# Mohan Sharma v. Court of Addl. Distt. Judge/Special

- **Citation:** (2025) 4 ILRA 399
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-17
- **Case number:** Writ A No. 4420 of 2024
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-sharma-v-court-of-addl-distt-judge-special-54595
- **Pages:** 8

## Headnote

Law
-U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (U.P. Act No. 13 of 1972),
Section 21(1)(a) - landlord-tenant dispute
- Release application - Bonafide need -
Comparative hardship - Relationship of
landlord and tenant - Co-ownership claim
by tenant - Effect of family settlement
between co-owners - Split tenancy -
Maintainability of release application -
Mutation entries - Equitable relieforal family partition valid - Tenant's
status not converted into co-owner by
partial purchase - Release application
maintainable
- Bonafide need and
comparative hardship rightly found-
Petition dismissed. (Paras 6, 13, 15 to
18, 21 to 29)

HELD:

In the entire petition filed before this Court
and as per the arguments recorded above,
the claim of the petitioner is that he had
purchased a part of the property from
respondent no.4 and thus, he became the
co-owner.
The
said
argument
merits
rejection for the sole reason that the
appellate
Court
had
recorded
that
properties with specified boundaries were
purchased by virtue of the sale deeds, and
in
the
entire
petition,
there
is
no
averment/pleading that the said finding
recorded
by
the
appellate
Court
is
erroneous or perverse. Thus, the argument
is contrary to pleadings. (para 15)

As regards the argument of the petitioner
that the relationship of landlord and tenant
does not exist merits rejection inasmuch as
in terms of the provisions contained under
the Rent Control Act, the words used are
'that the landlord is a person to whom the
rent is payable and not actually paid. (Para
16)

In terms of the findings recorded that there
was a family settlement/partition, clearly, in
respect of the portion of which respondent no.3
had become the owner, the rent was payable to
him
and
thus,
the
argument
that
the
relationship of landlord and tenant was not
established also merits rejection and is rejected.
(Para 17)

As regards the third argument with regard to
splitting of tenancy, the same further merits
rejection for the reason that there was no
splitting of tenancy. After the family settlement,
the share which fell in the share of respondent
no.4 was purchased by the petitioner of which
the petitioner become the owner and the
tenancy continued in respect of the share which
fell in the share of respondent no.3, which was
under the occupation of the petitioner, as such,
the contention to that extent is rejected. (Para
18)

Petition dismissed. (E-14)

List of Cases cited:

1.Abdul Alim Vs Sheikh Jamal Uddin Ansari; AIR
ONLINE 1997 SC 185

2.Kewal Singh Vs Mt. Lajwanti; AIR 1980 SC 161

3.Pramod Kumar Jaiswal & ors. Vs Bibi Husn
Bano & ors.; 2005 AIR SCW 3240

4.Shabbir Ahmed Vs Syed Mohammad Ali
Ahmed Kabir; 2016 (2) ALJ 1

5.Gulab Chand Verma Vs Badri Narain Mishr;
AIR 2005 Allahabad 133

6.Nazar Mohammad & ors. Vs Pushpa Devi &
ors.; 2014 Law Suit (All) 983

7.Periyammal (Dead) Through L.Rs. & ors. Vs
Rajamani & anr. Etc., (Civil Appeal Nos.36403642 of 2025) decided on 06.03.2025

## Text

4 All. Mohan Sharma Vs. Court of Addl. Distt. Judge/Special (S.C./S.T.) Act Bahraich & Ors. 399

10. Learned counsel for the petitioner
has further drawn attention of this Court
towards the dictum of Apex Court rendered
in the case in re: Nar Singh Pal vs. Union
of India and others reported in (2000) 3
SCC 588 wherein vide paras-6, 8 &10 the
Apex Court has held that:

"The appellant, although a casual
labour, had acquired temporary status,.
Once an employee attains the "temporary"
status, he becomes entitled to certain
benefits one of which is that he becomes
entitled to the constitutional protection
envisaged
by
Article
311
of
the
Constitution and other articles dealing with
services under the Union of India. The
services were terminated on account of the
allegation of assault made against the
appellant. The order of termination in the
instant case, cannot be treated to be a
simple order of retrenchment. It was an
order passed by way of punishment and,
therefore, was an order of dismissal which,
having been passed on the basis of
preliminary inquiry and without holding a
regular departmental inquiry, cannot be
sustained."

11. Having tested the impugned order
in the light of the aforesaid facts and
circumstances and the decisions so cited
above, I find that the impugned order dated
14.02.2025
is
illegal,
arbitrary
and
unwarranted inasmuch as the aforesaid
punishment order has been passed in utter
violation of principles of natural justice and
without conducting any inquiry to that
effect. Even if the reason to terminate the
services of the petitioner is that one F.I.R.
was lodged against him wherein he
remained under judicial custody with effect
from
10.01.2025
to
17.01.2025,
the
petitioner should have been placed under
suspension
pending
the
departmental
inquiry. But terminating his services only
for the aforesaid reason casts stigma upon
him. Besides, if there are no service rules
to conduct the departmental inquiry against
erring employee, at-least the principles of
natural justice must be followed before
passing the impugned punishment order.
12. Therefore, there is an apparent error on
the face of the impugned order dated
14.02.2025, hence, the same is hereby set
aside/ quashed only on the limited ground.

13. It is always open for the
Competent Authority to pass appropriate
order strictly in accordance with law by
affording an opportunity of hearing to the
petitioner and if such order is required, the
same may be passed with expedition.

14. Since the impugned order dated
14.02.2025 has been set aside/ quashed,
therefore, consequential order may be
passed as per law.

15. The writ petition is, therefore,
allowed.

16. Consequences to follow.

17. No order as to cost.
----------
(2025) 4 ILRA 399
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.04.2025

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 4420 of 2024

Mohan Sharma ...Petitioner
Versus
Court
of
Addl.
Distt.
Judge/Special
(S.C./S.T.) Act Bahraich & Ors.
 ...Respondents
400 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Pritish Kumar, Amal Rastogi

Counsel for the Respondent:
Shobhit Harsh, Girish Chandra Sinha, Jatin
Raheja, Shakti Kumar Sharma

Civil
Law
-U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (U.P. Act No. 13 of 1972),
Section 21(1)(a) - landlord-tenant dispute
- Release application - Bonafide need -
Comparative hardship - Relationship of
landlord and tenant - Co-ownership claim
by tenant - Effect of family settlement
between co-owners - Split tenancy -
Maintainability of release application -
Mutation entries - Equitable relieforal family partition valid - Tenant's
status not converted into co-owner by
partial purchase - Release application
maintainable
- Bonafide need and
comparative hardship rightly found-
Petition dismissed. (Paras 6, 13, 15 to
18, 21 to 29)

HELD:

In the entire petition filed before this Court
and as per the arguments recorded above,
the claim of the petitioner is that he had
purchased a part of the property from
respondent no.4 and thus, he became the
co-owner.
The
said
argument
merits
rejection for the sole reason that the
appellate
Court
had
recorded
that
properties with specified boundaries were
purchased by virtue of the sale deeds, and
in
the
entire
petition,
there
is
no
averment/pleading that the said finding
recorded
by
the
appellate
Court
is
erroneous or perverse. Thus, the argument
is contrary to pleadings. (para 15)

As regards the argument of the petitioner
that the relationship of landlord and tenant
does not exist merits rejection inasmuch as
in terms of the provisions contained under
the Rent Control Act, the words used are
'that the landlord is a person to whom the
rent is payable and not actually paid. (Para
16)

In terms of the findings recorded that there
was a family settlement/partition, clearly, in
respect of the portion of which respondent no.3
had become the owner, the rent was payable to
him
and
thus,
the
argument
that
the
relationship of landlord and tenant was not
established also merits rejection and is rejected.
(Para 17)

As regards the third argument with regard to
splitting of tenancy, the same further merits
rejection for the reason that there was no
splitting of tenancy. After the family settlement,
the share which fell in the share of respondent
no.4 was purchased by the petitioner of which
the petitioner become the owner and the
tenancy continued in respect of the share which
fell in the share of respondent no.3, which was
under the occupation of the petitioner, as such,
the contention to that extent is rejected. (Para
18)

Petition dismissed. (E-14)

List of Cases cited:

1.Abdul Alim Vs Sheikh Jamal Uddin Ansari; AIR
ONLINE 1997 SC 185

2.Kewal Singh Vs Mt. Lajwanti; AIR 1980 SC 161

3.Pramod Kumar Jaiswal & ors. Vs Bibi Husn
Bano & ors.; 2005 AIR SCW 3240

4.Shabbir Ahmed Vs Syed Mohammad Ali
Ahmed Kabir; 2016 (2) ALJ 1

5.Gulab Chand Verma Vs Badri Narain Mishr;
AIR 2005 Allahabad 133

6.Nazar Mohammad & ors. Vs Pushpa Devi &
ors.; 2014 Law Suit (All) 983

7.Periyammal (Dead) Through L.Rs. & ors. Vs
Rajamani & anr. Etc., (Civil Appeal Nos.36403642 of 2025) decided on 06.03.2025

(Delivered by Hon'ble Pankaj Bhatia, J.)
4 All. Mohan Sharma Vs. Court of Addl. Distt. Judge/Special (S.C./S.T.) Act Bahraich & Ors. 401

1. Heard Shri Pritish Kumar, learned
counsel for the petitioner and Shri Shobhit
Harsh, learned counsel for the respondents.

2. Present petition has been filed by
the petitioner challenging the order of
release passed by the prescribed authority
on 15.04.2023 under Section 12(1)(a) of
U.P. Act No.13 of 1972 as well as order
dated 29.03.2024 whereby the rent appeal
preferred by the petitioner was dismissed.

3. The facts, in brief, are that
respondent no.3 filed a release application
being Application No.6 of 2009 under
Section 21(1)(a) of U.P. Act No.13 of 1972
(hereinafter referred to as 'the Rent Control
Act') seeking release of the premises in
occupation of the petitioner as a tenant. The
said premises as per the release application,
comprised of one Kothri, one Khaprail, one
tin shed and land appurtenant thereto, and
the same was situate at Gata Nos.339,
340/1 & 346 in District Bahraich. In the
said
application,
it
was
stated
that
respondent no.3 was aged about 16 years
and the tenancy was created by respondent
no.4 in favour of the father of the petitioner
some time in the month of January, 1972.
Respondent No.3 further pleaded that the
property
in
question was
bonafidely
required for his two sons who were
unemployed and would be opening a
business of selling building materials. It
was also stated that respondent no.3 was
due to retire and would open a shop of
general merchant at one portion of the
premises after retirement. The petitioner
rendered appearance and filed reply to the
release application and argued that the
tenancy in question was created in favour
of the father of the petitioner by respondent
no.4 herein. It was stated that respondent
no.3 and respondent no.4 are real brothers.
It was further pleaded that the property
under tenancy was ad-measuring 18 ft. by
175 ft. It was also stated that the rent in
question was paid by the petitioner to
respondent no.4 always and thus, the
relationship of landlord and tenant exist in
between the petitioner and respondent no.4
only, and there was no relationship of
landlord and tenant in between the
petitioner and respondent no.3. It was also
pleaded that the petitioner was running a
timber business and sawmill from the
property in question and the rent in
question was paid to respondent no.4. It is
stated that father of the petitioner expired
on 16.11.1995 and thereafter, the tenancy
continued in favour of the petitioner on a
yearly rent of Rs.2,400/- which was being
paid to respondent no.4.

4. It was further pleaded that during
the pendency of the petition, respondent
no.4 sold off land ad-measuring 2000 sq.ft.
out of the total land owned by respondent
nos.3 & 4 to the petitioner and his wife
vide registered sale deed dated 24.12.2008.
Another portion of the share of respondent
no.4 ad-measuring 1298.74 sq.ft. was sold
in favour of the petitioner vide registered
deed dated 13.10.2011 and third sale deed
was executed from the share of respondent
no.4
ad-mesuring
3701.6
sq.ft.
vide
registered deed dated 13.02.2012 and
thereafter, the names of the petitioner and
his wife were duly mutated in the revenue
records.

5. In the light of the said, a defence
was taken that after purchasing the property
from respondent no.4, the petitioner had
become the co-owner of the property and as
such, the release application was not
maintainable against him. It has been
pleaded in the petition that no partition by
metes and bounds took place in between
respondent no.3 and respondent no.4 or
402 INDIAN LAW REPORTS ALLAHABAD SERIES
after purchasing the share of respondent
no.4 with the respondent no.3 and thus, he
had become a co-sharer in the property.

6. In the light of the said pleadings, the
release application was heard and decided
in favour of respondent no.3 releasing the
portion of the property which fell into the
share of respondent no.3 after recording
finding in respect of bonafide need and
comparative hardship.

7. It is essential to notice that the
petitioner has pleaded that a suit for
cancellation of the registered sale deed
dated 24.12.2008 is pending in the Court of
Civil Judge (Junior Division), Bahraich
being Regular Suit No.142 of 2011.

8. As already noticed above, the
release application was allowed in favour
of respondent no.3, aggrieved against the
said release order passed on 15.04.2023, an
appeal was preferred under Section 22 of
the Act, however, the same came to be
dismissed by means of the judgment dated
29.03.2024. The said judgments are under
challenge in the present writ petition.

9. Submission of learned counsel for
the petitioner is that as the petitioner had
purchased part of the entire property from
respondent no.4, there was no relation of
landlord and tenant in between the
petitioner and respondent no.3. He draws
my attention to Section 3(j) of Rent Control
Act which defines 'landlord'. He next
argues that the petitioner was admittedly
the tenant of the entire premises, part of
which was sold to him by respondent no.4,
and thus, there cannot be any split of
tenancy. He argues that once the tenancy
cannot be split, the release application filed
at the instance of respondent no.3 was not
maintainable. He further argues that after
purchasing a part of the property from
respondent no.4, he became the co-owner
of the property and thus, his status of a
tenant changed to a co-owner, against
whom
a
release
application
is
not
maintainable.

10. Learned counsel for the respondent
strongly opposed the arguments as raised
by the petitioner. He argues that the
property in question came to the share of
respondent no.3 by virtue of a family
settlement in between respondent no.3 and
respondent no.4 and thus, the release
application
at
the
instance
of
the
respondent no.3 against the petitioner was
maintainable in respect of the portion
which fell in his share by virtue of the said
family settlement. It is argued that the said
settlement was an oral family settlement
and after the said oral family settlement,
respondent no.4 had sold a part of the
portion of his share to the petitioner and
thus, the argument that the petitioner
became the co-sharer of the entire property
is wholly unjustified. He argues that after
the family settlement in respect of the share
which fell in the share of respondent no.3,
the status of the petitioner as a tenant
continued and thus, to that extent, the
submission of the counsel for the petitioner
merits rejection. He further argues that the
petitioner has stopped paying any rent
whatsoever either to respondent no.3 or to
respondent no.4 and thus, the equities are
also against the petitioner. He further
argues that the argument with regard to
splitting
of
tenancy
merits
rejection
inasmuch as the petitioner continued to be
the tenant of the portion of the property
which fell in the share of respondent no.3
and became the owner of the property in
respect of the share purchased by him
which came in the share of respondent no.4
by virtue of the family settlement and thus,
4 All. Mohan Sharma Vs. Court of Addl. Distt. Judge/Special (S.C./S.T.) Act Bahraich & Ors. 403
the petitioner never became the co-owner
of the property which fell in the share of
respondent no.3.

11. In respect of the suit filed for
cancellation of the sale deed, it is argued
that the said suit was filed on the ground
that the boundaries shown in the sale deed
were incorrect.

12. Learned counsel for the parties
have relied upon the judgments which I
shall refer later on.

13. In the light of the pleadings, it is
essential to notice the appellate Court's
judgment wherein the appellate Court after
recording the pleadings held that the
property in question was taken on rent by
the father of the petitioner during his
lifetime on which a sawmill and business
relating to wood was being done run. The
Court also noticed that there was a family
settlement that took place and in the said
family settlement in between respondent
no.3 and respondent no.4, a part of the
property, as per the family settlement, fell
in the share of respondent no.3. The Court
also noticed the facts with regard to
Revision No.883 filed under Section 333 of
U.P.Z.A. & L.R. Act and the order passed
therein on 18.09.2003 wherein it was
noticed that in the said proceedings it was
admitted by P.W. 3 that the family
settlement had taken place and the property
in question was divided. The Court also
noticed that there was no material to
suggest that the family partition did not
take place. The Court also noticed that the
petitioner had purchased a part of the
property from respondent no.4 in which
definite boundaries were indicated which
itself indicates that the petitioner was also
aware of the partition of the property and
thus, had purchased definite shares of
which the boundaries were earmarked from
the share which fell in the share of
respondent no.4. The Court also noticed the
suit that was filed being Regular Suit
No.142 of 2011 in which a sale deed dated
24.12.2008 was sought to be set aside only
on the ground that the boundaries indicated
in the sale deed were improper and in the
light of the said evidences, it held that a
family partition had taken place in between
respondent no.3 and respondent no.4 and
thus, the relationship of landlord and tenant
stood established in between the petitioner
and respondent no.3 holding him to be the
owner of the share which fell as per the
family settlement/partition. The Court also
noticed the submission that the mutation
entries were not affected and recorded that
it is well settled that the mutation entries
are only taxation entries. The Court also
noticed that an issue was framed in SCC
Suit No.11 of 2009 which was decided in
favour of the plaintiff to the said suit
holding that the SCC Suit was maintainable
at his instance. The Court also noticed the
contention of the petitioner that he had
raised construction and was co-owner of a
part of the property. The Court in that
context noticed the sale deeds wherein only
the lands were shown to have been sold by
respondent no.4 in favour of the petitioner,
and after analyzing the evidences recorded
a conclusion that the petition at the instance
of respondent no.3 was maintainable under
Section 21(1)(a) of the Rent Control Act.
The Court thereafter noticed and recorded
finding on the bonafide need and also took
into consideration that one of the sons of
the landlord was a practicing lawyer and
wanted to set up his chamber in residence
over the property. The Court noticed and
recorded the argument of petitioner that the
son of the landlord who was a practicing
lawyer was practicing at Lucknow and not
at Bahraich. The Court recorded that
404 INDIAN LAW REPORTS ALLAHABAD SERIES
merely because he was practicing at
Lucknow does not mean that he could not
have the desire to start practicing at
Bahraich where the property was situated.
The Court also noticed the argument of the
petitioner
in
respect
of
comparative
hardship and also recorded that the sawmill
which was being run stands closed in view
of the orders passed by the Supreme Court.
The Court also noticed that no effort was
made by the petitioner to seek any other
tenanted premises during the pendency of
petition which fact was construed against
the petitioner.

14. In respect of the other property
owned by the petitioner/tenant, the Court
noticed that a pleading was taken that the
son of the tenant was running his business
from the said property. The Court held the
same against the petitioner by holding that
no evidence in the form of the deposition of
the wife of the petitioner or the son was
brought on record to dismiss the said
argument of landlord. In the context of the
said, the appeal came to be dismissed.

15. In the entire petition filed before
this Court and as per the arguments
recorded above, the claim of the petitioner
is that he had purchased a part of the
property from respondent no.4 and thus, he
became the co-owner. The said argument
merits rejection for the sole reason that the
appellate Court had recorded that properties
with specified boundaries were purchased
by virtue of the sale deeds, and in the entire
petition, there is no averment/pleading that
the said finding recorded by the appellate
Court is erroneous or perverse. Thus, the
argument is contrary to pleadings.

16. As regards the argument of the
petitioner that the relationship of landlord
and tenant does not exist merits rejection
inasmuch as in terms of the provisions
contained under the Rent Control Act, the
words used are 'that the landlord is a
person to whom the rent is payable and not
actually paid'.

17. In terms of the findings recorded
that there was a family settlement/partition,
clearly, in respect of the portion of which
respondent no.3 had become the owner, the
rent was payable to him and thus, the
argument that the relationship of landlord
and tenant was not established also merits
rejection and is rejected.

18. As regards the third argument with
regard to splitting of tenancy, the same
further merits rejection for the reason that
there was no splitting of tenancy. After the
family settlement, the share which fell in
the share of respondent no.4 was purchased
by the petitioner of which the petitioner
become the owner and the tenancy
continued in respect of the share which fell
in the share of respondent no.3, which was
under the occupation of the petitioner, as
such, the contention to that extent is
rejected.

19. It is essential to notice that there
was no contention in the entire petition that
the rent was paid either to respondent no.3
or to respondent no.4 at any point of time,
which fact demonstrates that in exercise of
equitable jurisdiction also, the petitioner is
not entitled to any relief from this Court.

20. Now coming to the judgments
cited by the parties.

21. Learned counsel for the petitioner
relies upon the judgment in the case of
Abdul Alim v. Sheikh Jamal Uddin
Ansari; AIR ONLINE 1997 SC 185. The
said judgment would have no applicability
4 All. Mohan Sharma Vs. Court of Addl. Distt. Judge/Special (S.C./S.T.) Act Bahraich & Ors. 405
to the facts of the present case inasmuch as
the share sold by respondent no.4 to the
petitioner was not as a co-owner after
the partition through family settlement
in
between
respondent
no.3
and
respondent no.4, and was as a sole
owner of his share.

22. The second judgment cited by
counsel for the petitioner is in the case of
Kewal Singh v. Mt. Lajwanti; AIR 1980
SC 161. He relies upon Para 21 of the said
judgment to argue that it was incumbent
upon the respondent to have filed a suit
under the Transfer of Property Act for
vacating of the premises. The said
argument merits rejection inasmuch as the
petitioner after the family settlement
continued to be the tenant of respondent
no.3.

23. The next judgment relied is in the
case of Pramod Kumar Jaiswal and Ors. v.
Bibi Husn Bano and Ors.; 2005 AIR SCW
3240 founded on the provision of Section
111(d) of the Transfer of Property Act. He
argues that the Rent Control Act is a
special legislation eclipsing the provision
of Transfer of Property Act in respect of
the premises which are governed under the
Rent Control Act.

24. The said argument also merits
rejection inasmuch as by virtue of U.P. Act
No.13 of 1972, the common rights flowing
in favour of the lessor and lessee under the
Transfer of Property Act stood eclipsed
only in respect of rate of rent, selection of
tenant and for vacation of the premises.
The Rent Control Act does not entirely
eclipse the Transfer of Property Act.
However, this issue would not arise in the
present case as the reasoning has been
recorded after appreciation of the evidences
that the property in question fell in the
share of respondent no.3 after a family
settlement.

25. The other judgment cited in the
case
of
Shabbir
Ahmed
v.
Syed
Mohammad Ali Ahmed Kabir; 2016 (2)
ALJ 1, has no relevance in the present case
in view of the findings that the property
after mutual settlement fell in the share of
respondent no.3.

26. Similarly, the judgment of this
Court in the case of Gulab Chand Verma
v. Badri Narain Mishr; AIR 2005
Allahabad 133 also would have no
applicability to the facts of the present case.

27. The other judgment cited by
counsel for the petitioner in the case of
Nazar Mohammad and Ors. v. Pushpa
Devi and Ors.; 2014 Law Suit (All) 983
has no applicability to the facts of the
present case as the property in question was
never sold by the co-owner and was sold by
an individual owner i.e. respondent no.4 in
respect of the property which fell in his
share by virtue of a family settlement.

28. In view of the findings recorded by
the appellate Court and there being no
averment in the writ petition with regard to
the findings of fact being either arbitrary or
perverse specifically in respect to the
family settlement/partition, no interference
is required in exercise of powers under Art.
226 of the Constitution.

29. Present petition lacks merit and is
accordingly dismissed.

30. The execution of the decree passed
by the appellate Court shall be concluded
expeditiously within six months in the light
of the directions issued by the Supreme
Court in the case of Periyammal (Dead)
406 INDIAN LAW REPORTS ALLAHABAD SERIES
Through L.Rs. & Ors. v. Rajamani & Anr.
Etc., (Civil Appeal Nos.3640-3642 of
2025) decided on 06.03.2025.

----------
(2025) 4 ILRA 406
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.04.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 14482 of 2023

Pradip Pal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kauntey Singh, Siddharth Khare

Counsel for the Respondents:
C.S.C., Satyam Singh, Udayan Nandan

Service
Law
-
Compassionate
appointment - Permanent status of
deceased
employee
-
Deficiency
in
service record - Employer's duty to
maintain service book - Appointment
refused solely due to lack of entry of
confirmation - Non-application of mind
- Nature of service ascertainable from
benefits and continuity - Failure of
employer to maintain accurate service
records cannot prejudice the employee's
dependents - Attributes of permanency
such as uninterrupted long service and
service benefits must be considered -
Denial of appointment based solely on
incomplete records is arbitrary- Remand
for fresh consideration-Petition partly
allowed. (Paras 6 to 11)

HELD:

Entries in the service book and service records
are made by the employer. The said documents
remain in the exclusively custody of the
employer. It is the duty of the employer
maintain and update the service records of
employees. Discrepancies or deficiencies in
the service book or records are liable to be
enquired into before penalizing or faulting an
employee. In absence of such enquiry the
said deficiencies in the service records alone
cannot be made the basis of disputing the
nature of appointment of the petitioner's
deceased-father without proper enquiry. (Para
7)

All
relevant
attributes
of
a
permanent
appointment are also liable to be examined to
determine the nature of the appointment of
the petitioner's father. (Para 8)

The respondents-authorities while considering
the claim of the petitioner neglected to
evaluate the aforesaid aspects which are
germane to the controversy. Non application
of
mind
to
the
aforesaid
relevant
considerations vitiates the impugned order
dated 17.05.2023. (Para 9)

Petition allowed. (E-14)

(Delivered by Hon'ble Ajay Bhanot, J.)

I. Introduction:

1. By the impugned order dated
17.05.2023 passed by the Deputy Cane
Commissioner/Chairman, Regional Cane
Service
Authority,
Bareilly
Region,
Bareilly, the claim of the petitioner for
grant of appointment on compassionate
ground has been declined.

2.
The
impugned
order
dated
17.05.2023 invalidates the claim of the
petitioner on the footing that the service
records available with the department do
not disclose the date on which the
petitioner's
deceased-father
was
made
permanent. The impugned order also
discloses that the petitioner's father was
initially
appointed
as
a
server
on
09.03.1983. Thereafter, he worked as peon
but the date of joining as permanent