# Smt. Mannu Devi v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 830
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-03
- **Case number:** Writ - A No. 14354 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mannu-devi-v-state-of-u-p-ors-52001
- **Pages:** 8

## Headnote

A. Service Law - Constitution of India -
Article 14 & 16 - Termination - Post of
Safai
Karmchari
-
Appointment
of
petitioner was made on the post vacant
due to resignation of her father-in-law -
Father-in-law resigned with the condition
that
his
daughter-in-law
be
given
appointment - Permissibility - Held, every
post in the establishment of the Nagar
Palika has to be filled up in accordance with
rules, conforming to Article 14 of the
5 All. Smt. Mannu Devi Vs. State of U.P. & Ors.
831
Constitution that give equal opportunity to
all citizens. It would never be open to the
Executive Officer to appoint a person,
driven by considerations like personal
favour, sympathy, acquaintance and the
like - Appointment to public posts, as
already said, has to follow a mechanism of
recruitment known to law, which affords
equal opportunity to all citizens. A retiring
employee cannot virtually transfer his
office to a member of his family, by
nominating him/her to a public authority,
whose employment he is demitting. An
appointment of this kind is so thickly
violative of the scheme of equality in public
employment enshrined under Articles 14
and 16 of the Constitution. (Para 14 and
17)

B. Service Law - Constitution of India -
Article 23 - Begar - Appointment was
made dehors the rules - Salary paid
towards the service, how far can be
recovered - Held, since the petitioner,
under the colour and by dint of whatever
kind of appointment order, was issued in
her favour on 15.12.1994, has rendered
work as a Safai Karmachari for the Nagar
Palika Parishad and then its successor
Nagar Nigam, cannot be asked to pay back
whatever she has drawn towards salary
and other emoluments. If that were
permitted,
it
would
be
making
the
petitioner
render
begar,
something
prohibited
under
Article
23
of
the
Constitution. Therefore, the respondents
are not entitled to recover any emoluments
from the petitioner for the work done by
her. (Para 18)

Writ petition dismissed. (E-1)

## Text

830 INDIAN LAW REPORTS ALLAHABAD SERIES
rights under the Regulations of 1984 go. It is
not known to this Court if the two FIRs
lodged against the petitioner have resulted in
charge-sheets and matured into judicial
proceedings, taking the shape of criminal
trials, pending against the petitioner. If
indeed in either of two FIRs registered
against the petitioner, he has been chargesheeted and the criminal trial, which has to
be regarded as a judicial proceedings against
him, is/ or pending, all that the petitioner can
receive is his provisional pension. He will
not receive gratuity.

18. The question of entitlement to the
award of final pension and gratuity would
have to be decided after conclusion of trial.
At the same time, provisional pension in
accordance with rules would have to be
sanctioned for the petitioner and paid to him,
to which he is entitled under the Regulations
of 1984. So far as the other post retiral
benefits, such as leave encashment, group
insurance and GPF are concerned, it is not
known to the petitioner, if these have been
paid. The respondents have said somewhere
that some of these benefits have been paid.
If these have been paid, there is no further
obligation. But if not, the petitioner would
be entitled to the payment of each of these.

19. In the circumstances, this writ
petition succeeds and allowed in part. The
petitioner is held entitled to sanction of a
retirement pension and gratuity, reckoning
the entire period of his service with the
respondents, including the period of his
daily-wage service. However, if he is facing
a criminal trial, he will, for the time being,
be sanctioned and paid a provisional pension
and not his gratuity. The sanction and
payment of final pension and gratuity would
be for the respondents to consider after
conclusion of the pending criminal trial, if
any. However, if no criminal trial is pending
against the petitioner, final pension would
have to be sanctioned for him forthwith and
both pension and gratuity would become
payable. The respondents will scrutinize the
petitioner's records and if any other retiral
dues,
like
leave
encashment,
group
insurance and GPF, whatever be due under
the rules, has not been paid, the same too
shall be paid. The respondents shall be under
a command to undertake the necessary
reckoning and discharge their obligations to
pay the petitioner his post retiral benefits, as
above directed, within a period of one month
of the receipt of this judgment.

20. No costs.
----------
(2024) 5 ILRA 830
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 14354 of 2023

Smt. Mannu Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Love Lesh Kumar Verma

Counsel for the Respondents:
C.S.C., Gopal Krishna Pandey

A. Service Law - Constitution of India -
Article 14 & 16 - Termination - Post of
Safai
Karmchari
-
Appointment
of
petitioner was made on the post vacant
due to resignation of her father-in-law -
Father-in-law resigned with the condition
that
his
daughter-in-law
be
given
appointment - Permissibility - Held, every
post in the establishment of the Nagar
Palika has to be filled up in accordance with
rules, conforming to Article 14 of the
5 All. Smt. Mannu Devi Vs. State of U.P. & Ors.
831
Constitution that give equal opportunity to
all citizens. It would never be open to the
Executive Officer to appoint a person,
driven by considerations like personal
favour, sympathy, acquaintance and the
like - Appointment to public posts, as
already said, has to follow a mechanism of
recruitment known to law, which affords
equal opportunity to all citizens. A retiring
employee cannot virtually transfer his
office to a member of his family, by
nominating him/her to a public authority,
whose employment he is demitting. An
appointment of this kind is so thickly
violative of the scheme of equality in public
employment enshrined under Articles 14
and 16 of the Constitution. (Para 14 and
17)

B. Service Law - Constitution of India -
Article 23 - Begar - Appointment was
made dehors the rules - Salary paid
towards the service, how far can be
recovered - Held, since the petitioner,
under the colour and by dint of whatever
kind of appointment order, was issued in
her favour on 15.12.1994, has rendered
work as a Safai Karmachari for the Nagar
Palika Parishad and then its successor
Nagar Nigam, cannot be asked to pay back
whatever she has drawn towards salary
and other emoluments. If that were
permitted,
it
would
be
making
the
petitioner
render
begar,
something
prohibited
under
Article
23
of
the
Constitution. Therefore, the respondents
are not entitled to recover any emoluments
from the petitioner for the work done by
her. (Para 18)

Writ petition dismissed. (E-1)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order dated 05.07.2023 passed by the
Commissioner, Jhansi Division, Jhansi,
dismissing the petitioner's appeal, arising
out of an order dated 13.10.2022 passed by
the Nagar Ayukt, Nagar Nigam, Jhansi,
terminating her services.

2. The petitioner was appointed a
Class-IV employee, a Safai Karmchari, by
the
Executive
Officer,
Nagar
Palika
Parishad, Jhansi vide an order dated
15.12.1994. The petitioner was issued with
a show cause notice dated 25.07.2022 by the
Nagar Swasthya Adhikari, Nagar Nigam
Jhansi, the Nagar Palika being upgraded to a
Nagar
Nigam
since
the
petitioner's
appointment, asking her to show cause
regarding the validity of her appointment
within seven days. The petitioner was asked
to show cause about the validity of her
appointment on ground that at the time of
her appointment, she had suppressed the fact
that her husband, Brij Mohan, was in
government service. The other reason
indicated was that she was appointed after
her father-in-law, Chandu son of Ramjani, a
Safai Karmchari, resigned his post and in
the vacancy caused by his resignation, the
petitioner was appointed, about which the
petitioner did not have any legal right. The
petitioner says that she has been working as
a Class-IV employee regularly since the date
she joined. She submitted her reply to the
show cause on 25.07.2022.

3. It is the petitioner's case that there is
no complaint or adverse material against her
during the period of her service. A memo
dated 17.09.2022 was issued to the
petitioner by the Nagar Swasthya Adhikari,
asking her to appear for the purpose of a
personal hearing on 20.09.2022 at 11:00
a.m. and have her say in the matter of
validity of her appointment. In compliance
with the memo dated 17.09.2022, the
petitioner
submitted
her
reply
on
20.09.2022. The Nagar Ayukt, vide order
dated 13.10.2022, terminated the petitioner's
services on ground that it was made dehors
the rules, depriving her of all terminal
benefits. The petitioner appealed the order to
the Divisional Commissioner, but the appeal
832 INDIAN LAW REPORTS ALLAHABAD SERIES
too was dismissed vide order dated
05.07.2023.

4. Aggrieved, this writ petition has
been instituted under Article 226 of the
Constitution.

5. This Court vide orders dated
29.08.2023, 04.10.2023 and 16.10.2023
required the Nagar Ayukt, the Collector of
Jhansi, the Commissioner of the Division
and the Secretary, Urban Development,
Government of U.P., Lucknow, to show
cause why damages may not be awarded to
the petitioner for the invaluable loss of those
years of her life, when the petitioner could
have secured lawful public or private
employment. These orders were passed on
the foot of a prima facie opinion that the
petitioner was appointed to a public post
dehors the rules that did not confer any right
upon her to continue in public employment.
By very detailed orders, it was impressed
upon the various respondents, who were
asked to file their personal affidavits, that
the then Executive Officer of the Nagar
Palika and the incumbent, who was
functioning as the Collector, also holding
charge of the Administrator of the Nagar
Palika at the relevant time, by display of an
act of mercy and on a humanitarian ground,
granted appointment to the petitioner, which
could never have been done. This resulted in
the petitioner being made to serve the Nagar
Palika, subsequently the Nagar Nigam, in
terms of an appointment that was void. This
caused prima facie the petitioner to be
rendered directionless in the advanced years
of her life and deprived of all economic
security. It was these factors, which required
the respondents to show cause why damages
may not be awarded to her for offering her a
void appointment. The orders, that was
passed by this Court on 29.08.2023, and,
particularly, the one on 04.10.2023, required
the Executive Officer of the Nagar Palika,
Jhansi, which should be understood as a
reference to the Nagar Ayukt, Nagar Nigam,
Jhansi and the Divisional Commissioner, to
file their affidavits indicating the present
location and status of the Executive Officer
of the Palika, who offered the petitioner this
appointment
and
the
Divisional
Commissioner of Jhansi at the relevant time.
The Divisional Commissioner in his
affidavit, as well as the Nagar Ayukt in the
one that he filed, informed the petitioner that
the appointment was made by the Executive
Officer at the relevant time under the
directions of the Administrator of the exNagar Palika.

6. The Commissioner of the Division
in his affidavit said that the Collector of the
District
was
functioning
as
the
Administrator and it was he, who sanctioned
the making of a void appointment in the
petitioner's favour. The identity of the
Commissioner at the relevant time was
disclosed, because he was dead. The name
of the Nagar Ayukt at the relevant time was
disclosed, but not his whereabouts. Nothing
was disclosed about the District Magistrate,
who had shown the act of 'mercy and
compassion' in offering a void appointment
to the petitioner way back in the year 1994.
This Court, therefore, asked the Secretary,
Urban Development, Government of U.P. to
show cause why suitable compensation be
not awarded.

7. In the personal affidavits filed by the
Secretary,
the
Commissioner
of
the
Division, the Collector, Jhansi, which are
there on record, the stand taken is that the
petitioner has been paid, for whatever
services she has rendered, and she cannot be
paid any compensation or damages because
there
is
no
provision
in
the
U.P.
Municipalities Act, 1916 or the U.P. Nagar
5 All. Smt. Mannu Devi Vs. State of U.P. & Ors.
833
Nigam Mahapalika Adhiniyam, 1959 or the
Rules/ Regulations framed thereunder or
Government Orders to pay compensation
after termination of her illegal and void
appointment.

8. This explanation against the
damages has been given in the personal
affidavit of the District Magistrate, Jhansi
dated 03.11.2023. There is an identically
worded explanation in an identically worded
affidavit submitted by Ajay Kumar Shukla,
Secretary,
Urban
Development,
Government of U.P., Lucknow given in
Paragraph No.13 of his affidavit dated
06.11.2023. There is also an identical
explanation, though expressed in slightly
different words, in the personal affidavit
filed by the Divisional Commissioner,
Jhansi. It reads:

"It is further most respectfully
submitted here that the service rules, that are
applicable in the case of petitioner, or any
other rules for the time being in force, do not
provide
for
awarding
of
any
such
compensation to any person and thus in
absence of any such provision in the relevant
rules the deponent's hands are tied, even
though the deponent has full sympathies
with the petitioner and the Hon'ble Court has
been very considerate in taking such view in
favour of the petitioner."

9. There was an earlier round of
personal affidavits, one filed by the Nagar
Swasthya Adhikari, respondent No.4, dated
13.09.2023; an affidavit dated 12.09.2023
filed by the Nagar Ayukt, Nagar Nigam,
Jhansi; and, an affidavit dated 13.10.2023
filed by the Divisional Commissioner,
Jhansi. There is another personal affidavit
filed by the Nagar Ayukt dated 13.10.2023.
Apart from these affidavits, there is a short
counter affidavit dated 06.11.2023 filed by
the Nagar Ayukt, Nagar Nigam, Jhansi and
another counter affidavit dated 07.09.2023
filed by the Divisional Commissioner. There
is a solitary rejoinder by the petitioner dated
27.09.2023, answering the counter affidavit
dated 07.09.2023 filed by the Divisional
Commissioner. This makes for all the
pleadings that were exchanged between
parties in compliance of the various orders
that this Court passed from time to time,
already
detailed.
The
parties
having
exchanged
all
these
affidavits
by
06.11.2023, on the said date, it was admitted
to hearing, which proceeded forthwith.
Judgment was reserved.

10. Heard Mr. Love Lesh Kumar
Verma, learned Counsel for the petitioner,
Mr. M.C. Chaturvedi, learned Additional
Advocate General assisted by Mr. Suresh
Singh, learned Additional Chief Standing
and Mr. Vishal Tandon, learned State Law
Officer, all appearing on behalf of
respondents Nos.1, 2, 3 and 6, and Mr.
Gopal Krishna Pandey, learned Advocate
appearing on behalf of respondent Nos.3 and
5, the Nagar Ayukt and the Nagar Swasthya
Adhikari, Jhansi.

11. Upon hearing learned Counsel for
the parties, this Court is of opinion that the
petitioner was indeed retained in service by
the
ex-Nagar
Palika,
Jhansi,
now
represented by the Nagar Nigam, through an
order of appointment, that is void ab initio.
The order of appointment dated 15.12.1994
passed by the Executive Officer, Nagar
Palika Parishad, Jhansi, reads:

"पत्रांक दिनरांक

श्री चन्िू पुत् रजवरनी सफरई कर्मचररी नगर परदिकर
पररषि, झराँसी द्वररर प्रस्तुत शपथ पत् आवेिन पत् एवां र्ुख्य
दचदकत्सरदिकररी कर प्रर्रण पत् के आिरर पर स्वेच्छर से सेवर दनवृत्त
होने कर दनवेिन दकयर गयर है दक श्री वृजर्ोहन की पुत्बिू श्रीर्ती
र्न्नू को उनके स्थरन पर सेवर र्े रखर जरये।
834 INDIAN LAW REPORTS ALLAHABAD SERIES

दजिरदिकररी / प्रशरसक ने उनके द्वररर प्रस्तुत
अदििेखो को दृदिगत करते हुये, ियर एवां र्रननीय आिरर पर श्रीर्ती
र्न्नू पत्नी बृजर्ोहन को परदिकर.... र्े रखे जरने की स्वीकृदत प्रिरन
की गई है।

श्री चन्िू पुत् रर्जरनी सफरई कर्मचररी नगर परदिकर
पररषि झराँसी स्वैच्छर से त्यरग पत् आिेश के दिनरांक से स्वीकृत दकयर
जरतर है। दनयर्रनुसरर उन्हे िो र्रह कर वेतन परदिकर र्े जर्र करनर
होगर।

श्री चन्िूपुत् रर्जरनी की सेवर दनवृत्त के कररण हुये ररक्त
पि पर श्रीर्ती र्न्नू पत्नी बृजर्ोहन की अस्थरई दनयुदक्त सफरई
कर्मचररी से दनिरमररत सर्रन्य र्े की जरती है।

श्रीर्ती र्न्नू दनयर्रनुसरर करयमिरर ग्रहण करते हुये नगर
स्वरस््य सरकररी करयरमिय र्े उपदस्थत हो और अपनर दचदकत्सर
प्रर्रण पत् आदि प्रस्तुत करे।

ह० अस्पि
अदिशरसी अदिकररी
नगर परदिकर पररषि, झॉसी।
पृष्रांकन- 850 / 9211/ दिनरांक 15-12-94
प्रदतदिदप :- 1- नगर स्वरस््य अदिकररी को आवश्यक करयमवरही
एवां सूचनरथम।
2- िेखरकरर / करयरमिय अिीक्ष को सूचनरथम।
3- सम्बदन्ित कर्मचरररयो को अनुपरिनरथम।
ह० अस्पि
अदिशरसी अदिकररी
नगर परदिकर पररषि, झॉसी।"

12. A reading of the said appointment
order ex facie shows the most serious kind
of malfeasance and misuse of authority in
public office by the then Executive Officer
of the Nagar Nigam and the Collector of
Jhansi, who was functioning as the
Administrator of the Palika. It shows that a
Safai Karmachari, Chandu son of Ramjani
had chosen to submit his resignation from
service, described as 'voluntary' because of
health reasons supported by a medical
certificate from the Chief Medical Officer,
but subject to a condition that his daughterin-law, Smt. Mannu, the petitioner be given
service in the Nagar Palika on the post
vacated
by
Chandu.
The
order
of
appointment recites that the Collector/
Administrator, upon looking to the record
showing mercy and on humanitarian
grounds, had granted permission to Smt.
Mannu wife of Brij Mohan, the petitioner, to
be appointed to the Palika service. The order
of appointment further says that the
'voluntary'
resignation
submitted
by
Chandu, Safai Karmachari is accepted from
the date of the order. It was further directed
that Chandu would have to deposit two
months' salary with the Nagar Palika in
accordance with rules. The order then goes
on to say that on the post vacated by
Chandu, Smt. Mannu, the petitioner is
appointed a Safai Karmachari on a
temporary basis in the pay scale as
admissible.

13. The petitioner's appointment letter
has to be read not only as the source of her
right to hold the post of a Safai Karmachari
with the Nagar Nigam, but also regarded as
true for everything recorded therein. After
all, the respondents do not disown the date
of appointment and say that the Executive
Officer has issued it. What they say is that
the appointment, that it purports to make in
favour of the petitioner, is absolutely illegal,
dehors the rules, and, therefore, void. The
Nagar Palika, that is the predecessor body of
the Nagar Nigam, was like the Nigam, a
statutory body. It was governed by the Act
of 1916 and the rules framed thereunder.
Sections 71, 74 and 75 of the Act of 1916
read:

"71. Power of Municipality to
determine permanent staff.- Except as
provided by Sections 57, 66, 58 and 70, and
subject to any general or special directions
as the State Government may, from time to
time, issue a Municipality may, by special,
resolution, determine what servants are
required for the discharge of the duties of the
5 All. Smt. Mannu Devi Vs. State of U.P. & Ors.
835
Municipality and [their qualifications and
conditions of service.

74. Appointment and dismissal
of permanent superior staff.- Subject to
the provisions of Sections 57 to 73, servants
on posts in the non-centralised service,
carrying scale of pay equal to or higher than
the lowest scale of pay admissible to the
clerical staff, shall be appointed and may be
dismissed, removed or otherwise punished,
or the services of a probationer may be
terminated, by the President, subject to the
right of appeal, except in the case of the
termination of the service of a probationer,
to such authority within such time and in
such manner as may be prescribed :

Provided that appointments on the
posts of Tax Superintendent, Assistant Tax
Superintendents, Inspectors, Head Clerks,
Sectional
Head
Clerks,
Sectional
Accountants, Doctors, Vaids, Hakims and
Municipal Fire Station Officers, shall be
subject to the approval of the Municipality.

75. Appointment of permanent
inferior
staff.-
Except
as
otherwise
provided, the Executive Officer shall
appoint servants carrying scales of pay
lower than the lowest scale of pay referred
to in Section 74 :

Provided that in the case there is
no Executive Officer, the said appointment
shall be made by the President.

14. The power to appoint inferior staff,
as it is called by the Act of 1916, vests in the
Executive Officer. The scheme of the Act of
1916, like any other public body, that is an
instrumentality of the State, constituted,
governed and regulated by statute, did not
provide for appointment to a regular post in its
establishment, according to whim and caprice
of its officers, even the Appointing Authority.
Every post in the establishment of the Nagar
Palika has to be filled up in accordance with
rules, conforming to Article 14 of the
Constitution that give equal opportunity to all
citizens. It would never be open to the
Executive Officer to appoint a person, driven
by considerations like personal favour,
sympathy, acquaintance and the like. The
same would hold true about the power or
authority of a person placed in higher charge
of a Nagar Palika like the Administrator
thereof, when under the Act of 1916, the
Municipal Board could be superseded and an
Administrator appointed by the Collector or
the Collector himself discharged those
functions.

15. This Court believes from a reading
of the letter of appointment issued in favour of
the petitioner that it was issued by the
Executive Officer with the leave and
permission of the Administrator of the Nagar
Palika, who was the Collector of the District at
the relevant time. An attempt has been made
by the incumbent Collector to bail out his
predecessor by acknowledging that it was not
possible to appoint the petitioner at all the way
she was appointed by the Executive Officer,
but wants this Court to doubt that the
appointment was granted by the Executive
Officer with the Collector's permission. About
this issue, it is averred in paragraph No.6 of the
affidavit filed by the incumbent Collector of
the District dated 06.11.2023:

"6. ..... It is further reflects from
the perusal of the aforesaid order that the
erstwhile Executive Officer, Nagar Palika
Parishad, Jhansi referred to some approval
allegedly was given by the erstwhile District
Magistrate/ Administrator and in pursuance
thereof granted appointment to the petitioner
on the post of safai karmchari that fell
vacant
due
to
resignation/
voluntary
retirement of her father in law........."

16. This Court is convinced that the
erstwhile Collector would have proven to be
836 INDIAN LAW REPORTS ALLAHABAD SERIES
a robust support for the Executive Officer to
pass a shockingly illegal order of the kind
that he did while appointing the petitioner in
terms of the order of appointment dated
15.12.1994. The reason is that an employee
or an officer of any organization is also a
citizen of the country and Indian citizens
over generations have mystical faith, utterly
ill-found, in the omnipotence of the
Collector of the District. A reading of the
appointment order dated 15.12.1994 shows
that the Executive Officer has referred to the
Collector's permission to appoint the
petitioner in place of her father-in-law, who
resigned on account of ill-health, adopting a
merciful and humanitarian approach. The
employment of these words show the
Executive Officer's veneration for the
Collector's authority, in the foreshadow of
which he passed an absurdly illegal and
utterly void order, appointing the petitioner
to a post of the Nagar Palika establishment,
borne on the public exchequer. The
petitioner's father-in-law, being unwell,
could have resigned his position alright, but
never put a condition that his daughter-inlaw be appointed in his place.

17. Appointment to public posts, as
already said, has to follow a mechanism of
recruitment known to law, which affords
equal opportunity to all citizens. A retiring
employee cannot virtually transfer his office
to a member of his family, by nominating
him/ her to a public authority, whose
employment
he
is
demitting.
An
appointment of this kind is so thickly
violative of the scheme of equality in public
employment enshrined under Articles 14
and 16 of the Constitution, that the
appointment made in the petitioner's favour
must be held void. The order of termination
from service that has been passed, it is
lamentable has come too late. Lamentable it
is both for the petitioner and the Nagar
Palika, now represented by their successor
Nagar Nigam. It is so for the petitioner
because the order of appointment has
allowed her to live a whole life in a sand
castle, which has met its logical end in the
impugned order of termination. It is bad for
the Nagar Palika and their successor Nagar
Nigam because an employee, who was never
appointed at all to the post of a sweeper in
their establishment, has functioned and
drawn salary borne on the State Exchequer.

18. The petitioner cannot be permitted
to continue on a post, to which she has never
been appointed under the rules. At the same
time, since the petitioner, under the colour
and by dint of whatever kind of appointment
order, was issued in her favour on
15.12.1994, has rendered work as a Safai
Karmachari for the Nagar Palika Parishad
and then its successor Nagar Nigam, cannot
be asked to pay back whatever she has
drawn
towards
salary
and
other
emoluments. If that were permitted, it would
be making the petitioner render begar,
something prohibited under Article 23 of the
Constitution. Therefore, the respondents are
not entitled to recover any emoluments from
the petitioner for the work done by her. The
petitioner, on the other hand, is not entitled
to continue in the respondent Nagar Nigam's
harness any further.

19. In the considered opinion of this
Court, therefore, the impugned order does
not call for any interference by this Court in
the exercise of our jurisdiction under Article
226 of the Constitution.

20. Subject to the remarks, forbearing
the respondents from recovering any
emoluments already paid to the petitioner,
this petition fails and is dismissed.

21. There shall be no order as to costs.
5 All. M/S Mid Town Associates Vs. Additional Commissioner Grade-2 (Appeal), Judicial
 Division IInd, State Tax, Moradabad & Ors.
837
----------
(2024) 5 ILRA 837
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No. 433 of 2020

M/S Mid Town Associates ...Petitioner
Versus
Additional
Commissioner
Grade-2
(Appeal), Judicial Division IInd, State Tax,
Moradabad & Ors. ...Respondents

Counsel for the Petitioner:
Suyash Agrawal

Counsel for the Respondents:
Arvind Kumar Mishra

A. Integrated Goods and Services Tax Act
(IGST Act), 2017 - Central Goods and
Services Tax Act, 2017 (CGST Act) - E-Way
Bill - Penalty - mens rea - Minor error in
documentation - Under Rule 138 (A) (b) of
the CGST Rules, the person in charge of a
conveyance must carry a copy of the E-Way
Bill in physical form or the E-Way Bill
number in electronic form. The presence of
mens rea for evasion of tax is a sine qua
non for imposing a penalty. A minor error
in documentation cannot be a valid ground
for
passing
penalty
orders
by
the
authorities.

B. In this case, the truck was detained
because the goods were being transported
without an E-Way Bill. The petitioner
downloaded the E-Way Bill on 21.05.2019
at 08:38 AM, and the interception occurred
at 08:52 AM, indicating that the E-Way Bill
was downloaded before the interception.
Although the driver could not provide a
hard copy, he informed the respondent No.
2 about the E-Way Bill number. The
authorities failed to verify the E-Way Bill
number on the GST portal. The respondents
argued that the absence of a hard copy
constituted a violation. However, since the
E-Way Bill was downloaded prior to
interception, and the driver communicated
the E-Way Bill number, respondent No. 2
was unjustified in imposing the penalty.
The only violation was technical, as the EWay Bill was not physically present.
Moreover, the invoice matched the goods
in the vehicle, indicating no mens rea for
tax evasion. The issuance of the show
cause notice and penalty order on the same
day shows that the petitioner was not
given an opportunity to respond, violating
principles of natural justice. (Para 8, 13)

Allowed. (E-5)

List of Cases cited:

1. M/S. Hindustan Herbal Cosmetics Vs St. of U.P.
& ors. (Writ Tax No. - 1400 of 2019, decided on
January 2, 2024)

2. Falguni Steels Vs St. of U.P. (2024) 124 GSTR
10

3. M/S Globe Panel Industries India Private
Limited Vs St. of U.P. & ors. (Writ Tax No. - 141
of 2023, decided on February 5, 2024)

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. This is a writ petition under article
226 of the Constitution of India wherein the
petitioner has prayed for the issuance of a
writ of certiorari quashing the impugned
order dated January 4, 2020 passed in appeal
by
Additional
Commissioner
Grade-2
(Appeal), Judicial Division 2nd State Tax,
Moradabad/respondent No. 1. The said
appeal was preferred against the penalty
order dated May 21, 2019 passed by
Assistant Commissioner, State Tax, Mobile
Squad, Unit - III, Moradabad/respondent
No. 2.

FACTS