# Vijay Kumar Yadav v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 27
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-24
- **Case number:** Civil Misc. Writ Petition No.23090 of 2008
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-yadav-v-state-of-u-p-and-others-41307
- **Pages:** 4

## Headnote

Sri Ravi Ranjan
S.C.

U.P.
Govt.
Servant
(Disciplined
and
Appeal,
Rules
1999-Rule-9
(4)-
Termination order-passed after giving
charge sheet-after receiving explanation
of the concerned employees-petitioner
got appointed at the age of 14 years by
playing
fraud-vitiated
the
initial
appointment itself-No denial of entry of
date
of
birth
made
in
Transfer
certificate-except the ignorance on the
basis of wrong information given by his
mother-nothing
explained-held-fraud,
misrepresentation vitiate every thingcan not be interfered by writ court.

Held: Para 9
28 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
In this view of the matter, at the time of
appointment the petitioner was only 14
years and was not major, therefore, his
appointment was abinitio illegal. It is not
the case where the petitioner has been
subjected to punishment during the
course of his service. The petitioner has
been
given
fullest
opportunity
of
hearing. Therefore, the decisions cited by
the petitioner in the case of Mohd. Aslam
Versus State of U.P. and others (supra)
and Vijay Sankar Tiwari, Etc. Versus Food
Corporation of India and others etc.
(supra) are not applicable in the present
case.
Case law discussed:
2008 (1) ESC, 493 (All), (2006) 3 UPLBEC,
2499

## Text

1 All] Vijay Kumar Yadav V. State of U.P. and others
27
holding disciplinary inquiry against him.
He shall be reinstated within a period of
15 days from the date of production of
certified copy of the order passed by this
Court before competent authority but the
petitioner shall be treated to be under
suspension
during
fresh
disciplinary
inquiry to be held against him.

20. Although I have not expressed
any opinion about the validity of charge
sheet issued to the petitioner on merits but
as abundant caution it would be proper for
the disciplinary authority to issue fresh
charge sheet to the petitioner within a
period of one month from the date of his
reinstatement in service for the purpose of
holding fresh disciplinary inquiry on the
charges already levelled in the charge
sheet of the petitioner. The petitioner shall
be given fresh opportunity to make reply
of the said charge sheet and after
considering the reply of the charge sheet,
in case the disciplinary authority finds it
necessary to hold fresh disciplinary
inquiry against the petitioner it is open for
the authority to proceed further with
disciplinary inquiry and conclude the
same within another period of three
months. It is needless to say that while
holding fresh disciplinary inquiry the
petitioner
shall
be
given
adequate
opportunity of hearing including crossexamination of witnesses to be examined
on behalf of department and adduce his
own defence evidence and witnesses. The
petitioner shall also be paid subsistence
allowances during disciplinary inquiry
admissible to his current pay scale and
salary.

21. In case, the petitioner succeeds
in
disciplinary
inquiry
finally,
the
disciplinary authority shall also pass
appropriate order with regard to the
continuity of service and remuneration
payable to the petitioner from the date of
his
dismissal
to
the
date
of
his
reinstatement
while
concluding
disciplinary inquiry.

22. With the aforesaid observation
and direction, writ petition succeeds and
is allowed to the extent indicated
hereinabove.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2008

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No.23090 of 2008

Vijay Kumar Yadav

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

Counsel for the Petitioner:
Sri Akhilanand Mishra

Counsel for the Respondents:
Sri Ravi Ranjan
S.C.

U.P.
Govt.
Servant
(Disciplined
and
Appeal,
Rules
1999-Rule-9
(4)-
Termination order-passed after giving
charge sheet-after receiving explanation
of the concerned employees-petitioner
got appointed at the age of 14 years by
playing
fraud-vitiated
the
initial
appointment itself-No denial of entry of
date
of
birth
made
in
Transfer
certificate-except the ignorance on the
basis of wrong information given by his
mother-nothing
explained-held-fraud,
misrepresentation vitiate every thingcan not be interfered by writ court.

Held: Para 9
28 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
In this view of the matter, at the time of
appointment the petitioner was only 14
years and was not major, therefore, his
appointment was abinitio illegal. It is not
the case where the petitioner has been
subjected to punishment during the
course of his service. The petitioner has
been
given
fullest
opportunity
of
hearing. Therefore, the decisions cited by
the petitioner in the case of Mohd. Aslam
Versus State of U.P. and others (supra)
and Vijay Sankar Tiwari, Etc. Versus Food
Corporation of India and others etc.
(supra) are not applicable in the present
case.
Case law discussed:
2008 (1) ESC, 493 (All), (2006) 3 UPLBEC,
2499

(Delivered by Hon'ble Rajes Kumar, J.)

1. The petitioner has filed the
present writ petition challenging the order
dated 23.04.2008 passed by respondent
no.5 by which he has been removed from
service.

2. The petitioner was appointed on
the post of Runner in Tube well
Construction
Division,
Gonda
on
24.03.1988 on compassionate ground
under the Dying in Harness Rules, 1974.
Later on, the petitioner was transferred to
Tubewell Division-1, Gorakhpur in which
he joined on 10.09.1992. On the receipt of
the complaint, enquiry was made from the
Principal, Cooperative Inter College,
Pipraich, Gorakhpur and it was found that
his date of birth was 1.7.1974. On these
facts, the petitioner has been given charge
sheet
dated
31.07.2007,
which
is
Annexure-2 to the writ petition. In the
charge sheet in paragraph 2, it has been
specifically stated that in the service book
the date of birth of the petitioner was
11.12.1969, while in a certificate issued
by Cooperative Inter College, Pipraich,
Gorakhpur the date of birth of the
petitioner was 1.7.1974 and, therefore, at
the time of appointment the age of
petitioner was only 14 years while it
should be 18 years. It has also been stated
that by committing fraud and concealing
the correct date of birth, the appointment
has been obtained. The petitioner has
been asked to file the reply. The petitioner
has been asked to file the reply. The
petitioner filed the reply to the aforesaid
charge sheet, which is Annexure 3 to the
writ petition.

3. Perusal of the reply filed by the
petitioner reveals that the allegation made
in the charge sheet about the certificate
issued by the Cooperative Inter College,
Pipraich, Gorakhpur and the date of birth
mentioned in the College record has not
been denied. It has also been stated that
by ignorance his mother and grandmother has informed about the date of
birth to the College. Having regard to the
reply of the charge sheet filed by the
petitioner and the enquiry report, the
petitioner has been removed from service
by the impugned order inasmuch as the
appointment of the petitioner was abinitio
illegal.

4. Learned counsel for the petitioner
submitted that after the enquiry report the
petitioner should have given opportunity
of hearing as contemplated under section
9 (4) of the U.P. Government Servant
(Discipline and Appeal) Rules, 1999.
Since it has not been complied with the
order of removal is patently illegal. In
support of his contention, he relied upon
the decisions of this Court in the case of
Mohd. Aslam Versus State of U.P. and
others reported in 2008 (1) ESC, 493
(All) and Vijay Sankar Tiwari, Etc
Versus Food Corporation of India and
1 All] Vijay Kumar Yadav V. State of U.P. and others
29
others etc. reported in (2006) 3
UPLBEC, 2499.

5. Learned Standing Counsel
submitted
that
before
passing
the
impugned order, the petitioner was given
full opportunity. The petitioner has been
issued charge sheet, which has been
replied by the petitioner. He submitted
that the charges against the petitioner
have not been disputed in the reply and no
evidence has been adduced to substantiate
the claim that date of birth in the record of
the Cooperative Inter College, Pipraich,
Gorakhpur from where the petitioner
admittedly obtained education, the date of
birth as 1.7.1974 was wrongly mentioned.
This fact has not been denied in the reply
filed to the charge sheet and, therefore, it
is wrong to say that the impugned order
has
been
passed
without
giving
opportunity of hearing. He submitted that
present is the case of abinitio illegal
appointment of the petitioner on the basis
of fraud and mis-representation made by
the
petitioner,
while
seeking
the
appointment on compassionate ground. It
is not the case where during the course of
service on account of certain act, the
petitioner has been subjected to penal
action.

6. Having heard the learned counsel
for the parties, I have perused the
impugned
order,
various
documents
annexed with the writ petition and counter
affidavit.

7. I do not find any substance in the
argument of the learned counsel for the
petitioner.

8. Admittedly, the petitioner has
been given charge sheet, which is
annexure-2 to the writ petition in which it
was categorically stated that the petitioner
had education in Cooperative Inter
College, Pipraich, Gorakhpur wherein the
date of birth was shown as 1.7.1974.
Certificate of the Principal, Cooperative
Inter College, Pipraich, Gorakhpur also
reveals that date of birth shown was
1.7.1974. In the charge sheet, it was stated
that the petitioner by committing fraud
and concealing the correct date of birth
has sought the appointment in the year,
1988 when he was minor aged about 14
years. In the reply to the said charge
sheet, the petitioner has not disputed the
certificate
issued
by
the
Principal,
Cooperative
Inter
College,
Pipraich,
Gorakhpur. The petitioner has also not
disputed that he studied in the said
college. In the reply, the petitioner has
simply stated in paragraph 7 that his
mother or grand-mother inadvertently told
the date of birth as 1.7.1974. On these
facts, it is apparent that the petitioner has
concealed his date of birth which was
1.7.1974, which is apparent from the
record
of
the
college,
namely,
Cooperative
Inter
College,
Pipraich,
Gorakhpur where the petitioner had
studied upto Junior High School.

9. In this view of the matter, at the
time of appointment the petitioner was
only 14 years and was not major,
therefore, his appointment was abinitio
illegal. It is not the case where the
petitioner
has
been
subjected
to
punishment during the course of his
service. The petitioner has been given
fullest opportunity of hearing. Therefore,
the decisions cited by the petitioner in the
case of Mohd. Aslam Versus State of
U.P. and others (supra) and Vijay
Sankar Tiwari, Etc. Versus Food
Corporation of India and others etc.
30 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(supra) are not applicable in the present
case.

10. In this view of the matter, the
writ petition is devoid of any merit and is,
accordingly, dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No.1628 of 2008

Maharishi Shiksha Sansthan and another

 ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri Shakti Swarup Nigam

Counsel for the Respondents:
Sri K.R. Sirohi
Sri Rajesh Tiwari

Employees State Insurance Act, 1948Section 10-Establishment-Notification of
central
Government
challenged
by
management-running
CBSE
schoolground taken education institution not
defined in the Act-provisions of ESD Act
not
applicable-held-
wholly
misconceived-word
'otherwise'
used
under this section-vide enough to cover
educational Institution-view taken by
Single Judge needs no interference.

Held: Para 4 & 6

The Hon'ble Single Judge by means of
the impugned judgment and order dated
22nd
October,
2008
held
that
the
contentions so raised on behalf of the
petitioner is misconceived, the word
'otherwise' as used in the said is wide
enough to cover educational institutions.
Reliance has been placed upon the
judgment of the Supreme Court in the
case of Hindu Jea Band, M/s Jaipur vs.
Regional
Director,
Employees'
State
Insurance Corporation, Jaipur reported
in AIR 1987 SC 1166.

We are of the considered opinion that
the Hon'ble Single Judge has rightly held
that educational institution would be
covered
under
the
definition
of
establishment specifically in view of the
use of the word 'otherwise'. It has
rightly
been
held
that
the
word
'otherwise' is of wide amplitude covering
all
other
establishments
including
educational institutions.
Case law discussed:
AIR 1987 SC 1166, A.I.R. 1963, AIR 1988 SC
1700

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Shakti Swarup Nigam
for the appellants and Sri K.R. Sirohi,
Senior Advocate, assisted by Sri Rajesh
Tiwari for the respondents.

2. The appellant No. 1 before this
Court is an unaided institution said to be
recognized by the Central Board of
Secondary Education. The institution had
approached this Court by means of Writ
Petition No.53277 of 2008 challenging
the notification issued in exercise of
powers under Section 1(5) of ESI Act,
1948 dated 30th June, 2008 whereby
educational institutions have been brought
within the purview of the ESI Act, 1948.

3. Learned counsel for the appellants
had contended before the Hon'ble Single
Judge that word 'establishment' has not
been
defined
under
the
ESI
Act.
Education Institutions cannot be treated to
be an establishment within the meaning of
Section 1(15) of the ESI Act, 1948
inasmuch
as
the
words
'other