Allahabad High Court Weekly Round-Up: July 17 To July 23, 2023

Dr. S.C. Asthana vs. State Of U.P. Through Principal Secy. Medi.And Hel. And Another 2023 LiveLaw (AB) 217

XYZ vs. Union Of India Thru. Secy. Ministry Of Home Affairs New Delhi And Others 2023 LiveLaw (AB) 218

Neelam Devi vs. State Of U.P.Thru Prin.Secy.Co-Operative Lko And Ors 2023 LiveLaw (AB) 219

Ram Vilas vs. State Of U.P. And 4 Ors 2023 LiveLaw (AB) 220

Randeep Singh Surjewala vs. State of U.P. and Another 2023 LiveLaw (AB) 221

M/S Jai Prakash Associates Ltd vs. State of U.P. and Another 2023 LiveLaw (AB) 222

Ashish Kakkar vs. UOI 2023 LiveLaw (AB) 223

Shweta Punj vs. Union of India and 4 others 2023 LiveLaw (AB) 224

Manorama Kuchhal And Another vs. Brijesh Narain Singh D.M./Collector NIC Dist. Centre And 6 Ors 2023 LiveLaw (AB) 225

ORDERS/JUDGMENTS OF THE WEEK

Burden To Prove Employee's 'Wilful' Absence From Service Is On Disciplinary Authority: Allahabad High Court

Case Title: Dr. S.C. Asthana vs. State Of U.P. Through Principal Secy. Medi.And Hel. And Another [Writ A No. 2000264 of 2000]

Case Citation: 2023 LiveLaw (AB) 217

The Allahabad High Court has held that in departmental proceedings, burden to prove that the unauthorized absence was 'wilful' is on the disciplinary authority. In absence of such finding, unauthorized absence does not amount to misconduct.

The observation was made by a bench of Justice Irshad Ali while hearing the plea moved by a Medical Officer facing disciplinary proceeding for the charge of unlawful absence from duties during his foreign assignment period at Nigeria.

CRPF | Denying Employment/Promotion To HIV-Positive Person Is Violative Of Articles 14, 16 And 21: Allahabad High Court

Case title - XYZ vs. Union Of India Thru. Secy. Ministry Of Home Affairs New Delhi And Others [SPECIAL APPEAL DEFECTIVE No. - 430 of 2023]

Case Citation: 2023 LiveLaw (AB) 218

In a significant verdict, the Allahabad High Court has held that a person, who is otherwise fit, could not be denied employment only on the ground that he or she is HIV positive and this principle also extends to grant of promotion.

"In any case, a person’s HIV status cannot be a ground for denial of promotion in employment as it would be discriminatory and would violate the principles laid down in Articles 14 (right to equality), 16 (right to non-discrimination in state employment) and 21 (right to life) of the Constitution of India," the bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla observed.

Daughters Can Apply For Compassionate Appointment Irrespective Of Their Marital Status: Allahabad High Court On Co-op Society Regulations

Case Title: Neelam Devi vs. State Of U.P.Thru Prin.Secy.Co-Operative Lko And Ors [Writ A No. 18566 of 2021]

Case Citation: 2023 LiveLaw (AB) 219

The Allahabad High Court struck down the word ‘unmarried’ occurring before ‘daughter’ in the note appended to Regulation 104 of U.P. Cooperative Societies Employees' Service Regulations, 1975 which governs eligibility for compassionate appointment.

A bench comprising Justices Devendra Kumar Upadhyaya and Om Prakash Shukla observed that the State has recognised the right of daughters irrespective of their marital status while amending the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. The same recognition should be granted to daughters under the 1975 Regulations.

Mere Pendency Of Criminal Case No Ground To Cancel Arms License In Absence Of Clear Finding Of Threat To Public Peace: Allahabad High Court

Case Title: Ram Vilas vs. State Of U.P. And 4 Ors [Writ C No. 1562 of 2020]

Case Citation: 2023 LiveLaw (AB) 220

The Allahabad High Court has reiterated that the pendency of criminal cases cannot be the sole ground for cancellation of a firearm license in the absence of a specific recording by a competent authority that possession of the same would be dangerous to public peace, safety and security.

Relying on the decision of a coordinate bench in Ram Prasad v. Commissioner and others, Justice Manju Rani Chauhan held,

“it is undoubtedly to say that merely pendency of the criminal case or with the apprehension that the petitioner may be involved in future in any other criminal case cannot be a ground for cancellation of the arms license under the Arms Act, 1959, unless and until a clear cut finding is recorded by the Competent Authorities that the possession of the fire arms caused threatening of the public peace and is danger for the safety of human being. The Competent Authorities fail to record any such finding in the impugned orders.”

Samvasini Case: Allahabad HC Stays Coercive Action Against Randeep Surjewala Till Disposal Of His Plea For Legible Documents U/s 207 CrPC

Case title - Randeep Singh Surjewala vs. State of U.P. and Another [APPLICATION U/S 482 No. - 23896 of 2023]

Case Citation: 2023 LiveLaw (AB) 221

The Allahabad High Court has stayed coercive action against Congress leader and Rajyasabha MP Randeep Singh Surjewala till the disposal of his application before the Varanasi Court to provide him with Legible documents including the charge sheet under section 207 CrPC in the 23-year-old case of damage to public property.

The bench of Justice Raj Beer Singh passed this order while dealing with Surjewala’s plea seeking legible and readable documents along with a charge sheet under section 207 CrPC. In his plea challenge was made to the orders of the trial court rejecting his plea for the same.

Allahabad High Court Denies Jaypee’s Interim Plea To Sell Land For Clearing Dues When Allotment Stands Cancelled By Yamuna Expressway Authority

Case Title: M/S Jai Prakash Associates Ltd vs. State of U.P. and Another [Writ C No. 6049/2020]

Case Citation: 2023 LiveLaw (AB) 222

The Allahabad High Court has declined the proposal of M/s Jai Prakash Associates (Jaypee) to sell off certain portion of the 1,000 hectares land earlier allotted to it under the Special Development Zone Project in the Yamuna Expressway Development Area, for clearing the dues of YEIDA (Yamuna Expressway Industrial Development Authority).

The bench comprising Chief Justice Pritinker Diwaker and Saumitra Dayal Singh noted that allotment already stands cancelled and hence it cannot permit such sale as it would amount to an interim relief in the nature of final relief.

Vague Arrest Memo, Allahabad High Court Grants Bail To Accused In Fake GST ITC Worth Rs.88 Crores

Case Title: Ashish Kakkar vs. UOI [WRIT TAX No. - 834 of 2023]

Case Citation: 2023 LiveLaw (AB) 223

The Allahabad High Court has granted bail to the person allegedly involved in the creation of 92 fake GST Forms and the passing of fake Input Tax credits (ITC) to the tune of Rs. 88 crores.

The bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava has observed that even in the arrest memo, the Department is not sure as to what offence has been committed by the petitioner, and they have used the words "clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of Section 132 of the GST Act, 2017".

OTHER UPDATES FROM HC

Allahabad High Court Grants Interim Relief To Accused Who Were Denied Anticipatory Bail Due To Citing Of Repealed Law

While dealing with the second anticipatory bail plea of two accused, the Allahabad High Court granted them interim protection from arrest till the next date of hearing as it noted that they were earlier denied anticipatory bail due to the fact that the state counsel had cited a repealed law (Petroleum Rules, 1976).

“In view of the fact that one of the main grounds for rejection of anticipatory bail was a mistake of law; the applicants-Gulam Mustafa Khan and Ezaz Ahmad are granted interim protection till the next date of hearing…” the bench of Justice Jyotsna Sharma observed.

The accused have been booked under Sections 3/7 of the Essential Commodities Act and under Sections 420, 465, 468, 120-B IPC. Their first anticipatory bail application was dismissed on March 2, 2023, on the basis of the Petroleum Rules, 1976 which stand repealed by the Petroleum Rules, 2002.

Allahabad HC Stays Single Judge's Judgment Reading Down 'Regulation 40 (ग)' Of 'UP Intermediate Education Act' Regarding 'Name Change'

Case title - State Of U.P. And 2 Others vs. Md. Sameer Rao And 3 Others [SPECIAL APPEAL No. - 459 of 2023]

The Allahabad High Court has stayed the effect and operation of the May 2023 judgment and order of a Single Judge reading down Regulation 40 (ग) of the Uttar Pradesh Intermediate Education Act, 1921 which prohibits acceptance of any application filed by a person seeking to change his name in his educational document adopting nicknames, names disclosing a person’s religion or caste or use of honorific word or a title.

The provision also provides that name change applications pursuant to religious conversion, change of caste, or change of name after marriage are not liable to be entertained.

On May 25, 2023, the bench of Justice Ajay Bhanot found the restrictions contained in the provision to be disproportionate, failing the test of reasonable restrictions on fundamental rights under Article 19(1)(a) Article 21 and Article 14 of the Constitution of India.

[Cheating] Vires Of Section 420 IPC Challenged Before Allahabad High Court

A writ petition has been filed before the Allahabad High Court challenging the vires of Section 420 of IPC (Cheating and dishonestly inducing delivery of property) on the grounds that it is violative of Article 14 and Article 21 of the Constitution.

Counsel for Petitioners argued that there is no material difference between the offence of cheating punishable under Section 417 IPC and offence of cheating concerning the delivery of property punishable under Section 420 IPC. However, he contended that Section 420 provides for higher punishment which is against personal liberty.

Advocates’ ‘Misbehaviour’ With Lady Judge: Allahabad High Court Orders Forensic Examination Of CCTV Footage Of The Incident

While dealing with a reference concerning certain advocates’ alleged misbehaviour with a lady judicial officer in the Barabanki judgeship last year, the Allahabad High Court has directed the Forensic Science Laboratory, Lucknow to examine the CCTV footage of the incident.

The bench of Justice Sangeeta Chandra and Justice Narendra Kumar Johari ordered thus after finding several unexplained suspicious circumstances surrounding the CCTV footage of the incident which took place during certain days of September and October 2022.