# Commissioner of Income Tax and another v. Ajai Singh and another

- **Citation:** (2002) 3 ILRA 860
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-25
- **Case number:** Civil Misc. Writ Petition No. 18283 of 1998
- **Bench:** G.P. Mathur, N.K. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/commissioner-of-income-tax-and-another-v-ajai-singh-and-another-40022
- **Pages:** 3

## Headnote

Constitution of India, Article 226- the
employer states that the Services were
not unsatisfactory, would not ipso facto
mean
that
the
services
of
the
probationer were being terminated by
way
of
punishment-
the
order
of
termination was neither punitive nor
cast any stigma upon the petitioner.
There was absolutely no necessity to
hold any departmental enquiry and the
view to the contrary taken by the
Tribunal is wholly erroneous in law.

Held ( Para 4)

The order nowhere mentions that his
services
were
being
terminated
on
account of satisfactory work. The whole
basis of the order passed by the Tribunal
is that the services of respondent no. 1
had been terminated on account of
unsatisfactory work and, consequently, it
was obligatory upon the writ petitioner
to hold a formal enquiry. The view taken
by the Tribunal is, therefore, not borne
out from the material on record and,
thus cannot be sustained.

## Text

http://www.allahabadhighcourt.nic.in
860 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.9.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE N.K. MEHROTRA, J.

Civil Misc. Writ Petition No. 18283 of 1998

Commissioner
of
Income
Tax
and
another

...Petitioner
Versus
Ajai Singh and another ...Respondents

Counsel for the Petitioners:
Sri Amit Sthalekar

Counsel for the Respondents:
Sri O.P. Gupta

Constitution of India, Article 226- the
employer states that the Services were
not unsatisfactory, would not ipso facto
mean
that
the
services
of
the
probationer were being terminated by
way
of
punishment-
the
order
of
termination was neither punitive nor
cast any stigma upon the petitioner.
There was absolutely no necessity to
hold any departmental enquiry and the
view to the contrary taken by the
Tribunal is wholly erroneous in law.

Held ( Para 4)

The order nowhere mentions that his
services
were
being
terminated
on
account of satisfactory work. The whole
basis of the order passed by the Tribunal
is that the services of respondent no. 1
had been terminated on account of
unsatisfactory work and, consequently, it
was obligatory upon the writ petitioner
to hold a formal enquiry. The view taken
by the Tribunal is, therefore, not borne
out from the material on record and,
thus cannot be sustained.

(Delivered by Hon'ble G.P. Mathur, J.)

1. This writ petition under Article
226 of the Constitution has been filed for
quashing the judgment and order dated
2.4.1998 passed in O.A. No. 1273 of 1973
by the Central Administrative Tribunal,
Allahabad.

2. Ajai Singh, respondent no. 1 to
the writ petition, was appointed as a
casual IV th Class employee in the office
of the Commissioner, Income Tax,
Allahabad, on 7.9.1994, and his services
were
terminated
on
4.11.1997.
He
challenged termination of his service by
filing an Original Application. The
Tribunal held that as the services of
respondent no. 1 had been terminated on
account of non satisfactory work, it was
incumbent upon the writ petitioner to hold
a formal departmental enquiry and as the
same was not done, the termination of his
services was illegal.

3. We have heard Sri Amit Sthalekar
for the petitioner, Sri O.P. Gupta for
respondent no. 1 and have perused the
record.

4. It may be stated at the very outset
that before the Tribunal Ajai Singh
neither filed copy of the appointment
order nor the copy of the order by which
his services were terminated. It was stated
in paragraph 4 (i) of the Original
Application that annexure-1 thereof is the
copy of the notice given to him on
4.11.1997. In the said notice he has been
described as a daily wager and it was
mentioned therein that his services would
stand terminated w.e.f. 4.11.1997. The
order nowhere mentions that his services
were being terminated on account of
unsatisfactory work. The whole basis of
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3 All] Commissioner of Income Tax and another V. Ajai Singh and another 861
the order passed by the Tribunal is that
the services of respondent no. 1 had been
terminated on account of unsatisfactory
work and, consequently, it was obligatory
upon the writ petitioners to hold a formal
enquiry. The view taken by the Tribunal
is, therefore, not borne out from the
material on record and thus cannot be
sustained.

5. In reply to the Original
Application which was filed by Ajai
Singh before the Tribunal, the writ
petitioner filed a counter affidavit and
therein it was stated that his services had
been terminated on account of his
unsatisfactory work and not by way of
punishment.
The
reference
to
unsatisfactory work of respondent no. 1 in
the counter affidavit should not be read in
isolation but should be read in the context
in which it has been used and the pleas
taken by the writ petitioner should be read
as a whole. The Tribunal has erred in
dissecting one word from the counter
affidavit and, thereafter, proceeding to
hold on its basis that the services of the
respondent had been terminated on
account of any specific charge. It was a
simple order of termination which will be
evident
from
the
notice
given
to
respondent no. 1. There was absolutely no
material to show that the same had been
done on account of any imputation or
charge. The order did not visit him with
any evil consequence.

6.

Learned
counsel
for
the
respondent has, on the strength of the
decision in DR. Mrs. Sumati P. Shere Vs.
Union of India and others, (1989) 3 SCC
311, submitted that the termination of
services of Ajai Singh without holding
any enquiry was illegal. We are unable to
accept
the
submission
made.
In
Pavenendra Narayan Verma Vs. SGPGI
of Medical Sciences, 2002 SCC (L & S)
170, the services of the employee had
been terminated and it was mentioned in
the termination order that in the extended
period of probation his work and conduct
had not been found to be satisfactory. A
similar contention was raised on behalf of
the employee that the order was punitive
and
cast
a
stigma
on
him
and
consequently it could not be sustained
without a full-scale departmental enquiry.

7. The Court after considering a
number of earlier decisions on the point
held as follows, in para 21 of the report :

"One of the judicially evolved tests to
determine whether in substance an order
of termination is punitive is to see
whether prior to the termination there
was (a) full-scale formal enquiry (b) into
allegations involving moral turpitude or
misconduct which (c) culminated in a
finding of guilt. If all three factors are
present the termination has been ;held to
be punitive irrespective of the form of the
termination order. Conversely if any one
of the three factors is missing, the
termination has been upheld."

8. In Krishnadevaraya Education
Trust Vs. L.A. Balkrishna, (2001) 9SCC
319, it has been held that the mere fact
that in response to the challenge,. The
employer states that the services were not
satisfactory, would not ipso facto mean
that the services of the probationer were
being terminated by way of punishment.

9. Applying the principle laid down
by the Apex Court in the above
mentioned case, we are clearly of the
opinion that the order of termination was
neither punitive nor cast any stigma upon
http://www.allahabadhighcourt.nic.in
862 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
the petitioner. There was absolutely no
necessity to hold any departmental
enquiry and the view to the contrary taken
by the Tribunal is wholly erroneous in
law.

10. The writ petition accordingly
succeeds and is hereby allowed. The
impugned order dated 2.4.1998 of the
Central
Administrative
Tribunal
is
quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.9.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 41079 of 2002

M/s
Hakim
JI
Brik
Industries
(eit
Udhyog)

...Petitioner
Versus
The State of U.P. & others ...Respondent

Counsel for the Petitioner:
Sri S.K. Gaur

Counsel for the Respondents:
S.C.

U.P. Minor Minerals (Concessions) Rules
1963-
Bhumidhari
right
is
not
proprietary right but tenancy right. No
doubt bumidhari right is a very high kind
of tenancy right because it is heritable
and transferable, never the less it is not
proprietary right.

Held in para 3
SCC 2000 (8) P. 655
Bhumidari right is not proprietary right
but tenancy right. No doubt bhumidhari
right is a very high kind of tenancy right
because it is heritable and transferable,
nevertheless it is not proprietary right.
The proprietor of the land is the State in
whom the land vests under Section 4 of
the U.P. Zamindari Abolition and Land
Reforms Act. Thus, there is no force in
this writ petition. The writ petition is
dismissed.

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

1. The petitioner is challenging
demand of royalty vide notice dated
12.7.2002, Annexure 1 to the petition.
The royalty is being charged under the
U.P.
Minor
Minerals
(Concessions)
Rules, 1963.

2. Learned counsel for the petitioner
has submitted that the petitioner is
excavating
earth
from
his
own
bhumidhari land and hence no royalty can
be charged. He has relied on the Supreme
Court
decision
in
Quarry
Owner's
Association versus State of Bihar, 2000
(8) SCC 655.

3. The submission of the learned
counsel for the petitioner proceeds on a
misconception. Buumidari right is not
proprietary right but tenancy right. No
doubt bhumidhari right is a very high kind
of tenancy right because it is heritable and
transferable,
nevertheless
it
is
not
proprietary right. The proprietor of the
land is the State in whom the land vests
under Section 4 of the U.P. Zamindari
Abolition and Land Reforms Act. Thus,
there is no force in this writ petition. The
writ petition is dismissed.
---------