# Vijai Kumar v. The Union of India & Ors. 482 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 4 ILRA 481
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-24
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-kumar-v-the-union-of-india-ors-482-indian-law-reports-allahabad-series-43449
- **Pages:** 4

## Headnote

Control Order (FCO) 1985, alleging that it violates Article 21 because it does not provide a statutory right of
retesting fertilizer samples. Fertilizer samples taken from his shop in 2009 were found to be sub-standard
(zinc content below prescribed standards), leading to cancellation of his authorization and registration of an
FIR under Sections 3/7 of the Essential Commodities Act (EC Act). His discharge application in the criminal
case was also rejected.

Before the High Court, the sole argument was that absence of a mandatory provision for retesting denies a
fair opportunity to defend himself.

The Court rejected the argument and held that:

The Fertilizer Control Order is constitutionally valid.
Absence of a statutory retesting clause does not violate Article 21, because
- the accused has full rights during trial to challenge the analyst's report,
- by cross-examining the analyst,
- by producing his own expert evidence,
- or by seeking analysis of the third sample through court.
These procedural safeguards ensure fairness.

Relying on a Punjab & Haryana High Court Division Bench judgment (Gurmukh Mal Shibba Mal),
the Court held that the FCO is neither arbitrary nor unreasonable.

The writ petition dismissed, with clarification that the petitioner is still free to pursue remedies available
against the Magistrate's order in his criminal case.

## Text

4 All. Vijai Kumar Vs The Union Of India & Ors.
481
 1981 and consequential Government Orders which have been referred to in the
earlier part of the present judgment.

Question (b)- The issue as to whether the Government Order dated 10 December
2002 is violative of Articles 14 and 16 will not arise in this reference.

Question (c)- The judgment of the Division Bench in DIOS, Mirzapur vs. Sri
Rajwanta Singh Special Appeal (Defective) No. 1051 of 2007 dated 22 November 2007 is affirmed
as laying down the correct principle of law. The relevant principle for the purposes of computing
and determining the admissibility of HRA in terms of the relevant Government Order dated 15
December 1981 and the Government Orders which have been referred to in the present judgment,
is the place of work. If the place of work falls within a notified municipal area or though beyond
municipal limits is within a distance of eight kilometers of the municipal limits, HRA would be
payable at the rate as applicable in respect of the municipal area. The district within which the
institution is situated would not be material so long as the institution or place of work is within the
municipal limits or within a distance of eight kilometers beyond the municipal limits."

6. Learned Standing Counsel did not dispute that in view of Government Order dated
15.12.1981 since admissibility of house rent allowance would be with reference to place of
working, petitioners would be entitled for payment of house rent allowance as per rate admissible
in Varanasi and not at Mirzapur.

7. In view of above and considering the law laid down by Full Bench vide opinion dated
18.09.2015, we allow this writ petition and direct respondents to pay house rent allowance to
petitioners at the rate applicable to similarly placed persons in Varanasi till the aforesaid
Government Order dated 15.12.1981 holds the field.

8. Impugned order dated 17.04.2004 passed by District Inspector of School, Mirzapur,
respondent 3, taking a different view is hereby set aside.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2015

BEFORE

THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.

Criminal Misc. Writ Petition No.- 23535 Of 2015

Vijai Kumar ...Petitioner
Versus
The Union of India & Ors. ...Respondents
482 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Ramendra Asthana

Counsel for the Respondents:
Govt. Advocate, A.S.G.I. (2015/2104), A.K. Singh, Vimlendu Tripathi, AGA.

The petitioner, proprietor of Bharat Khad Bhandar, challenged the constitutional validity of the Fertilizer
Control Order (FCO) 1985, alleging that it violates Article 21 because it does not provide a statutory right of
retesting fertilizer samples. Fertilizer samples taken from his shop in 2009 were found to be sub-standard
(zinc content below prescribed standards), leading to cancellation of his authorization and registration of an
FIR under Sections 3/7 of the Essential Commodities Act (EC Act). His discharge application in the criminal
case was also rejected.

Before the High Court, the sole argument was that absence of a mandatory provision for retesting denies a
fair opportunity to defend himself.

The Court rejected the argument and held that:

The Fertilizer Control Order is constitutionally valid.
Absence of a statutory retesting clause does not violate Article 21, because
- the accused has full rights during trial to challenge the analyst's report,
- by cross-examining the analyst,
- by producing his own expert evidence,
- or by seeking analysis of the third sample through court.
These procedural safeguards ensure fairness.

Relying on a Punjab & Haryana High Court Division Bench judgment (Gurmukh Mal Shibba Mal),
the Court held that the FCO is neither arbitrary nor unreasonable.

The writ petition dismissed, with clarification that the petitioner is still free to pursue remedies available
against the Magistrate's order in his criminal case.

(Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.
&
Hon'ble Yashwant Varma, J.)

1. The petitioner is a proprietor of Bharat Khad Bhandar at Harduaganj in the district of
Aligarh. On 23 March 2007, a memorandum of intimation was submitted for authorizing the
petitioner to conduct the business of retail sale under clause 8(2) of the Fertilizer Control Order,
1985. The notified authority issued an acknowledgment in Form A2. On 24 July 2009, samples of
fertilizers were collected from the shop of the petitioner and Form J under clause 28(1)(b) is stated
to have been duly filled in. Form J reveals that a sample was collected, according to the petitioner,
after opening the sealed bag received by him in his retail shop. On an analysis, the sample was
found to contain 31.5% zinc as against the prescribed standard of 33%.The District Agricultural
Officer cancelled the authorization issued in favour of Bharat Khad Bhandar and a notice was
issued to show cause on 26 June 2009. The order of cancellation was challenged by the petitioner
under clause 32A. The petitioner has averred that the appeal was allowed and the sample was sent
4 All. Vijai Kumar Vs The Union Of India & Ors.
483
for retesting upon which it was found to contain zinc to the extent of 30.83%. On 24 May 2010, the
Fertilizer Registration Officer issued a notice to show cause to the petitioner to submit an
explanation failing which it was submitted that a prosecution would be launched under Section 3/7
of the Essential Commodities Act, 1955. The petitioner submitted a reply on 3 June 2010. On 15
June 2010, an FIR was lodged in Case Crime No. 158 of 2010 under Sections 3/7 of the EC Act at
police station Harduaganj, Aligarh. The petitioner, it may be noted, has filed a writ petition (Civil
Misc. Writ Petition No. 368454 of 2010) in regard to the cancellation of his license. Another writ
petition (Criminal Misc. Writ Petition No. 11054 of 2010) was filed in the name of M/s Bharat
Khad Bhandar. On 18.2.2011, the criminal misc. writ petition was disposed of by a Division Bench
with a direction that the petitioner shall not be arrested until credible evidence is collected in the
case by the Investigating Officer during the course of investigation. A charge sheet has been filed in
the criminal case. The petitioner applied for discharge before the Additional Chief Judicial
Magistrate, Aligarh on 4 July 2011. The application was rejected on 1 September 2015.

2. The petitioner has now sought to question the constitutional validity of the Control
Order. The only ground which was urged in respect of the writ petition is that the Control Order
does not provide any facility for retesting and hence affects the right to life of the petitioner under
Article 21 of the Constitution. The ground which has been formulated in the writ petition is that a
valuable right of defence to challenge the report of the public analyst is thus taken away by not
providing a requirement of retesting. It has been submitted that such a facility is made available
inter alia under the provisions of the Insecticides Act, 1968.

3. The learned Standing Counsel has placed on the record a judgment of the Division
Bench of the Punjab and Haryana High Court in The Director, Agriculture vs. Gurmukh Mal
Shibba Mal and Ors., (1997) 117 PLR 249. In that case, the Division Bench considered in a
Letters Patent Appeal the correctness of the judgment of a learned Single Judge declaring a
notification dated 25 September 1985 issued under Section 3(1) of the EC Act as being violative of
Articles 19 and 21. The ground of challenge in that case was similar to the challenge which was
advanced in these proceedings. The Division Bench in the Letters Patent Appeal observed as
follows:

"In case under scrutiny a sample of fertilizer was taken by the authorities as per
provisions of Control Order which on analysis was found to be of non-standard grade. With a view
to determine the guilt proceedings have been initiated according to law. Evidence is yet to be
adduced by the complainant/the prosecution. It is thereafter petitioner is to be given a right of
defence. It indeed would be pre-mature to judge the ultimate decision which the Court may take.
An accused person of course has a right to set up defence in terms of Section 293 Cr.P.C. What
would be the nature of defence can again be a matter of sheer guess. In any case one could visualise
that petitioner would adduce all such evidence so as to prove his innocence. May be he examines
another expert to cross-examine the official witness or makes reference to some celebrated
authority on law relevant to the point in controversy to establish that the conclusion arrived at by
the analyst is indeed impermissible and as a last resort can make out a case for the Court to send the
third sample for its analysis by another laboratory. With these safeguards at his command it can be
484 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that procedure prescribed is neither arbitrary nor unreasonable or unfair. On examining the
matter on the touch stone of Articles 19(1) and 21 and various decisions of the Apex Court, we are
of the view that Fertilizer Control Order, 1985 has been enacted by competent Legislature and the
same does not violate any express provision of Constitution of India."

4. We are unable to accept the contention that the mere absence of a provision for retesting
would render the provisions of the Control Order invalid. The petitioner has a full panoply of rights
open to challenge the testing report during the course of the trial by cross-examining the analyst or
by calling for the report of an expert.

5. We find no reason to entertain the petition. There is no substance to the challenge of the
constitutional validity of the provisions. There is no violation of Article 21.

6. The petition is, accordingly, dismissed.

7. We clarify by way of an abundant caution that the dismissal of the writ petition will not
affect the remedy available in law to the petitioner to challenge the order passed by the Magistrate
on the application.

8. There shall be no order as to costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLHABAD 05.04.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 32357 Of 1995

Kaushal Kishore Awasthi ...Petitioner
Versus
The Presiding Officer, Labour Court (I) & Ors. ...Respondents

Counsel for Petitioner:
Sri Satish Dwivedi, Sri Bhoopendra Nath Singh, Sri D.P. Singh, Sri Jai Singh

Counsel for the Respondents:
Samir Sharma, Nripendra Mishra, Rajiv Sharma, S.C.

Daily Wager Conductor - Misappropriation - Daily-wage conductor of U.P.S.R.T.C., appointed on
21.8.1989, removed from waiting list and terminated for issuing short-distance tickets after collecting higher
fare from 30 passengers on 9.11.1990; domestic enquiry discarded, but Labour Court, on de-novo evidence,
relied on Traffic Inspector's deposition, waybill endorsement and a correction memo bearing petitioner's
unchallenged admission of guilt - Held, conclusion of proved misconduct is supported by material on record