# Union of India and others v. Sri Roshan Lal Madhok and another

- **Citation:** (2003) 1 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003
- **Case number:** Civil Misc. Writ Petition No. 51288 of 2000
- **Bench:** M. Katju, Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-and-others-v-sri-roshan-lal-madhok-and-another-40078
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226-
Petitioner after 7 days leave remained
absent for about 19 yrs.- not permitted
to join in view of provisions Pra 2014 (2)
Indian Railway establishment. Tribunal
directed reinstatement alongwith arrear
of
salary-
held
not
proper-
delay
deprived
the
remedy-
petitioner
employed between 1964-68- retrenched.
between 1973-79- reported his duty on
1.3.89- not entitled for any relief.

Held- Para 8

It is alleged in paragraph 12 of the writ
petition that the Tribunal has committed
an illegality in drawing an adverse
inference because the petitioner had not
produced the respondent's appointment
letter. It is further alleged in paragraph
14 of the writ petition that the Tribunal
committed an illegality in granting the
benefit of pay etc. The petitioner has
alleged in paragraph 15 of the writ
petition that no reasonable and plausible
explanation was given by the respondent
no. 1 for his long absence. The petitioner
has
further
alleged
that
since
the
respondent no. 1 has failed to produce
any record in this regard he was asked to
produce
documents
relating
to
his
appointment but he failed to do so.
Hence it is urged that it was incumbent
upon the Tribunal to draw an adverse
inference against the respondent no. 1
and the Tribunal committed a serious
illegality in not doing so. It is alleged in
paragraph 18 of the writ petition that no
record of the petitioner is available with
the Railways since he was absent after
1972 and filed a petition before the
Tribunal only in 1992 after a gap of 20
years. In view of the Railway Boards
circular the record of more than ten
years are weeded out. It is alleged in
paragraph 19 of the writ petition that
the observation of the Tribunal that
since Rs.962/- was lying with the
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86 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
railways in Provident Fund account he
will be deemed to be in service is wholly
erroneous. The petitioner has alleged
that in the decision of the Supreme Court
in High Court of M.P. Vs. Mahesh Pratap
1995 SCC (L & S) 278 it was held that if a
representation is considered by the
authority and rejected limitation does
not get extended if the claim is already
barred by time. This view is affirmed by
the Supreme Court in Bhoop Singh Vs.
Union of India AIR 1992 S.C. 1414. The
Supreme Court held that if the petitioner
cannot give good explanation for the
delay he loses his right as well as
remedy.
Case law discussed:
1995 SCC-(L & S) 278
1995 (Supp. (3) SCC-231
J.T. 1993 (3) SC- 418
1999 (8) SCC-304

## Text

http://www.allahabadhighcourt.nic.in
1 All] Ravi Kumar Vashishtha Vs. The D.M., Bijnor and others
85
Under
section
25
of
the
Indian
Partnership Act, 1932 every partner is
liable jointly as well as severally for all
the acts of the firm done while he is a
partner. Hence there is no merit in the
submission of the learned counsel for the
petitioner.

(Delivered by Hon'ble M. Katju, J.)

1. The petitioner is challenging the
recovery of entertainment tax. Learned
counsel for the petitioner submits that the
petitioner is only one of the 4 partners of
the firm M/s National Cable Network
against which recovery has been issued
whereas his share is only 48.7%. He prays
that only 48.7% of the entertainment tax
due should be recovered from the
petitioner.

2. Under section 25 of the Indian
Partnership Act, 1932 every partner is
liable jointly as well as severally for all
the acts of the firm done while he is a
partner. Hence there is no merit in the
submission of the learned counsel for the
petitioner.

3. The petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD NOV. 12, 2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 51288 of 2000

Union of India and others ...Petitioners
Versus
Sri Roshan Lal Madhok and another

 ...Respondents

Counsel for the Petitioners:
Sri A.K. Gaur
Sri M. Prakash

Counsel for the Respondents:

Constitution
of
India,
Article
226-
Petitioner after 7 days leave remained
absent for about 19 yrs.- not permitted
to join in view of provisions Pra 2014 (2)
Indian Railway establishment. Tribunal
directed reinstatement alongwith arrear
of
salary-
held
not
proper-
delay
deprived
the
remedy-
petitioner
employed between 1964-68- retrenched.
between 1973-79- reported his duty on
1.3.89- not entitled for any relief.

Held- Para 8

It is alleged in paragraph 12 of the writ
petition that the Tribunal has committed
an illegality in drawing an adverse
inference because the petitioner had not
produced the respondent's appointment
letter. It is further alleged in paragraph
14 of the writ petition that the Tribunal
committed an illegality in granting the
benefit of pay etc. The petitioner has
alleged in paragraph 15 of the writ
petition that no reasonable and plausible
explanation was given by the respondent
no. 1 for his long absence. The petitioner
has
further
alleged
that
since
the
respondent no. 1 has failed to produce
any record in this regard he was asked to
produce
documents
relating
to
his
appointment but he failed to do so.
Hence it is urged that it was incumbent
upon the Tribunal to draw an adverse
inference against the respondent no. 1
and the Tribunal committed a serious
illegality in not doing so. It is alleged in
paragraph 18 of the writ petition that no
record of the petitioner is available with
the Railways since he was absent after
1972 and filed a petition before the
Tribunal only in 1992 after a gap of 20
years. In view of the Railway Boards
circular the record of more than ten
years are weeded out. It is alleged in
paragraph 19 of the writ petition that
the observation of the Tribunal that
since Rs.962/- was lying with the
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86 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
railways in Provident Fund account he
will be deemed to be in service is wholly
erroneous. The petitioner has alleged
that in the decision of the Supreme Court
in High Court of M.P. Vs. Mahesh Pratap
1995 SCC (L & S) 278 it was held that if a
representation is considered by the
authority and rejected limitation does
not get extended if the claim is already
barred by time. This view is affirmed by
the Supreme Court in Bhoop Singh Vs.
Union of India AIR 1992 S.C. 1414. The
Supreme Court held that if the petitioner
cannot give good explanation for the
delay he loses his right as well as
remedy.
Case law discussed:
1995 SCC-(L & S) 278
1995 (Supp. (3) SCC-231
J.T. 1993 (3) SC- 418
1999 (8) SCC-304

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
against the impugned order of the Central
Administrative Tribunal dated 28.7.2000
Annexure 3 to the writ petition.

We have heard learned counsel for
the parties.

2. The respondent no. 1 filed a claim
petition before the Tribunal alleging that
he was working as Loco Cleaner under
Loco Foreman and was granted casual
leave for certain urgent work from
26.4.1972 to 2.5.1972 i.e. for seven days
with station leave permission. Thereafter
he has alleged that he fell ill and remained
absent for about seventeen years i.e. from
3.5.1972 to 28.2.1989. The respondent
alleged that he became fit on 28.2.1989
and reported for duty before Loco
Foreman, Northern Railway, Laksar on
1.3.1989 who directed him to report to
Divisional Railway Manager, Moradabad
and produce his appointment letter.
However, the respondent no. 1 failed to
produce his appointment letter. There was
no record available with the railway
administration about the appointment and
working of respondent no. 1 in the
railway, nor did the respondent no. 1 file
any satisfactory report to the railway that
he ever worked in the railway.

3. The petitioner (before the
Tribunal) alleged that he was sick and had
sent medical certificate showing that he
was suffering from Tuberculosis. He
further alleged that after a long period he
was cured and declared fit on 28.2.1989
and hence reported for work on 1.3.1989.
The respondent no. 1 alleged that his date
of Birth is 1.10.1938 and he was due for
superannuation on 31.10.1996.

4. In his O.A. filed before the
Tribunal the respondent no. 1 prayed for
quashing of the order of deemed removal
dated 2.7.1990 and 4.9.1992 being ultra
vires and violative of the principles of
natural justice with all consequential
benefits of seniority, emoluments and
promotion etc. and for continuity of
service between 1972 to 1989 and for
paying of salary and other emoluments
with increments. True copy of his O.A. is
Annexure 1 to the writ petition.

5. The petitioner filed a counter
affidavit before the Tribunal and raised a
preliminary
objection
regarding
the
maintainability of the O.A. It was alleged
by the petitioner that no leave can be
granted/sanctioned if the employee has
remained absent for five years or more. In
this regard the provisions of Indian
Railway Establishment Manual were
produced by the petitioner in support of
his contention. In the letters dated
2.7.1990 and 4.9.1992 issued by the
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1 All] Union of India and others Vs. Sri Roshan Lal Madhok and another
87
petitioner it was clearly mentioned that
the respondent no. 1 was deemed to have
been removed from service due to long
absence. In the counter affidavit filed by
the petitioner before the Tribunal the
petitioner sought to rectify the error
committed in the letter saying that the
respondent no. 1 (the petitioner before the
Tribunal) was deemed to have resigned
from service.

6. In paragraph 10 of the writ
petition it is alleged that the respondent
no. 1 simply disappeared in May 1972
and did not report duty till 1.3.1989 and
hence in view of Section 108 of the Indian
Evidence Act he was presumed to have
died. True copy of the counter affidavit
filed before the Tribunal is Annexure 2 to
the writ petition.

7. The Tribunal in the impugned
order held that in view of the long
absence of the respondent no. 1 he cannot
get the benefit of seniority and pay for the
period of absence. He was however
entitled to pay from 4.9.1992 i.e. the day
on which the second impugned order of
deemed removal was passed on account
of the fact that he filed the O.A. only on
29.9.1992. The Tribunal held that the
respondent no. 1 shall be entitled for pay
in the scale of Rs.750-940 and he may be
given retrial benefits on the basis of this
pay. True copy of the impugned order is
Annexure 3 to the writ petition.

8. It is alleged in paragraph 12 of the
writ petition that the Tribunal has
committed an illegality in drawing an
adverse inference because the petitioner
had
not
produced
the
respondent's
appointment letter. It is further alleged in
paragraph 14 of the writ petition that the
Tribunal committed an illegality in
granting the benefit of pay etc. The
petitioner has alleged in paragraph 15 of
the writ petition that no reasonable and
plausible explanation was given by the
respondent no. 1 for his long absence. The
petitioner has further alleged that since
the respondent no. 1 has failed to produce
any record in this regard he was asked to
produce
documents
relating
to
his
appointment but he failed to do so. Hence
it is urged that it was incumbent upon the
Tribunal to draw an adverse inference
against the respondent no. 1 and the
Tribunal committed a serious illegality in
not doing so. It is alleged in paragraph 18
of the writ petition that no record of the
petitioner is available with the Railways
since he was absent after 1972 and filed a
petition before the Tribunal only in 1992
after a gap of 20 years. In view of the
Railway Boards circular the record of
more than ten years are weeded out. It is
alleged in paragraph 19 of the writ
petition that the observation of the
Tribunal that since Rs.962/- was lying
with the railways in Provident Fund
account he will be deemed to be in service
is wholly erroneous. The petitioner has
alleged that in the decision of the
Supreme Court in High Court of M.P. Vs.
Mahesh Pratap 1995 SCC (L & S) 278 it
was held that if a representation is
considered by the authority and rejected
limitation does not get extended if the
claim is already barred by time. This view
is affirmed by the Supreme Court in
Bhoop Singh Vs. Union of India AIR
1992 S.C. 1414. The Supreme Court held
that if the petitioner cannot give good
explanation for the delay he loses his right
as well as remedy.

9. In paragraph 24 of the petition it
is alleged that there is not an iota of
evidence that the respondent no. 1 was
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88 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
employed with Railways as Loco cleaner
as all the record have been lost by afflux
of time.

Counter and rejoinder affidavits have
been filed and we have perused the same.

10. In paragraph 6 of the counter
affidavit of the respondent no. 1 he has
alleged that he had applied for casual
leave from 26.4.1972 to 2.5.1972 and was
at his home where it was found that he
was a patient of tuberculosis. It is alleged
in paragraph 7 of the counter affidavit the
respondent
dispatched
the
medical
certificates through registered post, copies
of which are annexed with the O.A.
before the Tribunal which are Annexures
A-1 to A-5 and also annexed as
Annexure- 1 to the counter affidavit
before this Court. It is alleged in
paragraph 12 that no opportunity of
hearing was given to the respondent no. 1
before passing the impugned order
deeming him to be removed from service.

11. In paragraph 13 of the counter
affidavit the respondent no. 1 has quoted
the relevant provision of the Indian
Railway Establishment Code which reads
as follows:

12. "Where a railway servant does
not resume duty after remaining on leave
for a continuous period of five years or
where a railway servant after the expiry of
his leave remains absent from duty,
otherwise than on foreign service or on
account of suspension for any period
which together with the period of leave
granted to him exceeds five years, he
shall, unless the President, in view of the
exceptional circumstances of the case,
otherwise determine, be removed from
service after following the procedure laid
down in the Discipline and Appeals for
railway servants."

13. The respondent has relied on
paragraph 537 of Indian Railway Medical
Manual quoted in paragraph 14 of the
counter affidavit.

14. A supplementary affidavit has
also been filed by the petitioner and in
paragraph 4 of the same it is stated that
there is no record of proof that the
respondent no. 1 has ever served as Loco
Cleaner in the railway. The respondent
no. 1 absconded from 1972 to 1989 i.e.
for about 17 years. The matter was
referred to the D.R.M. Moradabad who
asked the respondent no. 1 to show any
record that he had ever worked as Loco
Cleaner. The respondent no. 1 was asked
to submit his appointment letter and other
papers about his status in the railway
department but he refused to produce the
appointment letter or any papers in this
regard to show that he was a regular or
casual employee and if so for what period.
The Railway is having no document as
they have been weeded out although a
thorough enquiry was held in this
connection. The burden of proof was on
respondent no. 1 to prove about his
appointment, working and status in the
railway but he did not discharge his
burden. True copy of the railway circular
regarding weeding out of the service
record after long length of time is
Annexure-
1
to
the
supplementary
affidavit.

15. In our view the impugned order
of the Tribunal cannot be sustained. There
is no denial of the fact that the petitioner
was absent for seventeen years although
leave had not been granted to him. Since
he was absent for more than five years
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1 All] Ranveer Singh alias Guddu Singh Vs. U.O.I. Ministry of Home Affairs and others
89
without leave hence in view of paragraph
2014
(2)
of
the
Indian
Railways
Establishment Code he was deemed to be
removed from service. Moreover, in our
opinion the entire burden of proof
regarding the appointment of respondent
no. 1 and his service and status was on
him but he failed to discharge this burden
by not producing any record. The railway
record has been weeded out as stated by
the railway in view of its circular. In the
absence of the relevant record and paper
we fail to see how the Tribunal could
allow the O.A. of the respondent no. 1
since the burden of proof was on him.
Merely showing some paper of the
Provident Fund account was not sufficient
discharge of the burden.

16. The tribunal in paragraph 5 of its
order has observed that the procedure for
imposing major punishment was not
followed before removing the respondent.
In our opinion that procedure has not to
be followed in this case as this is a case of
abandoning the job and not a termination
of service in the strict sense. Hence there
was no question of giving opportunity of
hearing to the respondent no. 1 in this
case. An employee simply cannot be
absent from work for seventeen years and
then suddenly appear and claim that he
should be given duty. Tuberculosis is
nowadays a curable disease and there is
no
justification
for
absenting
for
seventeen long years. The O.A. was filed
in 1992 that is after twenty years after the
respondent no. 1 had stopped attending to
his duties.

17. In Ratam Chandra Sammanta
Vs. Union of India J.T. 1993 (3) SC 418
the facts were that the petitioners were
employed between 1964 to 1969 and
retrenched between 1973 to 1979. The
petitioners approached the Court only
after a lapse of fifteen years. The Supreme
Court held that the delay deprived the
person of remedy as well as the right in
case of such long delay.

18. In Secretary to Government of
India Vs. Shivram Mahadu 1995 Supp (3)
SCC 231 the respondent was discharged
from service from 7.10.1986 and he filed
a claim petition before the Tribunal only
in 1990. The Supreme Court held that the
application was clearly barred by time
even if it was true that the respondent was
suffering from schizophrenia. A similar
view was taken by the Supreme Court in
Ramesh Chand Sharma Vs. Udham Singh
Kamal 1999 (8) SCC 304.

19. In view of the above we allow
this petition and set aside the order of the
Tribunal dated 28.7.2000 and hold that
the Tribunal should have rejected the
O.A. of the respondent no. 1 in toto. No
order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 9.12.2002

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.S. RAKHRA, J.

Habeas Corpus Petition No. 14813 of
2002

Ranveer Singh alias Guddu Singh

 ...Petitioner
Versus
Union of India Ministry of Home Affairs
and others

 ...Respondents

Counsel for the Petitioner:
Sri H.N. Singh
Sri B.N. Singh