# Transport Co. & another Etc v. State of

- **Citation:** (2005) 1 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-05
- **Case number:** Revision No. 41 (Defective) of 2004
- **Bench:** Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/transport-co-another-etc-v-state-of-40371
- **Pages:** 5

## Headnote

Dying in Harness Rules, 1974-Claim for
Compassionate
appointment
by
petitioner on death of his mother-Claim
rejected
by
Bank
authorities-Writ
against-Bank
directed
to
frame
a
uniform policy and provide all necessary
guidelines
for
consideration
of
appropriate authority by fixing amount
under different heads for calculating
minimum
to
be
fixed
for
refusing
compassionate appointment on ground
of
financial
condition
of
family
of
deceased
employee-Leaving
at
sole
discretion of authority to fix such an
amount would result into discrimination
and arbitrations in giving appointment
on compassionate basis-Hence impugned
order by Bank authorities set aside.

Held: Para 8 & 9

Considering the facts and circumstances
of the case and also the law laid down as
stated above, the Bank has to frame a
clear policy and provide all the necessary
guide
lines
for
consideration
of
concerned
appropriate
authority
by
fixing the amount under different heads
for calculating the minimum to be fixed
for refusing compassionate appointment
on the ground of financial condition of
family of deceased employee. It cannot
be left at the sole discretion of the
concerned authority to fix such an
amount resulting into discrimination and
arbitrariness in giving appointment on
compassionate basis. There has to be a
uniform policy.

In the circumstances, the order passed
by the respondent Bank is set aside and
the matter is sent back for consideration
of the Bank for fixing the scales under
different heads and thereafter circulate a
uniform policy to be adopted throughout
the institution. In case the scaling so
fixed
entitles
the
petitioner
for
consideration,
his
case
may
be
considered and if he is excluded under
the scales fixed, he may be intimated
accordingly. Such decision should be
taken at the earliest and in any case
within a period of four months from the
date of production of certified copy of
this order.
Case law discussed:
JT 2004 (6) SC 418
2002 (2) LBESR 530 (All)
2002 (1) LBESR 73 (All) (LB)
2000 (2) LBESR 622 (All)
199 (2) LBESR 492 (All)
2003 (1) LBESR 435 (All)
2003 (2) UPLBEC 1172
2004 (3) UPLBEC 2244 (DB)

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
4
burnt stage, the goods were not found. No
one has reported that the goods were
burnt. Even it is not the case of the
applicant that the goods were burnt
alongwith the vehicle. I do not agree with
the submission of the learned counsel for
the applicant that in absence of any
positive evidence that the goods have
been sold inside the State of U.P. and in
the absence of any evidence that in the
mis-appropriation of goods, there was
involvement of the applicant, liability of
tax can not be fastened on the applicant.
Under section 28-B of the Act, in case of
non-surrender
of
transit
pass,
the
presumption is that the goods have been
sold inside the State of U.P. Hon'ble
Supreme Court in the case of M/s Sodhi
Transport Co. & another Etc. Vs. State of
U.P. and another, reported in 1986 UPTC,
721 held that such presumption is
rebuttable, which can be rebutted by
adducing the evidence by the person, who
has obtained the transit pass. In the
present case, no evidence has been
adduced to prove that the goods have not
been sold inside the State of U.P. and,
therefore, the presumption of sale inside
the State of U.P. can not be held, stand
rebutted. To rebut the presumption,
burden lies upon the party, who has taken
Form-34 and not on the revenue. In the
present case it was found that the transit
pass has not been surrendered, therefore,
under section 28-B of the Act, it has been
rightly presumed that the goods have been
sold inside the State of U.P in the absence
of any evidence to the contrary. Argument
of learned counsel for the applicant that
the misappropriation of the goods was
made by his driver and not by him and no
liability of tax can be created against the
applicant
can
not
be
accepted.
Admittedly,
vehicle
belongs
to
the
applicant and the driver was an employee
of the applicant and, therefore, for the act
of the driver, the applicant is liable to tax.
Therefore, the tax has been rightly
assessed against the applicant.

For the reasons stated above, I
upheld the order of the Tribunal so far as
it relates to the assessment.

Revision No. 41 (Defective) of 2004
is accordingly, dismissed.

6. So far as revision no.42
(Defective) of 2004 with regard to penalty
is concerned, in my opinion, on the facts
and circumstances, the levy of penalty at
Rs.60,000/- is excessive. The facts of the
case prima-facie does not establishes the
involvement
of
the
applicant
in
misappropriation of the goods but at the
same time the applicant can not be
absolved from his responsibility for the
act done by its employee. On the facts and
circumstances, a sum of Rs.10,000/-
towards penalty would be reasonable.

7. In the result, revision no. 41
(Defective) of 2004 is dismissed and
revision no.42 (Defective) of 2004 is
allowed in part and order of the Tribunal
is modified to the extent reducing the
amount of penalty from Rs.60,000/- to
Rs.10,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2004

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No.6070 of 2001

Shyam Singh

...Petitioner
Versus
Allahabad Bank & another...Respondents
http://www.allahabadhighcourt.nic.in
1All] Shyam Singh V. Allahabad Bank and another
5
Counsel for the Petitioner:
Sri Ram Sheel Sharma

Counsel for the Respondents:
Sri Himanshu Tewari

Dying in Harness Rules, 1974-Claim for
Compassionate
appointment
by
petitioner on death of his mother-Claim
rejected
by
Bank
authorities-Writ
against-Bank
directed
to
frame
a
uniform policy and provide all necessary
guidelines
for
consideration
of
appropriate authority by fixing amount
under different heads for calculating
minimum
to
be
fixed
for
refusing
compassionate appointment on ground
of
financial
condition
of
family
of
deceased
employee-Leaving
at
sole
discretion of authority to fix such an
amount would result into discrimination
and arbitrations in giving appointment
on compassionate basis-Hence impugned
order by Bank authorities set aside.

Held: Para 8 & 9

Considering the facts and circumstances
of the case and also the law laid down as
stated above, the Bank has to frame a
clear policy and provide all the necessary
guide
lines
for
consideration
of
concerned
appropriate
authority
by
fixing the amount under different heads
for calculating the minimum to be fixed
for refusing compassionate appointment
on the ground of financial condition of
family of deceased employee. It cannot
be left at the sole discretion of the
concerned authority to fix such an
amount resulting into discrimination and
arbitrariness in giving appointment on
compassionate basis. There has to be a
uniform policy.

In the circumstances, the order passed
by the respondent Bank is set aside and
the matter is sent back for consideration
of the Bank for fixing the scales under
different heads and thereafter circulate a
uniform policy to be adopted throughout
the institution. In case the scaling so
fixed
entitles
the
petitioner
for
consideration,
his
case
may
be
considered and if he is excluded under
the scales fixed, he may be intimated
accordingly. Such decision should be
taken at the earliest and in any case
within a period of four months from the
date of production of certified copy of
this order.
Case law discussed:
JT 2004 (6) SC 418
2002 (2) LBESR 530 (All)
2002 (1) LBESR 73 (All) (LB)
2000 (2) LBESR 622 (All)
199 (2) LBESR 492 (All)
2003 (1) LBESR 435 (All)
2003 (2) UPLBEC 1172
2004 (3) UPLBEC 2244 (DB)

(Delivered by Hon'ble Vikram Nath, J.)

1. This petition has been filed for
quashing of the order dated 19.4.2000 and
8.5.2001 passed by the respondents and
for further direction to the respondents to
provide appointment to the petitioner
under dying in harness rule as class IV
employees.

I have heard Sri Ram Sheel Sharma,
learned counsel for the petitioner and Sri
Himanshu
Tiwari
learned
counsel
representing the respondents bank.

2. The facts giving rise to this
petition are that the mother of the
petitioner was appointed as Class IV
employee on 12.6.76. After completing
about 8 years she was regularized on the
post of IVth class employee on 9.4.84 and
she died in harness on 19.1.98. The
petitioner after taking no objection from
the other heirs of Smt. Gulab Devi applied
for
being
giving
appointment
on
compassionate basis. The said request of
the
petitioner
for
appointment
on
compassionate ground was declined vide
order dated 19.4.2000 which is filed as
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
6
Annexure-9 to the petition. The present
petition was filed for quashing the orderdated 19.4.2000 and for direction to give
appointment on compassionate basis. This
Court vide order dated 19.2.2001 while
issuing notices to the respondents also
granted liberty to the petitioner to make a
fresh representation to the respondents
no.2 and directed him to pass speaking
order on the said representation disclosing
the ground on which the application of the
petitioner
had
been
rejected.
The
respondent no.2 by order dated 8.5.2001
passed
speaking
order,
which
was
subsequently challenged by means of
amendment. Reasons given in the said
order dated 8.5.2001 are as follows:
(i) the source of sustenance has been
taken into consideration.
(ii) The deceased had left 8 children out
of which 5 sons were employed, three
remained two sons and one daughter;
(iii) The monthly source of income was
estimated to be Rs.3900/-, which was
thought sufficient for sustenance of
three unemployed members.
(iv) Five
elder
brothers
were
also
expected to take care of the remaining
three unemployed children.

The said order has been challenged by the
petitioner on the ground that materials
facts
have-not
been
taken
into
consideration and that the petitioner was
still entitled to be given compassionate
appointment.

3. Counter affidavit and rejoinder
affidavit have been exchanged. Sri
Himanshu
Tiwari
learned
counsel
representing the respondent Bank has also
placed on record the circular issued by the
Indian Bank Association and the scheme
for giving appointment on compassionate
grounds to the heirs of the officers and
employees of the Bank who died in
harness. The circular dated 23.8.96 has
been issued by Indian Bank Association
to all the Public Sector Banks Clause IV
of the said circular gives the heading of
financial condition of the family; the same
is quoted here under:

Financial Condition of the Family

The Hon'ble Supreme Court has
observed that dependant's of an employee
dying in harness can be considered for
compassionate appointment provided the
family is without any means of livelihood.
Therefore, the rules may provide for
taking into account the following to
determine the financial condition of the
family:-
a)
Family Pension
b)
Gratuity amount received
c)
Employee's/ employer's contribution
to provident Fund
d)
Any compensation paid by the bank
or its welfare Fund
e)
Proceeds of LIC Policy and other
investments of the deceased employee
f)
Income for family from other sources
g)
Employment
of
other
family
members
h)
Size of the family and liabilities, if
any etc.

Public sector banks may amend the
present
policy
of
compassionate
appointment of dependants of deceased
employees and dependants of retired
employees on medical grounds, keeping
in view the judgment of the Hon'ble
Supreme Court."

4. The above clause provides that
the necessary rules will take into account
the said factors to determine the financial
condition. On query being made as to
what scales of minimum earning of family
http://www.allahabadhighcourt.nic.in
1All] Shyam Singh V. Allahabad Bank and another
7
of the deceased had been decided in the
rules which will determine whether the
dependant is within the limit or not, the
counsel for the respondent bank stated
that there was no such scaling provided
and the rules are silent on this aspect. This
would mean that it was left exclusively at
the discretion of the concerned authority
to
determine
whether
the
financial
condition made the dependent eligible or
not
for
giving
appointment
on
compassionate grounds.

5. Learned counsel for the petitioner
has relied upon several decision of
Allahabad
High
Court
reported
in
2002(2)LBESR
530(Alld)
DhIraj
Kumar Dixit Versus The General
Manager(Personal)UCO Bank Calcutta
& others, 2002(1) LBESR 73 (All)(L.B.)
RamPiyarey Versus State Bank of
India & others, 2000(2) LBESR 622
(All) Smt.Jagat Ram Versus Executive
Engineer
Construction
Division
&
others, 199(2) LBESR 492(All) Smt.
Saroj Devi Vs. State of U.P., 2003(1)
LBESR 935(All) Smt.Padma Pathak
Versus Managing Director, Pubjab
National Bank and another, 2003(2)
UPLBEC 1172 Rahul Tandon Vs.
Regional Manager, Allahabad Bankl,
Regional Office, Allahabad and others.
The aforesaid decisions have been cited
for the purpose that family pension; and
payment of post death benefits cannot
form the grounds for refusal to give
appointment on compassionate basis.

6. The consideration of the financial
condition has to be based upon a uniform
policy to be adopted throughout the
Institution. Learned counsel for the
petitioner has also relied upon the
decision of Division Bench of this Court
reported in 2004 (3) UPLBEC 2244 (DB)
Chief General Manager, State Bank of
India, Lucknowand others Vs. Durgesh
Kumar Tiwari wherein it has been held
that the family pension having been
substantially reduced the decision of the
Bank for non granting compassionate
appointment was set aside and direction
of the Single Judge issued to grant
appointment on compassionate basis was
upheld by the Division Bench..

7. Counsel for the respondent Bank
has placed reliance upon the judgment of
Supreme Court reported in J.T.2004(6)
S.C. 418 Punjab National Bank and
others Vs. Ashwini Kumar Taneja. As
per the facts mentioned in the said case
learned single Judge of Rajsasthan High
Court had allowed the request for
appointment on the compassionate ground
over ruling the decision of the Bank
refusing compassionate appointment as no
financial hardship was caused to the
family due to the fact that retirement
benefits had been paid to the family. The
Division Bench of Rajasthan High Court
up held the decision of learned single
Judge. The Supreme Court held that the
financial condition of the family can be a
valid ground for not granting appointment
on compassionate basis. It set aside the
judgment of Single Judge as well as the
Division Bench and allowed the appeal of
the Bank. However, it permitted that the
case of the respondents to be considered
sympathetically under any other scheme
or policy in accordance with law.

8. Considering the facts and
circumstances of the case and also the law
laid down as stated above, the Bank has to
frame a clear policy and provide all the
necessary guide lines for consideration of
concerned appropriate authority by fixing
the amount under different heads for
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
8
calculating the minimum to be fixed for
refusing compassionate appointment on
the ground of financial condition of
family of deceased employee. It cannot be
left at the sole discretion of the concerned
authority to fix such an amount resulting
into discrimination and arbitrariness in
giving appointment on compassionate
basis. There has to be a uniform policy.

9. In the circumstances, the order
passed by the respondent Bank is set aside
and
the
matter
is
sent
back
for
consideration of the Bank for fixing the
scales under different heads and thereafter
circulate a uniform policy to be adopted
throughout the institution. In case the
scaling so fixed entitles the petitioner for
consideration, his case may be considered
and if he is excluded under the scales
fixed, he may be intimated accordingly.
Such decision should be taken at the
earliest and in any case within a period of
four months from the date of production
of certified copy of this order.

Accordingly, the writ petition is
allowed with the aforesaid directions.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2004

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petitio.45709 of 2004

Suraj Prasad Tewari

...Petitioner
Versus
Zila
Commandant
Home
Guards,
Hamirpur and others
...Respondents

Counsel for the Petitioner:
Sri R.R. Shivahare

Counsel for the Respondent:
S.C.

Constitution of India-Articles 14,16,21, &
311-Applicability-Home
Guards
Act,
1963-J. 10 Explanation-cancellation of
petitioner's
assignment
as
Company
Commander by Divisional Commandant
Home
Guards-Petitioners
plea
that
impugned order violative of Articles
14,16,21 and 311-Since no opportunity
of hearing given to petitioner before
passing of order-Held, a Home Guard
shall not be deemed to be a 'holder of a
Civil Post merily by reason of his
enrolment as home guard'-Writ petition
dismissed.

Held: Para 2 & 3

The learned Standing Counsel has placed
reliance on the explanation of Section 10
of U.P. Home Guards Act 1963 and 2003
Educational and Services Cases Vol. IV
1964 in which the Division Bench of this
Court
while
considering
the
similar
question
regarding
explanation
of
Section 10 has held that a home guard
shall not be deemed to be a "holder of a
civil post merely by reason of his
enrolment as home guard" The Division
Bench of this Court has also considered
the
earlier
judgment
cited
by
the
petitoner and has come to the conclusion
that as he is not holding a civil post,
therefore, he does not come in the
definition
as
provided. It has
also
considered that Article 311 of the
Constitution
while
deciding
the
controversy whether in spite of the fact
the consideration of Section 10, the
explanation that clearly stated that the
home hard shall not be deemed to a
holder of civil post. The Division Bench
has also considered the judgment of Writ
petition no. 29824 of 1992 and held that
in the said judgment, the aforesaid point
was not for adjudication.

I have heard the learned counsel for the
petitioner and the learned Standing
Counsel and after hearing both the