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SCA/4700/2004 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4700 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/-
HONOURABLE
MR.JUSTICE KS JHAVERI
Sd/-
======================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
======================================
UNION
OF INDIA & 1 - Petitioners
Versus
AN
BARANDA - Respondent
======================================
Appearance
:
MR
SHAKEEL A QURESHI for Petitioners.
MR ANAND L SHARMA for
Respondent.
MR KANTILAL C BHATT for
Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 06/09/2011
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE K. S. JHAVERI)
By
way of this writ petition, the petitioners – original
respondents have challenged the judgment and order dated 28.11.2003
passed by the Central Administrative Tribunal, Ahmedabad Bench,
Ahmedabad in O.A. No.213 of 2003 whereby the Tribunal has allowed the
original application filed by the respondent herein only on the
ground of non-payment of the subsistence allowance by the petitioners
to the respondent during the course of the departmental inquiry.
2. We
have heard learned counsel Mr. Shakeel A. Qureshi for the petitioners
and learned counsel Mr. Anand L. Sharma appearing for the respondent.
3. We
have gone through the impugned judgment of the Tribunal. We are of
the view that in view of the subsequent judgment of the Hon’ble
Supreme Court in the case of Indra Bhanu Gaur v. Committee,
Management of M. M. Degree College and others, reported in 2004 (1)
S.C. SERVICE LAW JUDGMENTS 3, the view taken by the Tribunal is
contrary to the law laid down by the Hon’ble Supreme Court. In the
above decision of the Hon’ble Supreme Court, in head note (B), it is
observed as under :-
“Non-payment
of subsistence allowance cannot vitiate the proceedings unless
prejudice is shown and established. It has to be specifically
pleaded or established as to in what way the affected employee is
handicapped because of non-receipt of subsistence allowance.”
4. In
the above view of the matter, the view taken by the Tribunal is
contrary to the law laid down by the Hon’ble Supreme Court. Hence,
the impugned order is bad in law and is required to be quashed and
set aside.
5. In
the result, the petition is allowed. The judgment and order dated
28.11.2003 passed by the Central Administrative Tribunal, Ahmedabad
Bench, Ahmedabad in O.A. No.213 of 2003 is quashed and set aside.
The matter is remanded back to the Tribunal to decide the Original
Application on merits. It is made clear that this Court has not
expressed any opinion on the merits of the case and the Tribunal
shall reconsider the same depending on the merits of the case,
without being influenced by this order. Rule is made absolute. The
parties shall bear their own costs.
Sd/-
[V. M. SAHAI, J.]
Sd/-
[K. S. JHAVERI, J.]
Savariya
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