# Smt. Paudhari Devi v. Union of India & Ors

- **Citation:** (2022) 9 ILRA 1201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Writ-A No. 1247 of 2020
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-paudhari-devi-v-union-of-india-ors-48977
- **Pages:** 6

## Headnote

Law
-
Code
Of
Criminal
Procedure, 1973 (2 of 1974) - Section 439
(2) - Bail Cancellation - High Court power
to entertain an application for cancellation
of bail is not taken away merely because
of pendency of an application u/s 482
Cr.P.C. challenging an order passed by the
Sessions Judge holding that the bail
cancellation application ought to be filed
before the Magistrate (Para 9)

Bail order was passed keeping in view the fact
that the accused persons and the informant had
entered into a settlement as per which the
accused persons paid Rs. 40 lacs to the
informant, in part performance of the settlement
and they issued post dated cheques of the
balance amount to the informant - accused
persons categorically stated before court that
they would follow the terms of settlement - bail
cancellation application filed as the cheques
which had been given by the accused persons
were dishonored for the reason that payment
had been stopped by the drawer Held - accused
persons'
subsequent
conduct
in
issuing
instructions to their bank for stopping payment
of the cheques amounts to the accused persons
resiling from the conditions which formed the
basis of the bail order - subsequent conduct of
the opposite party in trying to go to Bahrain and
threatening the informant, is a clear violation of
the conditions incorporated in the bail order that
the accused persons will not go outside the
boundaries of the country and they will not
influence the witnesses - Accused respondents,
bail cancelled they were directed to surrender
before the Court concerned (para 15, 16, 18)

Allowed. (E-5)

List of Cases cited:

## Text

9 All. Smt. Paudhari Devi Vs. Union of India & Ors.
1201
writ petitions giving rise to the Intra Court
Appeals stand dismissed.

47. Since we have already held that
all information about the conduct of the test
had been disclosed to the candidates in the
advertisement and the materials attached
therewith the writ petitions at the instance
of the unsuccessful candidates are not
maintainable in view of the law laid down
by the Apex Court. Consequently, all the
writ petitions tagged along with these
bunch of Appeals under order of the
Hon'ble the Chief Justice are dismissed.
----------
(2022) 9 ILRA 1201
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 1247 of 2020

Smt. Paudhari Devi ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Subhasis Halder

Counsel for the Respondents:
Sri Vikash Chandra Tripathi, Sri Devendra
Tripathi, Sri Vivek Kumar Rai

Criminal
Law
-
Code
Of
Criminal
Procedure, 1973 (2 of 1974) - Section 439
(2) - Bail Cancellation - High Court power
to entertain an application for cancellation
of bail is not taken away merely because
of pendency of an application u/s 482
Cr.P.C. challenging an order passed by the
Sessions Judge holding that the bail
cancellation application ought to be filed
before the Magistrate (Para 9)

Bail order was passed keeping in view the fact
that the accused persons and the informant had
entered into a settlement as per which the
accused persons paid Rs. 40 lacs to the
informant, in part performance of the settlement
and they issued post dated cheques of the
balance amount to the informant - accused
persons categorically stated before court that
they would follow the terms of settlement - bail
cancellation application filed as the cheques
which had been given by the accused persons
were dishonored for the reason that payment
had been stopped by the drawer Held - accused
persons'
subsequent
conduct
in
issuing
instructions to their bank for stopping payment
of the cheques amounts to the accused persons
resiling from the conditions which formed the
basis of the bail order - subsequent conduct of
the opposite party in trying to go to Bahrain and
threatening the informant, is a clear violation of
the conditions incorporated in the bail order that
the accused persons will not go outside the
boundaries of the country and they will not
influence the witnesses - Accused respondents,
bail cancelled they were directed to surrender
before the Court concerned (para 15, 16, 18)

Allowed. (E-5)

List of Cases cited:

1. Sanjay Chandra Vs CBI, (2012) 1 SCC 40

2. Satender Kumar Antil Vs Central Bureau of
Investigation 2022 Scc OnLine SC 825

3. Emperor Vs H. L. Hutchinson AIR 1931 All
356

(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. The instant writ petition has been
filed questioning the judgment and order
dated 22.10.2019 as also the order dated
31.7.2019
passed
by
the
Central
Administrative Tribunal, Allahabad Bench,
Allahabad in Original Application No. 870
of 2011. A prayer to quash the order dated
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
3.6.2005
passed
by
the
Divisional
Electrical Engineer (DEE), Operation,
Tundla, Allahabad Division and order
dated 2.4.2011 passed by the Divisional
Railway Manager, North Central Railway,
Allahabad has also been prayed for.

2. Apart from above prayers, the
petitioner has sought a direction to the
respondent No. 2 for grant of post retiral
benefits to the petitioner such as family
pension, LIC, gratuity, leave encashment
etc., as also compassionate appointment of
her son in a Group D post.

3. By the order dated 31.7.2019, the
Original Application No. 870 of 2011 was
dismissed by the Tribunal being of the view
that the relief sought by the applicant
cannot be granted.

4. By the order dated 22.10.2019, the
review application seeking review of the
order dated 31.7.2019, dismissing the
original application, was also dismissed.

5. It is the case of the petitioner that
her husband Chandrama Ram working on
the post of Assistant Electrical Driver at
Railway
Station,
Tundla
under
the
respondents-Department was found missing
from the place of his duty on 18.2.2003 and
has been untraceable since then. The
petitioner filed a report dated 11.10.2005 in
the Police Station Tundla reporting her
husband to be missing, whereupon, an FIR
was registered in the police station. Since,
the petitioner was finding it difficult to
sustain herself as also her four children
who were entirely dependent upon the
husband of the petitioner, she preferred an
application dated 17.1.2006 before the
competent
authority
to
provide
appointment on compassionate ground. The
petitioner was informed by the competent
authority of the respondents that her case
for compassionate appointment as well as
for grant of post retiral benefits would be
considered after getting final police report.
The police vide letter dated 10.4.2008
informed the petitioner that no information
has been received about the whereabouts of
the husband of the petitioner and that the
investigations were going on.

6. Subsequently, the case of the
petitioner was rejected vide impugned
order dated 2.4.2011 on the ground that she
is
not
entitled
to
compassionate
appointment as services of her husband had
already been terminated on 3.6.2005. The
order dated 2.4.2011 proceeded on the
assumption that the husband of the
petitioner absented himself without notice
and had remained unauthorizedly absent
from his post since 18.3.2003. Ultimately,
vide order dated 3.6.2005, the husband of
the petitioner was removed from service.
The original application was resisted by the
respondent on the ground that the husband
of the petitioner had been absconding since
18.3.2003 and on 3.6.2005 his services
were dispensed with on account of being
unauthorizedly absent. It was also stated
that the husband of the petitioner was
served notice dated 18.5.2004 requiring
him to join his duty and charge-sheet was
served on 22.5.2004 which was never
replied.

7. The Tribunal proceeded to dismiss
the original application on the ground that
the order dated 3.6.2005 for dismissal from
service of Chandrama Ram had not been
challenged and so long as the order of
dismissal from service was existing, no
relief for compassionate appointment could
be granted. The Tribunal proceeded on the
presumption that the respondents could not
be directed to do something which is an
9 All. Smt. Paudhari Devi Vs. Union of India & Ors.
1203
impossibility. The Tribunal, accordingly,
dismissed the original application by order
dated 31.7.2019.

8. A review application under Rule 17
of the Central Administrative Tribunal
(Procedure) Rules, 1987 was filed seeking
review of the order dated 31.7.2019 passed
in Original Application No. 870 of 2011 on
the ground that:-

the claim of the applicant was
rejected vide order dated 2.4.2011 indicating
therein that she was not entitled for any relief
as service of her husband had already been
terminated on 3.6.2005 although no such
ground was taken either in the counter
affidavit filed or at any stage while making
correspondence about considering the case of
the applicant and asking to submit final report
of the Police.

the husband of the applicant was
found missing from his place of duty w.e.f.
18.2.2003. There was no information about
the whereabouts of the husband even despite
making herculean efforts to trace out the
whereabouts of the applicant and he remained
untraced. In such circumstances, the authority
were required to proceed accordingly.

the respondents/Railways did not
provide
any
information
about
the
whereabouts of the husband of the applicant.

in service jurisprudence printed
format to show cause notice, charge-sheet is
not permissible and should not be entertained.

as per circulars, no charge-sheet
could be issued to dead person and it is
surprising, how a dead person could be
served with a show cause or a charge-sheet or
for that matter an order of dismissal.

9. The review application was
dismissed holding that a review cannot be
an appeal in-disguise and under the grab of
review the matter could not be re-agitated.
In a review, it is not open to re-appreciate
the evidence/materials and such a different
conclusion even if that was possible. The
scope of review is very limited.

10.
Learned
counsel
for
the
petitioner submits that the Tribunal
manifestly erred in rejecting the claim of
the petitioner both for compassionate
appointment and for grant of retiral
benefits proceeding on the assumption
that the services of the husband of the
petitioner had been terminated on account
of absconding since 18.3.2003 and not
replying to show cause notice and chargesheet dated 18.5.2004 and 22.5.2004,
respectively. The case of the husband of
the petitioner was not one of absconding,
but one of missing person and in the
wake of the own circular of the
respondents No. 720-E/XXXV/Pension
dated 12.91 and 30.9.1986, the petitioner
was entitled to at least the pensionary
benefits.

11. We have heard learned counsel
for the petitioner and perused the record,
particularly, the circulars referred to above,
which are being reproduced hereunder:-

"No. 720-E/XXXV/Pension

Dated: 12.91

Subject: Cancellation of penalty
of removal from service imposed on charge
of unauthorized absence where it later
transpires that the case is one of genuine
missing and grant of consequent benefits to
the missing person's family.

A copy of Railway Board's letter
No. E (D&A) 91 RG 6.41 dated 22.8.91 is
sent herewith for directions and necessary
action. Railway Board's letter No. F(E)
III/86/PNI/17 dated 19.9.86 mentioned in
this letter has already been issued and sent
to you vide (P) Br. P.S. No. 9064.
1204 INDIAN LAW REPORTS ALLAHABAD SERIES

Copy of letter No. E (D&A) 91
RG 6.41 dated 22.8.91

Sub:- Cancellation of penalty of
removal from service imposed on charge of
unauthorized
absence
where
it
later
transpires that the case is one of 'Genuine
missing' and grant of consequent benefits
to the missing person's family.

---------

Some cases have come to notice
where Railway servants who were missing
and whose whereabouts were not known to
their family were removed from service for
unauthorized
absence.
It
has
been
represented by the NFIR in PNM Meeting
with Railways Board that initiation of
disciplinary action in such cases where
even the police after all out efforts have not
been able to trace the employee is not
justified since they are to be presumed as
dead under Section 108 of the Indian
Evidence Act. The NFIR also represented
that in such cases, the disciplinary action
punishment should be annulled and the
families be granted family pension and
their
request
for
compassionate
appointment to wards etc., to which they
would have been entitled but for the
disciplinary action be also considered.

2. The Board have considered the
matter and it is clarified that in case of the
type
mentioned
above
where
it
is
established that the railway employee was
really missing and not unauthorizedly
absent the disciplinary action should be
treated as initiated on valid premises and
the on going disciplinary proceedings in
such cases may be made by the disciplinary
authority, in the case of punishment orders
already issued, the annulment may be made
by the appellate/revisionary authority, as
the case may be. For this purpose, it is not
necessary to follow any 'Revision' or
'Review'
procedure
since
the
charges/punishment are obviously based on
valid premises. After the dropping of the
disciplinary action and annulment of the
punishment of removal, as the case may be,
the relevant benefits like grant of leave
encashment,
salary
dues,
retirement
benefits, etc., may be extended as outlined
in Board's letter No. F (E) III/86/PNI/17
dated 19.9.1986.

3. In cases of the aforesaid type,
the question of giving compassionate
appointments to wards may also be
considered after a period of 7 years / 3
years as provided in item (iii) of para 1 of
Board's letter No. E (NG) iii/RCI/I dated
7.4.1983."

*******

" Ø- la-9064 la[;k&720bZ@0@XXX
(isa'ku)]
 fnukad 30.9.1986

fo"k;& ykirk jsyos deZpkfj;ksa ds lekiu
ns; dk HkqxrkuA

mijksDr fo"k; ij jsyos cksMZ ds i= la[;k
ua0 ,Q (bZ) III/86@ih ,u&1@17 fnukad 19&9&86
dh izfrfyfi lwpuk ,oa vko';d dk;Zokgh gsrq izsf"kr
dh tk jgh gSA

Copy
of
Rly
Bd's
letter
No.F(E)III/86/PN-1117 dated 19.9.1986.

Sub:- Grant of Settlement dues to
eligible
family
members
of
railway
employees who have suddenly disappeared
and whose whereabouts are not known.

A number of cases are referred to
this Department for grant of family pension
to the eligible family members of the
employees who have suddenly disappeared
and whose whereabouts are not known. At
present all such cases are considered on
merits in this department. In this normal
course unless a period of 7 years has
elapsed since the date of disappearance of
the employee, he cannot be deemed to be
dead and the retirement/benefits cannot be
paid to the family. This principal is based
on Section 108 of the Indian Evidence Act
which provides that when the question is
whether the man is alive or dead and it is
9 All. Smt. Paudhari Devi Vs. Union of India & Ors.
1205
proved that he has not been heard of for 7
years by those who would naturally have
heard of him if he had been alive, the
burden of proving that he is alive is shifted
to the person who affirms it.

2. The matter has been under
consideration of the Government for
sometime as withholding of the benefits due
to the family has been causing a great deal
of hardship. The President is now pleased
to decide that (I) When an employee
disappears leaving his family, the family
can be paid in the first instance the amount
of salary due, leave, encashment due and
the amount of Provident Fund pertaining to
his own subscription in the State Railway
Provident Fund having regard to the
nomination made by the employee. (ii)
After the elapse of a period of one year
other benefits like CRG/Family pension in
respect of pensionary staff and the
Government
Contribution/Special
Contribution towards Provident Fund in
respect
of
staff
governed
by SRPF
(Contributory) Rules may also be granted
to the family subject to the fulfillment of
conditions prescribed in the succeeding
paragraphs.

3. The above benefits may be
sanctioned after observing the following
formalities:-

(i) The family must lodge a report
with the concerned Police Station & obtain
a report that the employee has not been
traced after all efforts had been made by
the police.

(ii) An Indemnity Bond should be
taken from the nominated dependents of the
employee that all payments will be adjusted
against the payment due to the employee in
case he appears on the scene and makes
any claim.

4. The Head of Office will assess
all Government dues outstanding against
the Government servant and effect their
recovery
in
accordance
with
extent
rules/instructions in force for effecting
recovery of Government dues.

5. The family can apply to the
Head of the Office of the Government
servant for grant of family pension and
DCR
Gratuity,
Government
contribution/SC to PF, as the case may be,
after
one
year
from
the
date
of
disappearance of the Government servant
in
accordance
with
the
prescribed
procedure. In case the disbursement of
DCR Gratuity or SC to PF, as the case may
be, is not effected within three months of
the date of the application, the interest
shall be paid at the rates applicable and
responsibility for the delay fixed in
accordance with extant orders."

12. In the wake of the above, we find
that the case of the petitioner's husband was
a case of genuine missing and as such, his
services ought not to have been dispensed
with, as has been done in the case at hand.
The disciplinary action/punishment is liable
to be annulled and is accordingly annulled.
The orders dated 31.7.2019 and 22.10.2019
passed by the Central Administrative
Tribunal dismissing the original application
No. 870 of 2011 and the review application
respectively are set aside. The order dated
3.6.2005 and order dated 2.4.2011 passed
by the Divisional Electrical Engineer
(DEE)
Operation,
Tundla,
Allahabad
Division are quashed. The respondent No.
2 is commanded to release the post retiral
benefits in respect of the husband of the
petitioner who is stated to have been
working as Assistant Electrical Driver at
Railway Station, Tundla, within 45 days
from service of certified copy of this order.

13. We also find that the claim of the
petitioner for grant of compassionate
appointment for herself or her son was
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
wrongly rejected. It shall be open for the
respondent No. 2 to consider the claim of
the petitioner for grant of compassionate
appointment to any of her family members
strictly in accordance with law.

14. The writ petition is allowed to the
extent above.
----------
(2022) 9 ILRA 1206
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 3254 of 2021

Himanshi Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shantanu Khare, Sri Siddharth Khare,
Sri Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Yadav

A. Constitution of India, Art. 226 - Writ
Petition against show cause notice -
Maintainability - although it is well settled
that High Court should refrain from
interfering at the stage of show cause
notice - but when the show cause notice
has
been
issued
on
irrelevant
considerations, in such cases, the High
Court may under Art. 226 intervene and
entertain a writ petition (Para 27)

In the instant case, the only allegation in the
notice is that the petitioner is not eligible to be
appointed on account of obtaining two degrees
simultaneously - Held - the allegation made in
the
notice
is
based
upon
irrelevant
considerations and is not supported by any
material on record which requires any factual
investigation - High Court quashed the notice
(Para 28, 29)

B. Civil Law - Service law - Appointment -
Pursuing two courses simultaneously -
Director General of School Education
issued a letter dated 18.01.2021 stating
that a candidate would be ineligible for
appointment if he had pursued twodegree
courses
simultaneously
as
a
regular student - legality of the condition
challenged - Held - there is no provision
in the law that explicitly prohibits a
candidate
from
pursuing
two-degree
courses simultaneously, such as a B.Ed.
and B.T.C. course - imposing such a
condition through a letter issued by the
Director General of School Education is
illegal. (Para 20)

Petitioner did B.T.C. training certificate course in
the session 2015-17 & completed her B.Ed.
course in the session 2016-18 - Notice issued to
her on ground that she had obtained two
regular degrees namely B.Ed. and B.T.C. course
certificates in the same session - Held - sessions
of the petitioner for the B.T.C. training course
and B.Ed are different as the session for the
B.Ed course was 2016-18 whereas the session
of B.T.C. was 2015-17 - No objection raised by
the authority that the petitioner did not attend
75% of lectures, tutorials, seminars, and
practicals in the B.T.C. course to become eligible
to appear in the examination - petitioner's
B.T.C. course certificate is valid -Even if the
petitioner's B.Ed. degree is ignored, the
petitioner is still eligible to be appointed
as an Assistant Teacher (Para 20, 25)

Allowed. (E-5)

List of Cases cited:

1. Kuldeep Kumar Pathak Vs St. of U.P. & ors.,
(2016) 3 SCC 521

2. A. Dharmraj Vs The Chief Educational Officer,
Pudukkottai & ors. Civil Appeal No.1301 of 2022

3. Board of Basic Education & anr. Vs Arvind
Prakash Dwivedi & ors. Special Appeal Defective
No.898 of 2020,