# M/s Overseas Agro Products (P) Ltd v. U.P. Financial Corporation and another

- **Citation:** (2002) 3 ILRA 749
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-10-04
- **Case number:** Civil Misc. Writ Petition No. 24996 of 1992
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-overseas-agro-products-p-ltd-v-u-p-financial-corporation-and-another-39968
- **Pages:** 5

## Headnote

Constitution of India- Article 226- In
case
of
temporary
employee
the
employer has right to terminate the
services of such employee according to
terms of contract of service instead of
holding enquiry even if the employee had
been charged with misconduct. The
petitioner did not submit proof of
passing intermediate examination, hence
his services were liable to be terminated
on that ground according to the terms of
his appointment. He also did not give any
reply to the notice of show cause hence
it was not necessary to hold any enquiry.

(Held in para 17)

Thus, in the circumstances of this case
no principles of natural justice have been
violated. In any case, termination of
service is not liable to be interfered in
the circumstances of this case and it is
not a fit case for exercise of jurisdiction
under Article 226 of the Constitution of
India.
Case Law referred:
2002 (93) FLR 971
AIR 1999 SC-2583
AIR 1966 SC-828
AIR 2000 SC-2783

## Text

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3 All] M/s Overseas Agro Products (P) Ltd. V. U.P. Financial Corporation and another
749

11. The writ petition is allowed and
the impugned recovery letter dated
10.8.2000 is quashed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2002

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 24996 of 1992

R.R. Shah

...Petitioner
Versus
Vice Chancellor, University of Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri A.K. Srivastava
Sri Vindhyachal Singh
Sri Pradeep Kumar
Sri B.B. Paul
Sri R.K. Pandey

Counsel for the Respondents:
Sri Manoj Misra
Sri R.K. Tewari
Sri S.N. Upadhyay
Sri S.N. Misra

Constitution of India- Article 226- In
case
of
temporary
employee
the
employer has right to terminate the
services of such employee according to
terms of contract of service instead of
holding enquiry even if the employee had
been charged with misconduct. The
petitioner did not submit proof of
passing intermediate examination, hence
his services were liable to be terminated
on that ground according to the terms of
his appointment. He also did not give any
reply to the notice of show cause hence
it was not necessary to hold any enquiry.

(Held in para 17)

Thus, in the circumstances of this case
no principles of natural justice have been
violated. In any case, termination of
service is not liable to be interfered in
the circumstances of this case and it is
not a fit case for exercise of jurisdiction
under Article 226 of the Constitution of
India.
Case Law referred:
2002 (93) FLR 971
AIR 1999 SC-2583
AIR 1966 SC-828
AIR 2000 SC-2783

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. The petitioner was appointed on
the post of temporary Routine Grade
Clerk w.e.f. 1st March, 1981 subject to
approval
of
Director
of
Education,
Allahabad. At the time of joining the said
post he had submitted his High School
Certificate with a written undertaking that
he will pass the Intermediate examination
to comply with the requirement of
qualification necessary for the post within
the limited prescribed time. Inspite of
sufficient opportunity to qualify the
Intermediate examination he was not able
to
submit
Intermediate
examination
certificate or mark-sheet.

3. Counsel for the petitioner
contends that the services of the petitioner
have been terminated without holding any
enquiry. It is contended that he has
continuously worked as Routine Grade
Clerk in William Holland University
College till he fell ill on 1.3.1990. It is
averred that he sent application for leave
w.e.f. 1.3.90 to 30.5.1990, but due to
prolong illness and advise of the Doctor
he sent application for extension of leave.
It is submitted that when the petitioner
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750 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
was issued a fitness certificate by the
Doctor on 31st March, 1992 he went to
join his duties but he was not allowed by
the concerned authority.

4. It appears from the record that the
petitioner was, in the mean time, issued a
show cause notice dated 20.3.90 asking
him to show cause why his services may
not be terminated as he failed to fulfill the
minimum educational requirement for the
post i.e. Intermediate and further that he
was absent from duty for the last 2
months without any notice or application.
The petitioner by letter dated 15th April,
1990 sent reply explaining the situation
under which the he was appointed on the
basis of his educational qualification of
High School and further he was under
treatment and as such, unable to join his
duties. He also alleges that he had worked
and performed his duties in the months of
January and February, 1990 and signed
the Attendance register.

5. The only point canvassed before
this Court is that there was no charges of
misappropriation and embezzlement of
fund against the petitioner. He was
terminated from service w.e.f. 15.3.92 in
violation of principles of natural justice,
without holding any enquiry and without
affording any opportunity of being heard
to
defend
himself
and
prove
his
ignorance.

6. In the counter affidavit it has been
alleged that inspite of many opportunities
given to the petitioner to qualify the
Intermediate examination he did not pass
the examination. He was given the charge
of collecting the fee and room rent and
other amounts from the inmates of the
Hostel. But instead of issuing the receipt
from the Hostel, he used to issue fee
receipts on a plain paper and used to
misappropriate the said amount deposited
by the students inmates. A copy of one of
similar receipts obtained from one of the
students inmates has been annexed as
Annexure-CA-1 to the counter affidavit. It
is alleged in the counter affidavit that
during a surprise check it was found in the
year
1988
that
the
petitioner
had
deposited deficit amount of Rs.11,155/-
and embezzled the same. When the
petitioner was asked about this amount he
confessed his guilt in his own hand
writing by letter dated 7.9.88. A perusal
of letter Annexure-CA-2 to the counter
affidavit shows that in his confession the
petitioner has admitted the embezzlement
and had shown his willingness to deposit
the said amount in cash by 30th October,
1988. He has also shown his willingness
to give back the record and receipt books
etc.

7. In para 6 of the counter affidavit it
has been stated that the petitioner ran way
from the college along with the record
and receipt books etc. in January 1990. In
these circumstances, a notice was issued
asking him to furnish proof of passing
Intermediate
examination
and
his
unexplained absence from the service to
complete the account book and the receipt
book of the college and return the
misappropriated amount to the principal
but even after receiving the said notice on
26.3.90 the petitioner did not submit any
reply and allegedly fell ill. It is contended
by the respondents that the appointment
of the petitioner was temporary on the
said post with an undertaking that he
would pass the Intermediate examination
within the limited time as per mandatory
requirement of the statute. It is further
contended that he has made manipulations
in the attendance register because it was
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3 All] R.R. Shah V. V.C., University of Allahabad and others
751
in his custody and has run away with the
records of the college.

8. It is admitted to the parties that
for the post of Routine Grade Clerk the
minimum qualification is Intermediate
pass and the petitioner did not possess
minimum qualification and as such, he
was only kept as a temporary measures
and his appointment was never approved
by the Deputy Director of Education,
Allahabad. Suffice it to say that the
appointment of the petitioner as Routine
Grade Clerk was void abinitio, which
cannot be legalized merely because the
Management was also a party to the
illegal appointment.

9. In para 19 of the writ petition it
has been stated that the services of the
petitioner
were
terminated
without
affording any opportunity of being heard
to the petitioner. The averments made in
para 19 of the writ petition have been
replied by the respondents in para 24 of
the counter affidavit which reads as
under:-

"That the contents of para 19 of the
writ petition are absolutely incorrect and
denied. In view of the confession made in
writing by the petitioner nothing more
was needed and the action was taken
accordingly as decided by the Executive
Committee against the petitioner who was
temporary and unqualified."

10. Thus the averments made in para
19 of the writ petition have not only been
specifically denied but it has also been
stated that in view of the confession made
in writing by the petitioner no action was
needed.

11. It is also an admitted fact that the
petitioner was not qualified for the post
and in these circumstances whether
principles of natural justice are not
attracted
in
Kendriya
Vidyalaya
Sangathan and others Vs. Ajay Kumar
Das and others, 2002 (93) FLR 971 it
has been held that where order of
appointment was invalid, the question of
observance of principle of natural justice
would not arise.

12. Coming to the question of
embezzlement and misappropriation of
money it appears from Annexure-CA-2
that the petitioner has in unequivocal
terms accepted finding of short deposit of
Rs.11,155/- and showed his willingness to
deposit
the
aforesaid
amount.
The
acceptance of the petitioner given in
Annexure-CA-2 in this regard is quoted
below:
"To,

The Principal

W.H.U. College

Allahabad.

Sir,

On checking the receipt books 1901
to 2000 and 2100 to 2200 along with the
show, the fee clerk, the amount deposited
less is Rs.11,155/- (Rs. Eleven Thousand
one hundred and fifty five only).

The unused receipt books i.e. the
counterfoils yet to be checked are from
the series 1300 onward but for the two
checked.

Solicited that the said documents be
provided with for the checking.

Sd/Illegible

7.9.88
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752 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
To,

The Principal

William Holland University College,

Allahabad.

Respected Sir,

I agree with the finding of short
deposit of the amount of Rs.11,155/-
(Rupees Eleven Thousand one hundred
fifty five only) in the fee collection.

I am willing to pay the gross amount
of the four months (May 88 to August 88)
and the balance I shall pay in cash by the
31st October 1988.

The records and the Receipt book
etc. viz receipt book including Bank
deposit slip and the fee Register shall give
by 8th of this month.

I am writing the note under no
pressure from any body.

Sd/Illegible

(R.R. Shah)

Office Assistant

W.H.U.C."

13. From perusal of Annexure-CA-3
it is apparent that the petitioner has
undertaken to further deposit Rs.6093/-.
This letter of the petitioner dated 29.9.89
is also relevant and is quoted below:

"To,

The Principal

W.H.U. College,

Allahabad.

Sir,

With due respect I beg to inform
you that as you know that I have
deposited Rs.11000/- (Rupees Eleven
Thousand only) in cash in lieu of 17093/-
(Rupees Seventeen Thousand Ninety
Three only) deposited short by me during
April 83 to July 89. Balance of Rs.6093/-
(Rupees Six Thousand Ninety Three only)
may be adjusted from my salaries for 10
months i.e. Ist June 88 to March 89 which
come
to
Rs.9217/-
(Rupees
Nine
Thousand Two hundred Seventeen only).

I shall be very grateful for this
favour.

Thanking you.

Yours faithfully,

(R.R. Shah)

Office Assistant.

To,

The Principal

Verified and forwarded

Sd/Illegible

29.9.89"

14.

In
view
of
unequivocal
confession made by the petitioner in the
two letters dated 7.9.88 Annexure 2 and 3
reproduced
in
this
judgement
and
depositing of Rs.11,155/- towards making
good embezzlement amount is sufficient
and no further enquiry was needed
thereafter. Following the ratio laid down
by the Apex Court in the case of M.C.
Mehta Vs. Union of India, AIR 1999 SC2583, S.L. Kapoor Vs. Jagmohan, AIR
1981 SC-136 and Gadda Venkateshwara
Rao Vs. Govt. of Andhra Pradesh, AIR
1966 SC-828 it is held that the principles
of natural justice have not been violated
in the instant case as no prejudice can be
said to have been caused to him as held
by Supreme Court in case of Aligarh
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3 All] Sahab Singh V. State of U.P.

753
Muslim University Vs. Mansoor Ali
reported in AIR 2000 SC-2783.

15. He cannot have any legal right
or even lien on the post. In so far as the
question of violation of principle of
natural justice, suffice it to say these
principles are not straightjacket formula
applicable in all situations.

16. In case of temporary employee
the employer has right to terminate the
services of such employee according to
the terms of contract of service instead of
holding enquiry even if the employee had
been charged with misconduct. The
petitioner did not submit proof of passing
Intermediate
examination,
hence
his
services were liable to be terminated on
that ground according to the terms of his
appointment. He also did not give any
reply to the notice of show cause hence it
was not necessary to hold any enquiry.

17. Thus, in the circumstances of
this case no principles of natural justice
have
been
violated.
In
any
case,
termination of service is not liable to be
interfered in the circumstances of this
case and it is not a fit case for exercise of
jurisdiction under Article 226 of the
Constitution of India.

18. For the reasons stated above, the
petition is dismissed.

No order as to costs.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 9.10.2002

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.

Criminal Revision No. 1476 of 2002

Sahab Singh

...Revisionist
Versus
State of U.P.

...Opposite Party

Counsel for the Revisionist:
Sri Ajay Kumar

Counsel for the Opposite Party:
S.C.

U.P. Excise Act, 1910- Section 72 and
Criminal Procedure Code 1973- section
397/401-A criminal Revision will lie only
against orders passed by "Subordinate
Criminal Courts" under the Code of
Criminal Procedure- the District Judge
while acting as the Appellate authority
under U.P. Excise Act is not a "Criminal
Court" and he is not exercising powers
under the Code of Criminal Procedure
while deciding the appeal- In absence of
either of these two things criminal
revision will not be maintainable against
the order passed under section 72(7) of
U.P. Excise Act, 1910. (Held in para 8).

Case Laws referred:
AIR 1978 SC 1

Thus I hold that Criminal Revision is not
maintainable against such an order.

(Delivered by Hon'ble Sushil Harkauli, J.)

1. Section 72 of U.P. Excise Act,
1910
provides
for
confiscation
proceedings. The confiscation order can
be passed by the Collector. Sub-section
(7) of Section 72 of the Act provides that
against the order of confiscation appeal