1618 of 1991 before the Central Administrative Tribunal in which an order dated 06.11.1992 was passed directing the department to issue a chargesheet within two weeks and conclude the enquiry within two months, failing which the suspension order would be revoked and the respondent no.2 would be reinstated with all consequential benefits 9. In compliance of the aforesaid order, a chage-sheet dated 31st December, 1992 was issued. Since the enquiry could not be concluded within the stipulated period, time was sought from the Tribunal which was allowed and directed the department to conclude the enquiry within four months. 10. Based on the aforesaid direction, the respondent no.2 received a letter dated 18.02.1993 informing him about the appointment of an enquiry officer and also indicating that the enquiry would be held at New Delhi on 16th March, 1993. Upon receipt of the said letter, the respondent no.2 wrote a letter dated 5th March, 1993 indicating his inability to travel to Delhi to attend the enquiry proceedings on the ground of financial constraints and specifically stating that it was not possible for him to travel to Delhi and pay for his boarding and lodging from his meagre subsistence allowance. 11. The Enquiry Officer, on this letter, directed the respondent no.2 to approach the disciplinary authority for release of the subsistence allowance. This was followed by another letter of the respondent no.2 dated 8th April, 1993 indicating his inability to travel on account of nonpayment of subsistence allowance w.e.f. March, 1993 onwards and requested the department to release the subsistence allowance for March, 1993 and also hold the enquiry at Allahabad since he was residing there. This letter remained unattended by the petitioners and no reply was given nor this letter has been denied by them. Since the respondent no.2 did not attend the proceeding, the Enquiry Officer proceeded ex parte and submitted an ex parte enquiry report finding him guilty of the charges. 12. Based on the enquiry report, a punishment order dated 31st March, 1994 was passed against which the respondent preferred an appeal which was dismissed on 25.02.2003. 1042 INDIAN LAW REPORTS ALLAHABAD SERIES 13. Thereafter, the respondent filed an original application before the Tribunal which was allowed by order dated 24th May, 2004 holding that the ex parte enquiry was violative of the principles of natural justice. The orders of the disciplinary authority and the appellate authority were quashed and the disciplinary authority was directed to start a fresh enquiry in accordance with law from the stage it was in March, 1993. The Tribunal further directed to pay subsistence allowance to the respondent no.2 and conclude the enquiry within a reasonable period. 14. The department being aggrieved, has filed the present writ petition which was admitted and the order of the Tribunal was stayed. 15. It is a settled law that if the subsistence allowance is not paid to an incumbent during the pendency of the departmental proceedings such action amounts to violation of the principles of natural justice. In this regard, the Tribunal has relied upon a series of decisions, namely, (i) Ghanshyam Das Srivastava v. State of M.P., 1973 SCC (L & S) 289 (ii) Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another [1999 (2) ESC 1009 SC] (iii) Jagdhamba Prasad Shukla v. State of U.P. & others [2000 (4) ESC 2431 SC] (iv) Shafi Ullah Ansari v. Union of India & others (O.A. No.269/91 decided by Allahabad C.A.T. on 11.09.2000) (v) State of Punjab & others v. K.K. Sharma [2003 SCC (L &S) 18] and (vi) Anwarun Nisha Khatoon v. State of Bihar & others [(2002) 6 SCC 703]. 16. A plea was raised by the respondent no.2 that till February, 1993, the subsistence allowance was being paid pursuant to the furnishing of a certificate as required under Fundamental Rule 53(2) indicating that the respondent no.2 was not engaged in any other department. 17. The petitioners contended that from March, 1993 such certificate was not furnished and consequently, the subsistence allowance was not released. Such plea raised by the petitioners cannot be accepted nor is tenable in view of the decisions of the Supreme Court in the cases of Ghanshyam Das Srivastava (supra) and Capt. M. Paul Anthony (supra) which clearly states that the subsistence allowance cannot be stopped merely on the ground of non-submission of the certificate. Such non-submission in our opinion is not fatal and cannot deny the right of an incumbent to receive the subsistence allowance. 18. We find from the perusal of the record that a specific request was made by the respondent no.2 vide his letter dated 8th April, 1993 indicating that he is unable to bear the expense of travelling and lodging at Delhi for the purposes of attending the disciplinary proceedings on account of meagre subsistence allowance that has also not been paid since March, 1993. This aspect was crucial and essential and ought to have been addressed by the department which they failed to do so. We find that there is nothing on record to indicate that the said letter dated 8th April, 1993 was never received by them. The petitioners only stand is that the certificate as required under Fundamental Rule 53 (2) was not furnished by the respondent. 19. In the light of the aforesaid, we find that the misery and the plight of respondent no.2 in surviving on meagre subsistence allowance from 1986 to 1993 cannot be overlooked. No steps 4 All. Kishori Lal Vs State of U.P. & Ors. 1043 were taken by the department to initiate the disciplinary proceedings by issuance of the chargesheet between 1986 and 1993. It was only when a direction was issued by the Tribunal in November, 1992 that a charge-sheet was served and the Enquiry Officer was appointed in March, 1993. 20. We find that the denial of the subsistence allowance and forcing the respondent no. 2 to travel all the way from Allahabad to Delhi without payment of subsistence allowance is in violation of the principles of natural justice. The Tribunal was, therefore, justified in setting aside the impugned order on the ground of violation of the principles of natural justice. 21. We do not find any infirmity in the impugned order. The writ petition is accordingly dismissed with the observation that the direction of the Tribunal shall be complied by the petitioners and the enquiry be held and concluded, in the event the petitioners so desire to pursue, within four months from today. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 01.04.2016 BEFORE THE HON'BLE DR. DEVENDRA KUMAR ARORA, J. Service Single No.- 4136 Of 2004 Kishori Lal ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for Petitioner: Manoj Sahu, Ranjana Srivastava Counsel for Respondents: C.S.C. Proceedings The petitioner filed the writ petition seeking regularization of his service and payment of salary for the Class D post of Road Mali, which he had been performing continuously as a daily-wager since 1988. The petitioner's service had been intermittently disrupted, with termination in January 2000 and reemployment in 2003 following an earlier writ petition. Despite nearly thirty years of service, the petitioner's claim for regularization was rejected under Government Orders dated 8.9.2010 and subsequent cut-off dates in Regularization Rules of 2001, on the grounds that he was not in service on the mandatory cut-off date. The petitioner contended that this was arbitrary and discriminatory, as junior employees had been regularized. The Court heard detailed arguments, considered Apex Court precedents on the right to livelihood and regularization of long-serving daily wagers, and examined statutory provisions under the U.P. Regularization of Daily Wages Appointments (Group D) Rules, 2001.