# Mazhar Alam Khan v. Union of India and others

- **Citation:** (2003) 1 ILRA 25
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-05
- **Case number:** Second Appeal No. 1217 of 2001
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mazhar-alam-khan-v-union-of-india-and-others-39012
- **Pages:** 3

## Headnote

Code of Civil Procedure- Section 100-
Appellant working as Rakshak" after
displinary
proceeding
removed
from
service-
confirmed
by
appellate
authority- challenged before civil court-
Trial
court
decreed
the
suit
first
Appellate
Court
interfered
with
the
findings of fact- held - dismissal order
passed by the Assistant Security officer,
while the appointing authority is the
Chief Security officer- held - Delegate
can not delegate- in absence of any
authority regarding delegation of power-
order passed by the A.C.O. is illegal.
Therefore, the contention that the power
was not according to the law as the
same could not be delegated.

Accordingly,
the
order
of
Assistant
Security
Officer
dated
22.5.1985
removing the appellant from service is
without jurisdiction and is void. The
order of dismissal of appeal is therefore
also illegal.

## Text

http://www.allahabadhighcourt.nic.in
1 All] Mazhar Alam Khan Vs. Union of India and others
25
6. In view of this decision of the
Apex Court which is directly on the point,
the argument of the learned counsel
cannot be accepted and it is also not
necessary for me to consider in detail the
law laid down in the above referred case.

7. The objections of the appellant
are accordingly rejected. The appellant is
liable to deposit the amount as required
by the proviso of Section 173 of the Act.

Accordingly, list this appeal as and
when the amount is deposited.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 5 DECEMBER, 2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 1217 of 2001

Mazhar Alam Khan

...Appellant
Versus
Union of India and others ...Respondents

Counsel for the Appellant:
Sri M. Islam
Sri Anil Kumar Sharma

Counsel for the Respondents:
Srik Jagan Nath Singh

Code of Civil Procedure- Section 100-
Appellant working as Rakshak" after
displinary
proceeding
removed
from
service-
confirmed
by
appellate
authority- challenged before civil court-
Trial
court
decreed
the
suit
first
Appellate
Court
interfered
with
the
findings of fact- held - dismissal order
passed by the Assistant Security officer,
while the appointing authority is the
Chief Security officer- held - Delegate
can not delegate- in absence of any
authority regarding delegation of power-
order passed by the A.C.O. is illegal.
Therefore, the contention that the power
was not according to the law as the
same could not be delegated.

Accordingly,
the
order
of
Assistant
Security
Officer
dated
22.5.1985
removing the appellant from service is
without jurisdiction and is void. The
order of dismissal of appeal is therefore
also illegal.

(Delivered by Hon'ble B.K. Rathi, J.)

1. This is an appeal under Section
100 of C.P.C. against the judgment and
decree of the Appellate Court dated
18.3.1993 passed in Civil Appeal No. 78
of 1991.

2. I have heard Sri Anil Kumar
Sharma, learned counsel for the appellant
and Sri Jagan Nath Singh for the
respondents.

3. There is no dispute regarding the
facts of the case which may briefly be
narrated as follows .

4. The appellant was working as
'Rakashak' Railway Protection force.
Disciplinary proceedings were started
against him and after competition of
enquiry he was removed from the service
by
Assistant
Security
officer.
The
appellant preferred an appeal against that
order before the Commandant Railway
Protection Force, which has also been
dismissed. Therefore, the appellant filed a
suit for declaration that the order of
removal dated 29.9.1986 are illegal and
void and that he be treated in service and
is also entitled to the salary and the other
benefits of service. The respondents
contested the suit and alleged that the
appellant was rightly dismissed from the
service. The trial court framed necessary
http://www.allahabadhighcourt.nic.in
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
issues and decreed the suit and held that
the order of dismissal dated 22.5.1985 as
well as the order of the appellate court
dated 25.9.1986 are illegal and he shall be
deemed to be in service and is entitled to
pay and other benefits. Against that
judgment and decree the respondents
preferred an appeal which has been
allowed by the impugned judgment dated
18.3.1993 and the suit of the appellant has
been dismissed.

5. The only point argued before me
in this appeal is that the appointing
authority of the appellant is Chief
Security Officer, respondent no. 3 but the
order of removal has been passed by
Assistant Security officer. That therefore,
the
order
is
without
jurisdiction.
Therefore,
the
following
substantial
question of law arises for decision in this
appeal.

"Whether the order of Assistant Security
Officer removing the appellant from
service is without jurisdiction?"

6. The learned counsel in support of
his argument has referred to Section 6 of
the Railway Protection Force Act which
provides
regarding
appointment
of
Members of the Force. It provides that
power of appointment rests with Inspector
General, Additional Inspector General or
Deputy Inspector General.

7. Reference has also been made to
the Schedule III of the Act which is
regarding the disciplinary authorities and
their powers. According to the schedule
the power of dismissal and removal has
been given to the Director General, Chief
Security
Commissioner,
Additional/
Deputy Chief Security Commissioner/
Principal R.P.F. Academy, Divisional
Security
Commissioner/
Security
Commissioner/
Commanding
Officer/
Senior Security Commissioner. Clause
VII further provides that Deputy/Assistant
Security
Commissioner/
Assistant
Commandant of R.S.P.F. had no power of
dismissal or removal.

8. The learned counsel for the
respondent has not challenged these rules
and it has been argued that the power was
delegated to Assistant Security Officer.
However, no order of delegation of power
has been produced on record. No
provision of law has been shown under
which the power can be delegated.
Therefore, the contention that the power
was delegated cannot be accepted. In any
case if it was delegated it was not
according to the law as the same could not
be delegated.

9. Accordingly, the order of
Assistant
Security
Officer
dated
22.5.1985 removing the appellant from
service is without jurisdiction and is void.
The order of dismissal of appeal is
therefore also illegal.

10. This appeal is therefore, allowed
and judgment of the first appellate court
dated 25.9.1986 is quashed and that of the
trial court is restored. The parties shall
bear their own costs of this appeal.
---------
http://www.allahabadhighcourt.nic.in
1 All] Saifuddin Ahmad Vs. Kalpnath Ram, D.I.O.S., Sonbhadra and others
27
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2002

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Contempt Petition No. 4194 of
2000

Saifuddin Ahmad

...Appellant
Versus
Kalpnath Ram, District Inspector of
Schools, Sonbhadra and others

 ...Opposite Parties

Counsel for the Petitioner:
Sri Yogesh Agarwal

Counsel for the Respondents:
Sri K.C. Vishwakarma

Contempt of Court Act- Section 12 willful
disobedience - applicant being B.T.C.
Teacher- permitted to take class VI to
VIII by the corporation- the institution
run
and
managed
by
the
State
Corporation- service regulated by U.P.
Cement
Corporation
Ltd.
Employees
service Rule 1977- writ petition allowed
without
impleading
the
proper
authorities- applicant was permitted to
take
higher
classes
under
staffing
patterns without approval of D.I.O.S.-
Liability of payment of salary cannot be
suddled upon educational authorities- No
willful disobedience disclosed- Notices
discharged.

Held- para 10

The
college
is
being
run
by
an
autonomous body and was exempted
from the Payment of Salaries Act, 1971.
The order in the writ petition is binding
only on the respondents who were
impleaded in the writ petition. The
corporation has been wound up and is
under liquidation. It has complied with
the order by permitting petitioner and
allowing him to take classes VI, VII and
VIII. The responsibility of payment of
salary is of the corporation. The a
educational
authorities
cannot
be
compelled to pay the salary to petitioner
as the approval was not taken before
petitioner was allowed to take higher
classes and that staffing pattern was not
approved by them. The petitioner was
teaching under a contract with the
corporation and thus the liability of
payment salary cannot be saddled upon
educational authorities.
Case law discussed:
2001 (1) ESC-583
1990 (2) UPLBEC- 1221
AIR 1970 SC-1767

(Delivered by Hon'ble Sunil Ambwani, J.)

1. This contempt petition has been
filed by petitioner informing this court
that order dated 5.2.1998 passed in writ
petition no. 20178 of 1989 quashing the
impugned order dated 19.9.1989 and
directing that the petitioner shall be
regularised as teacher of Classes VI, VII
and VIII with all consequential benefits.

2. It is alleged in the contempt
petition that petitioner is a Teacher in
Intermediate College known as U.P. State
Cement Corporation Ltd. Dala Cement
Factory, Dala, district Sonbhadra . He has
been working and taking the classes VI to
X in the college for several years but was
being treated as Teacher, belonging to
Basic sections of the college and was
absorbed in C.T. Grade which was
converted into L.T. Grade from 1989. A
writ petition was filed by him which was
allowed with the aforesaid directions.

3. Petitioner served a copy of order
alongwith representations dated 26.3.1999
and 20.8.1999 but no action was taken.
He is still being paid the salary
permissible to basic section inspite of