# Prem Niwas Mishra v. State of U.P. and another

- **Citation:** (2002) 3 ILRA 735
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-10-04
- **Case number:** Civil Misc. Writ Petition No. 30545 of 1990
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-niwas-mishra-v-state-of-u-p-and-another-39949
- **Pages:** 4

## Headnote

Constitution of India, Article 311 Service
Law-Termination order passed on the
ground of lesser realisation of amount -
dispite of warning no progress made
letter dated 13.1.88 passed by the Board
of
Revenue
relied
on
-
the
fact
petitioner's
appointment
made
on
compassionate
ground
as
collection
Amin - even after being temporary basis
without show cause notice, without any
disciplinary procedure termination order
held illegal.

Held-Para 9 and 10.

It appears that the impugned order of
termination
is
not
a
termination
simplicior. The services of the petitioner
have been terminated without holding
disciplinary enquiry. Further more, the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Service) Rules, 1975 do not apply in case
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736 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
of
a
person
appointed
under
the
provisions
of
U.P.
Employment
of
Dependants of Government Servants
Dying in Harness Rules as they are
deemed permanent as has been held by
a Division Bench of this Court in Ravi
Karan Singh's case (supra)

In the circumstances, the termination of
the service of the petitioner was illegal
and against the principle of natural
justice
and it was passed without
holding any disciplinary enquiry.

## Text

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3 All] Prem Niwas Mishra V. State of U.P. and another
735
provisions of clause L-2-12 of the
Certified Standing Orders on the ground
that the respondents-writ petitioners had
abandoned their services and despite
notice they had not turned up for work.

It is not disputed that the Corporation
is a State within the meaning of Article 12
of the Constitution of India. It is supposed
to act reasonably and not arbitrarily. The
services
of
the
respondents-writ
petitioners have been terminated without
even giving show cause notice or
opportunity of hearing before passing the
impugned orders of termination. Thus, the
impugned orders have been passed in
gross violation of principle of natural
justice, fair play and equity and have
rightly been quashed by the learned
Single Judge.

There cannot be any dispute that
every construction project is treated to be
a separate work and the employees
engaged for and working in a particular
project
cannot
seek
adjustment
or
absorption as a matter of right in another
project on completion of that project in
which they were working.

So far as the question that the
respondents-writ petitioners had been
engaged for a particular project is
concerned, there is no specific pleading
by the corporation. General statement has
been made that the workmen are generally
employed at the project site and after
completion of the project; the services of
such employees automatically come to
end on that particular project. But neither
any details of project and employees
engaged therein with reference to the
respondents-writ petitioners have been
given nor their appointment letters have
been placed before the Court. Hence, such
contention cannot be accepted.

In view of the foregoing discussions,
we do not find any merit in these Special
Appeals and they are dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 4.10.2002.

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 30545 of 1990

Prem Niwas Mishra

 ...Petitioner
Verses
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri R.B.D. Mishra
Sri Somesh Khare

Counsel for the Respondents:
S.C.

Constitution of India, Article 311 Service
Law-Termination order passed on the
ground of lesser realisation of amount -
dispite of warning no progress made
letter dated 13.1.88 passed by the Board
of
Revenue
relied
on
-
the
fact
petitioner's
appointment
made
on
compassionate
ground
as
collection
Amin - even after being temporary basis
without show cause notice, without any
disciplinary procedure termination order
held illegal.

Held-Para 9 and 10.

It appears that the impugned order of
termination
is
not
a
termination
simplicior. The services of the petitioner
have been terminated without holding
disciplinary enquiry. Further more, the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Service) Rules, 1975 do not apply in case
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736 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
of
a
person
appointed
under
the
provisions
of
U.P.
Employment
of
Dependants of Government Servants
Dying in Harness Rules as they are
deemed permanent as has been held by
a Division Bench of this Court in Ravi
Karan Singh's case (supra)

In the circumstances, the termination of
the service of the petitioner was illegal
and against the principle of natural
justice
and it was passed without
holding any disciplinary enquiry.

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

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

2. This writ petition is directed
against the order of termination dated
24.10.90
passed
by
the
District
Magistrate, Pilibhit.

3. The matrix of the case are that the
petitioner was appointed as Collection
Amin vide orders dated 15.3.84 in Tahsil
Bisalpur,
district
Pilibhit.
The
appointment
of
petitions
was
on
compassionate
ground
under
the
provisions
of
U.P.
Employment
of
Dependents of Government Servants
Dying-in-Harness Rules, 1974 as the
father of the petitioner died in harness.

4. Before coming to the merits of the
case it is necessary to see. the backdrop of
the case in which the order of termination
was passed. The petitioner was given a
warning on 30.8.90 by the Tahsildar of
the concerned Tahsil for collection of less
revenue. Thereafter a show cause notice
dated 30.9.90 was given to him for his
lackadaisical
attitude.
In
pursuance
thereof he submitted his explanation by
reply/letter dated 1.10.90. Counsel for the
petitioner
contends
that
without
considering the reply or the contentions
raised therein the impugned order of
termination was passed by the District
Magistrate/Prescribed Authority, Piliphit.
Counsel for the petitioner next contends
that the impugned order of termination
was passed behind the back of the
petitioner depriving him of reasonable
opportunity of hearing. He contends that
the impugned order of termination in not
a
termination
simplicitor
in
the
circumstances stated above.

5. Counter affidavit has been filed
on behalf of the respondents. Placing
reliance on letter dated 13.1.88 issued by
the board of Revenue it is contended by
the
standing
counsel
that
before
termination of service of Collection Amin
no opportunity was required to be given.
A copy of this letter has been annexed as
Annexed-CA-1 to the counter affidavit.
Para 10 of the letter dated 13.1.88 reads
reads as under:

"10& ;fn fdlh LFkk;h@vLFkk;h iw.kZ o"kZ dkfyd
laxzg vehu dh dkjxqtkjh fu/kkZfjr ekud ls de
ik;h tkrh gS rks mlds laca/k esa mDr ifj"kn vkns'k
fnukaWd 14&10&1970 ds iSjk 22 ds mi iSjk 1 o 2
ds vuqlkj fuEuor dk;Zokgh dh tk;%&

(1) ;fn lEcfU/kr vehu vLFkk;h gks rks dkjxqtkjh
fu/kkZfjr ekud ls de ik;s tkus dh fLFkfr esa
loZizFke ifgys eghus esa mls psrkouh nh tk; A ;fn
psrkouh nsus ds ckn Hkh dk;Z esa visf{kr lq/kkj u gks
vkSj mldk fiNyk dk;Z Hkh lUrks"ktud u jgk gks
rks iqu% ,d ;k nks ckj ekSdk nsus ds ckn fcuk
dkj.k crk;s gq, mldks fu;ekuqlkj uksfVl nsdj
mldh lsok;sa lekIr dj nh tk; A ;fn vehu dk
fiNyk dk;Z [kjkc u jgk gks vFkok mlus ifgys dh
vis{kk olwyh c<+k;h gks rks mls ,d ;k nks ckj de
ls de iqu% ekSdk fn;k tk; A ;fn bl izdkj
i;kZIr volj nsus ds ckotwn Hkh mldk dk;Z
fu/kkZfjr Lrj rd u igqaps rks fQj mls ekSdk nsus
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3 All] Prem Niwas Mishra V. State of U.P. and another
737
dh vko';drk ugha gS vkSj mlds ekeys esa Hkh fcuk
dkj.k crk;s fu;ekuqlkj uksfVl nsdj mldh lsok;sa
lekIr dh tk ldrh gSa A

(2) ;fn lacaf/kr vehu vLFkk;h gks vkSj mldh
dkjxqtkjh fu/kkZfjr ekud ls de ik;h tkrh gS rks
loZizFke ;g ns[k fy;k tk; fd mldk fiNyk dk;Z
dSlk jgk gS A ;fn mldk fiNyk dk;Z Hkh [kjkc
jgk gks rks mldh pfj= iaftdk esa izfrdwy izfof"V
dh tk; A ijUrq mldk fiNyk dk;Z [kjkc u jgk
gks rks mls dsoy dBksj psrkouh nsdj vius dk;Z esa
lq/kkj yk;s tkus gsrq ,d ekSdk fn;k tk; A ;fn
psrkouh ds ckn Hkh vehu dh dkjxqtkjh fu/kkZfjr
Lrj rd ugha igqaprh gS rks mldh pfj= iaftdk esa
mlds dk;Z ds izfr mnklhurk ds fy;s izfrdwy
izfof"V nh tk; A"

6. Sub Clause (1) of Para 10 of the
said letter provides that in case any
Collection Amin is found to have realized
less revenue then a warning has to be
issued first. Thereafter even if his work is
not up to the mark then he has at least to
be given two opportunities to enhance his
revenue collection and in that event he
does not comply with the standards
prescribed, only then his services can be
dispensed with without giving him a show
cause notice.

7. The contention of the petitioner is
that appointment of the petitioner though
temporary, was made on a substantive
vacancy under the Dying in Harness
Rules by the order of the District
Magistrate. Counsel for the Petitioner has
placed reliance on a case Ravi Karan
Singh Vs. State of U.P. and others,
(1999) 3 UPLBEC-2263 in which it has
been held that once an appointment on
compassionate
ground,
under
the
Provisions of Dying in Harness Rules is
being made, then his service can not be
terminated
under
Rule
3
of
U.P.
Temporary
Government
Servant
(Termination of Service) Rules, 1975.

8. Counsel for the petitioner
contends that once the petitioner by
fiction of law acquires the permanent
status, then he could not have been
punished without following the procedure
prescribed under Article 311 of the
Constitution of India. The last submission
of the counsel for the petitioner is that the
petitioner was given show cause notice
but no disciplinary proceeding or enquiry
was ever conducted as contemplated
under financial Hand Book Chapter-II to
IV
read
along
with
the
amended
fundamental Rule-56.

9. It appears that the impugned order
of termination is not a termination
simplicitor. The services of the petitioner
have been terminated without holding
disciplinary enquiry. Furthermore, the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Service) Rules, 1975 do not apply in case
of
a
person
appointed
under
the
provisions
of
U.P.
Employment
of
Dependants of Government Servants
Dying-in- Harness Rules as they are
deemed permanent as has been held by a
Division Bench of this Court in Ravi
Karan Singh's Case (supra.).

10. In the circumstances, the
termination of the service of the petitioner
was illegal and against the principle of
natural justice and it was passed without
holding any disciplinary enquiry.

11. The impugned order cannot be
sustained and it is, therefore, quashed.
The writ petition is allowed with a
direction to the respondents to reinstate
the petitioner in service forthwith within a
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738 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
period of 2 weeks from the date of
production of certified copy of this order
and pay him salary month to month. It
will, however, be open to the respondents
to take any further such action against the
petitioner as they are advised and may
pass appropriate order after holding
enquiry.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.10.2002.

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

Second Appeal No. 1160 of 2002

Mohan Singh and others
...Appellants
Verses
Nirmala Soni and others ...Respondents

Counsel for the Appellants:
Sri Madhav Jain
Sri Murlidhar

Counsel for the Respondents:
Sri Santosh Kumar

Code of Civil procedure Section 100
Order 47 r.7 (i) second appeal - order
passed on review application which
resulted to allow the first appeal can be
challenged in second appeal.

According to this clause, therefore, the
second appeal can be filed against the
decree and the order granting review
can also be challenged in this said
appeal.

Considering the above provisions, I am
of the view that since the first appeal
has been allowed in pursuance to the
decision of review application, therefore,
the second appeal is maintainable.

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

1. The suit of the appellants was
decreed against which the first appeal was
filed, which was dismissed. Thereafter,
the application for review was moved,
which was allowed and the appeal was
also allowed by order dated 16.8.2002.
Against that judgment, the present second
appeal has been filed.

2. A preliminary objection has been
raised by Sri Santosh Kumar, learned
counsel for the respondents that the
second appeal is not maintainable and
Misc. Appeal should have been filed
under clause (w) of Rule 1 of Order 43
C.P.C.

3. As against this it has been argued
by
Sri
Murlidhar,
learned
Senior
Advocate that in the Misc. appeal under
the above provision the correctness of
order of review alone can be challenged.
That as by the same order, the first appeal
has been allowed and therefore, the
second appeal can be filed according to
the provisions of section 100 of C.P.C. In
which the correctness of the decree can
also be challenged and, therefore, have
wider scope.

4. It has been argued that the order is
a common order and therefore, the
appellants are free to avail any remedy.
That they have choosen to file this second
appeal.

5.

Learned
Counsel
for
the
appellants has also referred to the clause
(1) of Rule 7 Order 47 C.P.C., which is as
follows:

"An order of the court rejecting the
application shall not be appealable; but