# Executive Officer, Municipal Board, Kosi Kalan, Mathura and another v. Kishan Singh

- **Citation:** (2004) 2 ILRA 392
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-06-01
- **Case number:** Special Appeal No. 768 of 1999
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/executive-officer-municipal-board-kosi-kalan-mathura-and-another-v-kishan-singh-40378
- **Pages:** 3

## Headnote

U.P. Fundamental Rules (Amendment)
Act,
1976-Respondent-R.56-J
(2)(b)-
Compulsory retirement-Adverse entrynon-communication-No opportunity to
make representation. Held, cannot be
relied upon for compulsory retirement.

A perusal of Clause (2) (b) shows that
the authority which is to pass the order
of compulsory retirement must consider
the representation which is pending
against an adverse entry. Now there can
be no representation if the adverse entry
is not communicated. Hence, it is implicit
in the said clause that the entry must be
communicated
to
the
concerned
employee so that he has an opportunity,
of making a representation against the
entry. Hence an uncommunicated entry
http://www.allahabadhighcourt.nic.in
2 All] Executive Officer, Municipal Board, Kosi Kalan, Mathura & another V. Kishan Singh 393
cannot be relied upon for passing an
order of compulsory retirement. Para 7
Case law discussed:
1995 (7) FLR 84
1997 (1) ESC 324 (All)
AIR 1992 SC 1020

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
392

6. The court was examining the
question as to whether potato chips can be
included in the definition of 'Kachari' or
not. It was answered that potato chips are
not 'Kachari'. In the case in hand the
dealer opp. party has submitted that since
the produce in question is used after
frying in oil, therefore, it is 'Kachari'. If
this reasoning would have been correct, it
is a matter of common knowledge that the
potato chips are also fried with oil in
frying pan and would have been treated as
'Kachari'. Therefore, this part of the
argument that the product in question is
fried with oil in frying pan and therefore
has to be treated as 'Kachari', cannot be
accepted in view of the aforesaid
judgment of M/s. Kastoori lal and Sons.

7. The dealer opp. party was
claiming
benefit
of
the
exemption
notification issued under section (a) of the
Act. The burden was upon it to prove that
the produce in question is treated in
common parlance as 'Kachari'. The
tribunal was very much influenced by the
fact that the dealer in the sale vouchers
has mentioned the product as 'Kachari'
and that in the registration certificate, the
registration was sought by way of
amendments
for
the
purpose
of
manufacture of 'Kachari' (Namkeen). To
my mind these circumstances are wholly
irrelevant and should not have been taken
into account as they are in the nature of
self-serving statement.

8. In view of the above the product
in question cannot be called Kachari. It is
not covered by the aforesaid notification
in view of the fact that Kachari as
generally understood is a preparation of
rice. I find sufficient force in the
argument of the learned standing counsel
that since the product in question has been
prepared out of Maida is not understood
in common parlance as 'Kachari' and was
rightly taxed as "Namkeen" by the first
appellate authority.

9. In the result both the revisions are
allowed to the extent indicated above and
the order of the tribunal is set aside
accordingly.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.06.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Special Appeal No. 768 of 1999

Executive Officer, Municipal Board, Kosi
Kalan, Mathura and another ...Appellants
Versus
Kishan Singh

 ...Respondent

Counsel for the Appellants:
Sri P.K. Singhal

Counsel for the Respondent:
Sri A.R. Dubey

U.P. Fundamental Rules (Amendment)
Act,
1976-Respondent-R.56-J
(2)(b)-
Compulsory retirement-Adverse entrynon-communication-No opportunity to
make representation. Held, cannot be
relied upon for compulsory retirement.

A perusal of Clause (2) (b) shows that
the authority which is to pass the order
of compulsory retirement must consider
the representation which is pending
against an adverse entry. Now there can
be no representation if the adverse entry
is not communicated. Hence, it is implicit
in the said clause that the entry must be
communicated
to
the
concerned
employee so that he has an opportunity,
of making a representation against the
entry. Hence an uncommunicated entry
http://www.allahabadhighcourt.nic.in
2 All] Executive Officer, Municipal Board, Kosi Kalan, Mathura & another V. Kishan Singh 393
cannot be relied upon for passing an
order of compulsory retirement. Para 7
Case law discussed:
1995 (7) FLR 84
1997 (1) ESC 324 (All)
AIR 1992 SC 1020

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

1. This special appeal has been filed
against the judgment of the learned single
Judge dated 5.7.99 by which the learned
single Judge had allowed the writ petition
against
the
order
of
compulsory
retirement.

2. We have carefully perused the
impugned judgment and have heard
learned counsel for the parties.

3. We find no infirmity in the
judgment of the learned single Judge..

4. It appears that the only material
against the petitioner was an adverse entry
dated
30.6.89
but
that
was
not
communicated to the writ petitioner.

5. Two division bench decisions of
this Court, being State of U.P. Vs. M.C.
Maheshwari 195 (71) LFR 84 and Sri
Dilawar Singh Paul vs. State of U.P. 1997
(1) ESC 324 (All.) have distinguished the
Supreme Court decision in Baikunth Nath
Das vs. Chief Medical Officer, AIR 1992
SC 1020 and have held that the decision
will not apply to Uttar Pradesh because in
Uttar Pradesh the law of compulsory
retirement is different from that in Orissa.

6. In U.P. the law is governed by the
U.P.
Fundamental
Rule
56
J
(Amendment) Act 1976 which provides
as follows:-

"(2) In order to be satisfied whether
it will be in the public interest to require
a Government servant to retire under
Clause (c) the appointing authority may
take into consideration any material
relating to the Government servant and
nothing herein contained shall be
construed to exclude from consideration-

(a) any entries relating to any period
before such Government servant was
allowed to cross any efficiency by or
before he was promoted to any post in an
officiating or substantive capacity or on
an adhoc basis; or

(b) an
entry
against
which
a
representation is pending, provided that
the representation is also taken into
consideration alongwith the entry; or

(c) any
report
of
the
vigilance
Establishment constituted under the
Uttar Pradesh Vigilance Establishment
Act, 1965.

(2-A)
Every such decision shall be
deemed to have been taken in the public
interest)"

7. A perusal of Clause (2) (b) shows
that the authority which is to pass the
order of compulsory retirement must
consider the representation which is
pending against an adverse entry. Now
there can be no representation if the
adverse entry is not communicated.
Hence, it is implicit in the said clause that
the entry must be communicated to the
concerned employee so that he has an
opportunity, of making a representation
against
the
entry.
Hence
an
uncommunicated entry cannot be relied
upon for passing an order of compulsory
retirement.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
394

8.
Since
the
entry
was
uncommunicated it cannot be taken into
consideration.

9. As such there is no material on
the
basis
of
which
the
order
of
compulsory retirement could have been
passed. The appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2004

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 40907 of 2001

Rambir Mishra

...Petitioner
Versus
Union of India through General Manager,
Northern Railways, Baroda House, New
Delhi and others
 ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi

Counsel for the Respondents:
Sri Govind Saran
Sri Vivek Singh

Constitution of India-Article 226 and 14Railway Protection Force Rules, 1987Removal from Service-Disproportionate
punishment-Assistant
Security
Commissioner, RPF heading raiding party
himself because enquiry and disciplinary
authority-held to be unfair-but this
cannot be only a ground for dismissal
brushing aside the finding of disciplinary
authority-However, petitioner was never
asked to be a member of raiding partyPetitioner while discharging his original
assigned duty could never suo moto
expected to participate in activity of
apprehending
the
criminals-Moreover
charges,
held
to
be
vague-Further,
similar charges
against
three other
constables who were exonerated by
revisional authority, but petitioner has
only been singled out-cannot be held
guilty
of
charge
of
not
rendering
assistance to raiding party-Removal from
service-held harsh and disproportionate.

The review of above legal position would
establish that Sri S.N. Singh, Assistant
Security
Commissioner,
Railway
Protection Force, heading the raiding
party himself became the inquiry and
disciplinary authority, which is not fair,
however, this aspect can not be only a
ground of dismissal brushing aside the
finding of the disciplinary authority. Mere
minor infirmities in procedure of inquiry
could not make inquiry and finding of the
disciplinary authority absurd when the
provisions of Rules, 1987 provided wide
power
to
the
Assistant
Security
Commissioner to act as an inquiry officer
and disciplinary authority also, however,
the petitioner was never taken into
confidence or asked to be a member of
raiding party or he was not invited at the
spot to become member of the raiding
party
or
to
render
assistance.
The
petitioner while discharging his original
assigned duty could never suo-moto was
expected to come forward and participate
in the activity of apprehending the
criminals and obstructing the tempos
taking away stolen coal bags. In any case,
the charges were vague, not specific.
Similar charges were against three other
constables, and they were allowed to go
Scott free in the revision by exonerating
them and the petitioner has only been
singled out, therefore, the petitioner
could not be held guilty of not rendering
assistance to the raiding party and
removal of petitioner from service is a
punishment
too
harse
and
disproportionate to the alleged charges
against him, and action and quantum of
punishing the petitioner is shockingly
disproportionate and on the reasons
stated above impugned orders dated
28.09.1999, 22.11.1999 and 29.06.2001
are not legally sustainable, therefore,
these are set aside. The Senior Security
Commissioner, RPF (NR), Allahabad is
directed to consider the case of petitioner
sympathetically and may taken decision