# Dr. Shyam Ji Shukla v. Sri K.R. Narayanan, the Visitor, B.H.U

- **Citation:** (2000) 3 ILRA 69
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-02-17
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-shyam-ji-shukla-v-sri-k-r-narayanan-the-visitor-b-h-u-39558
- **Pages:** 3

## Text

3All] Dr. Shyam Ji Shukla V. Sri K.R. Narayanan, the Visitor, B.H.U.
69
of ten weeks from the date of
production of certified copy of the order.

4. It has been alleged in the contempt
petition that despite service of the order of
this Court upon the Hon'ble Visitor, the
representation of the petitioner has not
been decided.

5. It is apparent from the array of
parties to the writ petition that the Hon'ble
Visitor was not arrayed as respondent, and
rightly so, because of constitutional bar as
provided under Article 361 (1) of the
Constitution of India. Clause 1 of article
361 of the Constitution of India provides
that the president shall not be answerable
to any Court for the exercise and
performance of the powers and duties of
his office or for any act done or
purporting to be done by him in the
exercise and performance of those
powers and duties. Therefore, No Court
can compel the president to exercise any
power or to perform any duty, nor he is
amenable to the writ or direction issued by
any Court. Article 361 (1) of the
Constitution gives complete immunity to
the President and Governors of Sate from
any proceeding of the Court in the
exercise and performance of their powers
and duties of his office including any
duty or function which are incidental to
the exercise of his power and
performance of his duties. The protection
given under this provision not only extends
to his official acts and omissions but also
to those acts and omissions which are
incidental to the exercise of powers and
performance of his duties, Therefore, the
orders of his Court dated 17.2.1998 and
24.7.1998 were not binding on him. No
doubt, the action or the order of the
president can be scrutinized by the Courts
in order to give relief to the individuals
against the Government and the personal
immunity given to the President under the
Constitution will not stand as a bar in
instituting any suit or writ petition against
the Government. But in such suit or
proceeding the President is not a necessary
party and no Mandamus or direction can
be issued to the President.

6. Section 5 of the Banaras Hindu
University Act provides that the President
of India shall be Visitor of the University.
The president has been made Visitor of the
University by virtue of his office and not
in his personal capacity and thus, in my
view, the personal immunity to the
President for official acts provided under
Clause 1 of Article 361 of the Constitution
is available to him in respect of his
functions and duties as Visitor of the
University, because he has been made
Visitor by virtue of his office.

7. In this view of the matter, the
contempt petition fails and it is here by
dismissed. The notice issued to the
opposite party is here by discharged.

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By the Court

1. Heard Shri Parvej Alam Ansari,
holding brief of Shri H.K. Singh, learned
counsel appearing for the petitioner and
Shri K.M. Sahai, learned Standing Counsel
of the State of U.P., representing the
respondents.

2. The petitioner, who retired as
Block Development Officer of the State of
U.P. on 30th June 1995, has not been
granted retiral benefits for the period
commencing from 1st January, 1996,
hitherto. Long back, to be precise, on 31st
October, 1995, he approached through his
letter for the grant of the retiral benefits.
Later on, he moved representation dated
12th January, 1996 before the respondent
No.3. A copy of this representation is to be
found on record as annexure-5 to the
petition.
Neither
the
letter
nor
representation was responded to.

3. The petitioner, therefore, moved
before
the
respondent
No.
3
by
representation dated 30th March, 1996, a
copy whereof is aannexure-6 to the
petition. This representation too went
unheeded. Thereafter, the petitioner moved
representations dated 3rd June, 1996. 8th
July, 1996. 7th September, 1996 and 21st
September, 1996, copies whereof are
annexures 7,8,9 and 10, respectively. On
these representations also the concerned
authorities turned deaf ears.

4.

Eventually,
the
petitioner
approached this court through instant writ
petition
under
Article
226
of
the
Constitution of India.

5. On 9th January, 1998, while
entertaining the petition, the court, on the
request of learned Standing Counsel who
had accepted notice on behalf of the
respondents, granted four weeks' time for
filing
counter-affidavit.
No
counteraffidavit
was
filed.
Again,
on
14th
July,2000, on the request of the learned
Standing Counsel, the court granted one
more
and
final
opportunity
to
the
respondents and granted two week's and
no more further time for filing counteraffidavit.

6. The office report dated 31st July,
2000, recorded on the order sheet,
indicates that no counter-affidavit has been
3All] Radha Krishna Singh V. Commissioner Village Development, U.P. & others
71
filed. Learned Standing Counsel does
not dispute this position. Under the
circumstances, the court is left with no
choice but to proceed on the assumption
that the averments made in the writ
petition are correct.

7. From the averments made in the
writ petition. Undisputed position that
emerges is;

That the petitioner retired on 30th June
as Block Development Officer;

That the requisite formalities for the
grant
of
retiral
benefits
had
been
completed by the petitioner; and

That the retiral benefits which the
petitioner may be entitled have not been
granted hitherto.

8. It cannot be gainsaid that the grant
of retiral benefits to an employee of the
State is not a matter of grace or charity.
Indeed, he is entitled to retiral benefits as a
matter of legally cognizable and judicially
enforceable right. Instant case is a said
commentary of the inaction on the part of
the respondents, on account of which the
petitioner has been deprived of his lawful
dues despite his repeated approaches to the
concerned authorities.

9. On the facts and circumstances,
noticed above, in the opinion of the court,
the stage has arrived for intervention by
this court.

10. In the result, the petition succeeds
and is allowed. The respondents jointly
and severally are directed to settle the
claim of the petitioner in respect of his
retiral benefits and ensure the payment of
all the dues to him within a period of three
months, to be computed from today. Shri
K.M. Sahai., learned Standing Counsel of
the State of U.P. in whose presence this
order 'has been passed shall communicate
to the respondents promptly. Petitioner
shall also produce before the respondents a
certified copy of this order as early as
possible. However, it is made clear that the
respondents shall not wait for production
of a certified copy of this order by the
petitioner and shall initiate action on the
information received by them through Shri
K.M. Sahai, learned Standing Counsel of
the State of U.P.

11. Certified copy this order may be
given to the learned counsel appearing for
the parties within a week, on payment of
usual charges.

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In the matter of M/s Hira Floon Ltd.(In
Liquidation)
In
Company Application No. 2 of 1997
In
Company Petition No. 18 of 1989

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