# Sinha v. Project and Development India and - **Citation:** (2000) 3 ILRA 317 - **Court:** High Court of Judicature at Allahabad - **Decided:** 1997-07-30 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sinha-v-project-and-development-india-and-39578 - **Pages:** 3 ## Text 317 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 Shambhnu Murari Sinha v. Project and Development India and Anr.6, Option of voluntary retirement was exercised by the appellant therein vide letter dated 18.10.1995 and though it was accepted by the management vide their letter dated 30.7.1997 the appellant was not relived form service and he was father allowed to continue in service till 26.9.1997, which for all practical purposes was held to be "effective date" as it was on this date that he was relived from service and since in the meantime, the appellant therein had already withdrawn the offer of voluntary retirement vide letter dated 7.8.1997 the Apex Court held that the question was squarely covered by the decision in Balram Gupta; J.N. Srivastava; and Power Finance Corporation (Supra) and accordingly, the appeal of the employee was allowed by the Apex Court and he was held entitled to continue in service with all consequential benefits. 6. In my opinion, the question raised herein is squarely covered by the decision aforestated and the mere fact that the petitioner had accepted the terminal benefits in the shape of retirement compensation and leave encashment would not foreclose him from asserting his right. The order refusing to accede to the request of the petitioner withdrawing his option for voluntary retirement contains no reasons and is , therefore, unsustainable. 7. As a result of foregoing discussion, the petition succeeds and is allowed. The impugned orders are quashed. The respondents are directed to re-situate the petitioner in his job attended 6 JT 2000 (6) SC 359 with all consequential benefits subject, of course, to the condition that the amount already received by the petitioner as terminal benefits i.e. retirement compensation and leave encashment will be credited to the arrears which may be admissible to the petitioner and if it still falls short, the same shall be liable to be sub-ducted from the future salary of the petitioner. 5(9,6,21$/ -85,6',&7,21 5(9,6,21$/ -85,6',&7,21 &5,0,1$/ 6, &5,0,1$/ 6,'( '( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( 6. $*$5:$/ - 7+( +21·%/( 6. $*$5:$/ - &ULPLQDO 5HYLVLRQ 1R RI 0DGDQ 0RKDQ 8SUHWL «5HYLVLRQLVW 9HUVXV 6PW .KDVKWL 'HYL DQG DQRWKHU «2SSRVLWH SDUWLHV &RXQVHO IRU WKH 5HYLVLRQLVW 6KUL &' %DKXJXQD &RXQVHO IRU WKH 5HVSRQGHQWV 2SS 3DUWLHV $*$ &RGH RI &ULPLQDO 3URFHGXUH 6 5HYLVLRQLVW DOOHJLQJ FKDQJH LQ FLUFXPVWDQFHV VLQFH WKH JUDQW RI PDLQWHQDQFH RI 5V SHU PRQWK WR ZLIH $OOHJDWLRQ WKDW QRZ VKH LV HDUQLQJ 5V SHU PRQWK ± 1R SURRI LQ VXSSRUW RI WKH DOOHJDWLRQ +HQFH QR DOWHUDWLRQ RU FDQFHOODWLRQ RI PDLQWHQDQFH FDQ EH JUDQWHG E\ +LJK &RXUW LQ 5HYLVLRQ +HQFH &-0 FRQFHUQHG GLUHFWHG WR JR LQWR WKLV DVSHFW DIWHU SHUXVLQJ RUDO DQG GRFXPHQWDU\ HYLGHQFH OHG E\ SDUWLHV +HOG 3DUD 3All] Madan Mohan Upreti V. Smt. Khashti Devi and another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y the Court 1. Heard learned counsel for the revisionist. List has been revised yet learned counsel for the opposite party is not present in court. 2. The main contention of the learned counsel for the revisionist is that the circumstances have changed. In so far as it relates to the wife. According to him she is now earning a sum of Rs. 725/- per month as salary from Kasturba Mahila Uththaan Mandal, Kumaun, Kausani. District Almorah. This is a total change in the status of the wife who had been allowed maintenance by the Judicial Magistrate at the rate of Rs. 250/- per month on the ground that she is unable to maintain herself. It was increased to a sum of Rs. 400/- per month by the revisional court on her revision. 3. In section 125 Cr. P.C. it is very clearly indicated that any person i.e. wife, children or parent's are entitled to maintenance allowance if any one of them is neglected or refused to be maintained if they are unable to maintain themselves. According to Sub Clause (a) of Sub Section (1) of Section 125 Cr.P.C. a wife who is unable to maintain herself is entitled to get maintenance. 4. The change alleged before me requires proof. The applicant has to prove this like a fact or circumstance by adducing evidence. This evidence may be oral or documentary or both. This change in the circumstances of the wife is to be considered by the court concerned if an application for either alteration or cancellation of the maintenance is moved before it by the applicant. This court cannot go into this contention of the learned counsel for the revisionist in this application. When this order was modified by the learned revisional court, till that period there was no evidence before the court that the wife is able to maintain herself or regarding occurrence any material change in her status. 5. In the circumstance, it is directed that the Judicial Magistrate concerned shall go into this aspect a fresh as adverted to earlier. The revisionist shall furnish oral as well as documentary evidence in respect of changes occurred in the status of his wife, opposite party no. 1 The wife shall also be afforded by the Magistrate an opportunity of rebuttal. 6. With this direction, this revision stands disposed of. 319 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 $33(//$7( -85,6',&7,21 $33(//$7( -85,6',&7,21 &5,0,1$/ 6,'( &5,0,1$/ 6,'( '$7(' $//$+$%$' -8/< '$7(' $//$+$%$' -8/< %()25( %()25( 7+( +21·%/( 6 7+( +21·%/( 6. $*$5:$/ - . $*$5:$/ - &ULPLQDO $SSHDO 1R RI %DEX