# Ramesh Chandra v. Chief Inspector and another

- **Citation:** (2012) 2 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-27
- **Case number:** Civil Misc. Writ Petition No. 8647 of 1987
- **Bench:** Satya Poot Mehrotra, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-v-chief-inspector-and-another-42328
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226rejection order-claim for exemption of
age limit-on basis of previous workingrejected-without disclosing any reasonheld-illegal recording reason is sole of
the body of order-order in absence of
reasons-order
like
dead
body
not
sustainable rejection order quashed with
direction to pass fresh order.

Held: Para 15

We have perused the order of the
Director Factories, Uttar Pradesh dated
4.11.1986, communicated on behalf of
the State Government, rejecting the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
petitioner's
application
for
age
relaxation under proviso to Rule 9 of the
Rules. The said order simply states that
the State Government has rejected the
application as it was not possible to
grant any age relaxation. The aforesaid
order is undoubtedly a non-speaking
order. It does not contain any reason for
rejecting the petitioner's application for
grant of relaxation in age limit.
Case law discussed:
AIR 1974 SC 87; AIR 1981 SC 1915; AIR 1990
SC 2205; AIR 1990 SC 1984

Delivered by the Hon'ble Satya Poot
Mehrotra, J.)

## Text

2 All] Ramesh Chandra V Chief Inspector and another
999
a financial distress, that the Court may
consider to grant him an appointment equal
to the post and status as per his
qualification. We are not dealing with the
case of providing maintenance but a case
to provide immediate financial relief to a
person, who has lost his father in
unfortunate
circumstances.
The
compassion in such case should not
overreach the purpose for which the rule
has been enacted.

25. The petitioner has been offered
appointment on Class-III post in the pay
scale of Rs.3050-75-3950-80-4590/-. From
perusal of the records, it reflects that
petitioner has not chosen to join on the
post offered to him.

26. Before parting with the matter,
we may observe that some of the
appointments
given
by
the
State
Government on compassionate grounds, on
the post of Class II, to the dependents of
the deceased PCS officers since 2001 have
raised issues of equal treatment of the
dependents in the matter of compassionate
appointment. The appointments made
selectively in respect of some of the
dependents of the deceased PCS officers,
for the reasons, which we have not found it
proper to inquire are likely to raise issues
of equality and will continue to cause
apprehensions in the minds of similarly
situate dependents of public servants. We
thus find it appropriate and expect that the
State Government will either amend the
Rules of 1974, or to provide for guidelines
in respect of such appointments. The State
Government
may
consider
to
grant
relaxations under such guidelines. The
amendments of the rules or prescription of
guidelines will put rest to apprehensions
and speculations in such appointments and
will
avoid
litigation.
The
State
Government must demonstrate fairness
and reasonableness in such matters.

27. For the reasons aforesaid, the writ
petition is dismissed with liberty to the
petitioner to join on the Class-III post
offered to him. If due to lapse of time the
offer has been withdrawn, the State
Government will make the offer again to
the petitioner, to join.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2012

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 8647 of 1987

Ramesh Chandra

 ...Petitioner
Versus
Chief Inspector and another

 ...Respondents

Counsel for the Petitioner:
Sri K.P.Agarwal
Ghazala Bano Qadri

Counsel for the Respondents:
Sri D.P. Singh
S.C.

Constitution
of
India,
Article
226rejection order-claim for exemption of
age limit-on basis of previous workingrejected-without disclosing any reasonheld-illegal recording reason is sole of
the body of order-order in absence of
reasons-order
like
dead
body
not
sustainable rejection order quashed with
direction to pass fresh order.

Held: Para 15

We have perused the order of the
Director Factories, Uttar Pradesh dated
4.11.1986, communicated on behalf of
the State Government, rejecting the
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
petitioner's
application
for
age
relaxation under proviso to Rule 9 of the
Rules. The said order simply states that
the State Government has rejected the
application as it was not possible to
grant any age relaxation. The aforesaid
order is undoubtedly a non-speaking
order. It does not contain any reason for
rejecting the petitioner's application for
grant of relaxation in age limit.
Case law discussed:
AIR 1974 SC 87; AIR 1981 SC 1915; AIR 1990
SC 2205; AIR 1990 SC 1984

Delivered by the Hon'ble Satya Poot
Mehrotra, J.)

1. Petitioner was appointed as a
Welfare Officer Grade III in Swadeshi
Cotton
Mills,
Naini,
Allahabad,
respondent No.2 in accordance with the
U.P. Factories Welfare Officers Rules,
1955 (hereinafter referred to as "the
Rules") vide appointment letter dated
21.11.1985. He joined on 23.11.1985. On
the date of appointment the petitioner was
slightly overage. He was more than 26
years of age. His date of birth happened to
be 1.3.1959. Petitioner applied to the
State government for age relaxation. He
contended that his prior service as Labour
Welfare
Officer
with
M/s.
Kanpur
Chemical
(P)
Ltd.,
Kanpur
from
11.9.1984 to 21.11.1985 i.e. for one year
two months and ten days be excluded and
the relaxation in age by the said period be
granted. The application of the petitioner
was rejected vide order dated 4.11.1986
and
consequently
vide
order
dated
21.4.1987 the petitioner was informed
that in view of prescribed age limit of 26
years, as he was found overage by eight
months and 22 days on the date of
appointment, his services would stand
automatically terminated w.e.f. 21.5.1987.

2. The aforesaid two orders dated
4.11.1986 rejecting the application of the
petitioner for exemption in age limit and
the consequential order dated 21.4.1987
terminating
his
services
have
been
assailed by the petitioner by filing this
writ petition.

3. The parties have exchanged
necessary affidavits and they have agreed
for final disposal of the writ petition on
the basis of the pleadings on record.

4. We have heard Ms. Ghazala Bano
Quadri and Sri D.P. Singh, counsel for the
parties.

5. The main plank of the argument
of the petitioner is that proviso to Rule 9
of
the
Rules
empowers
the
State
Government to relax the upper age limit
up to a period during which the person
has worked as Welfare Officer earlier.
The petitioner having worked as Welfare
Officer
earlier
from
11.9.1984
to
21.11.1985, his age limit was liable to be
relaxed by the said period. The State
Government
in
refusing
to
grant
relaxation has acted in an arbitrary
manner and the order to this effect passed
by the State Government is completely a
non-speaking order.

6. The petitioner is legally entitled
for consideration of his application for
grant of age relaxation in view of
statutory provision contained in proviso to
Rule 9 as well as Rule 13 of the Rules.
For the sake of convenience the relevant
proviso to Rule 9 and Rule 13 are quoted
below:

"9. Age and qualifications. - No
person may be appointed as a Welfare
Officer unless -
2 All] Ramesh Chandra V Chief Inspector and another
1001

(a) ...

(b) (i)...

(ii)...

(iii) he is not less than 21 years and
not more than 26 years of age in case of
appointment to Grade III:

(c)...

(d)...

(e)...

Provided firstly, that in the case of
person, who has worked as a Welfare
Officer under these rules, or the Factories
Welfare Officers' Rules, 1949, the upper
age limit may be relaxed by the State
Government up to a period during which
he worked as such officer:

........."

"13.
Exemption.
-
The
State
Government may, if it is satisfied that it is
expedient so to do, exempt any person
from all or any of the qualifications or age
restriction prescribed in Rule 9 if such
person -

(i) is a graduate from a University
established by law, and

(ii) has had three years in the case of
Grade I, two years in the case of Grade II,
and one year in the case of Grade III,
practical experience of work concerning
or relating to the welfare of labour:

Provided that no application for
exemption under this rule shall be
entertained after the person concerned has
already been appointed."

7. A plain reading of the aforesaid
provisions of Rules indicate that though
the
necessary
minimum
age
for
appointment as Welfare Officer Grade III
is 21 years and a maximum of 26 years
but the same can be relaxed by the State
Government provided the person has
earlier worked as Welfare Officer either
under these Rules or under the Factories
Welfare Officers' Rules, 1949.

8. Rule 13 provides for exemption in
age if a person is a Graduate from a
University
and
is
having
working
experience concerning to the welfare of
labour for a period of three years as Grade
I Officer, two years as Grade II Officer
and one year as Grade III officer.
However, no application for exemption
under Rule 13 is permissible after the
person concerned has been appointed.

9.

Petitioner
applied
for
exemption/age
relaxation
after
his
appointment, therefore, Rule 13 may not
be
strictly
applicable
but
certainly
petitioner was entitled for consideration
of his application for age relaxation under
proviso to Rule 9 of the Rules.

10. The petitioner in his application
clearly stated that he took employment as
Labour Welfare Officer Grade III in M/s.
Kanpur Chemical (P) Ltd. on 11.9.1984 in
accordance with U.P. Factories Welfare
Officers' Rules, 1955 and at that time he
was less than 26 years in age. He worked
there till 21.11.1985 on which date he was
issued a fresh letter of appointment as
Welfare Officer Grade III by respondent
No.2. He was entitled to age relaxation in
the matter of grant of appointment for the
period he had worked with M/s. Kanpur
Chemical (P) Ltd..

11. It is said that law governs man
and reason the law. Reasons are the links
between materials on which conclusions
are based and the actual conclusions.
1002 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
They disclose how the mind is applied to
the subject matter for a decision whether
it is purely administrative or quasi judicial
and reveal nexus between the facts and
conclusions reached vide AIR 1974 SC 87
Union of India Vs. Mohan Lal Kapoor
and AIR 1981 SC 1915 Uma Charan Vs.
State of Madhya Pradesh.

12. In short, fair play requires
recording of germane and relevant precise
reasons when an order affects the right of
a citizen or a person irrespective of the
fact whether it is judicial, quasi-judicial or
administrative. Decision or order of any
statutory or public authority bereft of
reasoning would be arbitrary, unfair and
unjust, violative of Article 14 of the
Constitution of India.

13. In State of West Bengal Vs. Atul
Krishan Shaw and another AIR 1990 SC
2205, the Supreme Court observed
"giving of reasons is an essential element
of administration of justice. A right to
reason is, therefore, indispensable part of
the sound system of judicial review.

14. In S.N. Mukherjee Vs. Union of
India AIR 1990 SC 1984 it has been held
that the object underlying the rules of
natural justice is to prevent miscarriage of
justice and secure fair play in action. The
expanding horizons of principles of
natural justice provides for recording of
reasons.

15. We have perused the order of the
Director Factories, Uttar Pradesh dated
4.11.1986, communicated on behalf of the
State
Government,
rejecting
the
petitioner's application for age relaxation
under proviso to Rule 9 of the Rules. The
said order simply states that the State
Government has rejected the application
as it was not possible to grant any age
relaxation.
The
aforesaid
order
is
undoubtedly a non-speaking order. It does
not contain any reason for rejecting the
petitioner's application for grant of
relaxation in age limit.

16. The respondents have not
brought on record any order of the State
Government rejecting the exemption
application of the petitioner. The only
order in this regard available is the
impugned order dated 4.11.1986. The said
order is completely uninformed by
reasons.

17. The impugned order does not in
any manner show that the authorities had
applied mind to the relevant aspects in
refusing age relaxation to the petitioner.

18. It is settled legal position, as
discussed
above,
that
even
an
administrative order which have the effect
of
visiting
a
person
with
civil
consequences have to be passed adhering
to the principles of natural justice which
includes recording of reasons unless
specifically
dispensed
with
by
the
relevant Rules or Statute. Learned counsel
for the respondents has failed to show any
provision by which recording of reasons
for granting or refusing age relaxation has
been dispensed with. Thus, there is
nothing on record to indicate application
of mind by the authority concerned to the
facts and circumstances culminated in the
formation of opinion to refuse age
relaxation and to reject his claim for
relaxation in age.

19. In view of above, the orders
dated 21.4.1987 and 4.11.1986 (Annexure
5 and 7 to the petition) are quashed and a
writ of mandamus is issued directing
2 All] Commissioner of Customs & Central Excise V. M/S Majestic Auto Ltd.
1003
respondent No.1 to reconsider the grant
exemption in the matter of age limit as
provided under Rule 9 of the U.P.
Factories Welfare Officers Rules, 1955.

20. The writ petition is allowed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE PRAKASH KRISHNA, J.

Central Excise Appeal No. - 142 of 2004

Commissioner Of Customs & Central
Excise

 ...Petitioner
Versus
M/S Majestic Auto Ltd ...Respondents

Counsel for the Petitioner:
Sri K.C. Sinha
S.S.C.
Sri A K Nigam
Sri A K Rai
Sri B.K.S. Raghuvanshi

Counsel for the Respondents:
Sri Piyush Agrawal

Central Excise Act, 1944-Section-35-GPower of Custom Excise and Service
Tribunal regarding reduction of penaltythan amount of penalty specified under
Section
11
AC-held-liability
to
pay
penalty
equal
to
excise
duty
so
determined-as such is simultaneous and
consequential-hence the provisions of
Section 11 AC being mandatory-either
adjudication authority or tribunal-has no
authority to impose penalty other than
the liability under section 11 AC

Held: Para 14

From the proposition as laid down in
above cases, the ratio deducible is that
the quantum of the penalty equal to the
duty determined as contemplated by
Section 11AC is mandatory and there is
no
discretion
in
the
adjudicating
authority or the Tribunal to impose
different amount of penalty. In a case
where penalty is leviable under section
11AC on fulfilment of the conditions as
enumerated in Section 11AC, the penalty
equal to the amount of duty determined
is mandatory and there is no discretion
in the Tribunal to reduce the said
penalty. However, as laid down by the
apex
Court
in
Union
of
India
Vs.
Rajasthan Spinning and Weaving Mills
(supra), the penalty under section 11AC
can be imposed only when conditions
mentioned in Section 11AC exist. The
authorities have no discretion in fixing
the quantum of penalty and penalty
equal to the duty must be imposed once
section 11Ac is made applicable.
Case law discussed:
2009 (238) ELT 3; 1998 (99) ELT 33; 1999
(112) E.L.T. 772; 2005 (182) E.L.T. 289; 2008
(231) E.L.T. 3

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This appeal under section 35G (2)
of the Central Excise Act, 1944 has been
filed against the judgment and order dated
20.7.2004, passed by Custom Excise and
Service Tax Appellate Tribunal in Appeal
No. E/642/2004-B. The appeal has been
admitted by this court on the following
substantial question of law:

"i) Whether the appellate Tribunal on
the facts and circumstances of the case
could reduce the penalty amount, which is
less than the amount of penalty specified
under section 11 AC of the Central Excise
Act, 1944."

2. The brief facts of the case which are
necessary to be noted for deciding this
appeal are; M/s Majestic Auto Ltd.
(respondent in this appeal) are engaged in
the manufacture of two wheelers scooters