# Smt. Kiran Rai v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-29
- **Case number:** Civil Misc. Writ Petition No. 12189 of 2007
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kiran-rai-v-state-of-u-p-and-others-40960
- **Pages:** 4

## Headnote

Constitution of India, Art.-226 Natural
Justice- Cancellation of appointmentpetitioners
appointmented
as
Aanganwari worker-cancelled without
any notice or opportunity of hearing-on
the
pretext
of
her
educational
certificates appears to be forged-heldwholly unjustified.

Held: Para 9

For the foregoing reasons, the order
cancelling
the
appointment
of
the
petitioner as Aanganwari Karyakatri for
the
village
in
question
is
wholly
unjustified, having been passed without
any
proper
enquiry
and
without
complying with the principles of natural
justice and as such the same is liable to
be set aside

## Text

2 All] Smt. Kiran Rai V. State of U.P. and others
571
of D.W. 1 Natthu Ram cannot be believed
for the reason that he is father of the
appellant and he himself did not see that
the victim suffered injury due to fall from
roof. He only stated that he was informed
by the people that victim had fallen from
the roof.

13. We also do not find any force in
the argument of the learned counsel for
the appellant that he has been falsely
implicated by the mother of the victim
over the dispute of the house. It is
improbable for mother to make false
allegation of sexual assault on her minor
daughter
against
her
own
Dewar.
Normally a girl or woman, in tradition
bound non-permissive society, would be
extremely reluctant to admit any such
incident. No mother would take risk to
make
false
allegation
against
the
appellant, who is the real uncle of the
victim, for sexual assault on her daughter
for fear of social stigma.

14. From the perusal of the evidence
on record and statement of the prosecutrix
in particular, in our view, the statement of
the prosecutrix inspires confidence. No
girl would depose falsely against her own
uncle. The mother of the victim, P.W.2
Smt. Rajbala, would also not do so for the
future prospects of the victim getting
married. From the statement of the victim
it is revealed that the appellant, while the
victim was all alone in her house and was
taking meals, made her lie on a cot and
committed rape upon her. The statement
of the victim and her mother Smt. Rajbala
is fully corroborated by the medical
evidence on the record.

15. The doctor also opined that there
was possibility that rape was committed
on her. Even if mother and sister of victim
arrived after the occurrence, as stated by
the victim, still there is no ground to
disbelieve the statement of the victim,
which
is
corroborated
by
medical
evidence on record.

16. Thus, we are of the opinion that
the judgement, holding the appellant
guilty, recorded by the Sessions Court, is
based on evidence and sound reasoning.
The conviction of the appellant is
therefore, maintained.

17. However, keeping in view the
law laid down by Hon'ble the Supreme
Court in the case of T.K. Gopal alias Gopi
(Supra) and the fact that the appellant has
two daughters of marriageable age, we are
inclined to consider the submission of the
learned
counsel
for
the
appellant
regarding reduction in the sentence. The
appeal is hereby dismissed. The sentence
of life imprisonment is reduced to a
sentence
of
ten
years'
rigorous
imprisonment.

18. The copy of this judgement be
immediately sent to the court concerned
for
necessary
compliance.
Appeal
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 12189 of 2007

Smt. Kiran Rai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. B.N. Rai
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Sri. N.K. Rai

Counsel for the Respondents:
Sri. P.K. Pandey

Constitution of India, Art.-226 Natural
Justice- Cancellation of appointmentpetitioners
appointmented
as
Aanganwari worker-cancelled without
any notice or opportunity of hearing-on
the
pretext
of
her
educational
certificates appears to be forged-heldwholly unjustified.

Held: Para 9

For the foregoing reasons, the order
cancelling
the
appointment
of
the
petitioner as Aanganwari Karyakatri for
the
village
in
question
is
wholly
unjustified, having been passed without
any
proper
enquiry
and
without
complying with the principles of natural
justice and as such the same is liable to
be set aside

(Delivered by Hon'ble Vineet Saran. J.)

1. In response to an advertisement
issued by the respondents for appointment
of Aanganwari Karyakatri for the village
in question, the petitioner as well as other
candidates had applied. On the basis of
the
recommendations
made
by
the
Selection Committee, in terms of the
Government Order dated 16.12.2003, the
name of the petitioner was recommended
for appointment and consequently by
order dated 25.8.2006, the petitioner was
given
appointment
as
Aanganwari
Karyakatri. By the impugned order dated
23.11.2006, the appointment of the
petitioner has been cancelled on the
ground that the income certificate of the
petitioner appears to be doubtful and that
it appears to be fabricated. Aggrieved by
the said order, the petitioner has filed this
writ petition.

2. I have heard learned counsel for
the petitioner as well as learned Standing
Counsel appearing for the respondents.
Pleadings have been exchanged and with
consent of the learned counsel for the
parties, this writ petition is being disposed
of at the admission stage itself.

3. The submission of the learned
counsel for the petitioner is that the
impugned order has been passed merely
on conjectures and surmises and without
there being any positive basis of arriving
at the said conclusion. It has further been
submitted that there was no complaint
with regard to the income certificate of
the petitioner and that no enquiry was
ever got conducted in that regard. It has
further been submitted that the enquiry, if
any, was got conducted exparte without
any notice to the petitioner, which was in
gross violation of the principles of natural
justice.

4. Learned Standing Counsel has,
however, submitted that the impugned
order has been passed on the basis of the
enquiry which was got conducted on the
complaints filed by several persons and as
such the impugned order is fully justified.

5. Having heard learned counsel for
the parties and considering the facts and
circumstances of this case, in my view,
the order impugned in this writ petition
deserves to be set aside.

6. It is the categorical case of the
petitioner that prior to the passing of the
impugned order, no opportunity was ever
given to the petitioner. It is well settled
principle of law that in case if a right has
accrued in favour of a person, the same
can be withdrawn only in accordance with
law, after giving opportunity to the person
2 All] Smt. Kiran Rai V. State of U.P. and others
573
concerned. In paragraphs 12, 13 and 14 of
the writ petition, it has categorically been
stated that no opportunity was given to
the petitioner at the time of the conduct of
the alleged enquiry; nor any notice or
opportunity of hearing was ever given
prior to the passing of the impugned
order, and that the impugned order has
been passed for malafide reasons only to
accommodate certain persons of the
choice of the respondents.

7. There is no specific reply given
by the respondents to the aforesaid
averments made in paragraphs 12, 13 and
14 of the writ petition except for merely
denying the same and stating that after the
passing of the impugned order dated
23.11.2006 the petitioner did not file any
reply. A perusal of the impugned order
clearly shows that by the said order, the
appointment
of
the
petitioner
as
Aanganwari
Karyakatri
has
been
cancelled. The order does not contemplate
any further action nor does it require the
petitioner to file reply to the same.

8. Alongwith the counter affidavit, a
collective enquiry report with regard to
the appointments in several villages has
been filed. The said report only gives the
conclusion, without any discussion, which
is in the form of an order, which has been
communicated to the petitioner vide letter
dated 23.11.2006. The individual enquiry
report in the case of the petitioner has not
been filed. With the counter affidavit
certain complaints have been filed to
show the basis on which the enquiry was
got
conducted.
A
perusal
of
the
complaints go to show that the same
related
to
the
authenticity
of
the
educational certificates filed by the
petitioner. There is no mention in the
complaints with regard to the income
certificate filed by the petitioner. The
order, by which the appointment of the
petitioner has been cancelled, is on the
basis that the Income certificate appears
to be doubtful and hence it is treated as
fabricated. There is no mention of the
educational certificates of the petitioner,
regarding which complaints had been
made. Although it has not been stated in
the counter affidavit that the notice was
ever given to the petitioner at the stage of
enquiry, but an attempt has been made to
show that there is an endorsement of the
petitioner
of
having
received
the
complaint
dated
31.8.2006
filed
as
Annexure-C.A.5 to the counter affidavit.
Even though this Court is not inclined to
accept that copy of the said complaint was
given to the petitioner but even assuming
that the same had been given, then too
since the said complaint is with regard to
the
educational
certificates
of
the
petitioner and not with regard to the
income certificate, as such, it cannot be
said
that
the
petitioner
had
any
opportunity to reply with regard to the the
authenticity of the income certificate on
the basis of which the impugned order has
been passed. As such, this Court is of the
firm opinion that the impugned order has
been passed in gross violation of the
principles of natural justice.

9. For the foregoing reasons, the
order cancelling the appointment of the
petitioner as Aanganwari Karyakatri for
the
village
in
question
is
wholly
unjustified, having been passed without
any
proper
enquiry
and
without
complying with the principles of natural
justice and as such the same is liable to be
set aside.

10. Accordingly, this writ petition
stands
allowed.
The
order
dated
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
23.11.2006 passed by the respondent no.
2 is quashed. The petitioner shall be
entitled to continue to function as
Aanganwari Karyakatri for the village in
question in terms of her appointment
given on 25.8.2006. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 9893 of .2007

Naseem Banoo and others ...Petitioners
Versus
Presiding Officer & others...Respondents

Counsel for the Petitioners:
Sri. Kaushal kant

Counsel for the Respondents:
Sri. Tarun Verma
Sri. K.M. Astahna

Constitution
of
India,
Art-226-
alternative remedy writ petition -arises
out against the order passed by recovery
officer-deemed to be order passed by
recovery
tribunal-appealable
under
section 20 of Recovery of Debts due to
Bank
and
Financial
Institutions
Act,1993-dismissal of appeal by tribunal
held-illegal-petition dismissed on the
ground of alternative remedy.

Held: Para 15

Thus
the
above
observation
clearly
indicate that forum of appeal to the
Tribunal
which
has
been
provided
against the order of Recovery Officer
which is sufficient safeguard in the event
the Recovery Officer acts in arbitrary or
unreasonable manner.
Case Law discussed:
2004 Banking Cases-348(DB)
2002(2) Bank CLR 272(SC)
AIR 1963 SC 1503
AIR 1935 PC 5

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

1. Heard Sri Kushal Kant, learned
counsel for the petitioners and the learned
counsel appearing for the respondents 1
and 3.

2. By this writ petition the
petitioners have prayed for quashing the
order dated 3-9-2002 passed by the
Recovery
Officer,
Debt
Recovery
Tribunal, Allahabad and order dated
30.11.2006 passed by the Debt Recovery
Tribunal dismissing the appeal No.224 of,
2002 filed against the order of the
Recovery Officer.

3. Learned counsel appearing for the
respondents raised a preliminary objection
with regard to entertainability of this writ
petition.
Learned
counsel
for
the
respondents submitted that the petitioners
have statutory remedy of filing an appeal
before the appellate tribunal Under
Section 20 of the Recovery of Debts Due
to Banks and Financial Institutions Act,
1993 against the order dated 30.11.2006
passed by the Debt Recovery Tribunal
hence the writ petition need not be
entertained by this Court under Article
226 of the Constitution. Reliance has been
placed on Division Bench judgement of
Delhi High Court reported in II (2004)
Banking cases 348 (DB) Continental
Construction Ltd. & Ors Versus State
Bank of India & Ors.

4.

Learned
counsel
for
the
petitioners
refuting
tho
preliminary
objection of learned counsel for the
respondents contended that no remedy of
appeal is available to the petitioners