# Ram Bihari Yadav v. M.D., U.P. State Handloom Corp. Ltd. and another

- **Citation:** (2004) 1 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-10-09
- **Case number:** Civil Misc. Writ Petition No. 3296 of 2003
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bihari-yadav-v-m-d-u-p-state-handloom-corp-ltd-and-another-40259
- **Pages:** 4

## Headnote

Constitution of India Article 226 Under
U.P. State Handloom Corporation Ltd.
(Officers & Staff) service Rules, Chapter
VIII,
Rule
63-A-Termination-on
purported ground of continuous absence
without leave good and acceptable cause
shown
by
employee-Rule
63-A
not
attracted.

Held: Para 9

Petitioner's services, as such, could not
have been dismissed on the purported
ground of his continuous absence. It is
not a case where the petitioner was not
responding to the show cause notice or
was not reporting without any cause.
Petitioner's services, as such, could not
be terminated without initiating and
concluding a disciplinary enquiry.
Case Law Discussed:
1990 (2) SCC 404

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
24
the
Chairman,
U.P.
Public
Service
Tribunal
Hon'ble
Mr.
Justice
D.R.
Choudhary.

7. A copy of this order be given to
the learned Standing Counsel free of
charge within three days and he shall also
send a copy of this judgment to the above
authorities.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 3296 of 2003

Ram Bihari Yadav

...Petitioner
Versus
Managing Director, U.P. State Handloom
Corp. Ltd. and another ...Respondents

Counsel for the Petitioner:
Sri Pradeep Chandra

Counsel for the Respondents:
Sri V.K. Birla

Constitution of India Article 226 Under
U.P. State Handloom Corporation Ltd.
(Officers & Staff) service Rules, Chapter
VIII,
Rule
63-A-Termination-on
purported ground of continuous absence
without leave good and acceptable cause
shown
by
employee-Rule
63-A
not
attracted.

Held: Para 9

Petitioner's services, as such, could not
have been dismissed on the purported
ground of his continuous absence. It is
not a case where the petitioner was not
responding to the show cause notice or
was not reporting without any cause.
Petitioner's services, as such, could not
be terminated without initiating and
concluding a disciplinary enquiry.
Case Law Discussed:
1990 (2) SCC 404

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

1. Heard Sri Pradeep Chandra for
petitioner and Sri Vivek Birla for
respondents.

Brief facts, giving rise to this writ
petition, are, that petitioner was appointed
an Attendant on daily wages in the office
of General Manager Cantt, U.P. State
Handloom Corporation Ltd. G.T. Road,
Kanpur
on
15thOctober,
1987.
His
services were extended from time to time.
On 12thJanuary, 1990, he was appointed
on probation for a period of one year and
was thereafter confirmed. Petitioner was
thereafter transferred to Bahraich on 29th
January, 1990. He also received the
benefit of Annual increments. The Joint
Director
of
U.P.
State
Handloom
Corporation, Kanpur issued a show cause
notice to petitioner on 13.08.2002 for
explaining his absence since 07.08.2002.
It has been explained in para 16 of the
writ petition that he submitted the joining
report on 17.08.2002 alongwith an
application
for
medical
leave.
On
07.09.2002, he was again asked to explain
his absence since 07.08.2002. Petitioner
submitted an explanation on 09.09.2002
stating that on account of his illness, he
was not been able to join. On 27.09.2002,
a notice was given to him by registered
post for explanation of his absence from
duties upto 27.09.2002. On 30.09.2002,
petitioner submitted his explanation to the
Director of Management, U.P. State
Handloom corporation, Kanpur in writing,
that he submitted his joining report on
11.09.2002, which was not accepted by
dealing official Shri Ram Kumar Shukla,
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1 All] Ram Bihari Yadav V. M.D., U.P. State Handloom Corp. Ltd. and another
25
on the ground that he should first resume
his duties at the residence of Managing
Director otherwise he be treated absent
from duties.

2. By the impugned order dated
20.11.2002, the Managing Director, U.P.
State Handloom Corporation Ltd., Kanpur
terminated the lien of his service with
effect from 09.09.2002, in exercise of his
powers under Chapter VIII Rule 63-A of
U.P. State Handloom Corporation Limited
(Officers and Staff) Service Rules, on the
ground of his continuous absence without
leave.

3. Shri Pradeep Chandra, counsel for
petitioner, submits that petitioner was on
medical leave upto 11.09.2002 and that
when he requested for joining on that day,
he was not allowed to join until he reports
for work at the residence of Managing
Director.
Petitioner
is
a
confirmed
employee and he could not be detailed for
domestic duties. He requested for being
taken on the strength at the office, but his
request was refused by Sri Ram Kumar
Shukla and under the circumstances his
lien in service could not have been
terminated under Rule 63-A of the
Service Rules. Counsel for petitioner
further submits that in the impugned
order, the Managing Director referred to
petitioner's application dated 11.09.2002
but accepted an incorrect report of Sri
Ram Kumar Shukla, and submits that the
petitioner was not allowed to join. It is
submitted that the respondents have not
only acted arbitrarily and unreasonably
but have also acted in violation of Service
Rules.

4. Sri Vivek Kumar Birla, on the
other hand, submits the petitioner was
absent
from
duties
without
any
information since 07.08.2002. He was
warned on a number of occasions to join
the duties but he did not choose to join
and in the circumstance, the Corporation
was not left with any option except to
terminate the service of petitioner under
Rule 63-A of the Service Rules. He states
that although the petitioner moved an
application for joining but he was not
physically present to join the duties and
continued to be absent without leave.

5. A perusal of impugned order
shows that initially petitioner was absent
without
applying
for
leave.
The
respondents, however, did not deny the
fact
that
petitioner
had
made
an
application on11.09.2002 for joining. Sri
Ram
Kumar
Shukla
reported
that
petitioner did not physically present
himself for duties. The report of Sri Ram
Kumar Shukla was accepted without
giving any opportunity to the petitioner or
calling for his explanation. It is apparent
from these documents and averments in
writ petition that petitioner did not like to
serve as domestic employee at the
residence of Managing Director and that
Sri Ram Kumar Shukla, the person
concerned, refused to accept his joining
report until he reports for duty at
Managing Director's residence.

6. Rule 63-A in Chapter VIII of the
Service Rules in quoted below:

"If any employee remains absent
from his duty without information or prior
approval of his absence or over stays
after expiry of the leave period originally
sanctioned or subsequently extended,
thereby in time, he will lose lien on his
appointment if he does not report for
work within 15 days form the date of the
beginning of such unauthorized absence.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
26
However, lien may be restored at any time
subject to discretion of the management
after
submission
of
satisfactory
explanation to the management by the
employee concerned."

7. A similar rule, as aforesaid, came
up for consideration by Apex Court in
Hindustan
Paper
Corporation
v.
Purendu Chakraobarty and others
((1996) II SCC. 404). It was held by
Supreme Court in the said decision that
rule must be read and given effect to,
subject to the compliance of the principles
of natural justice and thus it cannot be
said that the rule is arbitrary or
unreasonable or violative of Articles 14
and 16 of the Constitution of India.
Before taking action under the said
clause, an opportunity should be given to
the employee to show cause against the
action proposed and if the cause shown by
the employee is good and acceptable, it
follows that no action in terms of the said
clause will be taken. In that sense, it
cannot be said that the said clause is either
unreasonable or violative of Article 16 of
the Constitution of India.

8. Any procedure prescribed for
depriving a person of livelihood must
meet the challenge of Article 14 and such
law would be liable to be tested on the
anvil of Article 14 and the procedure
prescribed by a statute or statutory rule or
rule, or orders affecting the civil right or
result in civil consequence would have to
answer the requirement of Article 14. It
must be right, just and fair and not
arbitrary, fanciful or oppressive. The
principles of natural justice require that a
person
must
be
informed
of
the
allegations against him. He must be given
full opportunity to submit his explanation
and that the authority concerned must
cause an enquiry and arrive at a just
decision.
In
all
the
circumstances,
miscarriage of justice must be avoided.

9. Taking the aforesaid decision into
consideration, I find that initially by letter
dated 07.09.2002, the Managing Director
relieved the petitioner from petty job of
the corporation and directing him to
report in the office of U.P. State
Handloom and also issued a warning that
if he does not submit his explanation for
unauthorized
absence,
disciplinary
proceedings
be
taken
against
him.
Thereafter by letter dated 27.09.2002, the
Managing Director issued a notice to the
petitioner informing him that he has failed
to report to his duty at the directed place
and petitioner was further required to join
his duty in the Camp Office of Managing
Director forthwith otherwise his services
would be terminated under chapter VIII
Rule 63-A of the service Rules. The
Managing Director has taken into account
the office letter dated 11.09.2002, in
which Sri Ram Kumar Shukla, reported
that petitioner reported but on being
detailed to work at M.D.'s residence,
absented himself. This clearly infers that
the petitioner was willing to work but was
not allowed to join until he reported to
work at a particular place. These facts
would go to show that petitioner's
services were not terminated on account
of his absence without information of
failing to report for work. The petitioner
was willing to join but was not prepared
to work at a particular place. The question
whether petitioner could have been
required to join at M.D.'s residence is
entirely a different matter and may have
called for a disciplinary enquiry. Rule 63A of the Service Rules was not attracted
at all. Petitioner's services, as such, could
not have been dismissed on the purported
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1 All] Vipul Agarwala V. M/s Atul Kanodia & Company
27
ground of his continuous absence. It is not
a case where the petitioner was not
responding to the show cause notice or
was not reporting without any cause.
Petitioner's services, as such, could not be
terminated
without
initiating
and
concluding a disciplinary enquiry.

10. For the aforesaid reasons, the
writ petitions succeeds and is allowed.
The impugned order dated 20.11.2002
(annexure-7 to the writ petitioner) passed
by the Managing Director is set aside.
Petitioner shall be reinstated in service
with all consequential benefits. It will be
open
to
the
respondents
to
take
disciplinary action against the petitioner
in accordance with Service Rules.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.9.2003

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Revision No. 290 of 2003

Vipul Agarwala

...Petitioner
Versus
M/s Atul Kanodia and Company

 ...Respondents

Counsel for the Revisionist:
Sri Shashi Nandan
Sri Ashutosh Srivastava
Sri A.K. Mehrotra

Counsel for the Respondent:
Sri S.K. Gupta

Code of Civil Procedure 1908, Secs. 51,
115-C.P.C. order XXI Rule 11-A, 40, 41Execution
by
detention
reasons
for
passing such order-whether to be stated
in applications and affidavits under Rule
11-A- Held, it is enough to state the
grounds broadly-all reasons to be stated
only under Rule 41 and under Rule 40.

Held- Para 3 and 4

If all the material on which the court is
to pass an order for civil detention is to
be stated in the application and affidavit
contemplated in Rule 11-A the provision
of Rule 41 would be virtually redundant-
a view which but for compelling reasons
can not be taken. Interpreted in this
light I am of the view that at the stage of
the application and affidavit under Rule
11-A it is enough to state broadly the
grounds
on
which
execution
by
detention is sought. These grounds can
be supplemented and supported by
material which may become available by
execution of the judgement debtor or
from his affidavit under Rule 41 or from
the evidence led by the parties under
Rule
40.
While
interpreting
these
provisions it has to be borne in mind that
after the decree the judgement debtor
may try to camouflage his assets and
properties and it may only be after the
curtain is removed by examining him or
looking into the books of his business
that the assets in his possession become
visible. That apart till date no order of
detention has been passed.

It may also be taken note of that as yet
final order for the arrest and detention of
the applicant in civil prison has not been
passed. It is only at that stage after the
examination under Rule 41 or evidence
under Rule 40 that reasons are required
to be recorded at the stage of ordering
execution by detention. The revision has
no merit. Dismissed.
Case Law discussed:
AIR 1964 Alld. 378
AIR 1981 Del. 114

(Delivered by Hon'ble Janardan Sahai, J.)

1. An award of the Arbitrator
Tribunal under the Arbitration and
Conciliation Act, 1996 was given against