# Employees Association and others v. Delhi Transport Corporation, 2001 (90)

- **Citation:** (2013) 2 ILRA 710
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-23
- **Case number:** Civil Misc. Writ Petition No. 28553 of 2013
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/employees-association-and-others-v-delhi-transport-corporation-2001-90-42566
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act, 1921Chapter
III-Regulation
35
to
37-
Dismissal
of
petitioner-working
as
Teacher in minority institution-without
charge
sheet-without
supply
of
document, without issuing show cause
notice-prior to inflict major penalty-heldorder
based
upon
malafide
consideration-inn
utter
disregard
of
principle
of
Natural
Justice-not
sustainable-quashed
with
liberty
to
proceed in accordance with law.

Held: Para-11
I have perused the impugned order and the
opening part thereof clearly recites the
manner in which the Management has
proceeded to consider the non-cooperation
of the petitioner as one of the grounds for
proceeding to pass the termination order.
Regulation 37 of Chapter III categorically
requires that after the inquiry is concluded,
the report of the Enquiry Officer shall be
considered
by
the
Committee
of
Management and then the Committee shall
offer an opportunity to the delinquent
employee to give his explanation and hear
him
before
passing
the
order
of
termination. There is no material discussed
by the District Inspector of Schools to
enable
this
Court
to
infer
tht
the
Committeee had ever complied with the
said provision. The order impugned dated
15.4.2013 is clearly deficient on this aspect.
Learned counsel for the respondent -
Committee
of
Management,
therefore,
could not support the order on this ground.
The impugned order, therefore, being in
violation of Regulation 37 of Chapter-III of
1921 Act cannot be sustained.

## Text

710 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Section 14 of the said Act, the provisions
of gratuity payable to the employees
under the pension Rules would have no
effect and that the employees would be
entitled to payment of gratuity under the
Payment of Gratuity Act. The said
decision is squarely applicable in the
instant case.

17. Similarly, in Allahabad Bank and
another Vs. All India Allahabad Bank
Retired Employees Association, 2010
(124) FLR 192, the Supreme Court held that
gratuity payable under the Payment of
Gratuity Act is a statutory right and the same
cannot be taken away except in accordance
with the provisions of the Act.

18. In the instant case, it was open to
the employers to seek exemption under
Section 5 of the Payment of Gratuity Act,
which has not been done and so long as
the exemption is not granted by the
appropriate government, the provisions of
the Gratuity Act will remain applicable
upon the petitioner.

19. The learned counsel for the
petitioner has relied upon the decision of
the Supreme Court in DTC Retired
Employees Association and others Vs.
Delhi Transport Corporation, 2001 (90)
FLR 770 wherein the Supreme Court held
that the appellants, who were the retired
employees and had opted for the pension
scheme, which was introduced by the
employer corporation through which they
were paid gratuity could not avail the
benefit of both the pension and gratuity
and that it was not open to the Court to
interfere with the pension scheme that
was implemented by the employers. The
said decision is squarely distinguishable
and is not applicable in the instant case,
inasmuch as the provision of Sections 5
and 14 of the Payment of Gratuity Act
was not considered nor noticed.

20. In the light of the aforesaid, the
Court is of the opinion that the order of
the Prescribed Authority directing the
petitioners' to pay the difference of the
gratuity was justified. However, the Court
finds that the order of payment of interest
was not justified. The workman did not
stir in the matter for 9 long years and,
thereafter, filed the claim application. The
Court is of the opinion that on account of
the fault of the workman, the payment of
the interest liability cannot be fastened
upon the employers.

21. In the light of the aforesaid, the
writ petition is partly allowed. The order
of the Controlling Authority is modified
to the extent that the employers, namely,
the petitioners are only liable to pay the
difference of the gratuity amount under
the Payment of Gratuity Act and that no
interest would be payable. Since the entire
amount
has
been
deposited,
the
Controlling Authority would disburse the
payment of the gratuity amount to the
workers and the interest component
would be refunded to the petitioners.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2013

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 28553 of 2013

Girish Chandra

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

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare
2 All] Girish Chandra Vs. State of U.P. and Ors.
711
Counsel for the Respondents:
C.S.C., Sri Ramesh Narain Pandey

U.P. Intermediate Education Act, 1921Chapter
III-Regulation
35
to
37-
Dismissal
of
petitioner-working
as
Teacher in minority institution-without
charge
sheet-without
supply
of
document, without issuing show cause
notice-prior to inflict major penalty-heldorder
based
upon
malafide
consideration-inn
utter
disregard
of
principle
of
Natural
Justice-not
sustainable-quashed
with
liberty
to
proceed in accordance with law.

Held: Para-11
I have perused the impugned order and the
opening part thereof clearly recites the
manner in which the Management has
proceeded to consider the non-cooperation
of the petitioner as one of the grounds for
proceeding to pass the termination order.
Regulation 37 of Chapter III categorically
requires that after the inquiry is concluded,
the report of the Enquiry Officer shall be
considered
by
the
Committee
of
Management and then the Committee shall
offer an opportunity to the delinquent
employee to give his explanation and hear
him
before
passing
the
order
of
termination. There is no material discussed
by the District Inspector of Schools to
enable
this
Court
to
infer
tht
the
Committeee had ever complied with the
said provision. The order impugned dated
15.4.2013 is clearly deficient on this aspect.
Learned counsel for the respondent -
Committee
of
Management,
therefore,
could not support the order on this ground.
The impugned order, therefore, being in
violation of Regulation 37 of Chapter-III of
1921 Act cannot be sustained.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Ashok Khare, leanred
Senior Counsel for the petitioner, Sri
Ramesh Narain Pandey for the respondent
Nos. 4 and 5 and learned Standing
Counsel for the respondent Nos. 1 to 3.

2. There is hardly any role for the
Respondent Nos. 1 to 3 to play in the
present
dispute
at
this
stage
and,
therefore, this Court does not find it
necessary to grant any time to the said
respondents to file any counter-affidavit.

3. Sri Pandey, learned counsel for
the respondent Nos. 4 and 5, submits that
he does not propose to file any counteraffidavit at this stage and the matter can
be disposed of on the basis of the facts
that are already on record.

4. In view of the consent of all the
learned counsel for the parties, the matter
is being disposed of finally at this stage.

5. The petitioner is a Teacher of Shri
Digamber Jain Inter College, Agra, which
is a minority institution protected under
Article 30 of the Constitution of India.

6. Disciplinary proceedings were
initiated against the petitioner and he has
been terminated from his services by the
impugned order dated 15.4.2013, which is
under challenge before this Court. The
ground for termination is that the
petitioner was guilty of the charges
referred to in the chargesheet dated
28.2.2013 and since the petitioner failed
to cooperate in the inquiry and failed to
respond to the show cause notice in
accordance with law, the petitioner was
removed from service.

7. The reply submitted by the
petitioner to the show cause notice was
also not found satisfactory.

8. Sri Ashok Khare contends that the
impugned order is violative of the
procedure prescribed under Regulations
35 to 37 of Chapter III of the U.P.
712 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Intermediate Education Act, 1921 and not
only this, the charges are absolutely
frivolous and the inquiry has proceeded
without giving notice to the petitioner. He
further contends that none of the
documents were provided which was
demanded by him. On the contrary a reply
was given by the Committee that the
documents were not required as they were
not necessary for the purpose of the reply.
He, therefore, submits that the respondent
-
Committee
of
Management
has
proceeded to terminate the services of the
petitioner without complying with the
principles of natural justice and in clear
violation of the provisions aforesaid. He
has relied upon on three decisions of this
Court in the case of Hardev Singh Vs.
Committee of Management, D.B. Santokh
Singh Khalsa Inter College, Agra, and
another, 2004 (2) LBESR 1138, the
decision in the case of Tariq Ayyub Vs.
State of U.P. and others, decided on
21.10.2010 and the third decision in the
case of Abha Saxena Vs. State of U.P.
and others, 2012 (10) ADJ 484, to urge
that even in minority institutions where
regulations have been violated, this Court
can exercise its discretion under Article
226 of the Constitution of India and
interfere with the order of termination.

9.

Replying
to
the
aforesaid
submissions,
Sri
Pandey
for
the
Management, submits that this is a case
where the charges are serious enough that
warrant the dismissal of the petitioner. The
charges were inquired into in accordance
with the procedure prescribed but the
petitioner failed to cooperate with the inquiry
and, therefore, the impugned order is
justified. He submits that the reply, which
was given by the petitioner, was absolutely
unsatisfactory and not only this, his conduct
in the institution is such that it is not
desirable to continue him further in service.
Sri Pandey, therefore, submits that the
impugned order does not require any
interference and the findings of fact recorded
cannot be a subject matter of appeal before
this Court under Article 226 of the
Constitution of India.

10. Having heard learned counsel for
the parties and having considered the
decisions that have been cited at the bar, the
interference in service matters relating to
employees of minority institutions is limited
to the extent of violation of procedure
prescribed under the Regulations, provided
they are regulatory in nature, and do not
impinge upon the fundamental rights
guaranteed
under
Article
30
of
the
Constitution of India. The judgments, which
have been relied upon by the learned counsel
for the petitioner, permits such interference
and in the instant case the stand taken by the
petitioner is that the inquiry is vitiated for
non-compliance of Regulations 35 to 37 of
Chapter III of the 1921 Act.

11. I have perused the impugned order
and the opening part thereof clearly recites
the manner in which the Management has
proceeded to consider the non-cooperation of
the petitioner as one of the grounds for
proceeding to pass the termination order.
Regulation 37 of Chapter III categorically
requires that after the inquiry is concluded,
the report of the Enquiry Officer shall be
considered
by
the
Committee
of
Management and then the Committee shall
offer an opportunity to the delinquent
employee to give his explanation and hear
him before passing the order of termination.
There is no material discussed by the District
Inspector of Schools to enable this Court to
infer tht the Committeee had ever complied
with the said provision. The order impugned
dated 15.4.2013 is clearly deficient on this
2 All] Radhey Shyam and Ors. Vs. State of U.P. and Ors.
713
aspect. Learned counsel for the respondent -
Committee of Management, therefore, could
not support the order on this ground. The
impugned order, therefore, being in violation
of Regulation 37 of Chapter-III of 1921 Act
cannot be sustained.

12. The writ petition is allowed. The
order impugned is hereby set aside. It
shall be open to the Committee of
Management to proceed to take action
against the petitioner in accordance with
the regulations aforesaid and in the light
of the judgments referred to herein above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 29171 Of 2013

Radhey Shyam and Ors. ...Petitioners
Versus
State of U.P. and Ors.
 ..Respondents

Counsel for the Petitioner:
Sri Babu Lal Ram
Sri S.K. Chaudhary

Counsel for the Respondents:
C.S.C., Sri Mahendra Pratap
Sri P.R. Maurya, Sri Anurag Yadav
Sri Sunil Kumar Maurya

U.P. Land Revenue Act 1901-Section
219(i)- Revision against order passed by
Thsildar under section 34-dismissed with
direction
to
file
appeal-held-order
by
revision Court-illegal-revision maintainable
but not filed-revisional court wrongly failed
to exercise its power-order quashed.

Held: Para-17
In view of the law laid down by the Apex
Court no room is left for doubt that in
case the revisional court has failed to
exercise its jurisdiction vested in it, such
order
passed,
even
in
mutation
proceedings cannot be sustained in the
eye of law and writ petition would be
maintainable against such order.

Case Law discussed:
1984 R.R. 333 (E); 1987 RD 109; 2007 (103)
RD; AIR 1977 S.C. 1718; AIR 1975 SC 1409;
AIR 1999 SC 1124; 2002 (48) ALR 319(SC);
2009 (106) RD 98

(Delivered by Hon'ble Ran Vijay Singh, J.)
.

1. Heard Sri Babu Lal Ram along with
S.K.Chaudhary, learned counsel for the
petitioners, learned standing counsel for the
State-respondents, Sri Mahendra Pratap
andSri P.R.Maurya along with Sri Anurag
Yadav, and Sri Sunil Kumar Maurya,learned
counsel for respondent no.4.

2. With the consent of the learned
counsel for the partiesthe writ petition is
beingdecided on its own merits without
exchange of affidavits.

3. Through this writ petitionthe
petitioners have prayed issuing a writ of
certiorari
quashing
the
order
dated
25.3.2013
passed
by
the
Tehsildar
(Judicial), Sadar, Jaunpur, respondent no.3
in Case No. 248 (Hari Cold Storage and
General Mills Private Limited vs. Radhey
Shyam and others) and the order dated
10.5.2013 passed by Additional District
Magistrate
(Finance
and
Revenue),
Jaunpur, respondent no.2.Vide order dated
25.3.2013 the application of respondent
no.4 filed under section 34 of the U.P.
Land Revenue Act, 1901 (for short the
Act) has been allowed. However, by the
subsequent order the revision filed by the
petitioner has been dismissed with the
direction to the petitioner to file an appeal
against the order impugned in the revision.