# Hardwari Lal v. State of U.P. and another

- **Citation:** (2011) 1 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-24
- **Bench:** Devi Prasad Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hardwari-lal-v-state-of-u-p-and-another-41816
- **Pages:** 4

## Text

1 All] Hardwari Lal V. State of U.P. and another
157
in law. In view of this finding of ours we
need not go into the questions, whether
Section 21 of the General Clauses Act
applies to the consent given under Section
6 of the Act and whether consent given for
investigating into Crime No. 246 of 1994
was redundant in view of the general
consent earlier given by the State of
Kerala".

12. Mr. Rajendra Kumar Dwivedi,
learned Additional Government Advocate
reminded that this Court had an occasion
to deal with the same question in the case
of Nandan Singh Bora Vs. State of U.P.
and another (Criminal Misc. Case No.
2882 of 2008, under Section 482 Cr.P.C.,
decided on 18.12.2008), in which the
observation of Hon'ble Supreme Court
referred in the case of Popular Muthiah
Vs. State, reported in 2006 (7) SCC 296
as well as K.Chandrasekhar Vs. State of
Kerala and others, reported in AIR
1998 SC, 2001, has been considered and
submits that keeping in view the facts of
the case, the order for re-investigation
issued by the learned Magistrate has been
considered as of further investigation.

13. Similarly, in this case also, the
court
has
issued
direction
for
investigation which is a direction for only
further investigation and not for reinvestigation of the case. Therefore, I am
of the view that the impugned order dated
3rd December, 2010, passed by the
Judicial Magistrate, Mohammadi, District
Kheri does not suffer from any error and
the petition is liable to be dismissed.

14. The petition is, therefore,
dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED LUCKNOW 24.02.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J

Service Single No. - 1225 of 1995

Hardwari Lal

 ...Petitioner
Versus
State of U.P. Thr. Sec. Sugar Industries,
Lucknow and another
 ...Respondents

Counsel for the Petitioner
Ganga Singh

Counsel for the Respondent
C S C

Constitution of India-Article 21-Right of
livelihood-petitioner
working
as
watchman-after 20 years service without
opportunity without show cause noticeservice terminated on ground of physical
disability as suffering from blindnessfrom perusal of medical certificate by
Regional
Institute
of
Opthalmology
Sitapur-petitioner
suffering
from
glaucoma
in
right
eye
but
fit
for
discharge of duty-cannot be disputed-in
view of Narendra Kumar Chawla caseright to livelihood an integral part of lifeshould not be deprived from livelihood-if
the
unit
closed-entitled
for
compensation-considering mental and
physical agency Rs.2,50000/-ex-gratia
compensation be paid within 3 month
failing which entitled for 8 % interest.

Held: Para 8

It is evident at the face of record that
while passing the impugned order, no
prior notice or opportunity of hearing
was provided. The General Manager has
passed the impugned order without
serving any show cause notice on the
petitioner. The averments contained in
para 4 of the writ petition have not been
denied.
Accordingly,
the
certificate
158 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
issued by the Regional Institute of
Ophthalmology, Sitapur, contained in
Annexure No.2 to the writ petition may
not
be
doubted.
Undisputedly,
the
Regional Institute of Ophthalmology of
Sitapur
is
a
renowned
institution
exclusively dealing with eye disease. The
certificate granted by such institution
cannot
be
thrown
out
lightly.
The
respondents
should
have
given
opportunity
before
passing
the
impugned order while terminating the
petitioner's services, more so when the
petitioner has served for about 20 years.
Case law discussed:
AIR 1995 SC 519

(Delivered by Hon'ble Devi Prasad Singh,J.)

1. Heard learned counsel for the
petitioner and Mr. P.K. Sinha, learned
counsel appearing for the respondents.

2. The petitioner, a former Watchman
of U.P. State Sugar Corporation Limited,
has approached this Court under Art. 226 of
the Constitution of India against the
impugned order of termination dated
25/26.11.1994(Annexure-11).

3. While assailing the termination
order, it has been submitted by the
petitioner's counsel that the order of
termination has been passed on the ground
that the petitioner cannot see from left eye
and right eye has been impaired. The
impugned order also reveals that the
petitioner cannot move freely without
assistance of other person. Accordingly, a
finding has been recorded that being a blind
person, he cannot discharge duties of
Watchman. In consequence thereof, the
services have been terminated.

4. The petitioner's counsel submits that
the petitioner was appointed on 1.12.1973 on
the post of Watchman at its unit situated at
Maholi and since then, he has been
continuously discharging duty. It is also
submitted that the order of termination has
been passed in utter disregard to principle of
natural justice without serving a show cause
notice or opportunity of hearing. Attention of
this Court has been invited to the certificate
issued
by
the
Regional
Institute
of
Ophthalmology, Sitapur, according to which,
the petitioner is suffering from Glaucoma in
right eye but he is fit to discharge duty.

5. On the other hand, Mr. P.K. Sinha,
learned counsel for the respondents submits
that Maholi unit of U.P. State Sugar
Corporation has been wind up from
8.9.1998, hence all those employees whose
services have been retrenched on account of
closure of unit have been paid ex gratia
amount. Some of the persons who were
retrenched have been paid compensation and
some of them have been given voluntary
retirement.

6. Attention of this Court has been
invited by the petitioner's counsel to a case
reported in AIR 1995 SC 519 Narendra
Kumar Chandla versus State of Haryana
and others where Hon'ble Supreme Court
held that being right to livelihood as an
integral facet of right to life, the employees
suffering from physical infirmity should not
be deprived from his or her livelihood. He or
she should be accommodated at appropriate
place. Relevant portion from the judgment of
Narendra Kumar (supra) is reproduced as
under :

"7. Article 21 protects the right to
livelihood as an integral facet of right to life.
When an employee is afflicted with
unfortunate disease due to which, when he is
unable to perform the duties of the posts he
was holding, the employer must make every
endeavour to adjust him in a post in which
1 All] Hardwari Lal V. State of U.P. and another
159
the employee would be suitable to discharge
the duties as a Carrier Attendant is unjust.
Since he is a matriculate, he is eligible for the
post of L.D.C. For L.D.C., part from
matriculation, passing in typing test either in
Hindi or English at the speed of 15/30 words
per minute is necessary. For a Clerk, typing
generally is not a must. In view of the facts
and circumstances of this case, we direct the
respondent Board to relax his passing of
typing test and to appoint him as a L.D.C.
Admittedly on the date when he had
unfortunate operation, he was drawing the
salary in the pay scale of Rs.1400-2300.
Necessarily, therefore, his last drawn pay has
to be protected. Since he has been
rehabilitated in the post of L.D.C. we direct
the respondent to appoint him to the post of
L.D.C. Protecting his scale of pay of rs.14002300 and direct to pay all the arrears of
salary."

7. Apart from above, under The
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and Full
Participation) Act, 1995 (Act No. 1 of 1996),
provision has been made for reservation of
job to the extent of 3% to the physically
disabled persons. Accordingly, in view of the
said Act, right of the petitioner is protected
not only by Part-III of the Constitution of
India but under the statutory provisions also.

8. It is evident at the face of record that
while passing the impugned order, no prior
notice or opportunity of hearing was
provided. The General Manager has passed
the impugned order without serving any
show cause notice on the petitioner. The
averments contained in para 4 of the writ
petition have not been denied. Accordingly,
the certificate issued by the Regional
Institute
of
Ophthalmology,
Sitapur,
contained in Annexure No.2 to the writ
petition may not be doubted. Undisputedly,
the Regional Institute of Ophthalmology of
Sitapur is a renowned institution exclusively
dealing with eye disease. The certificate
granted by such institution cannot be thrown
out lightly. The respondents should have
given
opportunity
before
passing
the
impugned order while terminating the
petitioner's services, more so when the
petitioner has served for about 20 years.

9. In view of above, the impugned
order suffers from arbitrary exercise of
power and does not seem to be sustainable.
In case the impugned order would not have
been passed, the petitioner would have
continued in service up to the age of
superannuation, i.e. 2005 as admitted by the
parties' counsel. However, since the industry
in question has been closed down in the year
1998, the petitioner could have also given
voluntary retirement like other employees or
could have been paid compensation. The
learned counsel for the respondents submits
that it may be left open for the respondents to
pay compensation or entertain the petitioner's
prayer for voluntary retirement since the unit
has now been closed. The petitioner is aged
about 70 years and in case any decision is
taken to shift the burden on the respondents'
shoulder, it may take some more time on the
part of the respondents or may create a
ground for further litigation. Accordingly, it
shall be appropriate that some amount in
lump sum be paid to the petitioner which is
assessed to Rs.2,50,000/- which shall include
arrears of salary, compensation, mental pain
and agony, cost of litigation etc. which the
petitioner suffered because of impugned
order.

10. In view of above, the writ petition
is allowed. A writ in the nature of certiorari is
issued quashing the impugned order dated
25/26.11.1994
(Annexure-11)
with
all
consequential benefits. The consequential
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
benefit is confined to payment of ex gratia
amount in lump sum to the tune of
Rs.2,50,000/-(Two Lacs fifty thousand only)
which shall be paid to the petitioner within a
period of three months from today. In the
event of failure in payment of compensation
within three months, the petitioner shall be
entitled for payment of interest at the rate of
8% with effect from November 1994. The
amount shall be paid through cross bank
draft.

11. The writ petition is allowed
accordingly.

12. Mr. P.K. Sinha, learned counsel for
the petitioner shall inform the corporation
accordingly.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Revision No. - 1409 of 2001

Ram Vilash Chauhan and others

 ...Applicants/Revisionist
Versus
State of U.P.and others

 ...Opposite Parties.

Counsel for the Revisionists:
Sri C.K. Parekh

Counsel for the Opposite Parties:
G.A.

Criminal
Revision-Summoning
order
passed
by
Magistrate-offence
under
Section 219, 342 IPC-being satisfied by
Advocate Commissioner's report to verify
allegations regarding wrongful detention
under
Police
Lock
Up-set-a-side
by
Session Judge taking very technical
ground- No such provision in Cr.P.C. To
take cognigence can such report-held
not proper-by appointing Commission
the Magistrate simply collected the
materials to verify the truth-view taken
by Session Judge-not tenable.

Held: Para 10

It appears that the learned Magistrate
while
deputing
an
Advocate
Commissioner for verifying truth of the
allegations, had merely acted to collect
relevant evidence in support of the
allegations made by the revisionist No.3.
in her applications. As such the decision
of the learned Magistrate in appointing
the aforesaid Advocate as Commissioner
was perfectly correct, therefore, the
observations of the learned Sessions
Judge are not tenable in law.

(Delivered By Hon'ble Shri Kant Tripathi,J.)

1. Heard Mr. C.K. Parekh for the
revisionists and learned A.G.A. for the
respondents and perused the record.

2. The respondent No.3 Ram Bali
Yadav, Sub-Inspector, has filed counter
affidavit on behalf of all the respondents
and is represented through the learned
A.G.A. Therefore, it is not necessary to
hear respondent No.3 personally.

3. By this revision, the revisionists
have challenged the impugned judgment
and order dated 10.05.2001 rendered by
the Sessions Judge, Chandauli in Criminal
Revision NO. 40 of 2001, Ram Bali
Yadav Vs. State, whereby the learned
Sessions Judge quashed the order dated
27.03.2009 passed by Mr. Manoj Kumar
Shukla, Judicial Magistrate/Civil Judge
(Jr. Div.), Chandauli on the application
dated 26.03.2001 moved on behalf of the
revisionist No.3.