# Dr. Gyanvati Dixit v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-27
- **Case number:** Writ -A No. 11061 of 2024
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-gyanvati-dixit-v-state-of-u-p-ors-51037
- **Pages:** 8

## Headnote

A. Service Law - Suspension - U.P.
Intermediate Education Act, 1921: Section
16G(5)(b) - Jurisdiction - Unless there is a
failure of justice, the Court may refuse to
exercise the extraordinary jurisdiction with
which it is vested, as such, this Court is of the
view that merely because a formal order of
reinstatement was not passed prior to the
petitioner being placed under suspension,
there has been no failure of justice and as
such, this court refuses to exercise the
extraordinary jurisdiction. (Para 24)

Once the earlier suspension order of the
petitioner had been quashed consequently even
if the respondents failed to pass a formal order
of reinstatement, the same will not and cannot
take away the power of the respondents to
again place the petitioner under suspension as
has clearly been done in the instant case. (Para
25)

B. In case no formal order was passed for
the reinstatement of the petitioner the
same would not vitiate the suspension
order. (Para 15, 18)

Hon'ble Supreme Court has propounded
on the aspect of 'prejudice' that may be
caused to an employee where he/she
alleges some violation. In the present
case, if no formal order was passed in the
case of the petitioner reinstating him, the
same would have to be seen in the context
of the prejudice that may have been
caused to the petitioner. (Para 19, 20)

The petitioner has not indicated anywhere as to
the prejudice that may have been caused to him
on account of non issuance of the formal order
of reinstatement after his suspension order was
quashed. (Para 21)

During the period of suspension employeremployee relationship does not come to
an end. The employee is only prohibited from
actually offering his services and discharging his
duties and further during the suspension
pending enquiry the remuneration is payable to
the employee concerned. Once the employeremployee relationship continues thus Section
16G(5) of the Act, 1921, and the provision
under which the petitioner has been suspended,
categorically provides that it is the head of the
institution or teacher who can be suspended by
the
management
on
the
grounds
as
contemplated under the said section. As the
12 All. Dr. Gyanvati Dixit Vs. State of U.P. & Ors.
985
earlier suspension order of the petitioner had
already been quashed by this Court vide
judgment and order dated 05.11.2024 and even
if no formal order has been passed by the
respondents reinstating the petitioner, the same
would not take away the fact or the suspension
order
itself
having
been
quashed
and
consequently the petitioner cannot be said to be
a suspended employee on the date of passing of
the fresh suspension order, in this case as on
09.11.2024. (Para 16, 18)

C. Non passing of a formal order of
reinstatement can also be seen in context
of 'Useless Formality Theory'. (Para 22)

In present case, once the petitioner had only
been placed under suspension vide order dated
04.10.2024 which had been quashed by the writ
court
vide
judgment
and
order
dated
05.11.2024 consequently the petitioner can be
deemed to have been reinstated in service.
Thus merely because a formal order of his
reinstatement was not passed prior to he
again being placed under suspension by
means of the order impugned the same
would clearly fall within the ambit of
Useless Formality Theory. (Para 23)

D. Perusal of the suspension order would
indicate that the same had been passed both
under the provisions of Section 16G(5)(a) and
(b). And thus, once the charges are serious
as such the suspension order would
squarely be covered by the provisions of
Section 16G(5)(a) of the Act, 1921 and
thus the petitioner has correctly been
placed under suspension in terms of the
aforesaid provisions. (Para 15, 30)

The Court has not expressed any opinion w.r.t.
provisions of Section 16G(5)(b) of the Act, 1921
that without issuance of a charge-sheet the
suspension order cannot be passed and the said
question is left open to be considered in an
appropriate cas

## Text

984 INDIAN LAW REPORTS ALLAHABAD SERIES
there cannot be any scope or arbitrary
selection. A candidate cannot have a vested
right to claim an exemption from a
uniformly applicable criteria. A selective
grant of an age relaxation will cause serious
prejudice in the process of selection
rendering the process arbitrary.

31. Since the Fourth Amendment
Rules, 2006 have universal application,
those are not discriminatory.

32. In view of the aforesaid
discussion, we are of the considered view
that the Second Amendment Rules, 1998
and the Fourth Amendment Rules, 2006 do
not violate the letter and spirit of any
superior legislation and the same are not
ultra vires the provision of any law.

33. The writ petitions lack merits
and the same are dismissed.
----------
(2024) 12 ILRA 984
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.11.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ -A No. 11061 of 2024

Dr. Gyanvati Dixit ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sudeep
Kumar,
Avdhesh
Kumar
Pandey,
Shreshth Srivastava

Counsel for the Respondents:
C.S.C., Ashutosh Singh, Vijay Vikram

A. Service Law - Suspension - U.P.
Intermediate Education Act, 1921: Section
16G(5)(b) - Jurisdiction - Unless there is a
failure of justice, the Court may refuse to
exercise the extraordinary jurisdiction with
which it is vested, as such, this Court is of the
view that merely because a formal order of
reinstatement was not passed prior to the
petitioner being placed under suspension,
there has been no failure of justice and as
such, this court refuses to exercise the
extraordinary jurisdiction. (Para 24)

Once the earlier suspension order of the
petitioner had been quashed consequently even
if the respondents failed to pass a formal order
of reinstatement, the same will not and cannot
take away the power of the respondents to
again place the petitioner under suspension as
has clearly been done in the instant case. (Para
25)

B. In case no formal order was passed for
the reinstatement of the petitioner the
same would not vitiate the suspension
order. (Para 15, 18)

Hon'ble Supreme Court has propounded
on the aspect of 'prejudice' that may be
caused to an employee where he/she
alleges some violation. In the present
case, if no formal order was passed in the
case of the petitioner reinstating him, the
same would have to be seen in the context
of the prejudice that may have been
caused to the petitioner. (Para 19, 20)

The petitioner has not indicated anywhere as to
the prejudice that may have been caused to him
on account of non issuance of the formal order
of reinstatement after his suspension order was
quashed. (Para 21)

During the period of suspension employeremployee relationship does not come to
an end. The employee is only prohibited from
actually offering his services and discharging his
duties and further during the suspension
pending enquiry the remuneration is payable to
the employee concerned. Once the employeremployee relationship continues thus Section
16G(5) of the Act, 1921, and the provision
under which the petitioner has been suspended,
categorically provides that it is the head of the
institution or teacher who can be suspended by
the
management
on
the
grounds
as
contemplated under the said section. As the
12 All. Dr. Gyanvati Dixit Vs. State of U.P. & Ors.
985
earlier suspension order of the petitioner had
already been quashed by this Court vide
judgment and order dated 05.11.2024 and even
if no formal order has been passed by the
respondents reinstating the petitioner, the same
would not take away the fact or the suspension
order
itself
having
been
quashed
and
consequently the petitioner cannot be said to be
a suspended employee on the date of passing of
the fresh suspension order, in this case as on
09.11.2024. (Para 16, 18)

C. Non passing of a formal order of
reinstatement can also be seen in context
of 'Useless Formality Theory'. (Para 22)

In present case, once the petitioner had only
been placed under suspension vide order dated
04.10.2024 which had been quashed by the writ
court
vide
judgment
and
order
dated
05.11.2024 consequently the petitioner can be
deemed to have been reinstated in service.
Thus merely because a formal order of his
reinstatement was not passed prior to he
again being placed under suspension by
means of the order impugned the same
would clearly fall within the ambit of
Useless Formality Theory. (Para 23)

D. Perusal of the suspension order would
indicate that the same had been passed both
under the provisions of Section 16G(5)(a) and
(b). And thus, once the charges are serious
as such the suspension order would
squarely be covered by the provisions of
Section 16G(5)(a) of the Act, 1921 and
thus the petitioner has correctly been
placed under suspension in terms of the
aforesaid provisions. (Para 15, 30)

The Court has not expressed any opinion w.r.t.
provisions of Section 16G(5)(b) of the Act, 1921
that without issuance of a charge-sheet the
suspension order cannot be passed and the said
question is left open to be considered in an
appropriate case. (Para 31)

Writ petition dismissed. (E-4)

Precedent followed:

1. The Regional Director, Employees' State
Insurance
Corporation
vs
M/S
Popular
Automobiles Etc., AIR 1997 SC 3956 (Para 17)

2. Public Services Tribunal Bar Association vs
State Of U.P. & Another, 2003 (4) SCC 104 (Para
17)

3. Khem Chand vs Union Of India, 1963 AIR 687
SC (Para 17)

4. Canara Bank And Ors vs Debasis Das And
Ors., 2003 (4) SCC 557 (Para 20)

5. M.C. Mehta vs Union Of India & Ors., 1997
(2) SCC 353 (Para 22)

6. Gadde Venkateswara Rao vs Government Of
Andhra Pradesh And Others, 1966 AIR 828 SC
(Para 24)

Precedent distinguished:

1. Anand Narain Shukla vs State of Madhya
Pradesh, (1980) 1 SCC 252 (Para 7)

2. In Re Lal Bahadur Singh vs U.P. State
Roadways Transport Corporation & Ors., Special
Appeal No.305 of 2007 (Para 7)

3. Salma Bi vs Collector, Buldana & Ors., 2022
SCC OnLine Bom 273 (Para 7)

4. Managing Director of ECIL vs B. Karunakar,
1993 (4) SCC 727 (Para 31) (Para 7)

Present petition challenges the order
dated 09.11.2024, by which the petitioner
has been placed under suspension.

(Delivered by Hon'ble Abdul Moin, J.)

1. Affidavit of compliance filed by
Shri Ashutosh Singh, learned counsel
appearing on behalf of the respondent No.5
is taken on record.

2. Heard learned counsel for the
petitioner, learned Standing Counsel for the
State-respondents and Shri Ashutosh Singh,
986 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel appearing on behalf of the
respondent No.5.

3. Under challenge is the order
dated 09.11.2024, a copy of which is
Annexure-1 to the petition, by which the
petitioner
has
been
placed
under
suspension.

4. Raising a challenge to the said
order, the contention is that earlier the
petitioner had been suspended vide order
dated 04.10.2024, a copy of which is
Annexure-9 to the petition.

5. A challenge had been raised to the
said suspension order by filing Writ A
No.9746 of 2024 In Re Dr Gyanvati Dixit vs
State of U.P. & Ors. This Court vide
judgment and order dated 05.11.2024, a copy
of which is Annexure-2 to the petition,
quashed the said suspension order. It was
further directed that consequences would
follow. Further, it was left open for the
competent authority to pass a fresh order, if
required, in accordance with law.

6. Contention of the learned counsel
for the petitioner is that without reinstating
the petitioner in pursuance of the order of this
Court dated 05.11.2024, the petitioner again
has been placed under suspension which
could not have been done by the respondents
inasmuch as once the petitioner had been
placed under suspension vide the earlier order
dated
04.11.2024,
employer-employee
relationship stood suspended and without the
said relationship being restored by passing of
a consequential order in terms of the order of
this Court dated 05.11.2024, the petitioner
could not again have been placed under
suspension.

7. In this regard, learned counsel
for the petitioner has placed reliance on the
judgment of Hon'ble Supreme Court in the
case of Managing Director of ECIL vs B.
Karunakar : 1993 (4) SCC 727 (Para 31), a
Division Bench judgment of this Court
passed in Special Appeal No.305 of 2007
In Re Lal Bahadur Singh vs U.P. State
Roadways Transport Corporation & Ors,
judgment of Hon'ble Supreme Court in the
case Anand Narain Shukla vs State of
Madhya Pradesh : (1980) 1 SCC 252 as
well as a judgment of Bombay High Court
in the case of Salma Bi vs Collector,
Buldana & Ors : 2022 SCC OnLine Bom
273.

8. Learned counsel for the
petitioner further argues that perusal of the
impugned suspension order would indicate
that the petitioner has been placed under
suspension in view of the provisions of
Section 16G(5)(b) of the U.P. Intermediate
Education Act, 1921 (hereinafter referred to
as 'Act, 1921'). However, the aforesaid
provision will only be attracted and
applicable in case his continuance in office
is likely to hamper or prejudice the conduct
of disciplinary proceedings against him, but
no enquiry was initiated at the time of
passing the suspension order and thus, the
suspension
order
reflects
patent
non
application of mind.

9. No other ground has been urged.

10. Responding to the first
submission of the learned counsel for the
petitioner, learned counsel appearing for
respondent No.5 argues that once this Court
vide judgment and order dated 05.11.2024
had quashed the suspension order dated
04.10.2024 as such the reinstatement
followed automatically and there was no
requirement to pass a separate order for the
same. This would be apparent from the fact
that while passing the impugned suspension
12 All. Dr. Gyanvati Dixit Vs. State of U.P. & Ors.
987
order dated 09.11.2024, the petitioner has
been addressed as the Principal of the
Institution as specifically finds place in the
order.

11. Responding to the second
argument of the learned counsel for the
petitioner, argument of learned counsel for
respondent No.5 is that a perusal of the
impugned suspension order would indicate
that same has been passed under the
provisions of Sections 16G(5)(a) and
16G(5)(b) and even if the argument raised
by the petitioner with regard to Section
16G(5)(b) is upheld yet the suspension
order can still be sustained considering that
the charges levelled against the petitioner
are serious enough to merit her dismissal.

12. Heard learned counsel for the
parties and perused the record.

13. From the argument as raised by
the learned counsel for the petitioner and
from perusal of the record, it emerges that
earlier the petitioner has been suspended
vide order dated 04.10.2024. Upon a
challenge
being
raised
to
the
said
suspension order this Court vide judgment
and order dated 05.11.2024 had quashed
the suspension order and provided that
consequences would follow. However, it
was left open for the competent authority to
pass a fresh order, if required, in
accordance with law.

14. Again the petitioner has been
placed under suspension vide order dated
09.11.2024. The order has been passed
under the provisions of Section 16G(5) of
the Act, 1921.

15. The grounds urged by the
learned counsel for the petitioner in order
to challenge the said order are (a) that the
said suspension order has been passed
without reinstating the petitioner after the
earlier suspension order had been quashed
by
this
Court
and
this
Court had
specifically provided that consequences are
to be follow; and (b) that the suspension
order has been passed under the provisions
of Section 16G5(b) of the Act, 1921, which
order could only be passed in case
disciplinary
proceedings
are
being
conducted
but
as
no
disciplinary
proceeding have been initiated against the
petitioner, the same thus reflects patently
non application of mind and consequently,
suspension order merits to be quashed.

16. As regards the first ground i.e.
the suspension order having been passed
without reinstating the petitioner, suffice to
state that during the period of suspension
employer-employee relationship does not
come to an end. The employee is only
prohibited from actually offering his
services and discharging his duties and
further during the suspension pending
enquiry the remuneration is payable to the
employee concerned.

17. In this regard, it would be
suffice to refer to the judgments of the
Supreme Court in the case of The Regional
Director, Employees' State Insurance
Corporation vs M/S Popular Automobiles
Etc : AIR 1997 SC 3956, Public Services
Tribunal Bar Association vs State Of U.P.
& Another : 2003 (4) SCC 104 and Khem
Chand vs Union Of India : 1963 AIR 687
SC.

18. Once the employer-employee
relationship continues thus in terms of
Section 16G(5) of the Act, 1921, which
pertains to the suspension of the head of
institution or teacher and the provision
under which the petitioner has been
988 INDIAN LAW REPORTS ALLAHABAD SERIES
suspended, the same categorically provides
that it is the head of the institution or
teacher who can be suspended by the
management
on
the
grounds
as
contemplated under the said section. As the
earlier suspension order of the petitioner
had already been quashed by this Court
vide judgment and order dated 05.11.2024
and even if no formal order has been
passed by the respondents reinstating the
petitioner, the same would not take away
the fact or the suspension order itself
having been quashed and consequently the
petitioner cannot be said to be a suspended
employee on the date of passing of the
fresh suspension order, in this case as on
09.11.2024 and thus in case no formal order
was passed for the reinstatement of the
petitioner the same would not vitiate the
suspension order on the ground as urged by
the petitioner.

19. Even otherwise if no formal
order was passed in the case of the
petitioner reinstating him, the same would
have to be seen in the context of the
prejudice that may have been caused to the
petitioner.

20. This aspect of the matter has
been considered by the Hon'ble Supreme
Court in the case of Canara Bank And Ors
vs Debasis Das And Ors : 2003 (4) SCC
557 wherein the Hon'ble Supreme Court
has held as under:-

"24. Additionally, there
was no material placed by the
employee to show as to how he has
been prejudiced. Though in all
cases the post-decisional hearing
cannot be a substitute for predecisional hearing, in the case at
hand the position is different. The
position was illuminatingly stated
by
this
Court
in Managing
Director,
ECIL v. B.
Karunakar [Managing
Director,
ECIL v. B. Karunakar, (1993) 4
SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] (SCC at p.
758, para 31) which reads as
follows:
"31. Hence, in all cases
where the enquiry officer's report is
not furnished to the delinquent
employee
in
the
disciplinary
proceedings,
the
courts
and
tribunals should cause the copy of
the report to be furnished to the
aggrieved employee if he has not
already secured it before coming to
the court/tribunal and give the
employee an opportunity to show
how his or her case was prejudiced
because of the non-supply of the
report. If after hearing the parties,
the court/tribunal comes to the
conclusion that the non-supply of
the report would have made no
difference to the ultimate findings
and the punishment given, the
court/tribunal should not interfere
with the order of punishment. The
court/tribunal
should
not
mechanically set aside the order of
punishment on the ground that the
report was not furnished as is
regrettably being done at present.
The courts should avoid resorting
to short cuts. Since it is the
courts/tribunals which will apply
their judicial mind to the question
and give their reasons for setting
aside or not setting aside the order
of
punishment,
(and
not
any
internal appellate or revisional
authority), there would be neither a
breach of the principles of natural
justice
nor
a
denial
of
the
12 All. Dr. Gyanvati Dixit Vs. State of U.P. & Ors.
989
reasonable opportunity. It is only if
the court/tribunal finds that the
furnishing of the report would have
made a difference to the result in the
case that it should set aside the order
of punishment. Where after following
the
above
procedure,
the
court/tribunal sets aside the order of
punishment, the proper relief that
should be granted is to direct
reinstatement of the employee with
liberty to the authority/management
to proceed with the inquiry, by
placing
the
employee
under
suspension
and
continuing
the
inquiry from the state of furnishing
him with the report. The question
whether the employee would be
entitled to the back wages and other
benefits from the date of his dismissal
to the date of his reinstatement if
ultimately ordered, should invariably
be left to be decided by the authority
concerned according to law, after the
culmination of the proceedings and
depending on the final outcome. If
the employee succeeds in the fresh
inquiry and is directed to be
reinstated, the authority should be at
liberty to decide according to law
how it will treat the period from the
date
of
dismissal
till
the
reinstatement and to what benefits, if
any and the extent of the benefits, he
will be entitled. The reinstatement
made as a result of the setting aside
of the inquiry for failure to furnish
the report, should be treated as a
reinstatement for the purpose of
holding the fresh inquiry from the
stage of furnishing the report and no
more, where such fresh inquiry is
held. That will also be the correct
position in law."
(Emphasis supplied)
21. On perusal of the judgment in
the case of Debasis Das (supra), it emerges
that the Hon'ble Supreme Court has
propounded on the aspect of 'prejudice' that
may be caused to an employee where
he/she alleges some violation. In the instant
case, the violation, as alleged, is non
issuance
of
the
formal
order
of
reinstatement. The learned counsel for the
petitioner neither in his arguments nor in
the petition has indicated anywhere as to
the prejudice that may have been caused to
him on account of non issuance of the
formal order of reinstatement after his
suspension order was quashed. In the
absence thereto, merely because no formal
order was issued prior to placing the
petitioner under suspension, the same, in
the opinion of the Court, will not vitiate the
impugned suspension order as no prejudice
has been caused to him.

22. Non passing of a formal order
of reinstatement can also be seen in context
of 'Useless Formality Theory' as enunciated
by the Hon'ble Supreme Court in the case
of M.C. Mehta vs Union Of India & Ors :
1997 (2) SCC 353.

23. The reason as to why the said
principle may be attracted in the facts of
the instant case is that once the petitioner
had only been placed under suspension
vide
order
dated
04.10.2024
which
suspension order had been quashed by the
writ court vide judgment and order dated
05.11.2024 consequently the petitioner can
be deemed to have been reinstated in
service. Thus merely because a formal
order of his reinstatement was not passed
prior to he again being placed under
suspension
by
means
of
the
order
impugned the same would clearly fall
within the ambit of Useless Formality
Theory as per the judgment of the Hon'ble
990 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court in the case of M.C. Mehta
(supra).

24. Even otherwise considering the
law laid down by the Hon'ble Supreme
Court in the case of Gadde Venkateswara
Rao vs Government Of Andhra Pradesh
And Others : 1966 AIR 828 SC wherein
the Hon'ble Supreme Court has held that
unless there is a failure of justice, the Court
may refuse to exercise the extraordinary
jurisdiction with which it is vested, as such,
this Court is of the view that merely
because a formal order of reinstatement
was not passed prior to the petitioner being
placed under suspension, there has been no
failure of justice and as such, this court
refuses to exercise the extraordinary
jurisdiction.

25. As already indicated above,
once the earlier suspension order of the
petitioner had been quashed consequently
even if the respondents failed to pass a
formal order of reinstatement, the same will
not and cannot take away the power of the
respondents to again place the petitioner
under suspension as has clearly been done
in the instant case. Thus, the aforesaid
ground does not appeal to the Court and is
accordingly rejected.

26. So far as judgment of the
Hon'ble Supreme Court in the case of
Anand
Narain
Shukla
(supra)
is
concerned, the same has no applicability of
the facts of the instant case inasmuch the
Hon'ble Supreme Court has considered the
reversion of the employee concerned to be
one of reinstatement while in the instant
case the petitioner had been placed under
suspension.

27. So far as judgment of this
Court in the case of Lal Bahadur Singh
(supra) is concerned, the said judgment
was a case of dismissal order having been
quashed leaving it open to the respondents
to conduct a fresh enquiry. In those
circumstances, this Court had held that a
fresh enquiry could only be conducted after
the employee concerned was reinstated in
the services and without reinstatement the
enquiry could not have been conducted. In
the instant case again it is not a case of the
petitioner
having
been
dismissed
or
removed from the service rather he had
only been placed under suspension and thus
the
said
judgment
would
have
no
applicability to the facts of the instant case.

28. So far as the judgment of the
Bombay High Court in the case of Salma Bi
(supra) is concerned, the same would have no
applicability to the facts of the instant case
inasmuch as the same is a case pertaining to an
election dispute while the instant case pertains
to a service matter.

29. So far as the judgment of the
Supreme Court in the case of B. Karunakar
(supra) is concerned, para 31 pertains to a
reinstatement of an employee, which again
would have no applicability to the facts of the
instant case.

30. As regards ground (b), suffice to
state that perusal of the suspension order would
indicate that the same had been passed both
under the provisions of Section 16G(5)(a) and
(b). Even if for the sake of the argument, the
aforesaid ground as urged by the petitioner is
considered to be valid that suspension could not
have been ordered without an enquiry been
initiated as provided under Section 16G(5)(b) of
the Act, 1921 yet a perusal of the suspension
order would indicate that the same has also
been passed under the provisions of Section
16G(5)(a) of the Act, 1921 also and thus once
the charges are serious as such the suspension
12 All. Mahendra Singh Kanwal Vs. State of U.P. & Ors.
991
order would squarely be covered by
the provisions of Section 16G(5)(a) of the Act,
1921 and thus the petitioner has correctly been
placed under suspension in terms of the
aforesaid provisions.

31. The Court would like to add that it
has not expressed any opinion with regard to
provisions of Section 16G(5)(b) of the Act,
1921 that without issuance of a charge-sheet the
suspension order cannot be passed and the said
question is left open to be considered in an
appropriate case.

32. Keeping in view the aforesaid
discussion, no case for interference is made out.
Accordingly, the writ petition stands dismissed.
----------
(2024) 12 ILRA 991
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.12.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ -A No. 11509 of 2024
With
Writ-A Nos. 11511 of 2024, 11526 of 2024 &
11538 of 2024

Mahendra Singh Kanwal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Singh Kushwaha

Counsel for the Respondents:
C.S.C., Rajeeva Kumar Sinha

A. Service Law - Gratuity - Alternate
remedy - Payment of Gratuity Act, 1972:
Section 2A.

Maintainability - The Hon'ble Supreme
Court has carved out certain exceptions
when a petition u/Article 226 of the
Constitution of India could be entertained
in spite of availability of an alternate
remedy. Some of the exceptions are:

(i) where the statutory authority has not acted
in accordance with the provisions of the
enactment in question;
(ii) it has acted in defiance of the fundamental
principles of judicial procedure;
(iii) it has resorted to invoke the provisions
which are repealed; and
(iv) when an order has been passed in total
violation of the principles of natural justice.
(Para 13)

None of the aforesaid exceptions are
attracted in the facts of the instant case
so as to entertain the instant petition.
(Para 14)

B. Perusal of Section 7 of the Act, 1972
would indicate that sub Section 4(a) of
Section 7 of the Act, 1972 categorically
provides that if there is any dispute as to
the amount of gratuity payable to an
employee under the Act, 1972 or as to the
admissibility of any claim etc., then the
employer or the employee or any other
person raising a dispute may give an
application to the controlling authority for
deciding the dispute. (Para 8)

In the instant case, the dispute is that although
the service rendered by the petitioner as daily
wager is covered under the provisions of Section
2A of the Act, 1972 yet the respondents have
not considered the said service while giving the
gratuity to the petitioner by treating his service
only for the period between 2014 to 2019 i.e.
the period of service rendered by the petitioner
after his regularization till his retirement. Thus,
it is apparent that there is a dispute as to the
amount of gratuity payable to the petitioner
which can validly be raised
before the
controlling authority under the provisions of the
Act, 1972. (Para 9)

Statutory remedy being available under the
provisions of Act, 1972 as such the writ petition
is disposed of leaving it open to the petitioner to
pursue the remedy as available to him under the
Act. (Para 15)