Suraj Prasad Tewari Vs. Zila Commandant, Home Guards and ors.

Suraj Prasad Tewari vs Zila Commandant, Home Guards and ors.

Disposition Petition dismissed Court Allahabad Decided Nov 05, 2004

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Citation: sooperkanoon.com/487978
Court: Allahabad High Court
Judge: Shishir Kumar, J.
Decided On: Nov 05, 2004
Case Number: Civil Misc. Writ Petition No. 45709 of 2004
Subject: Service
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 168; [S.B. Sinha & H.S. Bedi, JJ ] Determination of compensation Meaning of income of victim Held, The term income has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question n...

Key legal issue: Service
Outcome / disposition: Petition dismissed
Acts & sections: Uttar Pradesh Home Guards Act, 1963 - Sections 10; Constitution of India - Articles 14, 16, 21 and 311

Parties & Advocates

Appellant / Petitioner

Suraj Prasad Tewari

Advocate R.R. Shivahare, Adv.

Respondent

Zila Commandant, Home Guards and ors.

Advocate S.C.

Legal References

Acts: Uttar Pradesh Home Guards Act, 1963 - Sections 10; Constitution of India - Articles 14, 16, 21 and 311
Cases Referred: Riasat Ali v. State of U.P. and Ors.
Reported In: (2005)1UPLBEC404

Excerpt

.....conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - it has also considered that article 311 of the constitution while deciding the controversy whether in spite of the fact the consideration of section 10, the explanation that clearly stated that the home hard shall not be deemed to a holder of civil post......standing counsel has placed reliance on the explanation of section 10 of u.p. home guards act, 1963 and 2003(4) educational and services cases 1964, in which the division bench of this court while considering the similar question regarding explanation of section 10 has held that a home guard shall not be deemed to be a 'holder of a civil post merely by reason of his enrollment as home guard'. the division bench of this court has also considered the earlier judgment cited by the petitioner and has come to the conclusion that as he is not holding a civil post, therefore, he does not come in the definition as provided. it has also considered that article 311 of the constitution while deciding the controversy whether in spite of the fact the consideration of section 10, the explanation that clearly stated that the home hard shall not be deemed to a holder of civil post. the division bench has also considered the judgment of writ petition no. 29824 of 1992 and held that in the said judgment, the aforesaid point was not for adjudication.3. i have heard the learned counsel for the petitioner and the learned standing counsel and after hearing both the parties. i am of opinion that the controversy involved in the present writ petition is fully covered by the judgment of the division bench of this court delivered in writ petition no. 23570 of 1987, riasat ali v. state of u.p. and ors.4. in view of the aforesaid facts the petition is dismissed. there shall be no order as to costs.

Full Judgment

Shishir Kumar, J.

1. The petitioner is aggrieved by the order dated 15.10.2004, Annexure-1 to the writ petition by which his assignment as a Company Commander has been cancelled by the Divisional Commandant, Home Guards, Jhansi. The petitioner contends that the aforesaid order is violative of Articles 14, 16, 21 and 311 of the Constitution of India and before passing the aforesaid order no opportunity of hearing or show cause has been given to the petitioner. The petitioner has placed reliance on a Single Judge judgment of this Court in the case of Suraj Tiwari v. Zila Commissioner, Home Guards, Hamirpur and Ors., reported in 1998 (3) AWC 1623. It has been stated that while deciding the aforesaid case, the Hon'ble Single Judge has adopted the reasoning of the earlier judgment delivered in the case of Vibhuti Narain Singh v. State and Ors., reported in 1986 UPLBEC 1130. Various other grounds have been raised on behalf of the petitioner that though the petitioner was being paid honorarium, yet he was entitled for show cause notice and opportunity of hearing and as such in the absence of it, the order passed by the respondent is illegal and is liable to be quashed.

2. The learned Standing Counsel has placed reliance on the explanation of Section 10 of U.P. Home Guards Act, 1963 and 2003(4) Educational and Services Cases 1964, in which the Division Bench of this Court while considering the similar question regarding explanation of Section 10 has held that a Home Guard shall not be deemed to be a 'holder of a civil post merely by reason of his enrollment as Home Guard'. The Division Bench of this Court has also considered the earlier judgment cited by the petitioner and has come to the conclusion that as he is not holding a civil post, therefore, he does not come in the definition as provided. It has also considered that Article 311 of the Constitution while deciding the controversy whether in spite of the fact the consideration of Section 10, the explanation that clearly stated that the home hard shall not be deemed to a holder of civil post. The Division Bench has also considered the judgment of Writ Petition No. 29824 of 1992 and held that in the said judgment, the aforesaid point was not for adjudication.

3. I have heard the learned Counsel for the petitioner and the learned Standing Counsel and after hearing both the parties. I am of opinion that the controversy involved in the present writ petition is fully covered by the judgment of the Division Bench of this Court delivered in Writ Petition No. 23570 of 1987, Riasat Ali v. State of U.P. and Ors.

4. In view of the aforesaid facts the petition is dismissed. There shall be no order as to costs.

Same Court & Year Allahabad · 2004 Same Parties Suraj Prasad Tewari vs Zila Commandant, Home Guards and ors. Same Subject Service Same Judge Shishir Kumar, J. Acts & Sections Uttar Pradesh Home Guards Act, 1963 - Sections 10; Constituti...

Service