# Rajan Agarwal v. United India Insurance Co. Ltd

- **Citation:** (2024) 8 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-28
- **Case number:** Writ-A No. 2000751 of 2004
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajan-agarwal-v-united-india-insurance-co-ltd-52493
- **Pages:** 6

## Headnote

Anil K. Srivastava
8 All. Rajan Agarwal Vs. United India Insurance Co. Ltd.
927
Petitioner challenged his discharge and the
disciplinary actions taken against him - enquiry
was ex-parte -
violated
natural
justice
-
petitioner was not provided a defence assistant
despite his mental disorder - discharging the
petitioner on medical grounds was illegal
under Section 47 of the Disabilities Act -
petitioner
reinSt.d
with
all
consequential
benefits.

W.P allowed. (E-9)

List of Cases cited:

Anil Kumar Mahajan Vs U.O.I. & ors. civil Appeal
No. 4944 of 2013 (arising out of SLP (C) No.
26400 of 2010)

## Text

926 INDIAN LAW REPORTS ALLAHABAD SERIES
trust and not in the hands of ancestors of
R.A.N. Sinha, who has created the trust,
therefore, on both the grounds, impugned
order is bad and liable to be set aside.

7. Sri D.S. Chauhan, learned counsel
for the respondent no.2 could not dispute
the legal as well as factual submissions so
raised by the learned counsel for the
petitioner.

8. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record.

9. There is no dispute on the point
that Mr. R.A.N. Sinha has created the trust
in the year 1973. Now the trust is having
dispute with the respondent no.2 with
regard to excess land acquisition. After
amendment, in case suit is decreed either
land or compensation as the case may be
would be vested with the trust and not with
the individual persons. Therefore, intention
of filing of amendment is bonafide

10. I have perused the judgment of
State
Bank
of
Hyderabad
(Supra).
Relevant paragraph of the said judgment is
quoted hereinbelow:-

"8. In view of the said provision
there cannot be any doubt whatsoever that
the suit having beeing filed in the year
1988, proviso to Order 6 Rule 17 of the
Code shall not apply.

9. The High Court relied upon the
said proviso and opined that having regard
thereto the plaintiff was obligated to
establish that in spite of due diligence it
could not have raised the matter before
commencement of the trial of the suit. The
High
Court
evidently
committed
an
illegality
in
relying
upon
the
said
provision."

11. From perusal of the aforesaid
judgment, it is apparently clear that proviso
of Order VI Rule 17 of CPC inserted
through amendment in 2002, would not be
applicable to the suits, which are pending
prior to the date of amendment, therefore,
this cannot be ground to reject the
amendment application.

12. Therefore, under such facts and
circumstances as well as law laid down by
the Apex Court, the impugned order dated
9.2.2024 passed by the learned Additional
Civil Judge, S.D., New Court No.1,
Moradabad is hereby quashed and petition
is allowed. Petitioners are directed to carry
out necessary amendment within two
weeks from today. Further, trial Court is
also directed to decide the suit in
accordance with law.
----------
(2024) 8 ILRA 926
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.08.2024

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 2000751 of 2004

Rajan Agarwal ...Petitioner
Versus
United India Insurance Co. Ltd.
 ...Respondent

Counsel for the Petitioner:
Dr. R.K. Srivastava, Shailesh Kumar Singh,
Sharad Kumar Srivastava

Counsel for the Respondents:
Anil K. Srivastava
8 All. Rajan Agarwal Vs. United India Insurance Co. Ltd.
927
Petitioner challenged his discharge and the
disciplinary actions taken against him - enquiry
was ex-parte -
violated
natural
justice
-
petitioner was not provided a defence assistant
despite his mental disorder - discharging the
petitioner on medical grounds was illegal
under Section 47 of the Disabilities Act -
petitioner
reinSt.d
with
all
consequential
benefits.

W.P allowed. (E-9)

List of Cases cited:

Anil Kumar Mahajan Vs U.O.I. & ors. civil Appeal
No. 4944 of 2013 (arising out of SLP (C) No.
26400 of 2010)

(Delivered by Hon'ble Irshad Ali, J.)

1.

Heard
Sri
Sharad
Kumar
Srivastava,
learned
counsel
for
the
petitioner and Ms. Vanya Bharadwaj,
Advocate holding brief of Sri Anil Kumar
Srivastava,
learned
counsel
for
the
respondent.

2. By means of the present writ
petition, the petitioner has prayed for the
following reliefs :-

"A) Issue a writ, order or
direction in the nature of CERTIORARI to
quash the order dated 08.01.2004 passed
by opposite party No.1 (Annexure No.19);
Order dated 05.07.2002 passed by opposite
party No.2 (Annexure No.17) and the order
dated 16.12.2001 passed by opposite party
No.3 (Annexure No.15).

A-(i) a writ, order or direction in
the nature of certiorari quashing the
impugned
discharge
orders
dated
15.05.2005 discharging the petitioner from
service of company on medical ground
after summoning its original from the
opposite parties.

A-(ii) a writ, order or mandamus
commanding the opposite parties to pay
arrear of salary to petitioner and interest
on same at rate of 18% p.a. compounded
annually.

B) Issue a writ, order or direction
in the nature of MANDAMUS to directing
the opposite parties to take any action in
pursuance to impugned order.

C) Issue a writ, order or direction
in the nature of MANDAMUS not to reduce
the pay of the petitioner and further pay the
petitioner the pay his salary in Grade I
without treating him reverted.

D) Issue an appropriate direction
to the opposite parties to pay the petitioner
the allowances to the petitioner in Grade I
of the Administrative Officer.

E) Issue an ad-interim order in
favour of the petitioner.

F) Award the cost of the petition
to the petitioner."

3. Brief facts of the case are that the
petitioner is a Development Officer in
United India Insurance Company Ltd.,
Lucknow, who was suffering from a
disease of mental disorder. He was
examined by the physicians of K.G.M.U.
The diagnosis was that he was suffering
from disease of Bipolar Affective Order.
Vide order dated 13.9.1993, he was
suspended for certain act of omission on
this part and on 16.12.1993, charge-sheet
was issued. Thereafter, on 4.4.1994,
preliminary hearing was done.

4. The petitioner sought appointment
of his defence assistant vide letter dated
18.4.1994. Subsequent selection of defence
assistant could not materialise either on the
ground of their illness or on the ground that
companies did not permit them to act as the
defence assistant.
928 INDIAN LAW REPORTS ALLAHABAD SERIES

5. On 25.8.1995, the enquiry officer
conducted the enquiry without there being
any defence assistant on behalf of the
petitioner, who being a case of mental
disorder and could not conduct his case.
The enquiry officer submitted the enquiry
report which did not contain any date.

6. The punishing authority awarded
major punishment to the petitioner reducing
him by three steps in scale in Grade-I and
II, fitting the petitioner at a basic pay of
Rs.5,050/- in the lower grade. The
suspension period was not to be taken as
period spent on duty, it is submitted by
learned counsel for the petitioner.

7. The petitioner filed an appeal
before the Assistant General Manager
(respondent No.2), which was rejected on
the basis of comments of respondent No.3
and without providing any opportunity of
hearing to the petitioner. Thereafter, the
petitioner filed a Memorial before the
Chairman-cum-Managing Director of the
Company, who rejected the same, filed
under Rule 40.

8. Thereafter, the petitioner, by
passing an order of discharge, was
discharged from duties on the ground of
medical with immediate effect.

9. Submission of learned counsel for
the petitioner is that the enquiry was
conducted
without
providing
defence
assistant to the petitioner, therefore his
submission is that the enquiry is ex-parte in
nature and same cannot be sustained in the
eyes of law. Next submission is that on the
basis of ex-parte enquiry report, the
impugned
orders
have
been
passed,
reducing the petitioner on minimum pay
scale, therefore, the order being based on
ex-parte enquiry report, is not sustainable
in the eyes of law. He further submitted
that the appeal filed against the order of
punishment
was
rejected
without
considering the fact that the enquiry was
ex-parte in nature without providing
defence
assistant
to
the
petitioner,
therefore, the appellate order also suffers
from vices of principles of natural justice.

10. It is submitted that the impugned
order of discharge is wholly without
jurisdiction.
No
employee
can
be
discharged on medical grounds. He placed
reliance
upon
Section
47
(Nondiscrimination
in
Government
employment) of the Act known as the
Persons
with
Disabilities
(Equal
Opportunities, Protection of Rights and
Full Participation) Act, 1995.

11. Learned counsel for the petitioner
also placed reliance upon paragraph-20 of
the judgment in the case of Anil Kumar
Mahajan Vs. Union of India & others
[Civil Appeal No.4944 of 2013 arising out
of SLP (C) No.26400 of 2010], wherein
Section 47 of the aforesaid Act of 1995 was
considered.

12. On the other hand, Ms. Vanya
Bharadwaj, Advocate invited attention of
this Court on the enquiry report and
submitted that time to time, defence
assistant was changed due to which, no
sanction was granted to the petitioner for
appointment of defence assistant. She
further submitted that enquiry was done
after giving full opportunity to the
petitioner to examine the witnesses and
other relevant documents, therefore, her
submission is that the enquiry is not exparte, it is after giving fullest opportunity to
the petitioner. In regard to the discharge
order, her submission is that on the ground
of medical disabilities, the petitioner was
8 All. Rajan Agarwal Vs. United India Insurance Co. Ltd.
929
not able to perform his duties and Section
47 of the Act of 1995 is not attracted to the
case in hand.

13. I have considered the rival
submission advanced by learned counsel
for the parties and perused the material on
record as well as law report cited by
petitioner's counsel.

14. For deciding the controversy
involved in the present writ petition,
provision of Section 47 of the Persons with
Disabilities
(Equal
Opportunities,
Protection of Rights and Full Participation)
Act, 1995 is being quoted below :-

"47.
Non-discrimination
in
Government
employment
.-(1)
No
establishment shall dispense with, or
reduce in rank, an employee who acquires
a disability during his service:

Provided that, if an employee,
after acquiring disability is not suitable for
the post he was holding, could be shifted to
some other post with the same pay scale
and service benefits:Provided further that if
it is not possible to adjust the employee
against any post, he may be kept on a
supernumerary post until a suitable post is
available or he attains the age of
superannuation, whichever is earlier.

(2)(2) No promotion shall be
denied to a person merely on the ground of
his disability:Provided that the appropriate
Government may, having regard to the type
of work carried on in any establishment, by
notification and subject to such conditions,
if any, as may be specified in such
notification, exempt any establishment from
the provisions of this section"

15. Relevant paragraph-20 of the
judgment rendered in the case of Anil
Kumar Mahajan (Supra) is being quoted
below :-

"20. It is informed at the bar that
in normal course the appellant would have
superannuated from service on 31st July,
2012. In that view of the matter, now there
is no question of reinstatement of the
appellant though he may be entitled for
consequential benefits including arrears of
pay. Having regard to the facts and finding
given above, we have no other option but to
set
aside
the
order
of
compulsory
retirement of the appellant dated 15th
October, 2007 passed by the respondents;
the order dated 22nd December, 2008
passed by the Central Administrative
Tribunal, Principal Bench, New Delhi in
O.A.No.2784/2008 and the impugned order
dated 20th April, 2010 passed by the High
Court of Delhi in W.P.(C)No.2622/2010
and the case is remitted to the respondents
with a direction to treat the appellant
continued in the service till the date of his
superannuation. The appellant shall be
paid full salary minus the subsistence
allowance already received for the period
from the date of initiation of departmental
proceeding on the ground that he was
suffering from mental illness till the date of
compulsory retirement. The appellant shall
also be provided with full salary from the
date of compulsory retirement till the date
of superannuation in view of the first and
second proviso to Section 47 of the Act,
1995. If the appellant has already been
superannuated, he will also be entitled to
full retiral benefits counting the total
period in service. The benefits shall be paid
to the appellant within three months, else
the respondents will be liable to pay
interest at the rate of 6% per annum from
the date the amount was due, till the actual
payment."
930 INDIAN LAW REPORTS ALLAHABAD SERIES

16. On perusal of the provision
aforesaid as well as judgment relied upon
by learned counsel for the petitioner, it is
crystal clear that the person who attained
disability during the service period, cannot
be discharged on medical grounds, thus, in
the opinion of the Court, discharge of the
petitioner from service is wholly without
jurisdiction and illegal in nature. The
petitioner would have been engaged in
some alternative service or if the post was
not available, then on the basis of
supernumerary post created for the said
purpose.

17. In regard to the enquiry, which is
conducted
against
the
petitioner
in
discharge of duties, I perused the enquiry
report, which is at page-48 and on its
perusal, it is evident that the petitioner gave
three names alternatively for its approval
but the same was not approved and the
enquiry proceeding continued without
appointing the defence assistant in the
matter of the petitioner.

18. On perusal of paragraph-2 of the
enquiry report, it is crystal clear that the
enquiry officer proceeded to conduct
enquiry by giving notice to the petitioner
who was not in a position to participate in
the enquiry due to his mental disorder. On
the basis of ex-parte enquiry report, without
appointing defence assistant, the enquiry
officer proceeded to submit the enquiry
report to the punishing authority, who on
the basis of ex-parte enquiry report,
proceeded to pass the impugned order on
6.12.2001, whereby the petitioner has been
penalised by reducing by three steps in
scale in Grade-I and II, fitting the petitioner
at a basic pay of Rs.5,050/- in the lower
grade. Against the said order, the petitioner
preferred an appeal before the Assistant
General Manager (appellate authority),
United India Insurance Company Ltd.
(respondent No.2), who has nowhere
considered that the petitioner was not
provided the defence assistant during the
course of enquiry, therefore, the enquiry
was ex-parte in nature, the basis, which has
been made to pass the impugned order.

19. In the memo of appeal, the
petitioner took a specific ground in
paragraph-C that in conducting the enquiry,
three persons namely, Mr. S.S. Ahluwalia
(Oriental
Insurance
Company),
Mr.
Sudhakar Tripathi (Oriental
Insurance
Company) and Mr. B.N. Seth (National
Insurance Company) were contacted on
different dates for being defence assistant
for the petitioner, but the appellate
authority has not take care in deciding the
appeal and has rejected outrightly vide
order dated 5.7.2002.

20. Thereafter, after dismissal of the
appeal, the petitioner filed Memorial before
the
Chairman-cum-Managing
Director,
United India Insurance Company Ltd., 24,
Whites Road, Chennai, which has also been
rejected vide order dated 8.1.2004, which
was communicated to the petitioner vide
letter dated 4.2.2004. The Chairman-cumManaging Director also did not consider
the claim setup by the petitioner in his
Memorial, therefore, the order passed by
him also suffers from vices of principles of
natural justice due to non-consideration of
claim setup by the petitioner.

21. The ground of the respondents
that the enquiry is not an ex-parte eniquiry
and it is after giving fullest opportunity of
hearing to the petitioner appears to be
fallacious. On consideration, it is found that
there is violation of principles of natural
justice in not providing the defence
assistant to the petitioner to setup his claim.
8 All. Ramnath Singh Vs. Parshuram Singh & Ors.
931

22. In regard to the discharge from
service, the submission advanced by
learned counsel for the respondent that on
medical grounds, the employee can be
discharged from service, I perused the
provision contained under Section 47 of the
Act of 1995 and the judgment relied upon
by learned counsel for the petitioner. This
argument also suffers from vices of nonconsideration of the provisions contained
under the aforesaid Act and the judgment
relied upon.

23. After consideration of totality of
facts and circumstances of the case, this
Court is of the opinion that the impugned
orders dated 08.01.2004 passed by opposite
party No.1 (Annexure No.19), order dated
05.07.2002 passed by opposite party No.2
(Annexure No.17) and the order dated
6.12.2001 passed by opposite party No.3
(Annexure No.15) are hereby quashed. The
writ petition succeeds and is allowed.

24. It is however provided that the
petitioner
shall
be
provided
all
consequential
benefits,
which
are
applicable to the post, which he was
holding prior to initiation of disciplinary
proceeding.

25. No order as to costs.
----------
(2024) 8 ILRA 931
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 507 of 2024

Ramnath Singh ...Appellant
Versus
Parshuram Singh & Ors. ...Respondents
Counsel for the Appellant:
Sri Pradeep Kumar Rai, Sri Praiyot Rai

Counsel for the Respondents:
Sri Harish Kumar Yadav

Civil Law - Code of Civil Procedure,1908 -
Amended provisions of Order 41 Rule 1 CPC no
longer requires the attachment of a copy of the
decree in first appeals - the Allahabad High
Court Rules, 1952 mandates the attachment of
the decree in second appeals - when a single
suit gives rise to multiple appeals, a single
second appeal is sufficient - If multiple suits or
counter-claims are involved, separate appeals
must be filed - objection overruled regarding
the filing of separate second appeals. (E-9)

List of Cases cited:

1. Bhagwan Sahai Vs Daryao Kunwar & anr. AIR
1963 Allahabad 2010

2. Jai Narain Har Narain & anr. Vs L. Bulaqi Das
s/o L. Munna Lal AIR 1969 Allahabad 504

3. Khaleel Vs Aranjikkal Jamal Muhammed O.P.
(C) Nos. 28 of 2016 & 32 of 2016, decided on
30.11.2017

4. M/S Ramnath Exports Pvt. Ltd. Vs Vinita
Mehta & anr. (2022) 7 SCC 678

5. Sri Gangai Vinayagar Temple & anr. Vs
Meenakshi Ammal & ors. (2015) 3 SCC 624

6. Narhari Vs Shankar AIR 1953 SC 419

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. The instant second appeal has been
filed against the judgment and decree drawn
by First Appellate Court in Civil Appeal
No.26 of 2010 and Civil Appeal No.22 of
2010, and, additionally, part of the judgment
passed by the trial court in Original Suit
No.289 of 1984 has also been assailed.

2. The Stamp Reporting Section
has
endorsed
a
report
regarding