# Subedar Mishra v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 720
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007
- **Case number:** Civil Misc. Writ Petition No.5834 of 2007
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subedar-mishra-v-state-of-u-p-and-others-41108
- **Pages:** 3

## Headnote

Constitution of India-Art. 226-Dismissal
from Service-on allegation petitioner
given notice for "Atmdah" for redressal
of
grievances-even
after
withdrawal
within
a
week-No
misconduct
committed-punishment
of
dismissalwithout application of mind-against all
norms of natural justice-order quashed
with all consequential benefits.

Held: Para 8

Since no misconduct was committed by
the petitioner, the extreme punishment
of
dismissal
from
service
of
the
petitioner for any misconduct which was
not
committed
is
not
only
highly
disproportionate to the charge but also
shocks the conscience of the Court.

## Text

720 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the Amin. It has further been stated that
some excess amount had also been paid
by the petitioner which was to the tune of
Rs.354.92/-.
The
said
amount
of
Rs.354.92/- remained over paid as rebate
of
Rs.10000/-
was
granted
to the
petitioner. The agricultural property of the
petitioner was auctioned on 22.8.1990 for
realisation of the dues even though there
were no dues on that date. Hari Prasad
respondent No.5 was auction purchaser.
The land was sold for Rs.60000/- while
according to learned counsel for the
petitioner reserved price was fixed for
Rs.2 Lakhs. Thereafter, when petitioner
came to know about the auction sale he
raised objection and ultimately filed
application under Rule 285 (I) of the
Rules framed under U.P.Z.A.L.R Act
being
sale
case
(objection)
No.
4/17/38/4/13/21/1 of 1990. The said
application was rejected on 30.12.1995 by
Additional
Commissioner,
(Administration)
Varanasi
division,
Varanasi. The said order has been
challenged through this writ petition.

3. The State in its counter affidavit
has admitted that there were no dues on
22.8.1990. It may be mentioned that sale
was confirmed on 22.9.1990. Even in the
counter affidavit of respondent No.5 there
is no specific denial of the fact that dues
had been cleared on 14.6.1990. In the
counter affidavit filed on behalf of the
State by the Tehsildar Saidpur district
Ghazipur in para 15, it is clearly admitted
that "it is stated that during the
continuance of the recovery proceedings,
the petitioner had obtained the receipt
from the collection Amin of the tehsil
after depositing arrear/loan amount" .

4. As there were no arrear against
the petitioner hence there was no occasion
for auction sale of petitioner's agricultural
property. The sale was therefore void ab
initio. The learned commissioner while
dismissing the objection under Rule 285
(I) has gone on technicalities like delay
etc. The Supreme Court in Shanti Devi
Vs. State of U.P AIR 1997 SC 3541 has
held that if sale is void then it can be setaside by the High Court in exercise of
writ jurisdiction.

5. Accordingly, writ petition is
allowed. Order dated 30.12.1995 passed
by learned Additional Commissioner
(Administration),
Varanasi
division
Varanasi is set-aside. Auction sale dated
22.8.1990 and Sale confirmation order
dated 22.9.1990 are also set-aside. Let no
interference be made in the possession of
the petitioner and name of the petitioner
be also re-entered in the revenue records
by the Tehsil authorities.

6. The amount of Rs.65000/-
directed to be deposited by the petitioner
under interim order dated 13.2.1996
passed by this court in this writ petition
shall at once be returned to the petitioner
along with accrued interest, if any.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.5834 of 2007

Subedar Mishra

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

Counsel for the Petitioner:
Sri Radha Kant Ojha
3 All] Subedar Mishra V. State of U.P. and others
721
Counsel for the Respondents:
Sri Vivek Saran
S.C.

Constitution of India-Art. 226-Dismissal
from Service-on allegation petitioner
given notice for "Atmdah" for redressal
of
grievances-even
after
withdrawal
within
a
week-No
misconduct
committed-punishment
of
dismissalwithout application of mind-against all
norms of natural justice-order quashed
with all consequential benefits.

Held: Para 8

Since no misconduct was committed by
the petitioner, the extreme punishment
of
dismissal
from
service
of
the
petitioner for any misconduct which was
not
committed
is
not
only
highly
disproportionate to the charge but also
shocks the conscience of the Court.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties.

2. The petitioner had given a notice
dated 10.8.2005 for 'Atmdah' for not
considering his grievances which have not
been considered by the Officials which he
had communicated to the Officials,
including some persons grievances also.
He thereafter, withdrew his aforesaid
notice of 'Atmdah' within a week vide
letter dated 18.8.2005.

3. Pursuant to the notice of
"Atmdah" dated 10.8.2005 an enquiry was
initiated against the petitioner and a
charge sheet was given to him under
covering
letter
dated
21.9.2005.
Subsequently, enquiry report was also
submitted by the Enquiry Officer. On the
basis of the aforesaid enquiry report, a
show cause dated 18.2.2006 was served
on the petitioner without appending
therewith copy of the enquiry report.

4. The petitioner submitted his reply
to the show cause dated 18.2.2006,
however by an order dated 28.4.2006 he
was dismissed from service by the Service
Manager
Regional
Workshop,
U.P.S.R.T.C., Allahabad.

5. The petitioner preferred an appeal
before the Regional Manager, respondent
No.2 which was rejected vide order dated
18.5.2006. Aggrieved by the order, the
petitioner preferred a Revision before the
respondent No.2 affirming the dismissal
order of the petitioner by his order dated
28th October 2006.

6. The petitioner has been dismissed
from service only on the ground that he
had given a notice of 'Atmdah' to draw the
attention of the authorities towards certain
problems he was facing in life and for
mitigation of their grievances by the
authorities as a friend philosopher and
guide being on a higher post and status
than the petitioner.

7. It is not in dispute that the
petitioner never acted upon the notice of
'Atmdah' and had in fact withdraw the
said within a week of its serving on the
authority, hence it cannot be said that any
misconduct or any criminal offence was
committed by the petitioner.

8. Since no misconduct was
committed by the petitioner, the extreme
punishment of dismissal from service of
the petitioner for any misconduct which
was not committed is not only highly
disproportionate to the charge but also
shocks the conscience of the Court.
722 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
9. For the reasons aforesaid I am of
he considered opinion that no misconduct
has been committed by the petitioner by
merely showing his intent to commit
suicide by giving notice of 'Atmdah'. He
cannot be removed from service by the
respondents also for the reason that not
only the impugned order is without any
application of mind but also because his
dismissal appears to be against all
cannons of principles of natural justice as
the petitioner was not given any copy of
the
enquiry
report
for
effectively
challenging it in appeal which amounts to
denial of reasonable opportunity of
hearing before awarding punishment. A
intention to commit suicide by 'Atmdah' is
not an offence unless it is put to an action.
If put to action and had the petitioner
succeeded in his intention, he would have
been beyond reprieve or any punishment
in the World. Had he not only than he
even liable to punishment in this mortal
world.

10. For the reasons stated above, the
writ petition is allowed with the direction
to the respondents to reinstate the
petitioner forthwith in service with
continuity of service within a period of
one month from the date of production of
certified copy of this order and pay his all
legal dues and benefits, which the
petitioner would have been entitled to had
his services not been illegally terminated
by the respondents.
Petition Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2007

BEFORE
THE HON'BLE R.K. RASTOGI, J.

Criminal Misc. Application No. 11905 of
2006

Amresh Kumar and another ....Applicants
Versus
State of U.P.

...Opposite Party

Counsel for the Applicants:
Sri B.N. Singh
Sri Kunwar Anand Singh

Counsel for the Opposite Party:
A.G.A.

Juvenile Justice (Care & Protection of
Children) Rule 2004-Section 22-claim of
juvenile on the date of occurrenceeducation
certificate
disbelievedapplication for medical examination of
age-rejected on the ground of belated
stage-held-illegal this plea can be raised
even
at
appellate
age-trail
court
committed apparent error.

Held: Para 4

It is to be seen that it has been laid
down by Hon'ble Apex court in Bhola
Bhagat and others Vs. State of Bihar:
1997(35) ACC 835(S.C.) that the plea
that the accused was juvenile can not be
rejected on the ground that this plea has
been taken at a belated stage, and it was
held that such a plea can be raised
during pendency of the appeal also . As
such in the present case the learned
Addl. Sessions Judge has committed a
legal error by not allowing the prayer for
medical examination of the applicants on
the ground that this prayer has been
made at a belated stage.
Case law discussed:
1997 (35) ACC-835 (S.C.)