# State of U.P. & Others v. I. Husain & Others

- **Citation:** (2014) 1 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-03-10
- **Bench:** Devi Prasad Singh, Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-others-v-i-husain-others-42839
- **Pages:** 6

## Headnote

Constitution of India, Art.14 and 21petitioner after 9 years service-availing
medical leave-restrained from joiningorally informed about termination of
service-Tribunal recorded specific findingwarrant no interference-in democratic
polity-such action not just and fair-hit by
Art. 14 and 21 of Constitution-petition
dismissed with modification of 25 % back
wages with continuity in service and
pension benefits.

Held: Para-14
We are also of the view that in
democratic polity, it is not just and fair
on the part of the State Government to
discharge
its
obligation
by
oral
instructions. The basic principle of rule of
law is that citizens must know where
they stand in their usual course of life
vide AIR 1975 SC 2260; Smt. Indira
Nehru Gandhi vs. Raj Narain (para 205).

Case Law discussed:
2000(3) SCC 239; AIR 2000 SC 3058; 1999(2)
SCC 21; (2012) 3 SCC 178; 2008(26) LCD
1470; (2008) 3 UPLBEC 2500; AIR 1975 SC

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
Senior Superintendent of Police in paragraph
6 of his counter affidavit.

7. Personal liberty is a fundamental
right of the petitioners, guaranteed under
Article 21 of the Constitution of India. Such
right which is given under the Constitution
cannot be infringed by the police by carrying
out investigation in such a nefarious manner.
There is no allegation in the counter affidavit
that the petitioners are not participating in the
investigation or are absconding.

8. On the other hand, they admit the
assertions made by the petitioners in the writ
petition that all relevant documents have
been produced by them to the police
authorities. Consequently, the Court does not
find any justification in the action of the
police in visiting the residence of the
petitioners at odd hours of the night in the
absence of any cogent or sufficient reason.

9. In Ramlila Maidan Incident, In Re,
(2012) 5 SCC 1, the Supreme Court held that
right to sleep is a biological necessity and
interfering with the person's sleep is prohibited
by the Constitution. The Supreme Court held
that the right to sleep is associated with sound
health, which is an inseparable facet of Article
21 of the Constitution. The Supreme Court
held that the knock at the door by the police
without authority of law amounts to an
incursion into privacy and violation of the
fundamental rights of a citizen. The right to
privacy has also been held to be a
fundamental right being an integral part of the
Constitution. The Supreme Court further held
that the legitimate intrusion into the privacy of
a person is not permissible as right to privacy
is inclusive in the right to life and liberty
guaranteed under the Constitution.

10. The primary task of the State is to
provide security to all citizens without
violating human dignity. Privacy and dignity
of human life is a fundamental right of every
human being and any action which offends
or impairs human dignity tantamounts to
deprivation of a right to live.

11. In the instant case, the respondents
contend that petitioner no.1 is a notorious
criminal. The mere fact that a chargesheet has
been filed against him does not make him a
notorious criminal. The respondents have not
said anything about the antecedents of the
other petitioners nor has stated anything about
the antecedents of the respondents against
whom a first information report had also been
lodged. The State authorities have to take
action which is reasonable and fair and just
procedure established by law has to be
followed. Even though the petitioners have
been chargesheeted, they still have their right
under the Constitution. The action of the
respondents in making such nocturnal visits is
wholly illegal and without any sufficient
cause.

12. In the light of the aforesaid, a
writ of mandamus is issued to the police
authorities not to harass the petitioners by
visiting them at odd hours in the night
unless the police authority has sufficient
and cogent reasons for making such visit
which would be recorded prior to their
visit.

13. Accordingly, the writ petition is
allowed with cost of Rs.10,000/-, which shall
be paid to the petitioners within three weeks
from today.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ADITYA NATH MITTAL, J.
1 All] State of U.P. & Others Vs. I. Husain & Others
381
Service Bench No. 7928 of 1996

State of U.P. & Others..... Petitioners
Versus
I. Husain & Others... Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.14 and 21petitioner after 9 years service-availing
medical leave-restrained from joiningorally informed about termination of
service-Tribunal recorded specific findingwarrant no interference-in democratic
polity-such action not just and fair-hit by
Art. 14 and 21 of Constitution-petition
dismissed with modification of 25 % back
wages with continuity in service and
pension benefits.

Held: Para-14
We are also of the view that in
democratic polity, it is not just and fair
on the part of the State Government to
discharge
its
obligation
by
oral
instructions. The basic principle of rule of
law is that citizens must know where
they stand in their usual course of life
vide AIR 1975 SC 2260; Smt. Indira
Nehru Gandhi vs. Raj Narain (para 205).

Case Law discussed:
2000(3) SCC 239; AIR 2000 SC 3058; 1999(2)
SCC 21; (2012) 3 SCC 178; 2008(26) LCD
1470; (2008) 3 UPLBEC 2500; AIR 1975 SC
2260.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. The instant writ petition has been
preferred under Article 226 of the
Constitution of India by the State of U.P.
against the judgment and order dated
21.09.1995
passed
by
U.P.
Public
Services Tribunal, Lucknow in Claim
Petition No.312/F/IV/1987.

2. The claimant-respondent was
appointed
as
Overseer
in
Irrigation
Department in the year 1965 on temporary
basis and continued in service, at different
places. On account of sudden serious illness
on 01.03.1974 because of Cardiac ailment, he
rushed for treatment hence could not apply for
leave. He underwent treatment for a long
period and reported for duty on 09.11.1975
with leave application along with medical
certificate. However, no order was passed
with regard to his posting. After receipt of the
joining report of the petitioner, the Assistant
Engineer directed the Block Development
Officer vide his letter dated 14.05.1976 that
claimant-respondent's joining report should
not be accepted and no work should be given
to him. Failing to resume duty, the claimantrespondent submitted a representation which
seems to have been rejected and informed by
order dated 21.01.1987. Thereafter, the
claimant-respondent approached the Tribunal.

3. Before the Tribunal, the claimantrespondent set up a case that under compelling
circumstances, he could not submit the leave
application and while reporting for duty, he
had also furnished medical certificate with
regard to prolong treatment with the request
that he should not be prevented to resume
duty. Further defence set up by the claimantrespondent is that in spite of the fact that he
has discharged as temporary overseer for
more than 9 years, he was not communicated
in writing with regard to termination of
services.
Everything
was
done
orally
preventing the claimant-respondent to resume
duty. It has further been pleaded by the
respondent-claimant that the termination of
service, that too when the claimant-respondent
has served for about nine years by oral
instructions shall be hit by Article 14, read
with Article 21 of the Constitution of India.
The State has got no right to dispense with
382 INDIAN LAW REPORTS ALLAHABAD SERIES
employees' services orally, as it shall be
against the Constitutional mandate.

4. On the other hand, on behalf of the
petitioner-State, the case set up before the
Tribunal is that the services of the claimantrespondent were never satisfactory and he
suffered with adverse entries for several years.
The appointment order was on provisional
basis
and
absence
from
duties
was
unauthorized and without sanction of leave.
Hence, the claimant-respondent has rightly
not been permitted to resume the duty. The
temporary appointment was automatically
came to an end.

5. After considering the pleadings on
record and the arguments advanced by the
learned counsel for the parties, the Tribunal
recorded a finding that once the claimantrespondent has submitted a joining report
along with fitness certificate and medical
report, it was incumbent on the appointing
authority to pass appropriate orders and
services should not have come to automatic
end. The Tribunal further noted that no notice
was served on the claimant-respondent nor
was he communicated in writing with regard
to termination of services. Such action on the
part of the State authorities is held to be
arbitrary by the Tribunal. The Tribunal further
held that till the order is passed in writing with
regard to service condition, the employees
shall be deemed to be in service and the
relationship of the employer and employee
shall not be broken.

We have considered the arguments,
advanced by the learned counsel for the
parties at length and perused the record.

6. A perusal of the appointment letter,
filed with the writ petition reveals that the
claimant-respondent
was
appointed
on
28.03.1965 provisionally as Overseer in regular
pay-scale along with dearness allowances and
other allowances. The appointment was subject
to
approval
by
U.P.
Public
Service
Commission to continue against regular
temporary
cadre
of
Overseers.
The
appointment letter further reveals that services
could have been terminated after serving a
month's notice. At the face of record, a perusal
of the appointment letter, reveals that the
claimant-respondent's appointment was against
the temporary regular vacancy subject to
approval by U.P. Public Service Commission
to work against the regular temporary cadre of
Overseers. Nothing has been brought on record
as to why the petitioner-State has not forwarded
the claimant-respondent's name for approval to
U.P. Public Service Commission.

7. Now, it is well settled proposition of
law that even temporary Government
Employees' Services are protected by Article
311 of the Constitution of India and once the
appointment
was
against
the
regular
temporary cadre, subject to approval of U.P.
Public Service Commissioner, that too in the
regular pay scale, the services of claimantrespondent were protected by Article 311
read with Articles 14 and 21 of the
Constitution of India, vide 2000 (3) SCC
239, V.P. Ahuja vs. State of Punjab; AIR
2000 SC 3058, Prabhu Dayal Birari vs. M.P.
Rajya Nagrik Aapurti Nigam Limited; 1999
(2) SCC 21, Radhey Shyam Gupta vs. U.P.
State Agro Industrial Corporation.

8. The services could not have been
dispensed with without passing a written
order. Action of the Petitioner-State seems to
be arbitrary exercise of power, more so when
the claimant-respondent has been deprived to
resume duty and continued in service without
any written order of termination.

9. In a case reported in (2012) 3 SCC
178 Krushnakant B. Parmar vs. Union of
1 All] State of U.P. & Others Vs. I. Husain & Others
383
India & Another, their lordships of Hon'ble
Supreme Court held that for sustaining the
allegations of wilful absence from duty, it
must be proved that the absence was wilful.
If
absence
is
due
to
compelling
circumstances under which it is not possible
to report for or perform duty, such absence
cannot be held to be willful and employee
cannot be held guilty of misconduct. The
relevant portion of the aforesaid judgment is
reproduced as under:-

"17. If the absence is the result of
compelling circumstances under which it was
not possible to report or perform duty, such
absence can not be held to be wilful. Absence
from duty without any application or prior
permission may amount to unauthorised
absence, but it does not always mean wilful.
There may be different eventualities due to
which an employee may abstain from duty,
including compelling circumstances beyond
his
control
like
illness,
accident,
hospitalisation, etc., but in such case the
employee cannot be held guilty of failure of
devotion to duty or behaviour unbecoming of
a Government servant.

18. In a departmental proceeding, if
allegation of unauthorised absence from
duty is made, the disciplinary authority is
required to prove that the absence is
wilful, in absence of such finding, the
absence will not amount to misconduct.

19. In the present case the inquiry officer
on appreciation of evidence though held that
the appellant was unauthorisedly absent from
duty but failed to hold the absence is wilful;
the disciplinary authority as also the Appellate
Authority, failed to appreciate the same and
wrongly held the appellant guilty.

20.
The
question
relating
to
jurisdiction of the Court in judicial review
in a departmental proceeding fell for
consideration before this Court in M.V.
Bijlani vs. Union of India, (2006) 5 SCC
88 wherein this Court held:

"25. It is true that the jurisdiction of the
court in judicial review is limited. Disciplinary
proceedings, however, being quasi-criminal in
nature, there should be some evidence to
prove the charge. Although the charges in a
departmental proceeding are not required to
be proved like a criminal trial i.e. beyond all
reasonable doubt, we cannot lose sight of the
fact that the enquiry officer performs a quasijudicial function, who upon analysing the
documents must arrive at a conclusion that
there had been a preponderance of probability
to prove the charges on the basis of materials
on record. While doing so, he cannot take into
consideration any irrelevant fact. He cannot
refuse to consider the relevant facts. He
cannot shift the burden of proof. He cannot
reject the relevant testimony of the witnesses
only on the basis of surmises and conjectures.
He cannot enquire into the allegations with
which the delinquent officer had not been
charged with."

10. In the present case, though the
claimant-respondent was working since more
than 9 years, the State did not take care to
discharge its Constitutional and statutory
obligation by serving a notice or even
terminating
the
services
with
due
communication to the claimant-respondent in
writing. Such action on the part of the State
to dispense with the services orally is
autocratic and against the Constitutional
mandate where State is expected to discharge
duty fairly and justly in terms of Article 14 of
the Constitutional of India to protect the right
to livelihood guaranteed by Article 21 of the
Constitution of India.

11. A Division Bench of this Court in a
case reported in 2008 (26) LCD 1470 Shri
Kanhaiyalal
vs.
Uttar
Pradesh
Lok
384 INDIAN LAW REPORTS ALLAHABAD SERIES
Sevaadhikaran and others, of which one of us
(Hon'ble Devi Prasad Singh, J.) was a
Member
held
that
even
temporary
Government
Servants
charged
for
misconduct, is entitled to face regular inquiry.

12. In the present case, the defence set
up by the State, prima-facie, seems to co-relate
to certain adverse entries or certain misconduct
on the part of the claimant-respondent. In case,
the defence set up by the petitioner-State is
accepted then the action of the State
Government in not permitting the claimantrespondent to resume duty or depriving him to
continue in service without passing any written
order, seems to be punitive in nature and shall
not be sustainable being hit by Article 311 of
the Constitution of India.

13. In an other case reported in (2008)
3 UPLBEC 2500 Tirth Raj Misra vs. State of
U.P. and others, of which one of us (Hon'ble
Devi Prasad Singh, J.) was a Member, the
question cropped up before this Court was as
to whether the State has got right to dispense
with services of its employee orally. It has
been held that oral instructions or order
depriving the employees from service shall
amount to arbitrary exercise of power and
against the Constitutional mandate, being hit
by Article 14 read with Article 21 of the
Constitution of India. Relevant portion from
the judgment of Tirth Raj Misra (supra) is
reproduced as under:-

"A plea has been taken by the
respondents in the counter-affidavit that since
the petitioner was engaged as Daily Wager to
meet out exigencies of services, the
respondents were entitled to terminate his
services even by oral order. The argument
advanced by the learned Standing Counsel
through plea taken in the counter-affidavit
seems to be not sustainable. Whenever the
service conditions of an incumbent are
governed by some statutory provisions, rules
or regulations then it shall always be
incumbent upon the authorities to pass
appropriate written order while dispensing the
services. Passing of a oral order depriving a
person from his/her source of livelihood,
which is guaranteed under Article 21 of the
Constitution of India, is an arbitrary exercise
of power and shall be hit by Article 14 of the
Constitution of India. Termination of service
orally without complying the provisions of
Industrial Disputes Act shall suffer from vice
of arbitrariness and against the constitutional
mandate. Accordingly, the writ petition
deserves to be allowed."

14. We are also of the view that in
democratic polity, it is not just and fair on the
part of the State Government to discharge its
obligation by oral instructions. The basic
principle of rule of law is that citizens must
know where they stand in their usual course of
life vide AIR 1975 SC 2260; Smt. Indira
Nehru Gandhi vs. Raj Narain (para 205).

Unless an order is passed in writing, the
employee shall not be aware that what are
the reasons and what are the grounds on the
basis of which his services have been
dispensed with. The decision taken by the
State Government to dispense with the
services of its employee orally, in any way,
shall not be sustainable being hit by Article
14 of the Constitution of India. It is always
expected in democratic polity that the State
shall discharge its obligation justly, fairly and
not in arbitrary highhanded manner.

15. In view of above, the impugned
judgment and order dated 21.09.1995, passed
by the U.P. State Public Services Tribunal
does not seem to suffer from any impropriety
or illegality which may call for interference by
this Court under Article 226 of the
Constitution of India. However, keeping in
1 All] Bashir and Ors. Vs. State of U.P. and Ors.
385
view of the fact that the claimant-respondent,
had not discharged duties, we confine the
arrears of salary to 25% along with perks and
other benefits. The claimant-respondent shall
be deemed to be in service for all practical
purposes including pensionary benefits by the
petitioner-State.

The impugned order dated 21.09.1995
passed by the U.P. Public Services Tribunal is
modified accordingly. Let a decision be taken
by the State-petitioner with regard to payment
of arrears of salary as well as pentionary
benefits in terms of the present modified
judgment with due communication to the
claimant-respondent, expeditiously say within
a period of three months from the date of
receipt of certified copy of this judgment.

The
standing
counsel
shall
communicate the order forthwith.

Writ
petition
is
disposed
of
accordingly.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.02.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.
Civil Misc. Writ Petition No. 8283 of 2014.

Bashir and Ors...... Petitioners
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioners:
Sri P.S. Chauhan

Counsel for the Respondents:
C.S.C., Sri D.D. Chauhan, Sri Rajesh
Yadav

Constitution of India, Art.-226-order against
dead person-held-nullity-order against dead
person passed November 2010 who already
died in January 2010-held-not sustainablequashed.

Held: Para-4
While assailing the impugned order, learned
counsel for the petitioners contends that the
order impugned has been passed against a
dead person. In the submission of learned
counsel for the petitioners, the petitioners'
father,
against
whom
proceeding
was
initiated, has already expired in January, 2010
and the order has been passed in November,
2010. It is settled that the order against the
dead person is nullity and void abinitio. The
view taken by me finds support from the
following authorities on the point.

Case Law discussed:
AIR 1957 Page 521; A.I.R 2001 Supreme Court
2003; 2009(75) ALR 515; 2013(4) AWC 3770.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri P.S.Chauhan, learned
counsel for the petitioners, learned Standing
Counsel and Sri Rajesh Yadav, learned counsel
for the Gaon Sabha.

2. Learned counsel for the respondents
state that under the facts and circumstances of
this case, he does not propose to file counter
affidavit and the writ petition may be decided
on its own merit in accordance with law.

3. This writ petition has been filed for
issuing a writ of certiorari quashing the order
dated 27.11.2010 passed by the Sub-Divisional
Officer,
Rampur
Maniharan
District
Saharanpur in Case No. 08/2010 (State Vs.
Ajmer and others) in a proceeding under
Section 176A of U.P. Zamindari Abolition and
Land Reforms Act, 1950 by which the name of
the petitioners' father has been expunged from
the revenue record. Although, there is laches of
more than three years but under the facts and
circumstances of the case, that is liable to be
ignored and the writ petition is being taken up
for final disposal.