3 all. munni lal verma & anr. vs. the state of u.p. & ors. … all. munni lal verma &...

3 All. Munni Lal Verma & Anr. Vs. The State of U.P. & Ors. 1413

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 23.12.2015

BEFORETHE HON'BLE DR. DEVENDRA KUMAR

ARORA, J.

W.P. No. 53 (S/S) of 2010alongwith W.P. No. 56 (S/S) of 2010

Munni Lal Verma & Anr. ...PetitionersVersus

The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Amit Bose

Counsel for the Respondents:C.S.C.

Police Regulation-Regulation 493-a and(c) read with U.P. Police OfficerSubordinate Ranks (Punishment & Appeal)Rules 1991-Rule-8 (2)(a)-Dismissal ofPolice person-by exercising power underRule 8 (2)(b)-on ground of conviction incriminal case-argument that againstconviction-criminal appeal convictionsuspended by granting bail-criminal appealstill pending-held-in view of mandatoryprovision of Regulation 493 (a) and (c)-ifappeal allowed-it shall be open to filereview of dismissal-order impugnedwarrant no interference.

Held: Para-48For the reasons aforesaid, this Court is ofthe considered opinion that merely becauseappeal was pending against the order of thetrial court and the execution of thesentence had been suspended, it cannot besaid that, punishment order cannot bepassed by the disciplinary authority. If andwhen the appeal against conviction isallowed, the delinquent employee can seekreview of the decision passed by thedisciplinary authority. Thus, this Courtdeclines to exercise its discretionaryjurisdiction under Article 226 of theConstitution of India in favour of the

petitioners as this Court do not find anyvalid ground to interfere with the impugnedorders.

Case Law discussed:AIR 1961 SC 751; 1985 (3) SCC 398; 1989 (1)UPLBEC 624; C.M.W.P. No. 1344 of 2012,C.M.W.P. No. 1917 OF 2012; C.M.W.P. No.2705 of 2012; W.P. No. 1735 (S/S) 2011; W.P.No. 39 (S/S) 2013; Special Appeal Defective71 of 2015; 1995 (3) SCC 377; 1997 (11) SCC383: 1996 SCC (L & S) 668; 1997 (7) SCC 514;1995 (2) SCC 573; 2005 (1) UPLBEC 83; 2002(49) ALR 419; W.P. No. 662 (S/B) of 2015;Special Appeal No. 99 of 2014; 1998 (1) AWC636; 1949 All England Law Reports 381; 1952SCR 683; AIR 1959 SC 422; (2003) 6 SCC 186.

(Delivered by Hon'ble Dr. DevendraKumar Arora, J)

1. Heard Mr. Amit Bose, learnedCounsel for the petitioners and Mrs.Sangeeta Chandra, learned Chief StandingCounsel, assisted by Mr. Badrul Hasan,learned Additional Chief StandingCounsel.

2. Petitioners of writ petition No. 53(S/S) of 2010 have questioned the validityand correctness of the order of dismissaldated 24.9.2008 and 17.10.2008 passed bythe Superintendent of Police, Rai Bareli andSuperintendent of Police, Food Cell, U.P.Police, Lucknow, respectively, whereaspetitioner of writ petition No. 56 (S/S) of2010 has questioned the validity andcorrectness of the order of dismissal dated25.9.2008 passed by the Deputy Inspector ofPolice (Establishment), Economic OffenceResearch Organization, U.P., Lucknow.

3. Since the common questions oflaw and facts and involved in above-captioned writ petitions, therefore, boththe writ petitions have been clubbed andare being decided by a common order.

1414 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Shorn off unnecessary details thefacts of the case are as under :

5. Petitioners of writ petition No. 53(S/S) of 2010 were posted as Constablesof Civil Police, Police Station Misrikh,District Sitapur, whereas petitioner of writpetition No. 56 (S/S) of 2010 was postedas Sub-Inspector of Civil Police, PoliceStation Misrikh, District Sitapur. On10.2.1981, an encounter took place atVillage Sarsai within the circle of PoliceStation Misrikh, District Sitapur, led bythe Station Officer Incharge of PoliceStation Misrikh, District Sitapur includingthe petitioners and other police officers.In the said encounter, three criminals,namely, Girish, Rameshwar and Chetranialias Dhania were killed. In respect of theincident, First Information Report waslodged at Police Station Misrikh, DistrictSitapur against the aforesaid criminalpersons, on the basis of which, a criminalcase was registered at Police StationMisrikh, District Sitapur.

6. After the aforesaid incident, fatherof one of the accused (Girish), namely,Sri Jai Dayal Srivastava submitted arepresentation before the Home Minister,Government of U.P., Lucknow, statingtherein that the police had arrested theaforesaid three persons and had murderedthem and in order to cover up the saidcriminal act of murder by the police party,the incident leading to the alleged murderwas depicted as an encounter in which allthe said three persons were killed. On thesaid representation, an inquiry wasinstituted and the same was entrusted tothe Crime Branch, Criminal InvestigationDepartment, U.P. Thereafter, the CrimeBranch took over the investigation of thesaid criminal case and lodged an FIR atPolice Station Misrikh, District Sitapur

against eight police officers including theStation Officer-In-charge of PoliceStation Misrikh, District Sitapur (Sri BrajGopal Verma), Inspector, the petitionersand 32 members of the public underSections 147/148/149/342/302/201/120-BI.P.C. read with Section 25 of the ArmsAct on 13.09.1983.

7. According to the petitioners, videjudgment and order dated 07.08.2008,Additional Sessions Judge/ Fast TrackCourt-7, Sitapur, all the fourteen policeofficers, including the petitioners, againstwhom the charge-sheet was submitted, wereconvicted of the offences punishable underSections 147/148/149/218/302 I.P.C., but,all the members of the public against whomalso charge-sheet was submitted, wereacquitted of all the charges leveled againstthem. Immediately thereafter, all theaccused persons including the petitionerswere taken in custody and confined in theDistrict Jail, Sitapur on 7.8.2008.

8. In these backgrounds, petitionerNo.1-Munni Lal Verma and petitioner No.2-Ram Singh were dismissed from service videorders dated 24.9.2008 and 17.10.2008 bythe Superintendent of Police, Raibareli andSuperintendent of Police, Food Cell, U.P.,Police, Lucknow, respectively, in exercise ofpowers under Section 8 (2) (a) of the Rules,1991. Petitioner-Hari Shankar Mishra of writpetition No. 56 (S/S) of 2010 was initiallysuspended vide order dated 23.9.2008 butsubsequently vide order dated 25.9.2008, theDeputy Inspector General of Police(Establishment), Economic OffencesResearch Organization, U.P., Lucknowdismissed him in exercise of powers underSection 8 (2) (a) of Rules, 1991.

9. In the meantime, against thejudgment and order dated 7.8.2008


whereby they were convicted andsentenced to imprisonment, the petitionershad approached this Court by filingCriminal Appeal No. 1853 of 2008 and aDivision Bench of this Court, vide orderdated 30.11.2009, suspended the sentenceof all the accused persons including thepetitioners and released them on bail. Inpursuance to the order dated 30.11.2009,the petitioners were released from jail.Thereafter, the above-captioned writpetitions have been filed by thepetitioners.

10. Submission of learned Counselfor the petitioners Mr. Amit Bose is thatthe impugned orders of dismissal fromservice have been passed against thepetitioners only on the ground ofconviction and sentence in exercise ofpowers under Clause (a) of the SecondProviso to Article 311 (2) of theConstitution read with Rule 8 (2) (a) ofthe U.P. Police Officers of theSubordinate Ranks (Punishment andAppeal) Rules, 1991 [in short, referred toas "1991 Rules"]. He submitted thatprovisions of Rule 8 (2) (a) of Rules,1991 are in pari materia with theprovisions of Clause (a) of the SecondProviso to Article 311 (2) of theConstitution. Further submission is that itis not the mere conviction that wouldentail the punishment to a police officer,but, it is the conduct leading to aconviction that can be a ground to punisha police officer. In such a situation, theAppointing Authority has to considerwhether any major penalty of eitherdismissal, removal or reduction in rankwould be commensurate with the conductwhich has led to the conviction of a policeofficer. But, in the present case, theimpugned orders of dismissal fromservice have been passed against the

petitioners only on the ground of havingbeen convicted and sentenced but theconduct of the petitioners which led totheir conviction has not been taken intoconsideration at all.

11. Elaborating his submission, Mr.Amit Bose has submitted that the petitionershad no role to play in the alleged fakeencounter as no evidence was led during trialof the petitioners that they had either activelyparticipated in the alleged fake encounter orthey had done any covert or overt actresulting in the death of three persons. Theonly evidence that has come on record wasthat the police officers including thepetitioners were present at the spot. In such asituation and assuming for sake of argumentthat the entire incident was a fake encounter,the conduct of the petitioners would notjustify any punishment being imposed onthem much less the punishment of dismissalfrom service.

12. Mr. Amit Bose has nextcontended that the issue of departmentalproceedings against a police officer whohas been tried on a criminal charges andhas been acquitted are governed by theprovisions of Paras 492 and 493 of theU.P. Police Regulations. From perusal ofthe aforesaid provisions, it is apparent thatwhenever a police officer has been triedon criminal charges and acquitted, itwould not be permissible for theSuperintendent of Police to re-examinethe truth or otherwise of the findings offacts recorded by the competent court andthe findings recorded by the competentcourt in this regard, have to be taken to befinal. Moreover, departmentalproceedings against a police officer whohas been acquitted on criminal chargescan be conducted only if the findings ofthe court are not inconsistent with the


view that the accused has been guilty ofnegligence or unfit for the discharge ofhis duty within the meaning of Section 7of the Police Act. In other words,departmental proceedings against a policeofficer who has been acquitted can beconducted if the charges leveled in thecriminal case also lead to allegations ofcommitting misconduct by the policeofficer in the discharge of his officialduties. In these backgrounds, submissionof the learned Counsel for the petitionersis that if a police officer is alleged to havecommitted a criminal offence in relationto his work and conduct and he has beenacquitted in the trial for the said criminaloffence on findings which do not amountto exoneration of the charge, departmentalproceedings can be conducted againstsuch a police officer even in respect of theact or omission relating to the saidcriminal offence despite his acquittal bythe criminal court. But, in such a situationalso, the matter has to be referred to theDeputy Inspector General of Police of therange for his permission to conductdepartmental proceedings against thepolice officer concerned.

13. In support of his submissions,Mr. Amit Bose has contended that theaforesaid provisions of Paras 492 and 493of the U.P. Police Regulations came upfor consideration before a Division Benchof this Hon'ble Court in the case of KedarNath Yadav Vs State of U.P. Reported in2005 (3) ESC 1955, wherein it was heldthat the said provisions continued to be inforce despite the enactment of the U.P.Police Officers of the Subordinate Ranks(Punishment and Appeal) Rules, 1991 andwhenever a police officer is tried forhaving committed a criminal offence,departmental proceedings have to awaitthe verdict in the trial as well as the

judicial appeal, if any, filed against thejudgment of conviction. Therefore, inview of the aforesaid provisions of Para492 of the U.P. Police Regulations and inview of the fact that the petitioners hadalready filed Criminal Appeal No. 1853of 2008:Braj Gopal Verma and others Vs.State on 14.08.2008 i.e. within a week ofthe pronouncement of the conviction andsentence of the petitioners and otherpolice officers. Therefore, it wasincumbent on the part of theSuperintendent of Police concerned tohave waited for the outcome of the appealfiled by the petitioners before taking anydisciplinary action against them asmandated by the provisions of Para 492 ofthe U.P. Police Regulations. Thus, theSuperintendent of Police as well asDeputy Inspector General of Policeconcerned, in the instant case, have totallyacted contrary to the provisions of Para492 of the U.P. Police Regulations.

14. Mr. Amit Bose, learned Counselfor the petitioner has submitted that thisCourt, vide judgment and order dated12.5.2005 passed in Writ Petition No.3554 (S/S) of 2004: Girdhari Lal Vs. Stateof U.P. and others, has set aside an orderof dismissal from service passed against apolice officer who was dismissed fromservice on his conviction in a criminalcase on the ground that the appeal againstthe conviction was pending and as suchthe order of dismissal from service wascontrary to the provisions of Para 492 ofthe U.P. Police Regulations.

15. To strengthen his aforesaidcontentions, Mr. Amit Bose has relied uponthe judgment of the Apex Court in State ofU.P. Vs. Babu Ram Upadhya : AIR 1961 SC751, Union of India Vs. Tulsi Ram Patel :1985 (3) SCC 398 and the judgment of this


Court in Dhani Ram Vs. Superintendent ofPolice, Hardoi : 1989 (1) UPLBEC 624, BrijPal Singh Vs. State of U.P. & others (CivilMisc. Writ Petition No. 1344 of 2012,,decided on 10.1.2012), Veer Pal Singh &others Vs. State of U.P. and others (CivilMisc. Writ Petition No. 1917 of 2012,decided on 12.1.2012), Dhirendra KumarTiwari Vs. State of U.P. and others (CivilMisc. Writ Petition No. 2705 of 2012,decided on 16.1.2012), Surendra Singh Vs.State of U.P. & others (writ petition No.1735 (SS) of 2011, decided on 6.1.2012),Vijay Kumar Tiwari Vs. State of U.P. &others (writ petition No. 39 (SS) of 2013,decided on 1.9.2014) and State of U.P. andothers Vs. Vijay Kumar Tiwari (SpecialAppeal Defective No. 71 of 2015).

16. Refuting the submissions of thelearned Counsel for the petitioner, Mrs.Sangeeta Chandra, learned Chief StandingCounsel, assisted by Mr. Badrul Hasan,learned Additional Chief StandingCounsel, has submitted that appropriatedecision has been taken by the competentauthority (the Superintendent of Police,Food Cell, U.P. Police, Lucknow),dismissing the petitioners on the basis oftheir conviction in the criminal case bythe Additional Sessions Judge/Fast TractCourt no.7, Sitapur, under the provisionsof Rule 8 (2) (a) of the Rules 1991. Asregard the conduct of the petitioners,which led to convictions, whileperformance of duty as a Police Officer, itis submitted that the petitioners hadshown false encounter and had murderedthree persons. The petitioners have beenfound to have misused their office as aPolice Officer by the learned Trial Court.This observation is sufficient for thepetitioners to have been dismissed fromservice under Section 8(2) (a) of the Rules1991 and the second proviso to Article

311 (2) of the Constitution of India. Thepetitioners have misused their powers of aPolice Officer. Further the perusal of thejudgment of the learned Trial Court wouldestablish that the conduct of thepetitioners was sufficient for the dismissalfrom service.

17. Mrs. Sangeeta Chandra hassubmitted that the petitioners aregoverned by the specific Rules framed forthem i.e. Rules, 1991, therefore, as thepetitioners have been convicted and notacquitted, the provisions of PoliceRegulations would not be applicable andthe petitioners were rightly dismissedfrom service. There is no prohibition thatthe outcome of appeal is to be waited for.

18. So far as placing reliance uponTulsi Ram Patel (supra) by the Counselfor the petitioner is concerned, learnedCounsel for the State has submitted thatthe second proviso will apply where theconduct of a Government Servant is suchas he deserves the punishment ofdismissal, removal or reduction in rankand if under second proviso, adisciplinary authority comes to know thata Government Servant has been convictedof a criminal charge, his conduct itselfwarranting major penalty, then, theGovernment Servant is not entitled to aninquiry. Mrs. Sangeeta Chandra, on thebasis of observations made in Tulsi RamPatel (supra), has contended that therecannot be any departmental trial or even arudimentary enquiry in case of convictionfollowed by punishment of rigorousimprisonment.

19. It is also submitted that in TulsiRam Patel (supra), the Constitution Benchhas held that under the exclusionaryeffect, the Second Proviso to Article 311


(2), it cannot be said that whileconsidering the facts and circumstances ofeach case, the Disciplinary Authoritymust also hear the delinquent employeeand if he is not heard or given a chance tosatisfy the authority regarding final ordersthat may be passed by it, there would beno consideration and the order would bevitiated. The view taken in DivisionalPersonal Officer Southern Railway Vs.T.R. Challapan : 1976 (3) SCC 190, washeld to be unacceptable. Theconsideration of what penalty should beimposed by the Disciplinary Authorityshould be ex parte and by the authorityitself. It was also held that in case theService Rules provided for giving of aShow-Cause Notice and considering thereply of the delinquent employee, suchRules must be read as directory and notmandatory because if held otherwise, theywould run counter to the exclusionaryeffect of the second proviso to Article311(2). Para 493 (a) provides that in casea police officer is convicted and sentencedto rigorous imprisonment, there shall notbe any departmental trial necessary andthe Superintendent of Police shallordinarily dismiss such an officer and ifhe proposes to do otherwise, then, he mayrefer the matter to the D.I.G. of the Rangestating his reasons clearly. Hersubmission is that para 493 provides forthe same course of action as was beingprovided by sub-clause (a) of secondproviso to Article 311 (2) of theConstitution of India. Further para 493lays down that it shall not be open for theSuperintendent of Police to re-examinethe correctness of the findings of fact inissue when a criminal Court haspronounced upon them and they shall actas a form of departmental res judicata.

20. So far as Kedar Nath Yadav'sand Girdhari Lal's cases relied upon by

the petitioner's counsel is concerned, Mrs.Sangeeta Chandra has submitted that infact para 493 (a) has been replaced byRule 8 (2) (a) of the Rules, 1991, which isin pari materia, with Article 311 (2) ofSecond proviso (a) and, hence, asobserved by the Hon'ble Supreme Courtin Tulsi Ram Patel (supra), theexclusionary effect of Article 311 (2),second proviso would apply with fullforce and no departmental trial shall benecessary in such a case and if para-492provides for the Superintendent of Policeto await the result of criminal appeal filedagainst the judgment of the trial Courtbefore taking departmental action againstsuch an employee, it would beunconstitutional as held by a DivisionBench of this Court in Vijay ShankerTiwari (Supra).

21. Clarifying the position, Mrs.Sangeeta Chandra has vehemently arguedthat since the Division Bench in KedarNath Yadav (Supra) has held that Para-493 of the Police Regulations has notbeen replaced by any corresponding rulein the later Rules of 1991, it cannot besaid to have been impliedly repealed, and,therefore, Regulation 493 (a) would be asbinding upon the State Respondents asRegulation-493(c). Since Para-493(a)clearly provides that no departmental trialshall be necessary if conviction by a trialcourt results in rigorous imprisonment ofmore than 10 years, the same would actagainst the writ petitioners herein, withequal and binding force. A DivisionBench of this Court in the case of VijayShanker Tiwari (supra) on relying uponthe case of Tulsi Ram Patel (supra) hasheld in Paras-10 and 11 thus :-

"10. Regulation 492, however,requires the Superintendent of Police to


await decision of judicial appeal, if any,before deciding this question as towhether department action is necessary.This runs counter to clause (a) of secondproviso to Article 311(2). Supreme Courtin Tulsi Ram Patel's case (supra)" hasheld that neither the Act nor the Rule northe government instructions can alter orliberalise the effect of the second provisoto Article 311(2). In this connectionSupreme Court has laid down as under :

"Service rules may reproduce theprovisions of the second provisoauthorizing the disciplinary authority todispense with the inquiry contemplated byclause (2) ofArticle 311in the three casesmentioned in the second proviso to thatclause or any one or more of them. Such arule, however, cannot be valid andconstitutional without reference to thesecond proviso toArticle 311(2)andcannot be read apart from it. Thus, whilethe source of authority of a particularofficer to act as a disciplinary authorityand to dispense with the inquiry is derivedfrom the service rules, the source of hispower to dispense with the inquiry isderived from the second proviso toArticle311 (2)and not from any service rules.There is a well-established distinctionbetween the source of authority toexercise a power and the source of suchpower."

Supreme Court accordingly, in para122 of its judgment, held that last part ofRule 37 of the CISF Rules which providesfor a notice before imposing penalty ofdismissal to the delinquent governmentservant, would be void as violating thesecond proviso to Article 311(2),"because it would whittle down theexclusionary effect of the secondproviso". Supreme Court, however, didnot declare it ultra vires and treated it asdirectory and not mandatory. The reasons

for treating the Rules which are in conflictwith second proviso to Article 311(2) asdirectory as given by Supreme Court, areas under :

"It is, however, a well-settled rule ofconstruction of statutes that where twointerpretations are possible, one of whichwould preserve and save theconstitutionality of the particular statutoryprovision while the other would render itunconstitutional and void, the one whichsaves and preserves its constitutionalityshould be adopted and the other rejected.Such constitutionality can be preserved byinterpreting that statutory provision asdirectory and not mandatory. It is equallywell-settled that where a statutoryprovision is directory, the courts cannotinterfere to compel the performance orpunish breach of the duty created by suchprovision and disobedience of suchprovision would not entail any invalidity -see Craies on Statute Law, SeventhEdition, at page 229. In such a casebreach of such statutory provisions wouldnot furnish any cause of action or groundof challenge to a government servant forat the very threshold, such cause of actionor ground of challenge would be barredby the second proviso toArticle 311(2)."

11. Regulation 492 whittles down theeffect of clause (a) of second proviso toArticle 311(2) and, therefore, cannotsurvive being in conflict with it. But forthe reasons given by Supreme Court inTulsi Ram Patel's case this Regulation canbe saved by treating it directory and notmandatory. Regulation 492 is therefore,declared directory only."

22. To strengthen her aforesaidsubmissions, Mrs. Sangeeta Chandra hasrelied upon Deputy Director of CollegiateEducation (Administration) Madras Vs. S.Nagoor Meera: 1995 (3) SCC 377, Union


of India Vs. V.K. Bhaskar : 1997 (11)SCC 383, Karam Singh Vs. State ofPunjab : 1996 SCC (L&S) 668, Union ofIndia and others Vs. Ramesh Kumar :1997 (7) SCC 514, Rama Narang Vs.Ramesh Narang : 1995 (2) SCC 573 andGovernment of Andhra Pradesh &another Vs. B. Jagjeevan Rao : 2014 (13)SCC 239.

23. I have heard learned Counsel forthe parties and perused the record.

24. It is not in dispute that the orderof dismissal has been passed afterdispensing with the enquiry to beconducted against the petitioners underclause (a) of the Second Proviso to Article311 (2) of the Constitution of India readwith Rule 8 (2) (a) of Rule, 1991.Therefore, in order to appreciate the rivalsubmissions of the learned Counsel forthe parties, this Court deem it appropriateto reproduce Article 311 of theConstitution of India as well as Rule 8 (2)(a) of Rule, 1991, which are as under :

"311. Dismissal, removal orreduction in rank of persons employed incivil capacities under the Union or aState-

(1) No person who is a member of acivil service of the Union or an all Indiaservice or a civil service of a State orholds a civil post under the Union or aState shall be dismissed or removed by aauthority subordinate to that by which hewas appointed

(2) No such person as aforesaid shallbe dismissed or removed or reduced inrank except after an inquiry in which hehas been informed of the charges againsthim and given a reasonable opportunity ofbeing heard in respect of those charges.

Provided that where it is proposedafter such inquiry, to impose upon him

any such penalty, such penalty may beimposed on the basis of the evidenceadduced during such inquiry and it shallnot be necessary to give such person anyopportunity of making representation onthe penalty proposed:

Provided further that this clause shallnot apply

(a) where a person is dismissed orremoved or reduced in rank on the groundof conduct which has led to his convictionon a criminal charge; or

(b) where the authority empoweredto dismiss or remove a person or to reducehim in rank ins satisfied that for somereason, to be recorded by that authority inwriting, it is not reasonably practicable tohold such inquiry; or

(c) Where the President or theGovernor, as the case may be, is satisfiedthat in the interest of the security of theState, it is not expedient to hold suchinquiry

(3) If, in respect of any such personas aforesaid, a question arises whether itis reasonably practicable to hold suchinquiry as is referred to in clause ( 2 ), thedecision thereon of the authorityempowered to dismiss or remove suchperson or to reduce him in rank shall befinal."

"8. Dismissal and removal - (2) NoPolice Officer shall be dismissed,removed or reduced in rank except afterproper inquiry and disciplinaryproceedings as contemplated by theserules:

Provided that this rule shall notapply-

(a) Where a person is dismissed orremoved or reduced in rank on the groundof conduct which has led to his convictionon a criminal charge; or

(b) Where the authority empoweredto dismiss or remove a person or to reduce


him in rank is satisfied that for somereason to be recorded by that authority inwriting, it is not reasonably practicable tohold such enquiry; or

(c) Where the Government issatisfied that in the interest of the securityof the State, it is not expedient to holdsuch enquiry."

25. Clause (2) of Article 311 of theConstitution provides inter alia that noperson who is a member of a civil serviceof the Union or of a State shall bedismissed, removed or reduced in rankexcept after an inquiry in which he hadbeen informed of the charges against himand has been given a reasonableopportunity of being heard in respect ofthose charges. However, clause (a) of thesecond proviso provides that clause (2)shall not apply where a person isdismissed or removed or reduced in rankon the ground of conduct which has led tohis conviction on a criminal charge.

26. Undisputed facts are that thepetitioners were named in a criminal caseregistered under Sections147/148/149/342/ 201/302/201/120-B ofIndian Penal Code read with Section 25 ofthe Arms Act. Learned AdditionalSessions Judge/Fast Track Court, Sitapur,sentenced all the convicted personsincluding the petitioners to lifeimprisonment and fine of Rs.5000/- forthe offence under Section 302 I.P.C., torigorous imprisonment for one year forthe offences under Sections 147/148I.P.C. and to two years rigorousimprisonment for the offence underSection 218 I.P.C. Immediately thereafter,all the convicted persons including thepetitioners were taken in custody andlodged in District Jail, Sitapur with effectfrom 7.8.2008. On knowing the

conviction of the petitioners in a heinousoffence i.e. under Section 302 I.P.C., theDisciplinary Authority have dismissed theservices of the petitioners.

27. Sri Amit Bose, learned Counselfor the petitioners has argued that he isnot disputing the power under Article311(2) second proviso (a) or Rule 8(2)(a)or even Para 493 (a) of the PoliceRegulations but his submission was thatthese provisions could be applied andshould be applied, only after decision incriminal appeal and there should bepostponement of the order of dismissal,till decision in appeal.

28. Regulations 492 and 493 areextracted as under:

"492. Whenever a police officer hasbeen Judicially tried, the Superintendentmust await the decision of the judicialappeal, if any, before deciding whetherfurther departmental action is necessary.

493. It will not be permissible for theSuperintendent of Police in the course ofa departmental proceeding against aPolice Officer who has been triedjudicially to re-examine the truth of anyfacts in issue at his judicial trial, and thefinding of the Court on these facts mustbe taken as final.

Thus, (a) if the accused has beenconvicted and sentenced to rigorousimprisonment, no departmental trial willbe necessary, as the fact that he has beenfound deserving of rigorous imprisonmentmust be taken as conclusively proving hisunfitness for the discharge of his dutywithin the meaning ofSection 7of thePolice Act. In such cases theSuperintendent of Police will withoutfurther proceedings ordinarily pass anorder of dismissal, obtaining the formal


order of the Deputy Inspector Generalwhen necessary under paragraph 479 (a).Should he wish to do otherwise he mustrefer the matter to the Deputy InspectorGeneral of the range for orders.

(b) If the accused has been convictedbut sentenced to a punishment less than ofrigorous imprisonment a departmentaltrial will be necessary, if further action isthought desirable, but the question inissue at this trial will be merely (1)whether the offence of which the accusedhas been convicted amounts to an offenceunderSection 7of the Police Act, (2) if so,what punishment should be imposed. Insuch cases the Superintendent of Policewill (i) call upon the accused to showcause why any particular penalty shouldnot be inflicted on him (ii) recordanything the accused Officers has to urgeagainst such penalty without allowing himto dispute the findings of the Court, and(iii) write a finding and order in theordinary way dealing with any plea raisedby the accused officers which is relevantto (1) and (2) above.

(c) If the accused has been judiciallyacquitted or discharged, and the period forfiling an appeal has elapsed and/or noappeal has been filed the Superintendent ofPolice must at once reinstate him if he hasbeen suspended; but should the findings ofthe Court not be inconsistent with the viewthat the accused has been guilty ofnegligence in, or unfitness for, the dischargeof his duty within the meaning ofSection7of the Police Act, the Superintendent ofPolice may refer the matter to the DeputyInspector General and ask for permission totry the accused departmentally for suchnegligence or unfitness."

29. It is pertinent to mention here thatwhen the Police Regulations were framed,the British ruled the country and the Police

was utilized as an instrument for oppressionand suppression of native population and toperpetuate foreign rule. The conditions arenow different as India is independent and,therefore, the Police Regulations, which hadbeen framed before Independence and in thewake of Revolt of 1857, with the intent ofprotecting and preserving the police powersare no longer to be treated as having bindingand statutory force. A Division Bench ofthis Court in the case of Nurul Hasan v.Senior Superintendent of Police, Lucknow :1985 (3) LCD 208 observed that theconditions have changed since the timewhen the Police Regulations were famedand the State Government shouldimmediately consider the question ofamending the Police Regulations. It wasobserved in Para 51 :-

"It is now well known that thestandard of discipline in the police forcehas deteriorated and the police personnelwho are entrusted with the task ofmaintaining law & order, have beenfound, times out of number to be lawbreakers and involved in commission ofserious cognizable offence but on accountof limited scope of the provisions of Para496 of the Police Regulations immediateaction by way of suspension cannot betaken against them even though thesituation as also the gravity of the offencemight require immediate suspension .. "

30. Taking into account theobservations made in the case of NurulHasan (supra), the U.P. Police Officers ofSubordinate Rank (Punishment & Appeal)Rules, 1991 were framed in which thePreamble of the Rules itself mentioned asfollows :-

"In exercise of powers under Sub-sections (2) and (3) of Section 46 read


with Sections 2 and 7 of the Police Act,1861 (Act No. 5 of 1861) and all otherpower enabling him in this behalf and insupersession of all existing rules issued inthis behalf, the Governor is pleased tomake the following rules with a view toregulating the departmental proceedings,punishment and appeals of the PoliceOfficers of the subordinate ranks of theUttar Pradesh Force."

31. The Police Regulations havebeen issued as executiveinstructions/orders and not all of themhave been considered to be binding or tohave statutory force. However, ChapterXXXII of the Police Regulations has beenheld by the Hon'ble Supreme Court in thecase of Babu Ram Upadhyaya (supra) tobe a result of an exercise of StatutoryRule making powers contained in Section7 of the Police Act 1861. The Rules of1991 stand on a higher footing in thehierarchy of statutory laws as has beenheld by a Full Bench decision in the caseof R.B. Dixit v. Union of India & others :2005 (1) UPLBEC 83, wherein theHon'ble Full Bench relied upon the caseof Smart Chip v. State of U.P.: 2002 (49)ALR 419 observed that in every legalsystem there was a hierarchy of norms. Inthe Indian Legal system, this hierarchyhas the Constitution of India at the top,the statutory laws/enactments made by theParliament or the State Legislature andthereafter delegated legislation, whichmay be either in the form ofRules/Regulations made under such Actsfollowed by executive instructions orGovernment Orders. In the case of aconflict between the higher law and alower law, the higher law will prevail.Therefore, the Regulations being lower inthe hierarchy than Rules and the Rulesbeing framed in supersession of all

existing laws/statutory provisions made inthis behalf (made with respect todepartmental action against thesubordinate police officers). The Rule of1991 would prevail particularly when thelanguage of Rule 8(2)(a) is pari materiawith the language of the ConstitutionArticle 311 (2) Second proviso Clause (a).

32. On perusal of Scheme ofChapter-XXXII, it is evident that aproceeding against a police officer willconsist of a magisterial or police inquiryfollowed if this inquiry shows the needfor further action by a judicial trial ordepartmental trial or both consecutively,but at the same time under Para-489 of thePolice Regulations, it is provided thatPolice Officer may be departmentallytried under Section 7 of the Police Actafter he has been tried judicially; or after amagisterial inquiry under Cr.P.C. or aftera police investigation under Cr.P.C. or adepartmental inquiry, where the offense isonly an offense under Section 7 or a non-cognizable offense of which theSuperintendent of Police considers itunnecessary at that stage to forward areport in writing to the DistrictMagistrate. The scheme of theRegulations themselves describe that aproceeding against the police officerconsists of three components; it may be amagisterial or a police inquiry followedby a judicial trial or a departmental trial,or both consecutively, but at the sametime says that no departmental trial willbe necessary if the judicial trial results inconviction and punishment of rigorousimprisonment, where the Superintendentof Police shall ordinarily dismiss thepolice officer concerned having beenproved in judicial trial to be unfit toremain a police officer and in case hewishes to do otherwise, then the matter


shall be referred by him to D.I.G. of theRange. The intention of the PoliceRegulations at the time when they wereframed was to protect to Police Officersas India before independence was a PoliceState. After independence, thecircumstances have changed and a greatdeal of water has flowed down the river.Article 311(2) (a) of the Constitutionclearly lays down that reasonableopportunity of hearing / disciplinaryproceedings are unnecessary where aperson is dismissed or removed orreduced in rank on the ground of conductwhich has led to his conviction on acriminal charge. The Rule 8 (2) (a) ofU.P. Police Officers of Subordinate Rank(Discipline & Appeal) Rules is also parimateria and cast in the same language asthat of the Constitution which means thatin case of conviction on a criminal charge,the misconduct which led to the saidconviction may result in major penaltywithout the necessity of holdingdepartmental proceedings.

33. Mrs. Sangeeta Chandra, learnedChief Standing Counsel has relied upontwo Division Benches orders passed bythis Court in the case of State of U.P. v.Uday Narayan Sachan (Writ Petition No.662 (S/B) of 2015 decided on 14.05.2015)and in Vijay Prakash Srivastava v. Stateof U.P. & others (Special Appeal No. 99of 2014 decided on 21.02.2014). In thecase of Vijay Prakash Srivastava's case,the grievance of the appellants was thatthe Disciplinary Authority is required toconsider the conduct of the employee,which led to his conviction on a criminalcharge and mere conviction would not besufficient to justify the order of dismissal.The Division Bench, relying upon thecase of S. Nagoormeera, came to theconclusion that to await the decision of

the appeal against conviction would notbe advisable since it would meancontinuing in service a person who hasbeen convicted of a serious offence by acriminal court. Since the delinquentemployee had been convicted for anoffence under Section 302 I.P.C. readwith Section 34 of I.P.C., the conductwhich led to conviction was heldsufficient for passing an order ofdismissal, the mere pendency of theappeal would not operate to stay theconviction.

34. In the case of Uday NarayanSachan (supra), the respondent had beenconvicted under Section 302 read withSection 34 of the I.P.C. and Section3(2)(V) of the S.C./S.T. Act by theAdditional Sessions Judge, Fatehpur.Reliance was placed on the judgment ofconviction passed by the criminal courtand the police constable was dismissedfrom service in exercise of powers underRule 8 of the Rule of 1991. The LearnedTribunal had placed reliance upon theRegulation 492 and a judgment renderedby Hon'ble Single Judge in the case ofVijay Prasad Pandey v. State of U.P. &others : 1998 (1) AWC 636 in coming tothe conclusion that since the appeal hadbeen filed in which there was a stay onthe execution of the sentence withoutsuspending the conviction of the firstrespondent, under Para-492, theSuperintendent of Police had to await thedecision in the appeal before taking anydepartmental action including that ofdismissal. The Hon'ble Division Benchconsidered Rule-8 of the Rules of 1991and also a judgment rendered by it in thecase of State of U.P. & others v. PremMilan Tiwari - 2015 (3) ADJ 407 andcame to the conclusion that suspension ofexecution of sentence in appeal or mere


pendency of appeal cannot be held to be asufficient ground for taking action underPara-493(a).

35. In the case of Prem Milan Tiwari(supra), the Division Bench consideredRule-8 of the Rules of 1991, the case ofTulsi Ram Patel (supra) and Shanker Das- 1985 (2) SCC 358 and S. Nagoormeera(supra) and B. Jagjeevan Rao - 2014 (13)SCC 239 and the Hon'ble Division Benchobserved as follows :

"11. We are of the view that theprinciple of law which has been laid downby the Supreme Court in the decision in S.Nagoor Meera and recently in B.Jagjeevan Rao's case, (supra) must governthe facts of the present case. Therespondent was a constable in the policeand was convicted of a heinous crimepunishable under Section 302 of the PenalCode read with Sections 120B and 149.Can the State be compelled or required totake back in service such a person,pending the disposal of the appeal ?Plainly not. The learned counselappearing on behalf of the respondentsought to distinguish those two decisionson the ground that the employee had beenconvicted of offences under thePrevention of Corruption Act 1988 wherethe conduct had a direct bearing on theservice of the employee as an officer ofthe State. In our view, this would notmake any difference to the construction ofclause (a) of the second proviso to Article311. What clause (a) of the secondproviso does is to stipulate that therequirement of clause (2) of holding aninquiry consistent with the principles ofnatural justice would not apply where aperson is dismissed, removed or reducedin rank on the ground of conduct whichhad led to his conviction on a criminal

charge. In the present case, the respondentwas a constable in the police. He wasfound guilty after a session's trial of anoffence punishable under Section 302read with Section 120B of the PenalCode. In such a case, clause (a) of thesecond proviso to Article 311 (2) wouldclearly stand attracted. The State cannotbe regarded as having acted withperversity in dismissing a person who hasbeen convicted of a serious offence of thenature involved in pursuance of theprovisions of the second proviso toArticle 311 (2) and, as in the present case,under Rule 8(2)(a) which is pari materia.The learned Single Judge, with respect,was in error in holding that there was noapplication of mind to the conduct whichhas led to the conviction. The conduct ofthe respondent which 9 has led to theconviction of a charge under Section 302cannot, by any circumstance, be regardedas warranting any treatment other than thepunishment of dismissal under clause (a)of the second proviso to Article 311 (2) orunder Rule 8(2)(a). Ultimately, as hasbeen held by the Supreme Court until theconviction is set aside by an appellate orhigher court, it would not be advisable toretain such a person in service. If hesucceeds in the appeal or in any otherproceeding, the matter can always bereviewed in such a manner that he wouldnot suffer any prejudice."

36. Insofar as Para 493(a) of the PoliceRegulations is concerned, no judgment hasbeen cited by the Learned Counsel for thePetitioner except the judgment rendered inthe case of Vijay Prasad Pandey v. State ofU.P. & others - 1998 (1) AWC 636, ajudgment rendered by Hon'ble Mr. JusticeAlok Chakraborty (as he then was). The saidjudgment of Vijay Prasad Pandey's case hasbeen considered by a Division Bench of this


Court in the case of State of U.P. v. UdayNarayan Sachan (Writ Petition No.662/2015) and the said judgment has beendistinguished on the ground of later law assettled by the Hon'ble Supreme Court in thecase of B. Jagjeewan Rao (supra). Thus, inmy opinion, it can safely be said that thePolice Regulations 492 applies only in caseswhere departmental proceedings arenecessarily to be undertaken (where criminaltrial results either in acquittal or minorpenalty/fine). Para-493(a) on the other handis completely in sinc with the Article 311(2)second proviso clause (a) of the Constitutionof India, and it is not necessary to hold adepartmental proceedings at all in such cases.

37. Mrs. Sangeeta Chandra, learnedChief Standing Counsel has also relied uponthree judgments rendered by three Hon'bleSingle Judges in the case of Daman Singh v.Secretary/ G.M., District Cooperative BanksLtd., Kanpur and others - 2008 (10) ADJ612, Naresh Pratap Singh v. State of U.P. &another : 2002 (49) ALR 331 and WritPetition No. 3103 (S/S) of 2009 (BrijeshSingh v. State of U.P. & others) wherein theHon'ble Single Judges were consideringsimilar controversy where an employee waspunished on the basis of misconduct, whichled to his conviction and the Hon'ble Courtrelied upon the case of S. Nagoor Meera tohold that merely because appeal was pendingagainst the order of the trial court and theexecution of the sentence had beensuspended, it cannot be said that, punishmentorder cannot be passed by the disciplinaryauthority. If and when the appeal againstconviction was allowed, the delinquentemployee can seek review of the decisionpassed by the disciplinary authority.

38. Mrs. Chandra has also reliedupon the judgments rendered by theHon'ble Supreme Court in the following

cases to argue that if two interpretationsare possible, an interpretation which leadsto inconsistency and absurdity must beavoided, the judgments which have beencited are :-

1. Holmes v. Bradfield Rural DistrictCouncil - 1949 All England Law Reports381.

2. Shamarao V. Parulekar v. DistrictMagistrate, Thana, Bombay and 2 others -1952 SCR 683.

3. N.T. Veluswami Thevar v. RajaNainar and others - AIR 1959 SC 422.

4. D. Saibaba v. Bar Council of Indiaand others - (2003) 6 SCC 186.

39. In the case of Holmes v.Bradfield Rural District Council (supra),the King's Bench Division wasconsidering the case where the claimant, abuilder claimed compensation under theTown and Country Planning (InterimDevelopment Act, 1943) from the localplanning authority for expenditureincurred on work rendered abortive by therevocation of permission fordevelopment. The issue was whethercompensation was recoverable in respectof professional work (the preparation ofplan) although no building operation hadbeen carried out on the site and althoughthe plan had been prepared before thewithdrawal of permission for the samedevelopment. The Court held thatcompensation was payable and rejectedthe contention of the Counsel for theRural District Council that only whensome kind of physical work is done on thesite can one add the expenditure incurredin making the plans for that work. If theorder revoking the permission is madebefore any physical work has been doneon the land, one cannot be compensatedfor the expenditure made on plan having


been prepared in contemplation of thework. Regarding this argument, theHon'ble Division Bench observed thus :-

"That would lead, as it seems to thecourt, to a very unfortunate and absurdposition, for it would mean that a manwho has prepared plans and has done amere hour's work on the site is entitled tocompensation for the preparation of theplans, while another man who has hadsimilar plans prepared and incurred thesame expense, but has not actually startedthe work on the site, is not entitled toinclude the cost of the plans in "theexpenditure incurred in carrying out" thework. The mere fact that the results of astatute may be unjust or absurd does notentitle this court to refuse to give it effect,but, if there are two differentinterpretations of the words in an Act, thecourt will adopt that which is just,reasonable and sensible rather than thatwhich is none of those things. We can seenothing inappropriate in applying thewords in s. 7 (3), "shall be deemed to beincluded in the expenditure incurred incarrying out that work," to plans whichhave been made, even though the physicalwork has not been started. The sub-section does not say that the expenditureon plans is necessarily to be added tosomething else, or can only be included inthe expenditure incurred in carrying outthe work if there are other items to beincluded with them. Part of theexpenditure incurred in carrying out thework is incurred in the preparation ofplans, and, in the opinion of this court, thereasonable interpretation of the words ofthe sub-section is that, if plans areprepared for the purpose of carrying outwork for which permission issubsequently given, and that permission isrevoked before the actual building work

has been begun the expenditure incurredon those plans is to be "deemed to beincluded in the expenditure incurred incarrying out that work."."

40. In the case of N.T. VeluswamiThevar v. Raja Nainar (supra), theHon'ble Supreme Court was considering,the scope of an inquiry in an electionpetition wherein election was called inquestion under Section 100(1)(c) of theRepresentation of People Act, 1951, onthe ground that a nomination paper hadbeen improperly rejected. The question ofinterpretation of the expression"improperly rejected" was beingconsidered, the Hon'ble Court in Para-13observed that a candidate may be subjectto more than one disqualification and hisnomination paper may be questioned onall those grounds and supposing theReturning Officer upheld one objectionand rejected the nomination paper on thebasis of that objection alone withoutgoing into other objections, was it openfor the respondents in the election petitionto adduce evidence on other objectionsalso? If it was not open then the resultwould be anomalous. The Hon'ble Courtobserved "......It is no doubt true that if onits true construction, a statute leads toanomalous results, the Courts have nooption but to give effect to it and leave itto the legislature to amend and alter thelaw. But when on a construction of astatute, two views are possible, one whichresults in an anomaly and the other not, itis our duty to adopt the latter and not theformer, seeking consolation in the thoughtthat the law bristles with anomalies......"

41. In the case of Shamarao V.Parulekar v. District Magistrate, Thana,Bombay and 2 others (supra), the Hon'bleSupreme Court observed thus at page 690


: "......It is the duty of Courts to give effectto the meaning of an Act when themeaning can be fairly gathered from thewords used, that is to say, if oneconstruction will lead to an absurditywhile another will give effect to whatcommon sense would show wasobviously intended, the constructionwhich would defeat the ends of the Actmust be rejected even if the same wordsused in the same section, and even thesame sentence, have to be construeddifferently. Indeed, the law goes so far asto require the Courts sometimes even tomodify the grammatical and ordinarysense of the words if by doing soabsurdity and inconsistency can beavoided. (See the speech of Lord Wens-leydale in Grey v. Pearson (1) quoted withapproval by the Privy Council inNarayanaSwami v. Emperor(2); also Salmon v.Duncombe(3).) The rule is also set out inthe text books: See Maxwell on theInterpretation of Statutes, 9th edition,page 236, and Craies on Statute Law, 5thedition, pages 89 to 93. ........"

42. In the case of D. Saibaba v. BarCouncil of India and others (supra), theHon'ble Supreme Court placing relianceupon Justice G.P. Singh's TreatisePrinciples of Statutory Interpretations"observed thus:

"16. Placing such a construction, aswe propose to, on the provision ofSection48AAis permitted by well settledprinciples of interpretation. Justice G.P.Singh states in Principles of StatutoryInterpretation (Eighth Edition, 2001),

"It may look somewhat paradoxicalthat plain meaning rule is not plain andrequires some explanation. The rule, thatplain words require no construction, startswith the premise that the words are plain,

which is itself a conclusion reached afterconstruing the words. It is not possible todecide whether certain words are plain orambiguous unless they are studied in theircontext and construed." (p.45)

The rule of literal interpretation isalso not to be read literally. Suchflexibility to the rule has to be attributedas is attributable to the English languageitself.

17. The learned author states again:"In selecting out of different

interpretations 'the court will adopt thatwhich is just, reasonable and sensiblerather than that which is none of thosethings' as it may be presumed 'that theLegislature should have used the word inthat interpretation which least offends oursense of justice'. (p.113, ibid)

"The courts strongly lean against aconstruction which reduces the statute to afutility. A statute or any enactingprovision therein must be so construed asto make it effective and operative 'on theprinciple expressed in the maxim: ut resmagis valeat quam pereat'." (p.36, ibid)

"If the language used is capable ofbearing more than one construction, inselecting the true meaning regard must behad to the consequences resulting fromadopting the alternative constructions. Aconstruction that results in hardship,serious inconvenience, injustice, absurdityor anomaly or which leads toinconsistency or uncertainty and frictionin the system which the statute purports toregulate has to be rejected and preferenceshould be given to that construction whichavoids such results."(pp.112-113, ibid).

18. Reading word for word andassigning a literal meaning toSection48AAwould lead to absurdity, futility andto such consequences as the Parliamentcould have never intended. The provisionhas an ambiguity and is capable of being


read in more ways than one. We must,therefore, assign the provision a meaning__ and so read it __ as would give life toan otherwise lifeless letter and enable thepower of review conferred thereby beingmeaningfully availed and effectivelyexercised."

43. Smt. Chandra also argued thatwhere two interpretations are possible andthe Hon'ble Courts have to decide whethera provision is mandatory or directory, ajust approach would be to consider whatis conducive to public policy. Smt.Chandra relied upon the case of IndianFinancial Association of Seventh DayAdventists v. M.A. Unneerikutty andanother - (2006) 6 SCC 351, paras 9, 11to 14 and 17 to 19 were cited of whichonly a few are being cited herein below :-

"9. Learned counsel for the appellantquestioned correctness of the judgmentrendered by the Division Bench on theground that the agreements were pre-planned and executed simultaneously asone integrated inseverable transaction.Stamp papers were purchased on the sameday. The defendant No. 2 though anemployee of the appellant No.1 Institutionwas a party to the illegal transaction.Obvious intention was to declare only thereduced amount of Rs.5 lakhs as theapparent sale price and to pay Rs.3 lakhsas uncounted money. In the meantime tohave hold on each other anotheragreement was prepared declaring theactual price of Rs.8 lakhs. It was furtherurged thatSection 23read withSection24of the Contract Act rendered theagreements void. The High Court shouldhave noted that the agreements wereimmoral or opposed to public policy. Thisis the essence ofSection 23of the ContractAct. Similarly,Section 24postulates that

the agreement would be void if theconsiderations and the object are unlawfulin part. Closing down a well-runningschool managed by dedicatedmissionaries and closing a functionalchurch would cause comparatively morehardships as against the specificperformance of a tainted transaction.Same cannot be enforced in a suit forspecific performance of contract.

10. ..........11. Principles relating to

enforcement of a tainted transaction havebeen dealt with by this Court in variouscases.

12.......13. ,...14. ......15. .....16.....17. The term 'public policy has an

entirely different and more extensivemeaning from the policy of the law.Winfield defined it as a principle ofjudicial legislation or interpretationfounded on the current needs of thecommunity. It does not remain static inany given community and varies fromgeneration to generation. Judges, astrusted interpreters of the law, have tointerpret it. While doing so precedentswill also guide them to a substantialextent.

18. .......19. The doctrine of public policy

may be summarized thus:"Public policy or the policy of the

law is an illusive concept: it has beendescribed as "untrustworthy guide"."variable quality", "uncertain one","unruly house", etc., the primary duty of aCourt of a law is to enforce a promisewhich the parties have made and touphold the sanctity of contract whichform the basis of society, but in certain


cases, the Court may relieve them of theirduty on a rule founded on what is calledthe public policy, but the doctrine isextended not only to harmful cases butalso to harmful tendencies. This doctrineof public policy is only a branch ofcommon law, and just like any otherbranch of common law it is governed byprecedents. The principles have beencrystallized under different heads andthough it is permissible for Courts toexpound and apply them to differentsituations, it should only be invoked inclear and incontestable cases of harm tothe public."

44. The Police Regulations Para 493as a whole has been held in the case ofKedar Nath Yadav (supra) to have notbeen replaced by the 1991 Rules and 493-a is as binding upon the DisciplinaryAuthority as 493-c. In the case of KedarNath Yadav, the Hon'ble Division Benchwas considering the Para 493-c andsimilarly in the case of Dhani Ram(surpa) and in the case of Vijay PrakashTiwari (Special Appeal (D) No. 71/2015)also clause (c) of Para 493 of the PoliceRegulations was under consideration. TheHon'ble Court held Para 493, Clause (c) tobe binding and it was held that in thecourse of departmental proceedingsagainst a Police Officer, who has alreadybeen judicially tried, it was not open tothe Appointing Authority to re-examinethe truth of any facts in issue at hisjudicial trial and the finding of the courton these facts must be taken as final.

45. In the present case, obviously, thepetitioners have been convicted because oftheir role in the crime. It is difficult to fathomthat any other view of the matter could havebeen taken by the disciplinary authority onconsideration of the conduct of the petitioners

which had led to their conviction, than, theirremoval from service. It is not a case where alesser punishment than removal from servicecould have been awarded. However, even ifthe version of the petitioner is accepted on itsface value, in view of the facts of the presentcase and considering the seriousness of thecriminal offence for which the petitionershave been convicted, in my view, it is not acase where the disciplinary authority couldhave taken any other view of the matter evenif an opportunity of hearing was given to thepetitioners. Thus, it would have been anempty formality, therefore, no prejudice hasbeen caused to them. Principles of naturaljustice are not like an unruly horse. Theirapplication depends upon the facts of a caseand not in a factual vacuum. Moreover, it isalso trite that even if there has been violationof the principles of natural justice, this Courtunder Article 226 of the Constitution of Indiais not bound to interfere in exercise of itsextraordinary jurisdiction because by doing soit would be restoring an illegality.

46. A person convicted under Section302 of the Indian Penal Code should not bereinstated in service till he is absolved inappeal. Therefore, doing so on the plea ofviolation of proviso to Rule 14 (iii) of theRules would amount to bringing to lifeanother illegality, and would do more harmthan good. Reference may be made in thisregard to the judgments of Supreme Courtreported in the case of M. C. Mehta Vs.Union of India, reported in (1999) 6 SCC237, and State of Maharashtra Vs. Prashu,reported in (1994) 2 SCC 481. Except for thewrit of habeas corpus and cases involvingviolation of fundamental rights invocation ofthe writ jurisdiction under Article 226 is notas a matter of right but discretionary.

47. Thus, I am of the view thatconsidering the conviction of the

3 All. Union of India & Anr. Vs. The State of U.P. & Ors. 1431

petitioner under Section 302 IPC, givingof notice would have been an emptyformality, therefore, no prejudice hasbeen caused to the petitioners.

48. For the reasons aforesaid, thisCourt is of the considered opinion thatmerely because appeal was pending againstthe order of the trial court and the executionof the sentence had been suspended, it cannotbe said that, punishment order cannot bepassed by the disciplinary authority. If andwhen the appeal against conviction isallowed, the delinquent employee can seekreview of the decision passed by thedisciplinary authority. Thus, this Courtdeclines to exercise its discretionaryjurisdiction under Article 226 of theConstitution of India in favour of thepetitioners as this Court do not find any validground to interfere with the impugned orders.

49. Accordingly, the writ petitionsfiled by the petitioners being devoid ofmerits, are hereby dismissed.

50. Costs easy--------


DATED: ALLAHABAD 07.12.2015

BEFORETHE HON'BLE ARUN TANDON, J.THE HON'BLE HARSH KUMAR, J.

Writ Tax No. 101 of 2012

Union of India & Anr. ...PetitionersVersus

State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Vivek Singh, Tarun Varma

Counsel for the Respondents:C.S.C., B.P. Singh, Vivek Verma

Constitution of India, Art.-285-Demand ofService Tax-by Municipal CorporationVaranasi-unless exempted by CentralGovernment-Service Tax can not beavoided-in view of Apex Court judgment incase of Rajkot municipal corporation as wellas Union of India case-petitioner to depositentire amount within one month-theSecretary Nagar Vikas Sansthan toconstitute mediation committee.

Held: Para-10Having heard learned counsel for theparties and examined the record of thepresent writ petition, we are of theconsidered opinion that as on date, thelaw as explained by the Apex Court inthe case of Union of India and others Vs.State of U.P. and others 2007 (11) SCC324 and that laid down in the case ofRajkot Municipal Corporation Vs. Unionof India (Supra), stands on record. Thepetitioner railways cannot avoid theliability of payment of service charges,however, no property tax can be leviedupon the property of the Railways.

Case Law discussed:2010-CALHN (SC)-3-168; 2007 (11) SCC 324

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri Tarun Verma, learnedSpecial Counsel on behalf of petitionersand learned Standing Counsel for theState-respondents.

2. The Union of India throughDivisional Railway Manager, NorthEastern Railway, Varanasi, and theDivisional Railway Manager, NorthEastern Railway, Varanasi, as petitionernos. 1 and 2, have approached this Courtagainst the demand of service chargesraised by Nagar Nigam, Varanasi videnotices issued in December, 2011, whichbears the subject "regarding payment ofhouse tax" on property C-33/9-R. TheNagar Nigam, Varanasi has demanded an


amount of Rs.2, 22, 37, 185/- as arrears ofbalance tax, surcharge and the currentdemand.

3. In Rajkot Municipal Corporationvs. Union of India 2010-CALHN (SC)-3-168 decided on 19.11.2009, the SupremeCourt, while hearing an appeal against thejudgment of Gujarat High Court, bywhich the High Court had quashed all thedemands raised by the MunicipalCorporation against the properties of theCentral Government imposing propertytaxes on the ground that under Article 285(1) of Constitution of India, no suchdemand can be raised by the StateGovernment against the CentralGovernment, held as follows:-

"(4) Article 285 of the Constitutionprovides that:

(1) The property of the Union shall,save in so far as Parliament may by lawotherwise provide, be exempt from alltaxes imposed by a State or by anyauthority within a State.

(2) Nothing in clause ( 1 ) shall, untilParliament by law otherwise provides,prevent any authority within a State fromlevying any tax on any property of theUnion to which such property wasimmediately before the commencement ofthis Constitution is liable or treated asliable, so long as that tax continues to belevied in that State.

(5) In Union of India and ors, vs.State of Uttar Pradesh and ors, 2007 (11)SCC 324, this Court upheld the decisionof the High Court that charges for supplyof water or for other services renderedunder any statutory obligation, is a feeand not tax. It was held that the Union ofIndia was liable to pay such charges andshould honour the bills served in thatbehalf. Referring to Section 52 of the U.P.

Water Supply and Sewerage Act, 1975, itwas held that the charges were looselytermed as "tax", that the nomenclaturewas not important and what was chargedis a fee for the supply of water as well asmaintenance of the sewerage system, andsuch service charges are to be consideredas a fee and were not hit by Article 285 ofthe Constitution. It was further made clearthat what was exempted by Article 285was a tax on the property of Union ofIndia but not a charge for service whichwere being rendered in the nature of watersupply or for maintenance of seweragesystem.

(6) When these appeals were earlierlisted for hearing, both sides agreed that theywill attempt a broad consensus on severalpending issues and narrow down the areas ofcontroversy and agree for a disputeresolution mechanism. We are told that inpursuance of it, discussions were held amongvarious departments of the Government ofIndia with the Department of UrbanDevelopment. In pursuance of it, an affidavitdated 9.4.2009 has been filed on behalf ofUnion of India crystallizing its stand onvarious issues. Union of India has nowagreed in principle for the following: (i) It isliable to pay service charges to the municipalcorporations for providing services likesupply of water, conservancy/seweragedisposal, apart from general services likeapproach roads with street lights, drains etc.(ii) It will pay service charges to theMunicipal Corporations, for the services, asstated in its circulars dated 10.5.1954,29.3.1967, 25.5.1976 and 26.8.1986, but willnot pay any taxes. (iii) Having regard to thefact that only service like supply of watercould be metered and other services likedrainage, solid waste management/approachroads, street lighting etc., could not bemetered, the percentage of property tax willbe worked out as service charges, on the


basis of instructions issued by the Ministry ofFinance. (iv) The concerned Ministry of theUnion to which the property belongs willenter into separate contracts with therespective municipal corporation for supplyof services and payment of service chargesand pay the bills for annual service chargesregularly. (v) Union of India and itsdepartments will periodically review thearrangements with the respective municipalcorporations, as suggested by its advisorycommittees and make modifications orrevisions in the rates of service charges. (vi)Whenever properties of State Governmentare exempted, such exemption shall apply toproperties of Central Government also.Under no circumstances, the service chargespayable by the Union of India will be morethan the service charges paid by the StateGovernment, (vii) The arrangement will notaffect the legal rights conferred by theappropriate laws, in regard to any propertyheld by the union.

(7) The Union of India has alsostated that taking note of the relevantcircumstances, it has decided to payservice charges at the following rates: (a)75% of the property tax levied on privateowners, where the properties of the Unionare provided by the municipalcorporations with all services/facilities aswere provided to other areas within themunicipal corporation; (b) 50% of theproperty tax levied on private owners, inregard to properties of the Union, whereonly some of the services/facilities wereavailed; and (c) upto a maximum of one-third (33 and 1/3%) of the property taxlevied on private owners in regard toproperties which did not avail any of theservices provided by the municipalcorporation, as they were self-sufficienton account of all services being providedby the Union itself.

(8) It was also clarified that where noservices were availed from the municipalcorporation, a rate within the ceiling of 33and 1/3% of the property tax, will benegotiated and settled having regard to therelevant circumstances. In so far asproperties of Indian Railways areconcerned, it was stated that as it ownsproperties in virtually every municipalcorporation in India and normally all itsproperties do not utilise the servicesprovided by municipal corporations,Railways propose to pay only a tokenservice charge of 5% or such other rate asmay be agreed by mutual negotiations.

(9) Learned counsel for theappellants submitted that the appellantmunicipal corporations submitted thatthey were broadly in agreement with whathas been stated and agreed by Union ofIndia in the said affidavit. The appellant-Municipal Corporations also confirmedand agreed:

(i) that they will not levy or demandany "property tax" in respect of theproperties belonging to Union of Indiaand used for the purposes of theGovernment; (ii) that the demands willrelate only to service charges for directservices like supply of water andconservancy/sewerage disposal servicesand other general services such asapproach roads with street lighting,drainage etc.; (iii) that they broadlyagreed to the rates of service chargesagreed by Union of India; and (iv) that ifthere is defaults or if negotiations with theconcerned departments for in regard toservice charges fail they will not take anycoercive steps for recovery (like cuttingoff supplies) nor resort to revenuerecovery proceedings, but will takerecourse to other remedies available tothem in law for recovery.


(10) The appellants, however,expressed reservations only in regard tothe stand of the Railways that it will onlypay nominal service charges at 5% of theproperty tax. They point out that there canbe no property of Railways which can betermed as 100% self sufficient in regardto services, as common indirect servicesprovided by the Municipal Corporation(like approach roads with street lightingetc.) will be enjoyed by them. They alsodrew our attention to the fact thatMinistry of Railways (Railway Board)had also issued a circular dated 24.7.1954,similar to the circulars issued by theGovernment of India, Ministry ofFinance, providing for payment of part ofthe property tax, as services charges forwater, scavenging etc. The learnedSolicitor General however stated that shewas not sure whether the said circularcontinues in force or was superseded byother circulars. Be that as it may.

(11). In view of the above, there is noneed to consider the appeals on merits. Wedispose of appeals and pending applicationsby recording the following broad agreementbetween the parties: (i) The Union of India &its departments will pay service charges forthe services provided by appellant MunicipalCorporations. They will not pay any propertytax. The service charges will be paid at 75%,50%, or 33 1/3% respectively of the propertytax levied on property owners, dependingupon whether Union of India or its departmentis utilising the full services, or partial servicesor nil services. The Union of India representedby its concerned department will enter intoagreements/understandings in regard toservice charges for each of its properties, withthe respective municipal corporation. (ii) Theabove arrangement is open to modification orperiodical revisions by mutual consent. In theevent of disagreement on any issue, partieswill resort to a dispute resolution mechanism

by reference to a three Member MediationCommittee consisting of a representative ofthe Central Government, a representative ofconcerned Municipal Corporation and asenior representative (preferably the Secretaryin charge of the department of municipaladministration) of the State of Gujarat. (iii) IfRailways or any other department of Union ofIndia owning a property changes theagreement/understanding unilaterally, or failto reach a settlement through the MedicationCommittee in regard to any disputes, or failsto clear the dues, it is open to the concernedMunicipal Corporation to initiate such action,as it deems fit in accordance with law byapproaching the Jurisdictional Courts/Tribunalfor final and interim reliefs. (iv) Themunicipal corporations shall not resort tocoercive steps (such as stoppage ofservices/services) nor resort to revenuerecovery proceedings for recovery of servicecharges from Union of India or itsdepartments. (v) The services charges payableby Union of India will under no circumstancesbe more than the service charges paid by StateGovernment for its properties. Wheneverexemptions or concessions are granted to theproperties belonging to the State Government,the same shall also apply to the properties ofUnion of India. (vi) If the Railways does notabide by the four general circulars of theUnion of India dated 10.5.1954, 29.3.67,28.5.1976 and 26.8.1986 and the generalconsensus set out above, it is open toMunicipal Corporation to take suitable actionas is permissible in law."

4. In compliance with the judgment ofthe Apex Court in Rajkot MunicipalCorporation vs. Union of India (supra) theCentral Government vide OfficeMemorandum dated 15/17.12.2009 issued byUCD/LSG Section, Ministry of UrbanDevelopment, Government of India provided,that the Union of India and its departments


will pay service charges for the servicesprovided by appellant MunicipalCorporations. No property tax will be paid byUnion of India but service charges calculated@ 75%, 50%, 33 1/3% of Property Tax leviedon property owners will be paid, dependingupon utilization of full or partial or nilservices. For this purpose agreements will beentered into Union of India represented byconcerned departments with respectiveMunicipal Corporation. The arrangement willbe open to modification or revision by mutualconsent. In the event of disagreement, thesame shall be resolved by a three MemberMediation Committee consisting of arepresentative of Central Government, arepresentative of concerned MunicipalCorporation & a senior representative(preferably the Secretary in charge ofdepartment of Municipal administration) ofthe State.

5. The Railway Board has by itsletter dated 9.3.2010 accepted the policydecision taken by the Central Governmentin compliance with the judgments of theSupreme Court.

6. The petitioners did not approachthe Nagar Nigam, Varanasi protesting tothe levy of service charges and requestinga Mediation Monitoring Committee to beconstituted. It is only after the demand hasbeen raised, the petitioners appear to haverealised that they have to comply with thejudgment of the Suprement Court, thedecision taken by the Ministry of UrbanDevelopment, Government of India andRailway Board in accordance with theprocedure set out and in case of anydispute in resolving the same through theMediation Monitoring Committee.

7. Under the interim order of theCourt dated 23.7.2012 the petitioners

were called upon to deposit 1/3rd of thetotal demand, within one month of theorder and the recovery of balance wasstayed.

8. Counsel for the petitioners hasreferred to us another judgement ofDivision Bench passed in Tax WritPetition No.1292 of 2011 "CantonmentBoard, Varanasi Vs. Union of India andothers", wherein the writ petition wasdisposed of vide order dated 03.10.2013with the direction that parties will enterinto agreement in accordance with thejudgment of the Apex Court in the case ofRajkot Municipal Corporation Vs. Unionof India (Supra) as well as the officememorandum of Ministry of Financewithin one month and the amount alreadypaid by the petitioners will be treated aspayment of the first installment towardspayment of the services chargescalculated from the year as mentioned inthe order. Remaining amount was directedto be paid by the petitioners in three equalmonthly installments. It is stated that saidorder has been challenged before ApexCourt by means of Civil AppealNo.10771 of 2014 by the RailwayDepartment, wherein no interim order hasbeen granted and the appeal is likely to beheard in near future.

9. It is submitted before us thatsimilar arrangement may be made inrespect of the service charges demandedby the Municipal Corporation, Varanasi.

10. Having heard learned counselfor the parties and examined the record ofthe present writ petition, we are of theconsidered opinion that as on date, thelaw as explained by the Apex Court in thecase of Union of India and others Vs.State of U.P. and others 2007 (11) SCC


324 and that laid down in the case ofRajkot Municipal Corporation Vs. Unionof India (Supra), stands on record. Thepetitioner railways cannot avoid theliability of payment of service charges,however, no property tax can be leviedupon the property of the Railways.

11. Since the demand under challengeis stated to be for the year 2011-12, wedeem it fit and proper to provide that thepetitioners may deposit the entire money asdemanded under protest within one monthfrom today. Thereafter they may make anapplication before the Secretary of NagarVikas U.P. Shashan for constitution ofMediation Committee, on which theMediation Committee comprising of arepresentative of Central Government, arepresentative of concerned MunicipalCorporation and a Senior representative(preferably the Secretary In-charge ofDepartment of Municipal Administration)shall be constituted within one month of thereceipt of such request. The Committeeshall determine the issues as may be raisedby parties in the matter of levy andcollection of service charges. The amountdeposited by the petitioners in terms of theorder passed by us today, shall abide by thedecision to be taken by the MediationCommittee. The Mediation Committee shallfinalize the proceedings within two monthsby means of a reasoned order.

12. The writ petition is disposed of.

13. Interim order, if any, standsdischarged.

--------ORIGINAL JURISDICTION

CIVIL SIDEDATED: LUCKNOW 16.12.2015

BEFORE

THE HON'BLE DR. DEVENDRA KUMARARORA, J.

Service Single No. 584 of 1998

Ram Deo Tewari ...PetitionerVersus

State of U.P. ...Respondent

Counsel for the Petitioner:S.B. Pandey, S.P. Singh, Shiv ShankarSingh


Civil Services Regulations Art.-370-Pensionbenefits-work charged employee-after 3years 10 months and 7 days regularization-retired -whether period of working in workcharge establishment countable for pensionpurpose ?-held-'no'-reasons disclosed.

Held: Para-11As indicated above, the service of thepetitioner in the regular establishment isonly for a period of 3 years,10 monthsand 21 days, he is not entitled to get thepensionary benefits as claimed by hi.Further, for the reasons indicated above,t he services performed by the petitionerin the work charged establishment arenot liable to be counted as qualifyingservices for the purposes of payment ofpost-retiral /terminal benefits.

Case Law discussed:2014 (2) AWC 1771; 2010 (8) ADJ 664; (2009)3 SCC 661; (1979) 4 SCC 440; (1997) 2 SCC517

(Delivered by Hon'ble Dr. DevendraKumar Arora, J.)

1. Heard Sri Uma Shanker Tiwari,Advocate holding brief on behalf of SriShiv Shanker Singh, learned Counsel forthe petitioner and Sri Badrul Hasan,learned Additional Chief StandingCounsel.

3 All. Ram Deo Tewari Vs. State of U.P. 1437

2. Through instant writ petition, thepetitioner has soughtfor a writ ofmandamus commanding the oppositeparties to give post retrial benefits i.e.pension and gratuity to the petitionerw.e.f. 1.2.1998 and onwards.

3. According to the petitioner'sCounsel,the petitioner was initially appointedas Mechanic in work charge establishment inGandak Project Chap Branch Division,Deoria in 3rd Circle Gorampur, IrrigationDepartment in the basic salary of Rs. 825/-per month. Thereafter, in the year 1977 hewas transferred to 11th Circle, IrrigationWorks, Faizabad and thereafter he wasposted in Sharda Canal Division, 43Faizabad.

4. It has been pointed out that theservices of the petitioner was regularized bymeans of the order dated 3.3.1994 on thepost of Mate in the pay scale of Rs. 725-1025and the petitioner was posted at ShardaShayak Khand-43 and ultimately retired on31.1.1998 on attaining the age of 60 yearsbut in an arbitrary manner he has beendenied the pension and other retiral dues,which is unjust and unwarranted.

5. In contrast, the learned StandingCounsel on the basis of averments madein the counter affidavit and theSupplementary Counter Affidavit statedthat the petitioner was appointed in theWork Charged Establishment w.e.f.1.1.1975 and thereafter on availability ofthe vacant post in the regularestablishment, he was given appointmentin the regular establishment on 4.3.1994and petitioner after working for about 3years 10 months and 27 days attained theage of superannuation on 31.1.1998. Ashis services are less than 10 years,therefore, petitioner is not entitled for

pensionary benefits. It is also stated thatthe Work Charged Employees are paidsalaries from the fund available in thesanctioned projects under which they areemployed and after completion of thework in the concerned project, theirservices come to an end.

6. To strengthen the aforesaidcontention, the learned Standing Counsel hasrelied upon a recent judgment of DivisionBench headed by the Hon'ble the ChiefJustice in Special Appeal Defective No. 23of 2014:Jai Prakash Vs. State of U.P. andothers; 2014(2) AWC 1771, wherein it hasbeen held that the work charged employeesconstitute a distinct class and they cannot beequated with regular employees and in theabsence of any specific provision to thateffect in Article 370 (ii) of the Civil ServicesRegulations. They are not entitled forpensionary benefits.

7. I have considered the submission ofthe learned Counsel for the parties and gonethrough the record. There is no dispute tothe fact that the petitioner was engaged aswork charged employee and on account ofavailability of the clear vacancy he wasgiven regular appointment vide order dated3.3.1994. After rendering about 3 years 10months and 27 days service, he attained theage of superannuation on 31.1.1998. As perthe provisions of Article 370 of the CivilServices Regulations continuous/temporaryor officiating service under the Governmentof Uttar Pradesh followed withoutinterpretations by confirmation in the sameor any other post shall qualify for pensionexcept i)periods of temporary or officiatingservice in non-pensionable establishment ii)period of service in work chargedestablishment and iii) period of service in apost and from contingencies. Article 370reads as under:-


"Article 370 of the Civil ServiceRegulations, as applicable in the State ofUttar Pradesh, provides that continuous,temporary or officiating service under theGovernment of Uttar Pradesh followedwithout interpretations by confirmation inthe same or any other post shall qualifyfor pension except;

(i)periods of temporary or officiatingservice in non-pensionable establishment;

(ii)periods of service in workcharged establishment; and

(iii)periods of service in a post paidfrom contingencies."

8. A plain reading of the provisionsof Article 370 of the Civil ServicesRegulations makes it clear that the periodof service in work charged establishmentcannot be counted for the purpose ofdetermining the qualifying service forgrant of pension. A Full Bench of thisCourt in Pawan Kumar Yadav Vs. Stateof U.P. and others; 2010(8) ADJ 664 afterpointing out the difference between aperson appointed in a regularestablishment and in a work chargedestablishment, held that a work chargedemployee engaged in connection with theaffairs of the State, who is not holdingany post, whether substantive ortemporary, and is not appointed in anyregular vacancy, even if he was workingfor more than 3 years, is not a'Government servant' within the meaningof Rule 2(a) of U.P. Recruitment ofDependents of Government Servant(Dying in Harness) Rules, 1974, and thushis dependents on his death in harness arenot entitled to compassionate appointmentunder the Rules. The reasons given by theFull Bench reads as under:

"20. In respect of the employees theState Government in Irrigation

Department, Public Works Department,Minor Irrigation, Rural EngineeringServices, Grounds Water Department hasprovided for employment in the regularestablishment and workchargeestablishment. The person appointed inregular establishment are appointedagainst a post, after following dueprocedure prescribed under the rules. Inworkcharge establishment the employeesare not appointed by following anyprocedure or looking into theirqualification. They do not work againstany post or regular vacancy. They onlyget consolidated salary under the limits ofsanction provided by Government Orderdated 6th April, 1929. The conditions oftheir employment is provided inparagraphs 667, 668 and 669 of ChapterXXI under the Head of Establishment inFinancial Hand Book Volume IV. Theirpayments are provided to be made insame Financial Hand Book Volume IV inParagraph Nos.458, 459, 460, 461, 462and 463.

21. Shri M.C. Chaturvedi, learnedChief Standing Counsel submits that byGovernment Order dated 1.1.2000Paragraphs 667, 668 and 669 of FinancialHand Book Volume 4 have been deletedand that thereafter the payments are notbeing made to them from the budgetallotted from the regular establishment,and they are not entitled to any allowanceor pensionary benefits. They are paidfrom contingencies and are required towork until the work is available. Theservices of workcharge employees areregularised only when regular vacancy isavailable. Until then they cannot betreated as government servants".

9. In the case of Punjab StateElectricity Board and others Vs. JagjiwanRam and others; (2009) 3 SCC 661,

3 All. Ram Deo Tewari Vs. State of U.P. 1439

examined the issue whether work chargedemployees in the service of Punjab StateElectricity Board, who were subsequentlyappointed on a regular basis, could claim thatthe service rendered by them as workcharged employees should be counted for thepurpose of grant of time bound promotionalscale/promotional increments and aftertaking note of the earlier decisions in JaswantSingh & Ors. Vs. Union of India & Ors;(1979) 4 SCC 440 and State of Rajasthan Vs.Kunji Raman; (1997) 2 SCC 517, the ApexCourt observed that the work chargedemployees constitute a distinct class and theycannot be equated with any other category orclass of employees, much less regularemployees and they are not entitled toservice benefits which are admissible toregular employees under the relevant rules orpolicy framed by the employer. The relevantparagraphs of the report reads as under:-

"9. We have considered the respectivesubmissions. Generally speaking, a workcharged establishment is an establishment ofwhich the expenses are chargeable to works.The pay and allowances of the employeeswho are engaged on a work chargedestablishment are usually shown under aspecified sub-head of the estimated cost ofworks. The work charged employees areengaged for execution of a specified work orproject and their engagement comes to an endon completion of the work or project. Thesource and mode of engagement/recruitmentof work charged employees, their pay andconditions of employment are altogetherdifferent from the persons appointed in theregular establishment against sanctioned postsafter following the procedure prescribed underthe relevant Act or rules and their duties andresponsibilities are also substantially differentthan those of regular employees.

10.The work charged employees canclaim protection under the Industrial

Disputes Act or the rights flowing fromany particular statute but they cannot betreated at par with the employees ofregular establishment. They can neitherclaim regularization of service as of rightnor they can claim pay scales and otherfinancial benefits at par with regularemployees. If the service of a workcharged employee is regularized underany statute or a scheme framed by theemployer, then he becomes member ofregular establishment from the date ofregularization. His service in the workcharged establishment cannot be clubbedwith service in a regular establishmentunless a specific provision to that effect ismade either in the relevant statute or thescheme of regularization. In other words,if the statute or scheme under whichservice of work charged employee isregularized does not provide for countingof past service, the work chargedemployee cannot claim benefit of suchservice for the purpose of fixation ofseniority in the regular cadre, promotionto the higher posts, fixation of pay in thehigher scales, grant of increments etc."

10. Recently, a Division Bench of thisCourt in Jai Prakash's case [supra] aftertaking into consideration variouspronouncement s of the Apex Court referredto herein above including the judgmentrendered by the Apex Court in Punjab StateElectricity Board & Anr. Vs. Narata Singhand Anr. reported in (2010) 4 SCC 317 heldin last but one paragraph as under:-

"These decisions of the SupremeCourt and the Full Bench of this Courtleave no manner of doubt that in view ofthe material difference between anemployee working in a work chargedestablishment and an employee workingin a regular establishment, the service


rendered in a work charged establishmentcannot be clubbed with service in aregular establishment unless there is aspecific provision to that effect in therelevant Statutes. Article 370(ii) of theCivil Service Regulations specifically, onthe contrary, excludes the period of servicerendered in a work charged establishmentfor the purposes of payment of pension andwe have in the earlier part of this judgmentheld that the decision of the SupremeCourt in Narata Singh (supra), whichrelates to Rule 3.17(i) of the PunjabElectricity Rules, does not advance thecase of the appellant. In this view of thematter, the appellant is not justified incontending that the period of servicerendered from 1 October 1982 to 5 January1996 as a work charged employee shouldbe added for the purpose of computing thequalifying service for payment of pension."

11. As indicated above, the serviceof the petitioner in the regularestablishment is only for a period of 3years,10 months and 21 days, he is notentitled to get the pensionary benefits asclaimed by hi. Further, for the reasonsindicated above, t he services performedby the petitioner in the work chargedestablishment are not liable to be countedas qualifying services for the purposes ofpayment of post-retiral /terminal benefits.

12. In view of the aforesaiddiscussions, the relief as claimed by thepetitioner cannot be granted and the writpetition lacks merit and is liable to bedismissed.

13. Accordingly, the writ petition isdismissed.

14. Costs easy.--------

APPELLATE JURISDICTIONCIVIL SIDE


BEFORETHE HON'BLE KRISHNA MURARI, J.

THE HON'BLE AMAR SINGH CHAUHAN, J.

Special Appeal Defective No. 647 of 2015

M/s Maya Press Pvt. Ltd. Allahabad &Anr. ...Appellants

VersusUnion of India & Ors. ...Respondents

Counsel for the Appellants:Sri Bhagwati Prasad Singh, Sri KrishnaMohan

Counsel for the Respondents:C.S.C., A.S.G.I., Sri S. Upadhyay

Constitution of India, Art.-226-WritPetition-petitioner to disclose all matterialtrue facts-if matterial facts discovered byCourts to subsequently-Judge shouldimpose exemplary cost also-Learned SingleJudge rightly impose cost of Rs. One Lacs-Appellate Court declined to interfere.

Held: Para-23Learned Single Judge has relied uponvarious pronouncements of the Hon'bleApex Court laying down that if a litigant isfound guilty of concealment of materialfacts or making an attempt to pollute thepure stream of justice, the Court not onlyhas the right but a duty to deny relief tosuch a person. A litigant, who seeks shelterof falsehood, misrepresentation andsuppression of facts in invoking theextraordinary equitable jurisdiction of thisCourt conferred by Article 226 of theConstitution of India, is not liable for anyindulgence.

Case Law discussed:(2012) 6 SCC 430; (2010) 2 SCC 114; [(2012)12 SCC 133]

(Delivered by Hon'ble Krishna Murari, J.)

3 All. M/s Maya Press Pvt. Ltd. Allahabad & Anr. Vs. Union of India & Ors. 1441

1. This intra court appeal under theRules of the Court is directed against thejudgment and order dated 31.07.2015passed by learned Single Judgedismissing the Writ Petition No. 39655 of2015.

2. First appellant is a companyincorporated under the provisions of theCompanies Act, 1956 having registeredoffice at 281 Muthiganj, Allahabad and thesecond appellant is the Director of thecompany. Both the appellants filed writpetition seeking a writ of certiorari to quashthe notice dated 22.05.2015 issued byAssistant Regional Provident FundCommissioner/Recovery Officer,respondent no. 3 herein under Section 8-B(i) of the EPF & MP Act, 1952 (hereinafterreferred to as Act, 1952) and Income TaxAct, 1961 issued to appellant no. 2 to showcause why he may not be detain in civilprison for failure to satisfy the demandraised by Recovery Certificate RRC No.5065 dated 20.04.2001, 40731 dated08.04.2004, 45857 dated 27.04.2000 for asum of Rs.71,81,297/- and has also failed topay the interest under Section 7Q of theAct, 1952.

3. An objection was raised by therespondents in the writ petition that thepresent petition is the second petition forthe same cause of action. Learned SingleJudge after hearing the matter on 20thJuly, 2015 passed the following order.

"By means of present writ petition,the petitioners have prayed for rejectingthe impugned recovery notice dated22.5.2015 under Section 8-B (i) of theEPF & MP Act, 1952 and the Income TaxAct, 1961 issued by the respondent no.3to the petitioner no.2 and further prayedfor direction to the respondents to decide

the petitioner's representation dated11.1.2014and 4.7.2014 after affording dueopportunity of hearing to the petitioners.

Shri Amit Negi, learned counsel forthe contesting respondents states that thepetitioner had earlier filed Writ PetitionNo.11936 of 2009 (M/s Maya Press (P)Ltd. & Anr. v. Union of India & Ors.) forquashing the warrant of arrest dated26.11.2008 issued by the RecoveryOfficer, Employees Provident FundOrganization, Varanasi, pursuant to therecovery certificate issued under Section8-C of the Employees Provident Fund andMisc. Provisions Act for recovery ofRs.71,81,297/-. This Court vide orderdated 6.3.2009 had disposed of the writpetition with following observations:-

"The petitioners will file an applicationunder Section 8-E of the EmployeesProvident Fund and MiscellaneousProvisions Act before the authorised officerseeking time to make the payment. Thisapplication shall be filed on or before the31st March, 2009. If such an application isfiled, the authority will pass appropriateorders on the said application expeditiouslyafter affording an opportunity of hearing tothe petitioners. In the meantime, the warrantof arrest dated 26.11.2008 shall remain inabeyance till the disposal of the petitioners'application provided the petitioners depositsa sum of Rs. twenty lac within four weeksfrom today.

The writ petition is disposed of.A certified copy of this order shall be

made available to the petitioners onpayment of usual charges within 24 hours.

Shri Negi, learned counsel for therespondents submits that there is materialconcealment in the matter. Nowhere it hasbeen averred regarding the previous writpetition. He further apprised to the Courtthat in compliance of the order passed bythis Court the petitioner had also not


deposited Rs.20 lacs within stipulatedtime and had filed Special Appeal No.670of 2009 (M/s Maya Press (P) Ltd. & Anr.v. Union of India & Ors.) assailing theaforesaid order dated 6.3.2009. Thespecial appeal was dismissed by orderdated 6.5.2009. It is submitted that thepetitioner had deliberately violated theearlier order even though the same hadattained finality on the ground that theappeal was also rejected and as such nointerference may be made in the presentwrit petition. This writ petition may betreated as second writ petition for thesame cause of action.

Shri Krishna Mohan, learned counselfor the petitioners prays for week's time toobtain instructions in the matter. Put upthis matter on 27.7.2015 as fresh."

4. When the matter was taken upsubsequently, the petitioner-appellantsmade an application with a prayer todismiss the writ petition as withdrawn.The application was supported byaffidavit of Shri S.K. Bhattacharyaalleging himself to be the pairokar of thepetitioners. In paragraph 2 of the affidavit,it was stated that upon inspection of therecord, it transpires that the previouslitigation was done by the secondpetitioner personally and deponent is apairokar and had no knowledge of theprevious litigation.

5. Learned Single Judge on a perusalof the record while returning a finding thatthe petitioners in both the writ petitions arethe same and affidavit of both the petitionwas sworn of Shri S.K. Bhattacharya and,thus, the second petitioner and the deponentof the writ petition were very well aware thatan earlier writ petition was filed and wasdismissed and the judgment was alsoaffirmed by dismissal of the special appeal,

held that not only a 2nd writ petition basedon the same cause of action has been filedwithout disclosing the facts pertaining to thefact of filing and dismissal of the earlier writpetition and special appeal, a false affidavithas also been filed in support of thewithdrawal application as well.

6. Learned Single Judge on a detailexamination of facts and after appreciatingthe various case laws dismissed the writpetition with the heavy cost of Rs.1 lac to berecovered from the second appellant andpairokar of the writ petition Shri S.K.Bhattacharya by the District Magistrate,Allahabad.

7. The first submission advanced byShri B.P. Singh, learned Senior Advocateassisted by Shri Krishna Mohan for theappellant is that the learned Single Judgeerred in holding that writ petition was asecond writ petition, inasmuch as theamount of recovery or the period of dueseven if may be same, the relief claimed inthe earlier Writ Petition No. 11936 of 2009was entirely different from the reliefclaimed in the subsequent writ petition andthe stage of recovery were also different. Itis further submitted that two writ petitionschallenging the different notice of recoverycannot be said to be treated as writ petitionsfor the same cause of action. Writ PetitionNo. 11936 of 2009 was filed by the presentappellants seeking the following reliefs.

"(i) call for record of the case andissue a writ, order or direction in thenature of certiorari quashing theimpugned warrant of arrest dated26.11.2008 (contained in Annexure No. 8to the writ petition) and further recoveryproceedings in pursuance thereof.

(ii) issue a writ, order or direction inthe nature of mandamus commanding the


respondents not to execute the impugnedwarrant of arrest.

(iii) issue any other suitable order ordirection as may be deemed to be necessaryunder the facts and circumstances of thecase.

(iv) award the costs of the writpetition to the petitioners."

8. Annexure 8, quashing of which,was sought in the said writ petition was awarrant of arrest issued by RecoveryOfficer, Employees Provident FundOrganisation in respect of failure on the partof the two petitioners to satisfy the demandmade by certificate Nos. 5065, 8518, 40731and 45857 dated 20.04.2001, 05.04.2002,08.04.2004, and 17.04.2006 forwarded bythe Authorised Officer for an amount ofRs.71,81,297/- towards outstanding againstappellant no. 1-company.

9. Before the learned Single Judge,liability was admitted and the stand takenwas that sometime be provided to securethe liability. Learned Single Judgedisposed of the writ petition videjudgment and order dated 06.03.2009 bymaking following observations.

"The petitioner admits his liabilityand only seeks indulgence of the Court toget some breathing time to clear itsliabilities.

Considering the facts andcircumstances of the case that has beenbrought on record, I dispose of thepetition with the following directions:

The petitioners will file anapplication under Section 8-E of theEmployees Provident Fund andMiscellaneous Provisions Act before theauthorised officer seeking time to makethe payment. This application shall befiled on or before the 31st Marhc, 2009. If

such an application is filed, the authoritywill pass appropriate orders on the saidapplication expeditiously after affordingan opportunity of hearing to thepetitioners. In the meantime, the warrantof arrest dated 26.11.2008 shall remain inabeyance till the disposal of thepetitioners' application provided thepetitioners deposits a sum of Rs. twentylac within four weeks from today.

The writ petition is disposed of.A certified copy of this order shall be

made available to the petitioners onpayment of usual charges within 24hours."

10. The order was challenged inSpecial Appeal No. 670 of 2009, whichwas dismissed by a Division Bench videjudgment and order dated 06.05.2009 bypassing the following order.

"Writ petitioner-appellant, aggrievedby the order dated 6th March, 2009passed by the learned Single Judge inWrit Petition No. 11936 of 2009, haspreferred this Appeal under Rule 5 ofChapter VIII of the Allahabad High CourtRules.

On failure to make payment of thestatutory dues under the EmployeesProvident Funds & MiscellaneousProvisions Act, 1952 (hereinafter referred toas the 'Act'), the Recovery Officer,Employees Provident Funds Organisation,Varanasi issued warrant of arrest dated 26thNovember, 2008. The petitioner-appellantchallenged the aforesaid warrant of arrest inthe writ petition which has given rise to theimpugned order. Neither before the learnedSingle Judge nor before us the writpetitioner-appellant has denied its liabilityand, in fact, admits the liability.

In fact, before the learned SingleJudge, it was the stand of the appellant


that he be given some breathing time toclear its liability. Taking note of theaforesaid stand, the learned Single Judgegave liberty to the writ petitioner-appellant to make an application underSection 8(E) of the Act seeking time tomake payment by 31st March, 2009. Italso observed that if such an application isfiled, the Competent Authority will passan appropriate order and in the meantimethe warrant of arrest dated 26thNovember, 2008 shall remain in abeyancetill the disposal of the applicant'sapplication provided it deposits a sum ofRs. 20 lacs within four weeks from thedate of the said order.

Writ petitioner-appellant instead ofcomplying the said order has chosen tofile this appeal.

Mr. Ashok Khare appearing on behalfof the appellant submits that the learnedSingle Judge erred in holding that theapplication dated 30th April, 2003 was anapplication under Section 8(E) of the Actand according to him, the said applicationwas also under Section 8(F) of the Act. Weare of the opinion that the aforesaidsubmission has no bearing to the facts of thepresent case. The petitioner has admitted itsliability and the learned Single Judge gaveindulgence to him to file application seekingtime to make the payment and on conditionof deposit of a sum of Rs. 20 lacs, directedthat the warrant of arrest shall be kept inabeyance.

The Writ Court is a Court of equityand in the face of the appellant's ownadmission of its liability, any interferenceby this Court shall be inexpedient. We donot find any merit in the appeal and it isdismissed accordingly."

11. Without disclosing the factum offiling the earlier Writ Petition No. 11936 of2009 and its dismissal as well as filing and

dismissal of Special Appeal No. 670 of2009, the present writ petition was filed.Incidently the affidavit in both the writpetition is of the same person, i.e., Shri S.K.Bhattacharya, who happens to be thedeponent of the affidavit filed in support ofthe stay application in the present specialappeal. Admittedly, in the subsequent writpetition, there was not even a whisper withrespect to dismissal of the first writ petitionand special appeal.

12. A perusal of the two writ petitions,which are on record of this special appeal asAnnexure to the affidavit filed in support ofthe stay application, we find that they arebased on the same cause of action, i.e.,warrant of arrest, pursuant to the recoverycertificate issued under Section 8-c of theAct, 1952 for the same amount of recovery,i.e., Rs.71,81,297/-. The date of warrant ofarrest in the two writ petitions may bedifferent, but there can be no manner ofdoubt that both the writ petitions are basedon the same cause of action and, thus, thesubsequent writ petition being a second writpetition for the same cause of action, is notliable to be entertained and has rightly beendismissed by the learned Single Judge.

13. The argument advanced by thelearned Senior Counsel for the appellantthat both the writ petitions are based ondifferent cause of action, is misconceivedand liable to be rejected.

14. The cause of action in both thewrit petitions is the same, i.e., warrant ofarrest issued by Recovery Officer,Employees Provident Fund Organisationfor failure on the part of the applicant tosatisfy the recovery certificate issuedunder Section 8-c of Act, 1952 towardsoutstanding statutory dues under the saidAct.


15. The next submission advancedby the learned counsel for the appellantsthat in view of the subsequentdevelopments, after dismissal of WritPetition No. 11936 of 2009, which wasaffirmed in appeal does not prevent theappellant from challenging the orderpassed in proceedings subsequently andthe said writ petition cannot be said to bea second writ petition for the same relief.

16. This argument is againmisconceived and has only been advancedto be rejected.

17. From a perusal of the pleadings ofthe writ petition, we do not find details ofany subsequent developments, which mighthave taken place after the dismissal of earlierWrit Petition No. 11936 of 2009 on the basisof which it could be said that the fresh causeof action has accrued to the petitioner to fileanother writ petition. In the absence ofpleadings in the writ petition in respect ofsubsequent developments, the argument hasno legs to stand and cannot be accepted.

18. The issue being well settled thata second writ petition for the same causeof action is not liable to be entertained,we find no fault with the judgment of thelearned Single Judge in dismissing thewrit petition.

19. Coming to the question ofdeliberate concealment of fact by thedeponent in the writ petition and makingfalse averment in the affidavit filed insupport of the withdrawal application,again on a perusal of the record, we donot find any fault with the finding of thelearned Single Judge on this aspect.

20. Admittedly, the averments in the1st Writ Petition No. 11936 of 2009 were

supported by the affidavit of Shri S.K.Bhattacharya as pairokar and the affidavitin support of the subsequent writ petitionwas also filed by him. Thus, there is nojustification in not disclosing the fact offiling and dismissal of the earlier writpetition and special appeal. Again in theaffidavit filed by Shri S.K. Bhattacharyain support of the withdrawal application,it was stated as under.

"1. That the deponent is the pairokaron behalf of the petitioners in this writpetition. He had no knowledge of theprevious litigations as such he could notbrief the facts to the petitioners counseland as such is fully acquainted with thefacts of the case deposed to below.

2. That after getting intimationsbefore this Hon'ble Court the deponentinspected the records and came to knowthat the previous litigation were done bythe petitioner no. 2 personally, who isaged about 79 years and has been keepingailing health and is unable to move fromKolkata to Allahabad."

21. The falsity in the statement madeby Shri S.K. Bhattarcharya in the affidavitfiled in support of the withdrawal applicationbecomes writ large from a perusal of theaforesaid averments. Even if it is presumedfor the sake of argument that he forgot thefact of filing and dismissal of the earlier writpetition and special appeal, but once it isasserted that the deponent inspected therecord, there was absolutely no reason oroccasion to make the abovequoted avermentin the said affidavit, it is a deliberate attempton his part and the allegations made in theaffidavit are patently false.

22. It is crystal clear that thedeponent deliberately did not disclose thefact of filing and dismissal of the earlier


writ petition and special appeal in thesubsequent writ petition and when thisfact came to the notice of the learnedSingle Judge, on an objection being raisedby the respondents, he again made totallyfalse allegations in the affidavit filed insupport of the application to dismiss thewrit petition as withdrawn. Hence, wefind no flaw in the judgment of thelearned Single Judge holding that theappellant and the deponent misused theprocess of this Court, firstly in order toprocure an order by concealing materialfacts in the writ petition and subsequentlyfiling a false affidavit to save himselffrom the wreath of this Court.

23. Learned Single Judge has reliedupon various pronouncements of theHon'ble Apex Court laying down that if alitigant is found guilty of concealment ofmaterial facts or making an attempt topollute the pure stream of justice, theCourt not only has the right but a duty todeny relief to such a person. A litigant,who seeks shelter of falsehood,misrepresentation and suppression of factsin invoking the extraordinary equitablejurisdiction of this Court conferred byArticle 226 of the Constitution of India, isnot liable for any indulgence.

24. Hon'ble Apex Court in the caseof A. Shanmugam v. Ariya KshatriyaRajakula Vamsathu MadalayaNandhavana Paripalanai Sangam, (2012)6 SCC 430 held as under:-

"43.2. Every litigant is expected tostate truth before the law court whether itis pleadings, affidavits or evidence.Dishonest and unscrupulous litigants haveno place in law courts.

43.3. The ultimate object of thejudicial proceedings is to discern the truth

and do justice. It is imperative thatpleadings and all other presentationsbefore the court should be truthful.

43.4. Once the court discoversfalsehood, concealment, distortion,obstruction or confusion in pleadings anddocuments, the court should in addition tofull restitution impose appropriate costs.The court must ensure that there is noincentive for wrongdoer in the temple ofjustice. Truth is the foundation of justiceand it has to be the common endeavour ofall to uphold the truth and no one shouldbe permitted to pollute the stream ofjustice.

43.5. It is the bounden obligation ofthe court to neutralise any unjust and/orundeserved benefit or advantage obtainedby abusing the judicial process."

25. Again in the case of Dalip Singhv. State of U.P. & Ors., (2010) 2 SCC114, Hon'ble Apex Court noticed that analtogether new creed of dishonestlitigants, have flooded the Court. Thequest for personal gain has become sointense that those involved in litigation donot hesitate to seek shelter of falsehood,misrepresentation and suppression of factsin the course of court proceedings.

26. Supreme Court in the case of V.Chandrashekaran & Anr. vs.Administrative Officer & Ors., [(2012) 12SCC 133] held that a petition or affidavitcontaining misleading or inaccuratestatement amounts to abuse of process ofCourt, a litigant cannot take inconsistentpositions. In paragraph 45 of the report,Hon'ble Apex Court held as under.

"45. The judicial process cannotbecome an instrument of oppression orabuse, or a means in the process of the courtto subvert justice, for the reason that the

3 All. Om Prakash Chaubey Vs. D.I.O.S. Varanasi & Ors. 1447

court exercises its jurisdiction, only infurtherance of justice. The interests ofjustice and public interest coalesce, andtherefore, they are very often one and thesame. A petition or an affidavit containing amisleading and/or an inaccurate statement,only to achieve an ulterior purpose, amountsto an abuse of process of the court."

27. For the aforesaid facts anddiscussions, we do not find any goodground to interfere with the order of thelearned Single Judge dismissing the writpetition of the petitioner-appellants andimposing cost on both of them and thesame is hereby affirmed.

28. The special appeal, accordingly,stands dismissed.

--------APPELLATE JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 02.12.2015

BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE YASHWANT VARMA, J.

Special Appeal Defective No. 784 of 2015

Om Prakash Chaubey ..AppellantVersus

D.I.O.S. Varanasi & Ors. ...Respondents

Counsel for the Appellants:Shankar Bhagwan Singh, Raj Nath Pandey


Constitution of India-Art.-226-Dismissal ofWrit Petition-as infructuous-on statementmade by Counsel-recall by another Counsel-rejection saying not maintainable-held-notproper-order impugned being termination-can not be infectious-application by anothercounsel-maintainable.

Held: Para-7However, even if that be so, we are ofthe view that the ends of justice wouldrequire that the order of dismissal of thewrit petition as infructuous by efflux oftime should be recalled. The appellanthas challenged an order of termination.The cause of the appellant against theorder of termination continues to surviveand has not been rendered infructuousby lapse of time.

Case Law discussed:(2015) 7 SCC 373

(Delivered by Hon'ble Dr. DhananjayaYeshwant Chandrachud, C.J.)

1. The appellant filed a writ petitionunder Article 226 of the Constitutionseeking to challenge an order dated 18 May1993 passed by the Manager of the HariharMahadev Inter College, Deochandpur,Varanasi by which his services wereterminated. The appellant also sought amandamus restraining interference in thedischarge of his duty as Assistant Teacherin the L.T. Grade. The petition came up forhearing before the learned Single Judge on1 November 2010 and the following orderwas passed:

"Learned counsel for the petitionerstates that this writ petition has becomeinfructuous by efflux of time.

It is accordingly dismissed."

2. The appellant moved a recallapplication stating that he had noknowledge of the order dated 1 November2010 since despite enquiry his previouscounsel had not furnished a satisfactoryresponse and that it was only ten daysprior thereto when he was informed fromthe office of the District Inspector ofSchools, Varanasi that the petition hadbeen dismissed on 1 November 2010. It


may be also noted that the appellant statedthat he was regularly working in theinstitution and had never furnishedinstructions to his earlier counsel to makethe statement that the petition had beenrendered infructuous by lapse of time.The relevant averments in that regardwere as follows:

"6. That aforesaid writ petition was notinfructuous by efflux of time as stated byprevious counsel of the petitioner butpetitioner is regularly working in theaforesaid institution as Assistant Teacher inL.T. Grade in Sri Harihar Mahadeo InterCollege, Deochandpur, Varanasi andpetitioner was full hope for his regularizationbut on account of statement of previouscounsel matter of regularization has beenstopped and petitioner suffering from greatloss.

7. That no any consent was taken bythe previous counsel to the petitionerbefore giving the statement before thisHon'ble Court that writ petition has beenbecame infructuous by efflux of time buton account of imagination aforesaidstatement was given by the previouscounsel which is not true."

3. The learned Single Judgedismissed the recall application on 16October 2015 with the following order:

"1. This is an application seekingrecall of order dated 1.11.2010.

2. The aforesaid order was passed onthe statement made by counsel for petitioner.Application for recall has been filed by adifferent counsel, who was not present onthat date and has not made the statement.This application by a different counsel is notmaintainable inasmuch the Court recollectthat counsel, who appeared on behalf ofpetitioner on that day initially tried to argue

the matter on merits, but finding somedifficulty, he made statement for dismissal ofwrit petition as infructuous. I, therefore, findno reason to recall the said order.

3. The Restoration Application,along with delay condonation application,is hereby rejected."

4. The only ground on which the recallapplication has been dismissed is that it wasfiled by a counsel who was not present on thedate of the earlier order of dismissal. In theview of the learned Single Judge, anapplication by a different counsel was notmaintainable. The Court observed that itcould recollect that the counsel whoappeared on behalf of the appellant on thatdate had initially tried to argue the matter onmerits but finding some difficulty, he hadmade a statement to the effect that thepetition be dismissed as infructuous.

5. In our view, the real issue to bedecided is whether such a statementwhich was made by the learned counselappearing on behalf of the appellant to theeffect that the petition had been renderedinfructuous by efflux of time would bindthe appellant so as to prevent him fromapplying for recall of the order. Thelearned Single Judge has held against theappellant on the ground that the recallapplication was filed by some otherAdvocate. The fact that the recallapplication was filed by some otherAdvocate would assume relevance if theappellant sought to dispute whether such astatement was actually made before thelearned Single Judge. For the purpose ofthe special appeal, we shall proceed onthe basis that such a statement was madebefore the learned Single Judge on 1November 2010 to the effect that thepetition had been rendered infructuous byefflux of time. The issue is not as to

3 All. Om Prakash Chaubey Vs. D.I.O.S. Varanasi & Ors. 1449

whether the statement was made butwhether even if made, the appellantwould be precluded from applying forrecall on the ground that the statement didnot reflect the correct state of affairs.

6. We may note, as we have observedabove, that the challenge in the present casewas to an order terminating the services ofthe appellant which had been passed on 18May 1993. The writ petition was pending inCourt thereafter for nearly 17 years. There isno reason to presuppose that a petitionchallenging an order of termination of thisnature would be rendered infructuous byefflux of time. The issue as to whether thepetition is or is not rendered infructuous bylapse of time, is a matter which can certainlybe agitated before the Court if the litigant onwhose behalf a statement was made by thecounsel seeks to urge that the statement wasmade mistakenly and without authority of theclient. The appellant was entitled to urge thatthe issue in regard to the legality of the orderof termination was a live issue and that hewas continuing in the service of theinstitution.

7. In our view, the learned SingleJudge ought not to have dismissed therecall application merely on the groundthat it was made by counsel other than theperson who has appeared on behalf of theappellant when the matter was heard on 1November 2010. The fact that theapplication was made by a new counselmay at the highest dis-entitle the appellantfrom questioning whether the recital inthe order of the learned Single Judgedated 1 November 2010 is a correctstatement of what had actually transpiredin the Court. Hence, for the purpose ofthis appeal, we have proceeded on thebasis that the learned Single Judge on 1November 2010 correctly recorded the

statement which was made before theCourt by the counsel. However, even ifthat be so, we are of the view that theends of justice would require that theorder of dismissal of the writ petition asinfructuous by efflux of time should berecalled. The appellant has challenged anorder of termination. The cause of theappellant against the order of terminationcontinues to survive and has not beenrendered infructuous by lapse of time.

8. At this stage, it would benecessary to advert to a recent judgmentof the Supreme Court in Himalayan Coop.Group Housing Society vs. BalwanSingh1 where the following principleshave been laid down.

"Generally, admissions of fact made bya counsel are binding upon their principals aslong as they are unequivocal; where,however, doubt exists as to a purportedadmission, the Court should be wary toaccept such admissions. Furthermore, a clientis not bound by a statement or admissionwhich he or his lawyer was not authorised tomake. A lawyer generally has no implied orapparent authority to make an admission orstatement which would directly surrender orconclude the substantial legal rights of theclient unless such an admission or statementis clearly a proper step in accomplishing thepurpose for which the lawyer was employed.We hasten to add neither the client nor theCourt is bound by the lawyer's statements oradmissions as to matters of law or legalconclusions. Thus, according to generallyaccepted notions of professionalresponsibility, lawyers should follow theclient's instructions rather than substitutetheir judgment for that of the client. We mayadd that in some cases, lawyers can makedecisions without consulting the client.While in others, the decision is reserved for


the client. It is often said that the lawyer canmake decisions as to tactics withoutconsulting the client, while the client has aright to make decisions that can affect hisrights."

9. These principles would clearlystand attracted to the fact of this case. Forthese reasons, we allow the special appealand accordingly set aside both the ordersdated 1 November 2010 and 16 October2015. Writ-A No. 18410 of 1993 isrestored to the file of the learned SingleJudge for disposal afresh. However, weclarify that we have not expressed anyopinion on the merits of the rights andcontentions of the parties in the writpetition which will have to be adjudicatedupon by the learned Single Judge.

10. The special appeal is,accordingly, disposed of. There shall beno order as to costs.



BEFORETHE HON'BLE PRAMOD KUMAR

SRIVASTAVA, J.

Second Appeal No. 998 of 2015

Smt. Hirakali & Anr. ...AppellantsVersus

Ankur Agarwal & Anr. ...Respondents

Counsel for the Appellants:Sri Keshav Dhar Tripathi

Counsel for the Respondents:---

C.P.C. Section-100-Second Appeal-Suit forspecific performance-decreed by Courtsbelow-ground regarding escalation of

value of property subject matter of suit-not taken before Lower Appellate Court-can not be available in Second appeal-nosubstantial question of law foundinvolved-suit rightly decreed by Courtbelow.

Held: Para-9On examination of the reasoning recordedby the trial court, which are affirmed by thelearned first appellate court in first appeal, Iam of the view that the judgments of thetrial court as well as the first appellate courtare well reasoned and based upon properappreciation of the entire evidence onrecord. No perversity or infirmity is found inthe concurrent findings of fact recorded bythe trial cout that has been affirmed by thefirst appellate court to warrant interferencein this appeal. No question of law, muchless a substantial question of law wasinvolved in the case before this Court. Noneof the contentions of the learned counselfor the appellant- plaintiffs can besustained.

Case Law discussed:Laws (SC)-2008-1-13; ((2008) 12 SCC 67)

(Delivered by Hon'ble Pramod KumarSrivastava, J.)

1. Original suit no. 934/2006 (AnkurAgrawal v. Smt. Hirakali & others) wasfiled for specific performance ofregistered contract dated 25.06.2009executed between the plaintiff AnkurAgrawal and Om Prakash (predecessor ininterest of defendants) for sell of disputedproperty in favour of the plaintiffs.According to plaint case, plaintiffs andOm Prakash had executed said registeredsale-deed in which it was agreed thatowner of disputed property Om Prakashwill sell the said property for aconsideration of Rs. 1,60,000/- in favourof plaintiffs, and at the time of executionof said agreement to sell Om Prakash hadreceived advance of Rs. 70,000/- .The

3 All. Smt. Hirakali & Anr. Vs. Ankur Agarwal & Anr. 1451

plaintiff had been ready and willing toperform his part of such contract butearlier Om Prakash and thereafter hissuccessor in interest, namely, defendantshad not executed the sale deed; therefore,plaintiffs had filed suit for specificperformance of said contract.

2. Defendants (present appellants)had filed written-statement in originalsuit. Then trial court had framed issues,accepted evidences of the parties andthereafter Additional Civil Judge (S.D.)Court No.-4 Bareilly had passed thejudgment dated 25.05.2009, by which suitwas decreed and defendants were directedto receive a consideration of Rs. 90,000/-from plaintiffs and execute the sale deedin his favour.

3. Aggrieved by the said judgmentdated 25.05.2009, defendants had filedCivil Appeal no. 50/2009 (Smt. Hirakali& another v. Ankur Agrawal & another.This appeal was preferred by the threedefendants of original suit whereas thedefendant Sunil Kumar s/o Om Prakashhad not preferred appeal, so he was madeformal respondent in first appeal. TheAdditional Judge/ Special Judge (SC/STAct), Bareilly had afforded opportunity ofhearing to the parties, heard theirarguments, framed point of determinationand thereafter passed judgment dated30.07.2015, by which first appeal wasdismissed and judgment of trial court wasconfirmed. Aggrieved by the judgmentsof trial court as well as the first appellatecourt, this second appeal has beenpreferred by the appellants of first appeal.(two defendants of original suit).

4. Learned counsel for the appellantscontended that appellants had noknowledge of registered agreement to sell,

but the two courts below had erroneouslypassed the judgment against it. He alsocontended that finding of the two courtsbelow are erroneous and perverse whichcannot sustained. He also placed alternativearguments that at the time of specificperformance of contract of sale of property,court should consider the equity that afterlong time of passing of the agreement to sellthe value of property would enhance,thereafter at the time of granting of relief forspecific performance, amount ofconsideration should be enhanced.

5. A perusal of the records reveal that ithas been admitted fact that Om Prakash wasoriginal owner of the disputed property forwhich registered agreement to sell wasexecuted, and later on Om Prakash had died.The defendants/appellants had challenged theexecution of registered agreement to sell byOm Prakash in favour ofplaintiffs/respondents. On this point, the trialcourt had framed issue no.-1 to the effect thatwhether predecessor in interest ofdefendants, namely, Om Prakash hadexecuted the registered agreement to selldated 25.06.2005 in favour of plaintiff forsale of disputed property. On this point trialcourt had accepted evidences of the parties.In this regard, plaintiff had adduced fourwitnesses in oral evidences anddefendants/appellants side had also adducedthree witnesses in oral evidences. Trial courthad discussed oral and documentaryevidences and thereafter gave specificfinding of fact in favour ofplaintiffs/respondents holding that OmPrakash had executed registered agreementto sell with plaintiff for sale of disputedproperty to plaintiff for consideration of Rs.1,60,000/- and thereafter accepted Rs.70,000/- as advance consideration. Whenthese findings were challenged by theappellants side in first appeal, then first


appellate court had also considered the facts,circumstances and evidences and confirmedfindings of trial court on this point.

6. So far as perversity of appreciationof evidences by two courts below isconcerned, in this regard a perusal ofevidences and findings reveal that both thecourts below had rightly reached to theconclusion that Om Prakash had enteredinto agreement with plaintiffs/respondentsand executed registered agreement to selldisputed property as mentioned in theplaint. The case of defendants (presentappellants) was simply of denial.Admittedly they were not a party to saidagreement to sell and had no personalknowledge about it when plaintiff hadproperly proved the plaint case regardingexecution of registered agreement to sell inquestion and discharged his burden. Thenthe trial court as well as first appellate courthad rightly reached to the conclusionmentioned in the judgment on this point.There appears no illegality or perversity infinding of the two courts below. The disputebetween the parties in this matter is onlythat whether predecessor in interest andowner of disputed property (Om Prakash)had executed disputed registered agreementto sell in favour of Ankur Agrawal asmentioned in plaint or not. It is a question offact that can only be decided on the basis ofevidences. There was nothing in it that maybe treated as point of law . Two courtsbelow had appreciated facts, evidences,circumstances and thereafter gaveconcurrent findings of facts that plaint casein this regard has been proved and OmPrakash and Ankur Agrawal had executedthe registered agreement to sell asmentioned in plaint. By the decree of twocourts below the defendants were directedto receive remaining amount to saleconsideration to the extent of Rs. 90,000/-

and execute the sale deed of said property.No question of law arises in this matterrelating to dispute between the parties.

7. Learned counsel for the appellantshad cited the case of Pratap lakshmandMuchandi Vs. Shamlal UddavadasWadhwa, Laws (SC)-2008-1-13 and alsosited in ((2008) 12 SCC 67), in whichApex Court had held as under:

"16. But at the same time it is also truethat the agreement to sell was executed wayback in the year 1982. Since after 1982 muchwater has flown under the bridge, the valueof the real estate has shot up very high,therefore, while exercising our jurisdictionunder Section 20 of the Specific Relief Act,1963 we would like to be equitable andwould not allow the sale of property to beexecuted for a sum of Rs 1,20,000. Thelitigation has prolonged for almost 25 yearsand now at last reached at the end of thejourney. Therefore, we have to settle theequity between the parties. We hold that theagreement to sell was genuine and it wasexecuted for bona fide necessity but becauseof the passage of time we direct that therespondents shall pay a sum of Rs 5 lakhs inaddition to Rs 1,10,000 as out of Rs1,20,000, Rs 10,000 has already been paidas advance. On receipt of Rs 1,10,000 andRs 5 lakhs (Rs 6,10,000) the appellants shallexecute the sale deed for the property inquestion."

8. I am in agreement with thiscontention that if litigation has prolonged forabout 25 years or so, then equity should beconsidered so that any party may not beprejudiced without sufficient reason. Thecitation as above discussed the agreementexecuted between the parties for almost 25years but in present matter this is not a case.In present matter the registered agreement to

3 All. Smt. Chandrawati @ Chandri & Anr. Vs. State of U.P. & Ors. 1453

sell was executed on 25.06.2005 and it wasagreed between the parties and within oneyear the registered sale deed would beexecuted. Since then plaintiffs/respondents isshowing his eagerness and willingness to getthe said contract executed. Earlier he hadsent several notices before the lapse of periodof one year. Thereafter he again sent noticefor specific performance of said agreement tosell. On the other hand defendants/respondents had been ignoring those noticesand taking undue benefit of their possessionand had been delaying the matter. It ispertinent to mention that no plea of theescalation of value of property was taken bythe defendants/appellants either in theirwritten statement or in first appeal. In fact nosuch plea was raised by the appellants in firstappeal and its plea has suddenly been takendirectly in second appeal before this court.Rule-2 of Order XLI CPC provides for thegrounds which may be taken in appeal. Itlays down that the appellant shall, not exceptby leave of the Court, urge or be heard insupport of any ground of objection not setforth in the memorandum of appeal.Therefore this reason also the new plea of theescalation of value of property should bepermitted to be taken directly in secondappeal. In absence of such plea before firstappellate court, appellant had no right toargue on this point even before first appellatecourt then permitting him on such point insecond appeal directly for admission ofappeal may cause pre judice to rights ofrespondents.

9. On examination of the reasoningrecorded by the trial court, which areaffirmed by the learned first appellatecourt in first appeal, I am of the view thatthe judgments of the trial court as well asthe first appellate court are well reasonedand based upon proper appreciation of theentire evidence on record. No perversity

or infirmity is found in the concurrentfindings of fact recorded by the trial coutthat has been affirmed by the firstappellate court to warrant interference inthis appeal. No question of law, much lessa substantial question of law was involvedin the case before this Court. None of thecontentions of the learned counsel for theappellant- plaintiffs can be sustained.

10. In view of the above, this Courtfinds that no substantial question of lawarises in this appeal. The second appeal isdismissed.



BEFORETHE HON'BLE KRISHNA MURARI, J.

THE HON'BLE SHASHI KANT, J.

C..M.W.P. No. 1146 of 2014

Smt. Chandrawati @ Chandri & Anr. ...Petitioners

VersusState of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Sri Preetpal Singh Rathore, Sri Anil Tiwari

Counsel for the Respondents:C.S.C., Sri S.K. Tyagi, Sri Shivam Yadav

Land Acquisition Act, 1894, Section-4 and 6readwith Right to fair compensation &Transparency in Land AcquisitionRehabilitation and Resettlement Act, 2013-Section 24-Lease back policy of GraminAbadi Land-award made 5 years prior to1/1/14-on two negative conditions ofSection 24-proceeding shall be deemed toelasped-petition allowed.

Held: Para-14 & 2214. Thus, it is well settled by variouspronouncements of the Hon'ble Apex


Court noted above that even if one of thetwo negative conditions prescribed inSection 24 (2) stands fulfilled and theaward is made five years prior tocommencement of Act, 2013, which is01.01.2014, the proceedings shall bedeemed to have lapsed.

22. In view of the undisputed and admittedfacts of the case that award was made on11.01.2000 and the petitioners have notreceived the compensation and since thesame was deposited with the A.D.M. (L.A.),in view of the law laid down by the Hon'bleApex Court referred to above, will nottantamount to compensation paid to theland holders/persons interested, inasmuchas the law stands settled that unless thedeposit is made in the court to which areference would lie in accordance withSection 31 of the Act, 1894 and theacquisition proceedings initiated under theold Act cannot escape the mischief of Section24 (2) of Act, 2013.

Case Law discussed:(2014) 3 SCC 183; (2014) 6 SCC 586; (2014) 6SCC 583; (2014) 6 SCC 564; (2015) 3 SCC353; (2015) 4 SCC 325; 2015 (3) SCC 541;(2015) 3 SCC 597

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard Shri Anil Tiwari, learnedSenior Counsel appearing for the petitioner,learned Standing Counsel for the Staterespondents and Shri Shivam Yadavappearing for respondent nos. 4 to 6.

2. Dispute in this petition is in respectof khasra plot no. 236, area 6-13-0 situate invillage Gejha Tilpatabad, NOIDA, districtGautam Budh Nagar (hereinafter referred toas 'land in dispute').

3. The land in dispute was recorded inthe name of one Ram Chandra s/o Phussi. Hetransferred an area of 0-6-6-2/3 (6 biswa and6-2/3 biswansi) by means of a registered sale

deed dated 10.12.1982 in favour of petitionerno. 1. Petitioner no. 2 claims to havepurchased area of 1000 sq. mtrs. frompetitioner no. 1 by way of registered saledeed dated 13.11.2011.

4. The plot in dispute was subjectmatter of acquisition for planneddevelopment in district Ghaziabad throughNew Okhla Industrial DevelopmentAuthority (hereinafter referred to as 'NOIDAAuthority'). Notification under Section 4 (1)of the Land Acquisition Act, 1894(hereinafter referred to as the 'Act, 1894')read with Section 17 (1) and (4) of the saidAct, was issued on 13.01.1995. Notificationunder Section 6 was published on23.05.1997. A notice dated 20th June, 2013was issued to petitioner no. 2 and two othersfor demolition of the constructions standingover the land in dispute. Petitioner no. 2 andthe other noticees challenged the same byfiling Writ Petition No. 36148 of 2013 on theallegation that constructions were standingon the land in dispute long before the date ofpurchase of land. However, relying upon thedescription of the property in the sale deed,which was shown as vacant plot of landhaving no covered area, a Division Bench ofthis Court vide order dated 29.07.2013dismissed the writ petition finding noillegality or infirmity in the notice fordemolition.

5. The two petitioners filed the instantpetition seeking a writ, order or direction inthe nature of mandamus to command therespondent-NOIDA to exempt the land indispute from notification dated 31.01.1995.Another writ, order or direction in the natureof mandamus was also sought to commandthe respondent-NOIDA to complete andconclude the lease back proceedings initiatedby them in pursuance of 3rd Amendment ofRegulation 2006. Further a mandamus to


command the respondent nos. 2 to 6 not totake any coercive action against thepetitioners with regard to their exclusive andpeaceful possession over plot no. 236 wasalso prayed for.

6. The writ petition was filed on theallegation that in view of the 3rdAmendment in Regulation 2006 providingthat Gramin abadi land upto 30th June, 2011may be regularised and may be leased backto respective farmers and since in the surveyundertaken by NOIDA, an abadi was foundover the land in dispute, therefore, under thelease back policy, the land in dispute oughtto have been returned back to the petitioners.However, subsequently, the petitioners madean application seeking amendment in thepleadings, which was allowed vide orderdated 15.01.2014. After amendment,following reliefs came to be sought for in thewrit petition.

"(i) issue an appropriate writ, orderor direction in the nature of mandamus todeclare and treat the land acquisitionproceedings culminated in the awarddated 11.01.2000 with regard to the area1000 square yards which is part of GataNo. 236 village Geja Tilpatabad, Parganaand Tehsil Dadri, District Gautam BudhNagar as lapsed by operation of law ascontained in Section 24 (2) of Act namely"The Right to Fair Compensation andTransparency in Land Acquisition,Rehabilitation and Resettlement Act,2013".

Or alternativelyDirect the respondents to consider

the claim of the petitioners for lease backthe disputed land under the provisions ofthe Regulation namely "The New OkhlaIndustrial Development Authority RuralAbadi Site (Management andRegularization for Residential Purpose)

Regulation 2006" as amended from timeto time.

(ii) issue a writ, order or direction in thenature of mandamus directing therespondents no. 2 to 6 for not to take anycoercive action against the petitioners withregard to their exclusive and peacefulpossession in Khasra No. 236 Village Gejha,Tilapatabad Tehsil Dadri, District GautamBudh Nagar. Issue any other suitable writ,order or direction which this Hon'ble courtmay deem fit and proper under thecircumstances of the case."

7. The aforesaid reliefs were claimedthrough amendment on the basis of theallegations, which were already there inparagraph 31 of the writ petition that sinceneither any compensation has been given tothe petitioners nor possession has been takenfrom them, so the acquisition proceedingsshall be deemed to have lapsed in view ofSection 24 of the Right to Fair Compensationand Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013(hereinafter referred to as the 'Act 2013').Section 24 of the Act, 2013 reads as under.

"24. Land acquisition process under ActNo. 1 of 1894 shall be deemed to have lapsedin certain cases.- (1) Notwithstandinganything contained in this Act, in any case ofland acquisition proceedings initiated underthe Land Acquisition Act, 1894 (1 of 1894),-

(a) where no award under section 11of the said Land Acquisition Act has beenmade, then, all provisions of this Actrelating to the determination ofcompensation shall apply; or

(b) where an award under saidsection 11 has been made, then suchproceedings shall continue under theprovisions of the said Land AcquisitionAct, as if the said Act has not beenrepealed.


(2) Notwithstanding anythingcontained in sub-section (1), in case ofland acquisition proceedings initiatedunder the Land Acquisition Act, 1894 (1of 1894), where an award under the saidsection 11 has been made five years ormore prior to the commencement of thisAct but the physical possession of theland has not been taken or thecompensation has not been paid the saidproceedings shall be deemed to havelapsed and the appropriate Government, ifit so chooses, shall initiate theproceedings of such land acquisitionafresh in accordance with the provisionsof this Act;

Provided that where an award hasbeen made and compensation in respect ofa majority of land holdings has not beendeposited in the account of thebeneficiaries, then, all beneficiariesspecified in the notification foracquisition under section 4 of the saidLand Acquisition Act, shall be entitled tocompensation in accordance with theprovisions of this Act."

8. A bare reading of Section 24 (2)of Act, 2013 goes to show that uponfulfilment of two conditions mentionedtherein, the acquisition proceedings madeunder the old Act shall be deemed to havelapsed. The said two conditions are:-

(1) award under the said section 11has been made five years or more prior tothe commencement of the new Act, i.e.,prior to 01.01.2014.

(2) the physical possession of theland has not been taken or thecompensation has not been paid.

9. In the present case, according tothe pleadings in the counter affidavit filedby NOIDA, the award was declared on

11.01.2000. It may be relevant to quoteparagraph 8 of the counter affidavit.

"8. That the contents of paragraph nos.3 and 4 of the writ petition are not admittedand are denied. It is further submitted thatKhasra No. 236 area 6-13-0 Bigha wasacquired in the year 1995 itself throughnotification U/s-4/17 dated 13.01.1995 andnotification U/s-6/17 dated 21.09.1995. Thepossession of aforesaid land was taken overby the authority way back on 23.05.1997 and20.12.1997. Further, award with regardingthe aforesaid acquisition was declared on11.01.2000. New Okhla IndustrialDevelopment Authority Rural Abadi Site(Management and Regularisation forResidential Purposes) Regulations, 2006 isapplicable to those who are original tenureholders of the revenue villages within theterritorial limit of NOIDA. In the presentcase, the petitioner no. 1 is the resident ofNew Delhi and never came to NOIDA forresidential purposes. It is further beingclarified that she further sold out the propertyto petitioner no. 2 in the year 2011 to theperson who also is not the resident of samerevenue village. Moreover, sale to thepetitioner no. 2 was made almost after about16 years of acquisition. However, the saidsale and purchase of acquired land clearlyshows that there was no Abadi over the landin question. Therefore, no benefit whatsoevercan be granted to the petitioners."

10. In view of the aforesaid avermentmade in the counter affidavit admitting thatthe award has been declared on 11.01.2000,the first condition prescribed in Section 24 ofAct, 2013 stands fulfilled. The question as towhether the possession of land in disputewhich was subject matter of acquisition hasbeen taken by the respondent-NOIDA, is adisputed question of fact, inasmuch asaverments on oath contrary to each other


have been made by both the parties.However, said issue will not detain us fromproceeding further in the matter, inasmuch asthe second condition in Section 24 (2) of theAct, 2013 consists of two contingencies,physical possession of the land has not beentaken or the compensation has not been paid.The use of word 'or' by the Legislatureclearly goes to show that, in case, where anaward has been made five years or moreprior to commencement of the Act and eitherof the two contingencies, viz., physicalpossession of the land has not been taken orthe compensation has not been paid, issatisfied, such acquisition proceedings weredeemed to have lapsed. The provisions ofSection 24 (2) has been subject matter ofinterpretation by Hon'ble Apex Court in thecase of Pune Municipal Corporation & Anr.Vs. Harakchand Misirimal Solanki & Ors.,(2014) 3 SCC 183. It may be relevant toquote paragraphs 10 and 11 of the report,where this issue has been discussed andanswered.

"10. Insofar as sub-section (1) of Section24 is concerned, it begins with non obstanteclause. By this, Parliament has givenoverriding effect to this provision over allother provisions of 2013 Act. It is provided inclause (a) that where the land acquisitionproceedings have been initiated under the1894 Act but no award under Section 11 ismade, then the provisions of 2013 Act shallapply relating to the determination ofcompensation. Clause (b) of Section 24 (1)makes provision that where land acquisitionproceedings have been initiated under the1894 Act and award has been made underSection 11, then such proceedings shallcontinue under the provisions of the 1894 Actas if that Act has not been repealed.

11. Section 24 (2) also begins withnon obstante clause. This provision hasoverriding effect over Section 24 (1).

Section 24 (2) enacts that in relation to theland acquisition proceedings initiatedunder 1894 Act, where an award has beenmade five years or more prior to thecommencement of the 2013 Act andeither of the two contingencies issatisfied, viz; (i) physical possession ofthe land has not been taken or

(ii) the compensation has not been paid;such acquisition proceedings shall bedeemed to have lapsed. On the lapse of suchacquisition proceedings, if the appropriategovernment still chooses to acquire the landwhich was the subject matter of acquisitionunder the 1894 Act then it has to initiate theproceedings afresh under the 2013 Act. Theproviso appended to Section 24 (2) dealswith a situation where in respect of theacquisition initiated under the 1894 Act anaward has been made and compensation inrespect of a majority of land holdings has notbeen deposited in the account of thebeneficiaries then all the beneficiariesspecified in Section 4 notification becomeentitled to compensation under 2013 Act."

11. The same view has been reiteratedin the case of Bharat Kumar Vs. State ofHaryana & Anr., (2014) 6 SCC 586. Afternoticing the provisions of Section 24 of theAct, 2013, it has been held as under.

"Sub-section (2) of Section 24commences with a non obstante clause. It is abeneficial provision. In view of this provision,if the physical possession of the land has notbeen taken by the acquiring authority thoughthe award is passed and if the compensationhas not been paid to the land owners or hasnot been deposited before the appropriateforum, the proceedings initiated under the1894 Act is deemed to have been lapsed."

12. The ratio of the decision of thePune Municipal Corporation (supra) has


been reaffirmed by the Hon'ble Apex Courtin the case of Bimla Devi & Ors. Vs. State ofHaryana & Ors., (2014) 6 SCC 583, Unionof India & Ors. Vs. Shiv Raj & Ors., (2014)6 SCC 564, Shree Balaji Nagar ResidentialAssociation Vs. State of Tamil Nadu & Ors.,(2015) 3 SCC 353 and Velaxan Kumar Vs.Union of India & Ors., (2015) 4 SCC 325.

13. Again, in a recent decision in thecase of Rajiv Chowdhrie HUF Vs. Union ofIndia & Ors., 2015 (3) SCC 541, the ratio ofthe decision in the case of Pune MunicipalCorporation (supra) has been reaffirmed.

14. Thus, it is well settled by variouspronouncements of the Hon'ble ApexCourt noted above that even if one of thetwo negative conditions prescribed inSection 24 (2) stands fulfilled and theaward is made five years prior tocommencement of Act, 2013, which is01.01.2014, the proceedings shall bedeemed to have lapsed.

15. In the light of the aforesaid, we nowproceed to test whether the compensation hasnot been paid to the petitioners and, thus, thesecond alternative negative conditionprescribed by Section 24 (2) stands fulfilled.

16. In the counter affidavit filed onbehalf of the NOIDA in paragraphs 35and 37, it has been pleaded as under.

"35. That the contents of paragraphno. 15 of the 1st supplementary affidavitneed no reply from the side of answeringrespondents. It is, however, submitted that95% of compensation has already beendisbursed by the answering respondents.The petitioners with mala fide intentiondid not accept the compensation, as such,it has been deposited with A.D.M. (L.A.).

37. That the contents of paragraphno. 17 of the 1st supplementary affidavitare not admitted and are denied. It isfurther submitted that compensation hasalready been paid by the answeringrespondents, which has been depositedwith ADM (LA), the same can very wellbe received by the petitioners."

17. In view of the aforesaid averments,it is, thus, clear that compensation has neitherbeen paid to the petitioners nor it has beendeposited in the court to which a referenceunder Section 18 would be submitted asmandated by Section 31 of Act, 1894, whichreads as under.

"31. Payment of compensation ordeposit of same in court. - (1) On makingan award under Section 11, the Collectorshall tender payment of the compensationawarded by him to the persons interestedentitled thereto according to the award,and shall pay it to them unless preventedby some one or more of the contingenciesmentioned in the next sub-section.

(2) If they shall not consent to receiveit, or if there be no person competent toalienate the land, or if there be any dispute asto the title to receive the compensation or asto the apportionment of it, the Collector shalldeposit the amount of the compensation inthe court to which a reference under Section18 would be submitted: "

18. Thus, Section 31 of Act, 1894enjoins upon the Collector of making anaward under Section 11 to tender payment ofcompensation to persons interested entitledthereto according to the award. It furthermandates the Collector to make payment ofcompensation to them unless prevented byone of the contingencies contemplated insub-section (2), which are:


(i) the person interested entitled tocompensation did not consent to receiveit, (ii) there is no person competent toalienate the land, and (iii) there is disputeas to the title to receive compensation oras to the apportionment of it.

19. If due to any of thecontingencies contemplated in Section 31(2) of Act, 1894, the Collector isprevented from making payment ofcompensation to the persons interestedwho are entitled to compensation, he isrequired to deposit the compensation inthe court to which reference under Section18 may be made.

20. While interpreting theexpression 'compensation has not beenpaid' used in Section 24 (2), Hon'ble ApexCourt in the case of Pune MunicipalCorporation (supra), has held as under.

"15. Simply put, Section 31 of the 1894Act makes provision for payment ofcompensation or deposit of the same in thecourt. This provision requires that theCollector should tender payment ofcompensation as awarded by him to thepersons interested who are entitled tocompensation. If due to happening of anycontingency as contemplated in Section 31(2), the compensation has not been paid, theCollector should deposit the amount ofcompensation in the court to which referencecan be made under Section 18.

16. The mandatory nature of theprovision in Section 31 (2) with regard todeposit of the compensation in the court isfurther fortified by the provisionscontained in Section 32, 33 and 34. As amatter of fact, Section 33 gives power tothe court, on an application by a personinterested or claiming an interest in suchmoney, to pass an order to invest the

amount so deposited in such governmentor other approved securities and maydirect the interest or other proceeds of anysuch investment to be accumulated andpaid in such manner as it may considerproper so that the parties interestedtherein may have the benefit therefrom asthey might have had from the land inrespect whereof such money shall havebeen deposited or as near thereto as maybe.

17. While enacting Section 24 (2),Parliament definitely had in its view Section31 of the 1894 Act. From that one thing isclear that it did not intend to equate the word"paid" to "offered" or "tendered". But at thesame time, we do not think that by use of theword "paid", Parliament intended receipt ofcompensation by the landowners/personsinterested. In our view, it is not appropriate togive a literal construction to the expression"paid" used in this sub-section (sub-section(2) of Section 24). If a literal constructionwere to be given, then it would amount toignoring procedure, mode and manner ofdeposit provided in Section 31 (2) of the1894 Act in the event of happening of any ofthe contingencies contemplated thereinwhich may prevent the Collector frommaking actual payment of compensation. Weare of the view, therefore, that for thepurposes of Section 24 (2), the compensationshall be regarded as "paid" if thecompensation has been offered to the personinterested and such compensation has beendeposited in the court where reference underSection 18 can be made on happening of anyof the contingencies contemplated underSection 31 (2) of the 1894 Act. In otherwords, the compensation may be said to havebeen "paid" within the meaning of Section24 (2) when the Collector (or for that matterLand Acquisition Officer) has discharged hisobligation and deposited the amount ofcompensation in court and made that amount


available to the interested person to be dealtwith as provided in Sections 32 and 33.

18. 1894 Act being an expropriatorylegislation has to be strictly followed. Theprocedure, mode and manner for paymentof compensation are prescribed in Part V(Sections 31-34) of the 1894 Act. TheCollector, with regard to the payment ofcompensation, can only act in the mannerso provided. It is settled proposition oflaw (classic statement of Lord Roche inNazir Ahmad[1]) that where a power isgiven to do a certain thing in a certainway, the thing must be done in that wayor not at all. Other methods ofperformance are necessarily forbidden."

21. The same view has beenreiterated in the case of Bharat Kumar(supra), Bimla Devi (supra), RajivChowdhrie HUF (supra) and Sita RamVs. State of Haryana & Anr., (2015) 3SCC 597.

22. In view of the undisputed andadmitted facts of the case that award wasmade on 11.01.2000 and the petitioners havenot received the compensation and since thesame was deposited with the A.D.M. (L.A.),in view of the law laid down by the Hon'bleApex Court referred to above, will nottantamount to compensation paid to the landholders/persons interested, inasmuch as thelaw stands settled that unless the deposit ismade in the court to which a reference wouldlie in accordance with Section 31 of the Act,1894 and the acquisition proceedingsinitiated under the old Act cannot escape themischief of Section 24 (2) of Act, 2013.

23. In view of the aforesaid factsand discussions and the reasons recordedby us, the acquisition proceedings inrespect of the petitioners' land standslapsed.

24. The writ petition, accordingly,stands allowed. The impugnednotification in so far as the land of thepetitioners is concerned, the same standsquashed.

25. We, however, leave it open tothe State Government, if it so chooses, toinitiate proceedings for acquisition of theland in dispute afresh in accordance withthe provisions of Act, 2013.

26. However, in the facts andcircumstances, we do not make any orderas to costs.




ARORA, J.

W.P. No. 2156 (S/S) of 2009

Syed Amirul Haq ...PetitionerVersus

The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Amit Bose


U.P. Police Officer Subordinate Ranks(Punishment and Appeal) Rules-1991-Rule-14(i)-disciplinary proceeding against policeconstable-concluded for dismissal-withoutdeciding the question-whether unauthorizedabsence was willful or beyond his control-petitioner suffering from paralytic attack-treatment by different doctors in differenthospitals-can not be termed unauthorizedabsence from duty-held-entitled forreinstatement as the petitioner alreadyretired-arrears of salary during period ofsuspension to punishment not payable-but

3 All. Syed Amirul Haq Vs. The State of U.P. & Ors. 1461

for purpose of post retiral benefits-shall betaken into account.

Held: Para-19, 20 & 2219. If employee is unable to attendduties for a reason like mishap; seriousailment of his or in family; law and orderproblem; failure of transport etc., itcannot be termed as a case of deliberateor willful absence.

20. At this juncture it would be relevantto point out that Paralysis of the musclesof the face, arm, and leg on one side ofthe body is called hemiplegia ("hemi"means "half") and usually results fromdamage to the opposite side of the brain.Damage to the nerves of the spinal cordaffects different parts of the body,depending on the amount of damage andwhere it occurred. Paralysis is a seriousailment and it affects not only thelocomotion of the body but it also causeloss of sense. Therefore, the disease withwhich petitioner was suffering, is ofserious nature and his absence cannot besaid to be willful.

22. Thus it is a settled position of lawsince long that in a Departmentalproceeding, if allegation of unauthorizedabsence from duty is made, thedisciplinary authority is required toprove that the absence is willful, inabsence of such finding, the absence willnot amount to misconduct.

Case Law discussed:2009 (2) SCC 570; (1995 Supp. (3); (2012) 3SCC 178; (2004) 4 SCC 560


1. Heard Mr Amit Bose, learnedCounsel for the petitioner and learnedStanding Counsel.

2. Through the present writ petitionunder Article 226 of the Constitution ofIndia, the petitioner has questioned the

validity of the order dated 20.2.2006[Annexure-1 to the writ petition] wherebythe petitioner has been removed fromservice by the Superintendent of Police,Chandauli. The petitioner has alsoassailed the appellate order dated16.10.2006 passed by the DeputyInspector General of Police, VaranasiRange, Varanasi contained in AnnexureNo. 12 to the writ petition as also therevisional order dated 3.9.2008/20.9.2008passed by the Inspector General of Police,Varanasi Zone, Varanasi.

3. Brief facts of the case, in a narrowcompass, are that while working asConstable at police-out post Tara Jeevanpur,Police Station Alinagar, District Chandauli,the petitioner proceeded on three days leaveon 16.12.2001 but he did not report for dutieson expiry of sanctioned leave and as such,vide order dated 6.12.2003, theSuperintendent of Police, Chandaulisuspended the petitioner in contemplation ofdepartmental inquiry on the ground ofunauthorized absence and the Circle Officer,Chakia, Chandauli, was appointed asPreliminary Enquiry Officer. However, thesaid preliminary inquiry was not conductedand the file was returned by the CircleOfficer.

4. According to the petitioner, whilehe was on leave, on 17.12.2001, he suffereda paralytic attack on the right side of hisbody as a consequence whereof he wascompletely bed ridden and even losslocomotion. Immediately thereafter, on18.12.2001, he was rushed to the StateUnani Hospital, Musafirkhana, DistrictSultanpur, where he remained undertreatment upto 19.12.2001 but since therewas no improvement in the condition, hewas taken by the members of family toState Unani Hospital, Ghazipur, where also


his condition did not improve and remainedprecarious. After being under treatment indifferent doctors, he again got himselftreated at State Unani Hospital,Musafirkhana, district Sultanpur, where heremained under treatment from 7.1.2003 to20.12.2003.

5. The petitioner on regaining healthafter a long illness and when he regainphysical movement of his body, he joined hisduties on 4.4.2004. Subsequently, vide orderdated 9.4.2004, the Superintendent of Policedirected the Circle Officer, Chandauli, DistrictVaranasi to conduct preliminary inquiry intothe charge leveled against him for his beingabsent from duty w.e.f. 20.12.2001 to3.4.2004. The Preliminary Inquiry Officer,after due inquiry, submitted its report on4.6.2004, holding the petitioner guilty of beingabsent from duty and recommended thepunishment of fine equivalent to one month'ssalary be imposed on the petitioner and theperiod of his absence from duty be sanctionedas leave without pay. However, the saidrecommendation of the Preliminary InquiryOfficer was not accepted by the SeniorSuperintendent of Police, Varanasi and,therefore, vide order dated 10.6.2004, theSuperintendent of Police instituteddepartmental proceedings under Section 14(1) of U.P. Police Officers of SubordinateRanks (Punishment and Appeal) Rules, 1991and appointed the Circle Officer, Sakaldiha,District Varanasi, as the Inquiry Officer. Itmay be clarified that on 18.6.2004, thepetitioner was reinstated in service withoutprejudice to the departmental inquiry to beconducted against him. It was provided thatthe orders with regard to the pay andallowances for the period he was undersuspension would be passed later on.

6. Pursuant to the aforesaidreinstatement order, the petitioner was

posted at police station Chakia, districtVaranasi in the month of June, 2004. On1.7.2004, the petitioner again suffered asecond paralytic attack on the left side of hisbody in the Police Line, Varanasi. On1/2.7.2004, the petitioner was relieved forjoining at police station Chakia, districtVaranasi in absentia. However, thepetitioner could not join at police stationChakia on account of second paralyticattack. On 6.1.2005, a charge-sheet wasissued against the petitioner by the CircleOfficer, Sakaldiha, District Chandauli, towhich the petitioner submitted his reply on7.2.2005. The Inquiry Officer submitted hisreport on 9.12.2005 holding the petitionerguilty of being absent from duty from20.12.2001 to 4.4.2004 and also on accountof his absent from duty and his failure tojoin at police station Chakia, DistrictChandauli and recommended thepunishment of removal from service beimposed on the petitioner. Subsequently,vide order dated 10.12.2004, the petitionerwas placed under suspension on the groundof not joining at police station Chakia. On29.12.2005, a show cause notice was issuedto the petitioner, to which the petitionersubmitted his reply on 13.2.2006. However,the Superintendent of Police, Chandauli,vide order dated 20.2.2006, removed thepetitioner from services.

7. Not being satisfied with the orderof removal, the petitioner preferred anappeal before the Deputy InspectorGeneral of Police, Varanasi Range,Varanasi, which was dismissed vide orderdated 16.10.2006. Being aggrieved, thepetitioner filed revision, which too wasdismissed vide order dated 29.9.2008.

8. Hence the petitioner has filed theinstant writ petition assailing all theaforesaid orders.


9. Counsel for the petitioner hasvehemently argued that the impugned orderof removal has been passed withoutconsidering the reply of the petitioner andlooking to the serious ailment with whichpetitioner was suffering at the relevant time.The Punishing Authority as well as theInquiry Officer failed to consider themedical certificate submitted by thepetitioner and disbelieved the same withoutany verification from the doctors. They alsofailed to consider the very vital fact that thepetitioner's absence from duty was notdeliberate or willful but it was on account ofineluctable circumstances. Moreover, whilepassing the order of punishment, thepunishing authority on one hand hasregularized the period of absence from dutyof the petitioner and on the other hand forthe same alleged absence, passed theimpugned order of removal.

10. In contrast, learned StandingCounsel stated that on account ofunauthorized absence from duty, thepetitioner, namely, Syed Anwarul Haqwas subjected to disciplinary proceedingsand after due process of law, the order ofremoval from service was passed. It hasbeen clarified that the inquiry against thepetitioner was conducted in consonancewith the principles of natural justice. Theappeal and the Revision was decided withspeaking order. Therefore, there is noillegality in the impugned orders and thewrit petition is liable to be dismissed.

11. I have given my anxiousconsideration to the facts and circumstancesof the case and have also examined thematerial on record including the originalrecord produced by the Standing Counsel.

12. There is no dispute to the factthat after remaining absent for the period,

referred to above, the petitioner wasallowed to resume his duties vide orderdated 18.6.2004 passed by the SeniorSuperintendent of Police, Varanasiwithout prejudice to the departmentalinquiry to be conducted against him. Itwas also provided in the aforesaid orderthat necessary orders with regard to thearrears of pay and allowances would bepassed later on.

13. In the instant case, on perusal ofthe averments made in the counter affidavit,it comes out that no reason has beenindicated as to why the medical certificateissued by the doctor was not accepted by theauthorities. There is no whisper as to how theauthorities came to the conclusion that themedical certificates were fabricated one. TheInquiry Officer/Disciplinary Authority hadneither summoned the doctor nor otherwisemade an efforts to verify the genuineness ofthe medical certificate. Thus the InquiryOfficer/disciplinary authority has violated theprinciple of natural justice. A perusal ofrelevant record reveals that it is the definitestand of the petitioner before the InquiryOfficer to summon the three doctors who hadtreated him to prove the factum of his illnessand the genuineness of the medicalcertificates submitted by him but the InquiryOfficer did not summon the aforesaidwitnesses causing serious prejudice to thepetitioner. No documents have been broughton record on the basis of which genuinenessof the Medical Certificates produced by thepetitioner were doubted by the InquiryOfficer and believed by other authorities.Without summoning and examining theDoctor, the conclusion of the authorities thatthe Medical certificates are not genuinedocuments, is wholly erroneous andunjustified. No finding could have beenrecorded by the Inquiry Officer with regardto certificates or the factum of illness of the


petitioner without summoning the doctors,and denial by them with regard to illness andtreatment given to the petitioner by them. Asregard the finding recorded by the InquiryOfficer that the petitioner did not inform theauthorities of his illness, the record whichhave been produced by the respondents,shows that there are various applications andmedical certificates available on the recordsubmitted by the petitioner with regard togrant of leave and extension of leave . Thedifferent doctors like, In-charge MedicalOfficer, State Unani Hospital,Musafirkhana,Sultanpur and Medical OfficerGHMC & Hospital,Ghazipur had diagnosedthe petitioner as a patient of paralysis on rightside of the body. Apart from above, thepetitioner had attacked the impugned orderson the ground of various defects in thedisciplinary proceedings.

14. In a recent decision i.e. Roop SinghNegi vs. Punjab National Bank 2009(2) SCC570, the Apex Court while narrating the dutyof the inquiry officer, disciplinary authorityand appellate authority, held that the materialbrought on record pointing out the guilt arerequired to be proved.

15. The Apex Court in the case ofMinistry of Finance and another Vs.S.B.Ramesh ( 1998 SCD page 1046) andS.C. Gioratra Vs. United CommercialBank and others ( 1995 Supp.(3) has heldthat if the enquiry officer did not provethe documentary evidences relied upon inthe enquiry and without proving thecharges levelled against the petitioner,submitted his enquiry report, it vitiates theentire proceedings due to non-observanceof principle of natural justice.

16. Undoubtedly, the petitioner wasprincipally charged for unauthorizedabsence from duty. In the case of

petitioner referring to unauthorizedabsence, the disciplinary authority allegedthat he failed to maintain devotion of dutyand his behaviour was unbecoming of aGovernment servant.

17. The question whether`unauthorized absence from duty' amounts tofailure of devotion to duty or behaviourunbecoming of a Government servant cannotbe decided without deciding the questionwhether absence is willful or because ofcompelling circumstances. If the absence isthe result of compelling circumstances underwhich it was not possible to report orperform duty, such absence can not be heldto be willful. Absence from duty without anyapplication or prior permission may amountto unauthorized absence, but it does notalways mean willful. There may be differenteventualities due to which an employee mayabstain from duty, including compellingcircumstances beyond his control like illness,accident, hospitalization, etc., but in suchcase the employee cannot be held guilty offailure of devotion to duty or behaviourunbecoming of a Government servant.

18. The question whether"Unauthorized absence from duty" amountsto failure of devotion to duty or behaviorunbecoming of a government servant cannotbe decided without deciding the questionwhether absence is willful or because ofcompelling circumstances, have been dealt indetail by the Hon'ble Supreme Court in thecase of Krushnakant B. Parmar vs. Union ofIndia and another (2012) 3 SCC 178observed in paragraphs 17,18 and 19 asunder:-

"17. If the absence is the result ofcompelling circumstances under which itwas not possible to report duty, such absencecannot be held to willful. Absence from duty,


such absence cannot be held to be willful.Absence from duty without any applicationor prior permission may amount tounauthorized absence, but it does not alwaysmean willful. There may be differenteventualities due to which an employee mayabstain from duty, including compellingcircumstances beyond his control like illness,accident, hospitalization, etc., but in suchcase the employee cannot be held guilty offailure of devotion to duty or behaviourunbecoming of a Government servant.

18. In a departmental proceeding, ifallegation of unauthorised absence fromduty is made, the disciplinary authorityrequired to prove that the absence iswillful, in the absence of such finding, theabsence will not amount to misconduct.

19. In the present case the inquiryofficer on appreciation of evidence thoughheld that the appellant was unauthorisedlyabsence from duty but failed to hold that theabsence was willful; the disciplinaryauthority as also the appellate authority,failed to appreciate the same and wronglyheld the appellant guilty."

19. If employee is unable to attendduties for a reason like mishap; seriousailment of his or in family; law and orderproblem; failure of transport etc., it cannotbe termed as a case of deliberate or willfulabsence.

20. At this juncture it would berelevant to point out that Paralysis of themuscles of the face, arm, and leg on oneside of the body is called hemiplegia("hemi" means "half") and usually resultsfrom damage to the opposite side of thebrain. Damage to the nerves of the spinalcord affects different parts of the body,depending on the amount of damage andwhere it occurred. Paralysis is a seriousailment and it affects not only the

locomotion of the body but it also causeloss of sense. Therefore, the disease withwhich petitioner was suffering, is ofserious nature and his absence cannot besaid to be willful.

21. In Shri Bhagwan Lal Arya v.commissioner of Police,Delhi (2004) 4SCC 560, the Apex Court opined that theunauthorized absence was not a gravemisconduct inasmuch as the employeehad proceeded on leave under compulsionbecause of his grave condition of health.Be it noted, in the said, it has also beenobserved that no reasonable disciplinaryauthority would term absence on medicalgrounds with proper medical certificatefrom Government doctors as a gravemisconduct.

22. Thus it is a settled position of lawsince long that in a Departmental proceeding,if allegation of unauthorized absence fromduty is made, the disciplinary authority isrequired to prove that the absence is willful,in absence of such finding, the absence willnot amount to misconduct.

23. In the present case, the InquiryOfficer on appreciation of documents thoughheld that the petitioner was unauthorisedlyabsent from duty but failed to hold that theabsence was willful; the disciplinaryauthority, appellate authority as well asRevisional Authority also failed to appreciatethe same and wrongly held the petitionerguilty.

24. Lastly, it may be pointed that theimpugned order of dismissal dated20.2.2006 suffers from one more defect asthe Superintendent of Police, Chandaulihas dismissed the petitioner from the dateof suspension i.e. 6.12.2003, which iswholly unjustified and per se bad in law.


Further, as averred above, on 18.6.2004,the petitioner was reinstated in servicewithout prejudice to the departmentalinquiry to be conducted against him andin the said order, it was provided that theorders with regard to the pay andallowances for the period he was undersuspension would be passed later on butno such order was ever passed.

25. In view of the aforesaiddiscussions, the writ petition is allowed inpart. The impugned orders of removal dated20.2.2006 passed by disciplinary authority,affirmed by the Appellate Authority andRevisional Authority cannot be sustainedare hereby set aside.

26. Taking into consideration thefact that the petitioner has suffered a lotsince the disciplinary proceeding wasdrawn in 2001 and in the interregnum, thepetitioner attained the age ofsuperannuation, I am not remitting theproceeding to the disciplinary authorityfor any further action. Further, keeping inmind the fact that the petitioner had notworked for a long time, I direct thatpetitioner shall be treated as reinstated inservice from the date of dismissal to thedate of retirement for the purposes ofpayment of post retiral dues like amountof G.P.F., leave encashment, gratuity,amount of Group Insurance and pension.However, the petitioner will not beentitled for any back-wages. The exercisefor payment of retiral dues and pensionshall be completed within a period of fourmonths from the date of production ofcertified copy of this order by therespondents/government authorities.


CRIMINAL SIDEDATED: ALLAHABAD 02.12.2015

BEFORETHE HON'BLE ARVIND KUMAR TRIPATHI, J.THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. 2402 of 1981

Tej Pal Singh & Ors. ...AppellantsVersus


Counsel for the Appellants:Krishna Capoor, D.N. Wali, Dr. Arun Srivastava,I.N. Mulla, Pramod Dwivedi, Rahul Kakran, S.N.Mulla, Sikandar Kochar, Virendra Singh

Counsel for the Respondent:A.G.A.. P.N. Mishra

Cr.P.C.-Section-384, 385, 386-CriminalAppeal-disposal-when original record of TrailCourt-not traceable-nor reconstruction, norretrial possible-in as much as all prosecutionwitness died-except to allow the appeal andset-a-side conviction-in view of Law laiddown by Apex Court-no other option Appealallowed.

Held: Para-16In view of the aforesaid discussion,considering the judgment of the Apex Courtand of this Court, since inspite of best effortsneither reconstruction of record is possiblenor re-trial is possible, hence, the criminalappeal can not be deci ded on merit inabsence of relevant prosecution papersincluding the statement of witnesses and assuch there is no option but to set aside theimpugned judgment of conviction. In view ofthe fact, the judgment and order ofconviction and sentence dated 16.10.1981passed by 5th Additional District andSessions Judge, Bijnor in Session Trial No.350/79, under sections 147, 148, 302/149IPC, P.S. Chandpur, District Bijnor, is herebyset aside.

Case Law discussed:Crl. Appeal No. 466 of 1980; AIR 1996Supreme Court 2439 (1); AIR 2004 SC 3235;1981 Crl.L.J 65; 1982 (19) ACC 128; 2010 (69)ACC 749; [1988 JIC 355]

3 All. Tej Pal Singh & Ors. Vs. State of U.P. 1467

(Delivered by Hon'ble Arvind KumarTripathi, J.)

1. Heard learned counsel for theappellants, learned AGA and perused therecord.

2. The present appeal has beenpreferred by appellant no. 1 to 5 againstthe judgment and order of conviction andsentence dated 16.10.1981 passed by 5thAdditional District and Sessions Judge,Bijnor in Session Trial No. 350/79, undersections 147, 148, 302/149 IPC, P.S.Chandpur, District Bijnor.

3. Appellant no. 5 died and as such theappeal in respect of him stood abated. Inrespect of appellant no. 1 to 4, namely, TejPal Singh, Prem Pal Singh, Sheo DhianSingh, Om Pal Singh, in compliance of theNon Bailable Warrant issued by this Court,they surrendered before the C.J.M. Bijnorand were released on bail on 26.10.2015.

4. As per office report dated28.4.2003, lower court record was notreceived. Thereafter on 29.4.2003, theother coordinate Bench of this Courtdirected to obtain the lower court record.As per office report, the information wasreceived from District Court Bijnor to theeffect that the lower court record wasmissing, hence, the direction was issuedfor reconstruction of the lower courtrecord. Subsequently, the information wasgiven that the witness Smt. Naraini Devihad expired and the direction was issuedon 3.1.2014 to obtain report in respect ofanother witness Balbir. On 17.11.2015,the information was given that the otherwitness Balbir had died on 14.7.2014.Hence, learned AGA was given time toobtain instruction regarding death ofwitness Balbir. Today, Mr. Chandrajeet

Yadav, learned AGA informed that as perinstruction received in his office, theinformation regarding death of witnessBalbir is correct.

5. In view of the fact, neitherreconstruction of the complete relevantrecord specially statement of witness ispossible nor the retrial for deciding theappeal. Hence, in view of the judgment ofthe Apex Court as well as of this Court inCriminal Appeal No. 466 of 1980, Sukhlal &Others Vs. State of U.P., there is no optionbut to allow this appeal.

6. Sections 384, 385 and 386Cr.P.C. are reproduced hereinbelow.

"384. Summary dismissal of appeal.(1) If upon examining the petition of

appeal and copy of the judgment receivedunder section 382 or section 383, theAppellate Court considers that there is nosufficient ground for interfering, it maydismiss the appeal summarily: Providedthat-

(a) no appeal presented under section382 shall be dismissed unless theappellant or his pleader has had areasonable opportunity of being heard insupport of the same;

(b) no appeal presented under section383 shall be dismissed except after givingthe appellant a reasonable opportunity ofbeing heard in support of the same, unlessthe Appellate Court considers that theappeal is frivolous or that the productionof the accused in custody before the Courtwould involve such inconvenience aswould be disproportionate in thecircumstances of the case;

(c) no appeal presented under section383 shall be dismissed summarily untilthe period allowed for preferring suchappeal has expired.


(2) Before dismissing an appealunder this section, the Court may call forthe record of the case.

(3) Where the Appellate Courtdismissing an appeal under this section isa Court of Session or of the Chief JudicialMagistrate, it shall record its reasons fordoing so.

(4) Where an appeal presented undersection 383 has been dismissed summarilyunder this section and the Appellate Courtfinds that another petition of appeal dulypresented under section 382 on behalf of thesame appellant has not been considered by it,that Court may, notwithstanding anythingcontained in section 393, if satisfied that it isnecessary in the interests of justice so to do,hear and dispose of such appeal inaccordance with law.

385. Procedure for hearing appealsnot dismissed summarily.- (1) If theAppellate Court does not dismiss theappeal summarily, it shall cause notice ofthe time and place at which such appealwill be heard to be given-

(i) to the appellant or his pleader;(ii) to such officer as the State

Government may appoint in this behalf; 3(iii) if the appeal is from a judgment

of conviction in a case instituted uponcomplaint to the complainant;

(iv) if the appeal is under section 377or section 378, to the accused, and shallalso furnish such officer, complainant andaccused with a copy of the grounds ofappeal.

(2) The Appellate Court shall thensend for the record of the case, if suchrecord is not already available in thatCourt, and hear the parties:

Provided that if the appeal is only asto the extent or the legality of the

sentence, the Court may dispose of theappeal without sending for the record.

(3) Where the only ground for appealfrom a conviction is the alleged severityof the sentence, the appellant shall not,except with the leave of the Court, urge orbe heard in support of any other ground.

386. Powers of the Appellate Court.After perusing such record and hearingthe appellant or his pleader, if he appears,and the Public Prosecutor, if he appears,and in case of an appeal under section 377or section 378, the accused, if he appears,the Appellate Court may, if it considersthat there is no sufficient ground forinterfering, dismiss the appeal, or may-

(a) in an appeal from an order ofacquittal, reverse such order and directthat further inquiry be made, or that theaccused be re- tried or committed for trial,as the case may be, or find him guilty andpass sentence on him according to law;

(b) in an appeal from a conviction-(i) reverse the finding and sentence

and acquit or discharge the accused, ororder him to be re- tried by a Court ofcompetent jurisdiction subordinate to suchAppellate Court or committed for trial, or

(ii) alter the finding, maintaining thesentence, or

(iii) with or without altering thefinding, alter the nature or the extent, orthe nature and extent, of the sentence, butnot so as to enhance the same;

(c) in an appeal for enhancement ofsentence-

(i) reverse the finding and sentenceand acquit or discharge the accused ororder him to be re- tried by a Courtcompetent to try the offence, or

(ii) alter the finding maintaining thesentence, or


(iii) with or without altering thefinding, alter the nature or the extent, orthe nature and extent, of the sentence, soas to enhance or reduce the same;

(d) in an appeal from any other order,alter or reverse such order;

(e) make any amendment or anyconsequential or incidental order that maybe just or proper;

Provided that the sentence shall notbe enhanced unless the accused has hadan opportunity of showing cause againstsuch enhancement:

Provided further that the AppellateCourt shall not inflict greater punishmentfor the offence which in its opinion theaccused has committed, than might havebeen inflicted for that offence by theCourt passing the order or sentence underappeal."

7. A cumulative reading of theabove referred three Sections ( 384, 385,386) make it abundantly clear that theappeal is to be decided on merit afterperusal of lower court record and hearingthe appellant or his counsel and theprosecution if the appeal is not dismissedsummarily under Section 384 Cr.P.C.

8. In an authoritative pronouncementreported in AIR 1996 Supreme Court2439 (1) Bani Singh and others Vs. Stateof U.P., Hon'ble Apex Court haselaborated meaning of Section 385 and386 of Criminal Procedure Code 1973 inPara No. 8 of the judgment which is beingreproduced hereinbelow:

"Section 385 (2) clearly states that ifthe Appellate Court does not dismiss theappeal summarily, it `shall', after issuingnotice as required by sub-section (1), sendfor the record of the case and hear theparties. The proviso, however, posits that

if the appeal is restricted to the extent orlegality of the sentence, the Court neednot call for the record. On a plain readingof the said provision, it seems clear to usthat once the Appellate Court, on anexamination of the grounds of appeal andthe impugned judgment, decides to admitthe appeal for hearing, it must send for therecord and then decide the appeal finally,unless the appeal is restricted to the extentand legality of the sentence. Obviously,the requirement to send for the record isprovided for to enable the Appellate Courtto peruse the record before finallydeciding the appeal. It is not an idleformality but casts an obligation on thecourt to decide the appeal only after it hasperused the record. This is not to say thatit cannot be waived even where theparties consent to its waiver. Thisbecomes clear from the opening words ofSection 386 which say that `after perusingsuch record' the Court may dispose of theappeal. However, this Section imposes afurther requirement of hearing theappellant or his pleader, if he appears, andthe public prosecutor, if he appears. Thisis an extension of the requirement ofSection 385(1) which requires the Courtto cause notice to issue as to the time andplace of hearing of the appeal. Once sucha notice is issued the accused or hispleader, if he appears, must be heard."

9. In the case of State of U.P. Vs.Abhai Raj Singh and another reported inAIR 2004 SC 3235, in Para 8, it has beenheld as under:

"It has been the consistent viewtaken by several High Courts that whenrecords are destroyed by fire or onaccount of natural or unnatural calamities,reconstruction should be ordered. InQueen Empress v. Khimat Singh, (1889


A.W.N. 55), the view taken was that theprovisions of Section 423(1) of theCriminal Procedure Code, 1898 (in short'the Old Code') made it obligatory for theCourt to obtain and examine the record atthe time of hearing. When it was notpossible to do so, the only availablecourse was a direction for re-construction.The said view was reiterated more thansix decades back in Re Sevugaperumaland Ors. (AIR 1943 (Madras) 391). Theview has been reiterated by several HighCourts as well, even thereafter."

10. Again in the same case, Hon'bleApex Court has expressed about variousalternative steps to be taken in the matterof loss of records in Para 10 of thejudgment which is extracted ashereinbelow:

"We, therefore, set aside the order ofthe High Court and remit the matter backfor fresh consideration. It is to be noted atthis juncture that one of the respondentsi.e. Om Pal has died during the pendencyof the appeal before this Court. The HighCourt shall direct re-construction of therecords within a period of six monthsfrom the date of receipt of our judgmentfrom all available or possible sources withthe assistance of the Prosecuting Agencyas well as the defending parties and theirrespective counsel. If it is possible to havethe records reconstructed to enable theHigh Court itself to hear and dispose ofthe appeals in the manner envisaged underSection 386 of the Code, rehear theappeals and dispose of the same, on itsown merits and in accordance with law. Ifit finds that re-construction is notpracticable but by order retrial interest ofjustice could be better served - adopt thatcourse and direct retrial - and from thatstage law shall take its normal course. If

only reconstruction is not possible tofacilitate High Court to hear and disposeof the appeals and the further course ofretrial and fresh adjudication by SessionsCourt is also rendered impossible due toloss of vitally important basic records - inthat case and situation only, the directiongiven in the impugned judgment shalloperate and the matter shall stand closed.The appeals are accordingly disposed of."

11. In a similar case where lowercourt record was not available andreconstruction of record did not succeed,a division Bench of this Court has in thecase of Sita Ram and others Vs. State1981 Crl.L.J 65, made observation in Para11 which is quoted herebelow:

"On a careful consideration of therelevant statutory provisions and theprinciple laid down in the cases citedbefore us we are of the opinion that whereit is not possible to reconstruct the recordwhich has been lost or destroyed it is notlegally permissible for the appellate courtto affirm the conviction of the appellantsince perusal of the record of the case isone of the essential elements of thehearing of the appeal. The appellant has aright to try to satisfy the appellate courtthat the material on record did not justifyhis conviction and that right cannot bedenied to him. We are further of theopinion that if the time lag between thedate of the incident and the date on whichthe appeal comes up for hearing is short,the proper course would be to directretrial of the case since witnessesnormally would be available and it wouldnot cause undue strain on the memory ofwitnesses. Copies of F.I.R., statements ofwitnesses under Section 161 Cr. P.C.reports of medical examination etc. wouldalso be normally available if the time gap


between the incident and the order ofretrial is not unduely long. Where,however, the matter comes up forconsideration after a long gap of years, itwould neither be just nor proper to directretrial of the case, more so when evencopies of F.I.R. and statements of witnessesunder Section 161 Cr. P.C. and otherrelevant papers have been weeded out or areotherwise not available. In such a situationeven if witnesses are available, apart fromthe fact that heavy strain would be put onthe memory of witnesses, it would not bepossible to test their statements made at thetrial with reference to the earlier version ofthe incident and the statements of witnessesrecorded during investigation. Not only thatthe accused will be prejudiced but even theprosecution would be greatly handicappedin establishing its case and the trial wouldbe reduced to a mere formality entailingagony and hardship to the accused andwaste of time, money and energy of theState."

12. In the above referred case of SitaRam (supra) the division Bench acquittedthe accused in view of the fact that thelower court record could not bereconstructed. This aspect of Sita Ramcase (supra) was again considered byanother division Bench of this Court inthe case of Ram Nath Vs. State 1982 (19)ACC 128 (decided on 3.11.1981) whereinalso following observations were made:-

"After making the aforementionedobservations and in view of the fact thatthe court was not in a position to have therecord of the case re-constructed, theBench directed acquittal of the accused inthat case. The principle laid down in SitaRam's case fully applies to the facts of thepresent case. As all attempts to have therecord re-constructed have failed, this

Court is not in a position to affirm theconviction recorded by the trial court. Sofar as the question of ordering a re-trial isconcerned, we find that in the instant casethe incident in connection with which theaccused were prosecuted, took place asfar back as 13th of September, 1970, thatis, more than eleven years earlier. In suchcircumstances it will not be desirable todirect a re-trial. In this view of the matterwe have no option but to allow CriminalAppeal No.857 of 1976 and to set asidethe conviction and sentence of Ram Nathand to acquit him of the offence withwhich he has been charged."

13 . In similar circumstances anotherdivision Bench of this Court in the case ofBrahmanand Shukla Vs. State of U.P.2010 (69) ACC 749 made followingobservation in Para 10:-

"In the present case, as we havementioned in the earlier part of thejudgment only a copy of the Trial Court'sjudgment is available and no otherdocuments like FIR, post-mortem report,copies of the documents which had beenfiled by the prosecution and wereexhibited during trial, the statement of thewitnesses recorded under section 161,Cr.P.C. are available despite variousattempts to reconstruct the record. Theincident is of the year 1979 i.e., theincident took place about 30 years back.In these circumstances, no fruitfulpurpose would be served by orderingretrial as the same cannot be conducted atall in absence of these documents.

In the light of the above discussionsand circumstances mentioned above, wehave no other alternative but to allow theappeal, set aside the conviction andsentence of the appellant and to acquithim."


14. In similar circumstances anotherdivision Bench of this Court in the case ofSita Ram and Others Vs. State madefollowing observation in Para 12 and 13:-

"12. In the present case the incident tookplace on 23-8-1971. The appellants wereconvicted by the Sessions Court by an orderdated 18-11-1974. The appeal has beenpending in this Court for about six years. Weare informed that copies of the FirstInformation Report and statements of witnessesrecorded under Section 161, Cr. P.C. have beenweeded out and are not available. All attemptsto reconstruct the record have proved futile. Insuch a situation it is not permissible for us toaffirm the order of conviction of the appellants,since in the absence of the record we cannotpossibly feel satisfied that the appellants havebeen rightly convicted. Due to lapse of timeand non-availability of papers like FirstInformation Report, statements under Section161, Criminal Procedure Code etc, we do notconsider it either just or expedient to orderretrial of the case.

13. In the circumstances the appeal isallowed. The order of the court belowconvicting and sentencing the appellantsis set aside and they are acquitted. Theyare on bail. They need not surrender.Their bail bonds are discharged. "

15. In similar circumstances anotherdivision Bench of this Court in the case ofKesari and Others Vs. State of U.P. [1988 JIC355] made following observation in Para 3 and4:-

"3. Under these circumstances, thelower court's record could not be obtainedand without the same, the appeal cannotbe heard on merits. It appears that the re-construction of the record is also notpossible, in-as-much as originaldocuments have all burnt out.

4.. Under these circumstances, boththe appeals stand allowed and theconviction of the appellants and sentencesawarded to them are hereby set aside.They are on bail. They need notsurrender. Their bail bonds and suretiesshall stand discharged. "

16. In view of the aforesaid discussion,considering the judgment of the Apex Courtand of this Court, since inspite of best effortsneither reconstruction of record is possiblenor re-trial is possible, hence, the criminalappeal can not be deci ded on merit inabsence of relevant prosecution papersincluding the statement of witnesses and assuch there is no option but to set aside theimpugned judgment of conviction. In view ofthe fact, the judgment and order ofconviction and sentence dated 16.10.1981passed by 5th Additional District andSessions Judge, Bijnor in Session Trial No.350/79, under sections 147, 148, 302/149IPC, P.S. Chandpur, District Bijnor, ishereby set aside.

16. Accordingly, the present appealis allowed. The appellants are on bail. Thesureties shall stand discharged.



BEFORETHE HON'BLE DINESH MAHESHWARI, J.

THE HON'BLE DEVENDRA KUMARUPADHYAYA, J.

Misc. Bench No. 2771 of 2003

M/S Kaka Advt. Agency ...PetitionerVersus

The State of U.P. ...Respondent

Counsel for the Petitioner:Apoorv Tiwari, Hemant Kumar Misra

3 All. M/S Kaka Advt. Agency Vs. The State of U.P. 1473

Counsel for the Respondent:C.S.C.

Constitution of India, Art.-226-Opportunityof hearing-black listing and stoppage ofwork-raising criminal activities of fraud ingetting Bill cleared-incident of fraud totallyunfounded-order quashed with direction totake appropriate decision-within timebound period in presence of petitioner.

Held: Para-20In the given set of facts and circumstances,instead of this Court adjudicating on otherissues raised by the petitioner, it appearsjust and proper that the department itselfre-examines the entire matter and takes anobjective and considered decision on theshow notice dated 19.04.2002. In the givenscenario, we are also of the view that whereall the facts have not been stated by therespondents in their counter affidavit; andwhere the petitioner is also claiming thatthe report of Prabhari Nideshak was notmade available to it; and it is more than adecade old matter, the opportunity to thepetitioner of making oral submissionswould help removing communication gapbetween the parties and would serve thecause of justice.

(Delivered by Hon'ble Dinesh Maheshwari, J.)

1. The petitioner, said to be anaccredited agency with Indian NewspaperSociety, Delhi, has filed this writ petitionquestioning the order dated 18.02.2003(Annexure -11) whereby it has been heldguilty of fraudulent conduct with therespondents; and has been removed fromthe panel of registered advertisingagencies of the Information and PublicRelations Department of the Governmentof Uttar Pradesh.

2. After having heard the learnedCounsel for the parties and having perusedthe material placed on record, we haveformed the opinion that the matter requires

re-consideration by the authoritiesconcerned. Thus, when the matter isproposed to be restored to the file of thedepartment for re-consideration, dilatation onall the issues raised in this petition does notappear necessary. Only a brief reference tothe relevant aspects and would suffice.

3. The petitioner had undertaken thework of publication of an advertisement ofrespondent No.2, which was to be publishedin the newspaper 'Dainik Jagaran' on theRepublic Day of the year 2001 (i.e.,26.01.2001). The petitioner, alleging to havecarried out the work as assigned, raised thebill for the advertisement in question andalso made a demand for its other outstandingbills. However, by the order dated06.03.2002, the respondent No.2 proceededto order stoppage of work assignment to thepetitioner until an enquiry, while observingthat several cases of fraudulent dealing of thepetitioner had come to the fore. Thereafter,by the orders issued on 15.03.2002, therespondent No.2 alleged that the petitionerhad wrongly suggested publication of theadvertisement in New Delhi Edition of theNewspaper Dainik Jagaran dated 26.01.2001on page No.11 though in fact, some otheradvertisement of the Government of Indiawas published on the said page; andtherefore, payment of an amount ofRs.33,800/- was wrongfully obtained by thepetitioner, which was liable to be recovered.With these findings and observations, therespondent No.2 also proceeded to blacklistthe petitioner for any future dealing with thedepartment.

4. Aggrieved by the action aforesaid,the petitioner filed a writ petition in thisCourt bearing No.1787 (MS) of 2002.However, on 12.04.2002, the department,realizing its mistake of not affordingopportunity of showing cause to the


petitioner, proceeded to withdraw theaforesaid orders dated 06.03.2002 and15.03.2002 and further ordered that thedecision would be taken in relation to thepetitioner after issuance of notice andopportunity of hearing. The said writpetition, therefore, became infructuous.

5. Thereafter, on 19.04.2002, whilereiterating the same allegations, the petitionerwas put to notice and was called upon toshow as to why it be not removed from thepanel of registered advertising agencies. Thepetitioner responded to the said notice withthe assertion that the referred advertisementwas indeed published on 26.01.2001 in NewDelhi Edition of the newspaper DainikJagaran; and furnished a copy of thenewspaper alongwith a communication fromthe publisher about publication of theadvertisement and receiving of paymentfrom the petitioner. The respondent No.2,thereafter, proceeded to pass the impugnedorder dated 18.02.2003 wherein, whilerejecting the explanation of the petitioner, itwas observed that the advertisement was notpublished on page No.11 of the edition ofnewspaper dated 26.01.2001, as was claimedby the petitioner in the voucher; and thatclearly established fraudulent dealing of thepetitioner. Thus, the petitioner was ordered tobe removed from the panel of registeredadvertising agencies.

6. Seeking to question the orderaforesaid, the petitioner has filed this writpetition and it has specifically beenaverred in the petition that theadvertisement was indeed published onthe given date, but no suchvoucher/invoice was submitted that thesame was published on page No.11. Thus,according to the petitioner, the impugnedorder remains entirely baseless andunsustainable. The averments as taken in

this regard in paragraph - 37 of thepetition read as under:-

"37. That the petitioner after publishingthe advertisement on the basis of offer givenby the opposite party no.2 for publishing thesame in the Dainik Jagaran, Delhi Edition,had submitted voucher along with therelevant proof that the same had beenpublished by him on the said date and he hasnot submitted any voucher/invoice that hehas published the same at page-11 in thenewspaper on 26.1.2001. As such, the saidallegation which is the sole basis for passingthe impugned order that the petitioner hadplayed fraud is wholly incorrect and illegaland thus renders the impugned order asunsustainable in the eyes of law."

7. The respondents have filed theircounter affidavit and have maintained thatblacklisting of the petitioner is perfectlylegal, proper and justified. Therespondents have also suggested in thecounter affidavit that the advertisement inquestion was alleged to have beenpublished at page No.11 of the newspaperconcerned on 26.01.2001, but uponenquiry, it was found that no suchadvertisement was published at pageNo.11; and on the said page, a differentadvertisement of Government of Indiaappeared. However, even while allegingthat the petitioner-agency raised afraudulent bill, the respondents chose notto annex a copy thereof with the counteraffidavit. On the other hand, it is alsonoticed that so far the above-quoted coreaverments in paragraph - 37 of thepetition are concerned, a cryptic andcursory reply is stated in paragraph - 15 ofthe counter affidavit with a general denialof the contents of paragraphs - 35 to 43 ofthe petition but without adverting to thespecific assertion of the petitioner. This


paragraph - 15 of the counter affidavitreads as under:-

"15. That the contents of paras 35 to43 of the Writ Petition are denied in themanner stated being misleading based onmisconception and interpretation and alsoincorrect. Detailed submissions in thisregard have already been made in thepreceding paragraphs which arereiterated and reaffirmed herewith."

8. It may be observed that in this writpetition, the petitioner had also moved anapplication for summoning the originalvoucher submitted by it in respect of thequestioned advertisement dated 26.01.2001;and it appears that in the past, when thismatter was examined by a Co-ordinateBench of this Court, the Standing Counselwas directed to produce the record. Therecord was indeed brought before the Courton a few occasions, but the matter could notbe argued finally. Though the record is notavailable with the Standing Counsel today,who has expressed willingness to producethe same, if so required, but, as indicatedhereinabove, having heard the learnedcounsel and having perused the materialplaced on record, when we find that thematter requires re-consideration by thedepartment, it does not appear necessary toenter into any factual enquiry at this stageand in this petition.

9. It has been strenuously argued onbehalf of the petitioner that there was nomention in the work order that theadvertisement be published on any specificpage or at page No.11; and it was neverclaimed by the petitioner that theadvertisement was published on page No.11.It is also submitted that the impugned orderdated 18.02.2003 has been passed on thebasis of a so-called report of Prabhari

Nideshak, but a copy thereof was neversupplied to the petitioner. Learned counselfor the petitioner has referred to and reliedupon the decisions of the Hon'ble SupremeCourt in Gorkha Security Services VsGovernment (NCT of Delhi) and others[(2014) 9 SCC 105] and M/s ErusianEquipment & Chemicals Ltd. Vs State ofWest Bengal and another and otherconnected Appeal [(1975) 1 SCC 70] withthe submissions that adequate andmeaningful opportunity of show causehaving not been given and the departmenthaving proceeded on irrelevantconsideration, the impugned order deservesto be set aside.

10. Per contra, the learned StandingCounsel has duly supported the actionimpugned and submitted that when it hadbeen a case of the petitioner having misledthe department and having claimed the billon incorrect statement of facts, the impugnedaction cannot be said to be unjustified,particularly when the impugned order hasbeen passed after due show cause notice andafter taking into consideration theexplanation of the petitioner.

11. The question in the present caseessentially is as to whether the impugnedorder dated 18.02.2003 could be said to havebeen passed on relevant considerations andafter adequate and meaningful opportunity ofshowing cause to the petitioner?

12. It remains trite that the order ofblacklisting or permanent debarring has theeffect of depriving a person of equalopportunity of participation in publiccontracts; and when any person is sought tobe permanently excluded from dealing withthe State in its transactions, such an actionhas to be supported by legality. Therequirement of adequate opportunity of


showing cause against such a harshestpossible action has been reiterated by theHon'ble Supreme Court in the case ofGorkha Security Services (supra) in thefollowing:-

"21. The central issue, however,pertains to the requirement of stating theaction which is proposed to be taken. Thefundamental purpose behind the serving ofshow-cause notice is to make the noticeeunderstand the precise case set up againsthim which he has to meet. This wouldrequire the statement of imputationsdetailing out the alleged breaches anddefaults he has committed, so that he gets anopportunity to rebut the same. Anotherrequirement, according to us, is the nature ofaction which is proposed to be taken for sucha breach. That should also be stated so thatthe noticee is able to point out that proposedaction is not warranted in the given case,even if the defaults/breaches complained ofare not satisfactorily explained. When itcomes to blacklisting, this requirementbecomes all the more imperative, havingregard to the fact that it is harshest possibleaction."

"22. .... To put it otherwise, we are ofthe opinion that in order to fulfil therequirements of principles of naturaljustice, a show-cause notice should meetthe following two requirements viz:

(i) The material/grounds to be statedwhich according to the departmentnecessitates an action;

(ii) Particular penalty/action whichis proposed to be taken. It is this secondrequirement which the High Court hasfailed to omit.

We may hasten to add that even if itis not specifically mentioned in the show-cause notice but it can clearly and safelybe discerned from the reading thereof,

that would be sufficient to meet thisrequirement."

13. Thus, an adequate andmeaningful opportunity to the personconcerned to show cause and to presenthis case before the authorities in aproposed action of blacklisting/debarringis a well established norm; and is not amatter of empty formality.

14. In the case of Erusian Equipment& Chemicals (supra), a three Judges'Bench of the Hon'ble Supreme Court hasbeen pleased to observe and hold, interalia, as under:-

"17. The Government is a Governmentof laws and not of men. It is true that neitherthe petitioner nor the respondent has anyright to enter into a contract but they areentitled to equal treatment with others whooffer tender or quotations for the purchase ofthe goods. This privilege arises because it isthe Government which is trading with thepublic and the democratic form ofGovernment demands equality and absenceof arbitrariness and discrimination in suchtransactions. Hohfeld treats privileges as aform of liberty as opposed to a duty. Theactivities of the Government have a publicelement and, therefore, there should befairness and equality. The State need notenter into any contract with any one but if itdoes so, it must do so fairly withoutdiscrimination and without unfair procedure.Reputation is a part of a person's characterand personality. Blacklisting tarnishes one'sreputation.

18. Exclusion of a member of thepublic from dealing with a State in salestransactions has the effect of preventinghim from purchasing and doing a lawfultrade in the goods in discriminatingagainst him in favour of other people. The


State can impose reasonable conditionsregarding rejection and acceptance ofbids or qualifications of bidders. Just asexclusion of the lowest tender will bearbitrary, similarly exclusion of a personwho offers the highest price fromparticipating at a public auction wouldalso have the same aspect ofarbitrariness.

19. Where the State is dealing withindividuals in transactions of sales andpurchase of goods, the two importantfactors are that an individual is entitled totrade with the Government and anindividual is entitled to a fair and equaltreatment with others. A duty to act fairlycan be interpreted as meaning a duty toobserve certain aspects of rules of naturaljustice. A body may be under a duty togive fair consideration to the facts and toconsider the representations but not todisclose to those persons details ofinformation in its possession. Sometimesduty to act fairly can also be sustainedwithout providing opportunity for an oralhearing. It will depend upon the nature ofthe interest to be affected, thecircumstances in which a power isexercised and the nature of sanctionsinvolved therein.

20. Blacklisting has the effect ofpreventing a person from the privilegeand advantage of entering into lawfulrelationship with the Government forpurposes of gains. The fact that adisability is created by the order ofblacklisting indicates that the relevantauthority is to have an objectivesatisfaction. Fundamentals of fair playrequire that the person concerned shouldbe given an opportunity to represent hiscase before he is put on the blacklist.

21. With regard to the case of thepetitioners, it is made clear that theauthorities will give an opportunity to the

petitioners to represent their case and theauthorities will hear the petitioners as towhether their name should be put on theblacklist or not. This is made clear thatthe decision on this question will not haveany effect on the proceedings pending inCalcutta High Court where the petitionerhas challenged the adjudicationproceedings under the Foreign ExchangeRegulations Act. Any decision of theauthorities on the blacklisting will haveno effect on the correctness of any of thefacts involved in those proceedings."

15. It may be noticed that the ApexCourt has observed in the case of GorkhaSecurity Services (supra) that after givingshow cause notice and opportunity toreply, it is not necessary to give an oralhearing; and in the case of ErusianEquipment & Chemicals (supra) thatsometimes duty to act fairly could besustained without providing opportunityof an oral hearing. However, in ErusianEquipment & Chemicals (supra), the threeJudges' Bench of the Hon'ble Apex Courthas further observed that it would dependon the nature of interest to be affected andthe circumstances in which a power wasexercised and the nature of sanctionsinvolved; and therein, the authorities weredirected to hear the petitioners on thequestion as to whether their names shouldbe put on the blacklist or not.

16. Coming to the facts and scenario ofthe present case, it is apparent on the face ofrecord that the basic allegation against thepetitioner had not been that the advertisementin question was not published in the namednewspaper, i.e., Dainik Jagaran in its relevantedition i.e., dated 26.01.2001. The allegationhad been that the advertisement was notfound published on page No.11 that carriedsome other advertisement of Government of


India. The petitioner has placed on record aphotostat of the newspaper concerned andprima facie, it appears that the advertisementof the respondents did appear in the relevantedition of the newspaper, but at a differentplace or in a supplement. However, the factof the matter remains that the petitioner hasconsistently maintained that neither therewas any order for publication of theadvertisement at page No.11 nor any claimwas made for any such publication at theparticular page, i.e., page No.11. As noticedhereinabove, the specific averment taken inthe petition in this regard has not met with aspecific and cogent reply from therespondents. Thus, the core and fundamentalfact remains a matter of obscurity if thepetitioner claimed it to be an advertisementpublished at page - 11 as alleged.

17. Apart from the above and even ifit be assumed for the sake of argumentsthat somewhere "page No.11" came to bementioned by the petitioner, therespondents have not pondered over thequestion if it were a matter of any attempton the part of the petitioner at deceptionor defrauding. The respondents alsoappear to have omitted to consider if anypenalty lesser than permanent exclusionwould be sufficient, if the petitioner is atall held guilty of incorrect billing, i.e., ofincorrect mentioning of page number ofthe concerned publication.

18. The background aspects had alsobeen that the petitioner was allegedlymaking a claim for other pending bills;and the petitioner was straightwaydebarred under the orders dated06.03.2002 and 15.03.2002, which werelater on withdrawn upon the departmentrealising its mistake of not standing inconformity with the dictum of the Hon'bleSupreme Court.

19. In a comprehension of the factsand surrounding factors, we are clearly ofthe view that the impugned order dated18.02.2003, even when passed after ashow cause notice, cannot be said to be aconsidered decision fulfilling all therequirements of objectivity and fairness.

20. In the given set of facts andcircumstances, instead of this Courtadjudicating on other issues raised by thepetitioner, it appears just and proper thatthe department itself re-examines theentire matter and takes an objective andconsidered decision on the show noticedated 19.04.2002. In the given scenario,we are also of the view that where all thefacts have not been stated by therespondents in their counter affidavit; andwhere the petitioner is also claiming thatthe report of Prabhari Nideshak was notmade available to it; and it is more than adecade old matter, the opportunity to thepetitioner of making oral submissionswould help removing communication gapbetween the parties and would serve thecause of justice.

21. Accordingly and in view of above,this petition is allowed to the extent and inthe manner that the impugned order dated18.02.2003 is set aside and the matter standsremitted for consideration afresh by theDirector (Information), U.P.

22. In the interest of justice, it is alsoprovided that it shall be permissible forthe petitioner to submit an additionalrepresentation stating all its grounds andviewpoints with supporting documents, ifany. It shall be required of the Directorconcerned to examine the record of thematter, to extend an opportunity ofpersonal hearing to the petitioner andthereafter, to take a decision objectively

3 All. Dr. Manoj Kumar Vs. The State of U.P. & Anr. 1479

and dispassionately in the matter. For thepurpose of carrying out the requirements ofthis order, in the first place, the petitionershall remain present in the office of theDirector concerned on 05.01.2016. TheDirector shall also be expected to take thedecision expeditiously, preferably withintwo months from the first date ofappearance of the petitioner.

23. No costs.--------

ORIGINAL JURISDICTIONCRIMINAL SIDE

DATED: LUCKNOW 08.12.2015

BEFORETHE HON'BLE ASHWANI KUMAR SINGH, J.

U/S 482/378/407 No. 2803 of 2006

Dr. Manoj Kumar ...ApplicantVersus

The State of U.P. & Anr. ...Respondents

Counsel for the Applicant:Arun Sinha, Riyaz Ahmad

Counsel for the Respondents:Govt. Advocate, Arun Kumar Shukla

Cr.P.C. Section-482-Charge sheet-quashing-offence under section 304-A IPC-ifallegation as it is accepted no case madeout against applicant-as per postmortemreport-deceased suffering from septicemia-as last stage-no grass negligence found-asper law developed by Apex Court in JacobMathew case-in criminal negligence-shouldbe much higher-as per statement made bymother of deceased-no role of applicantspecified-charge sheet quashed-applicationallowed.

Held: Para-14Looking into the facts of the case, I findthat it is not a case where the doctor hadadministered a wrong medicine, whichwas not to be given. As opined by theDoctor, who conducted the postmortem,

the child was already suffering fromsepticemia, which must have taken sometime to develop and must have been at itslast stage. There was absolutely no grossnegligence on part of the applicant. Theremay be liability in civil law or may be not -this Court does not express any opinion onthe same but since there is no criminalnegligence of higher degree, in light of theobservations of Hon'ble the Supreme Courtin the decisions referred to herein above,no case under Section 304-A is made outagainst the applicant.

Case Law discussed:2005 Supreme Court Cases (Cri) 1369-subpara (5) and (6) of paragraph 48; (2009) 1SCC (Cri) 958

(Delivered by Hon'ble Ashwani KumarSingh, J.)

1. Heard learned counsel for theapplicant, learned State Counsel andperused the relevant material on record aswell as counter affidavit filed by oppositeparty no.2. None is present on behalf ofopposite party no.2.

2. This petition under Section 482Cr.P.C. has been preferred for quashing thecharge sheet of case no.1289/06, State v.Dr.Manoj Kuar; Crime no.220/05, underSection 304-A I.P.C., P.S.Ghazipur, DistrictLucknow, pending in the Court of SpecialC.J.M. (Customs), Lucknow and also forquashing the proceedings pursuant to filingof the charge sheet including the bailablewarrant issued on 26.9.2006.

3. This Court vide order dated8.11.2006 issued notice to opposite party no.2calling for filing objection/counter affidavit, ifany, within four weeks. Rejoinder affidavit, ifany, was directed to be filed within one weekthereafter. The Court also passed interim orderstaying the proceedings of the case includingissuance of warrant.


4. It is pertinent to disclose theprosecution case: Briefly stated, the informantAbhay Singh(a practising Advocate in theCourts at Lucknow, as averred in para 17 ofthe application) lodged F.I.R. on 1.5.2005 at13:30 hours regarding the incident which hadtaken place on 30.4.2005 at about 11:00 p.m.-12:00 night. It was stated in the F.I.R. byinformant Abhay Singh that on 28.4.2005 hisson suddenly got ill; informant's wife tookhim to Jwala Nursing Home, nearMunshipulia, Ring Road, Lucknow; thedoctor of the Nursing Home attended thepatient, prescribed medicines and advised forX-ray and blood test; the informant paid theamount which was asked; the condition of theboy on 30.4.2005 at 11:00 p.m. gotdeteriorated and informant's wife again tookhim to Nursing Home where the doctor of theNursing Home did not open the door andrefused to extend medical treatment. It isfurther stated in the F.I.R. that the informanton 30.4.2005 had gone to attend the marriageof his cousin sister; informant's son on30.4.2005 at about 12:00 night died due tonegligence of the doctor of Jwala Hospital.

5. The investigating officer took upthe investigation and recorded thestatements of the informant, informant'swife, Smt.Rekha Devi(mother of thedeceased), witness Nandu, son of RampalGupta; witness Ram Singh son of SantRam and witness Ram Saran Gaur, son ofBharat Prasad under Section 161 Cr.P.C.

6. The postmortem on the body of thedeceased was conducted on 2.5.2005 and asper opinion of the doctor who conducted thepostmortem, the cause of death was - 'deathdue to septicemia as a result of acute lungdisease'. .

7. Learned counsel has vehementlysubmitted that there is no evidence on

record to make out a case against theapplicant under Section 304-A I.P.C. It issubmitted that the only allegation aslevelled in the F.I.R. and in the statement ofthe informant recorded under Section 161Cr.P.C. is against Jwala Hospital, D-2226Indira Nagar, Lucknow. The informant hasnot named the applicant in the firstinformation report nor in his statementrecorded under Section 161 Cr.P.C., thoughit is natural that he must have beeninformed, the name of doctor, by his wife,Smt. Rekha Devi, in whose statement underSection 161 Cr.P.C., name of Dr.ManojKumar finds place that he did not open thedoor and refused to extend medicaltreatment and due to his negligence, thechild died in front of the hospital. There ishearsay evidence in this regard given bywitnesses Nandu and Ram Singh. WitnessRam Saran Gaur is the only witness who issaid to have accompanied Smt. Rekha Devito the hospital and he has corroborated theevidence that Dr. Manoj Kumar did notopen the door and refused to give medicaltreatment, as such, due to negligence andnot getting treatment, the boy expired.

8. Learned counsel states that thewhole story has been concocted by theinformant for pressurising the applicant toextract uncalled for or unjustifiedcompensation. It is admitted that wife of theinformant, Smt.Rekha Devi had come toJwala Hospital along with her child on29.4.2005, though her child had got ill on28.4.2005, as mentioned in the F.I.R. Thedoctor of the Hospital attended the child,Aditya Kumar, aged about one and a halfyears and prescribed medicines for him andadvised for blood-test and X-ray of thechest. The prescription of Jwala Hospital isannexed as Annexure CA-1 to the affidavitfiled by informant-opposite party no.2. Theprescription (Annexure CA-1) also indicates


that the child was prescribed CoscopinPaed. Syr. on 30.4.2005 and X-ray of chestwas found to be normal and nothingabnormal was detected.

9. Learned counsel states that theallegation made by Smt.Rekha Devi, motherof the deceased that she had visited thehospital on 30.4.2005 at about 11:00 p.m.along with her neighbour, Ram Saran istotally false, as averred in para 14 of theapplication. The hospital provides 24 hours'emergency. One more aspect of the matterfor consideration is that the applicant, who isthe proprietor of the Nursing Home, wouldcome himself at 11:00 P.M., so late in night,to open the doors of Nursing Home andrefuse to attend his own patient, who wasattended a day before and on the same day,as borne out from the prescription (AnnexureCA-1), and was provided medical treatment.This allegation against applicant, he beingproprietor of the Nursing Home, has beenlevelled with some ulterior motive, may befor some financial gains. There is noallegation in the F.I.R., nor in the statementof any witness that there was any negligenceon part of the applicant or any other doctor ofthe Hospital in attending the child on29.4.2015 or prescribing the medicines. Thechild was properly attended and wasprescribed the required medicines.

10. Learned counsel states that evenif the facts of the case are proved, itwould not make out a case of criminalrashness or negligence on part of theaccused applicant. In support of hiscontention, learned counsel has reliedupon the decision of Hon'ble the SupremeCourt reported in Jacob Mathew v. Stateof Punjab and another, reported in 2005Supreme Court Cases (Cri) 1369 - in sub-paras (5) and (6) of paragraph 48, it hasbeen held as under :

"(5) The jurisprudential concept ofnegligence differs in civil and criminallaw. What may be negligence in civil lawmay not necessarily be negligence incriminal law. For negligence to amount toan offence, the element of mens rea mustbe shown to exist. For an act to amount tocriminal negligence, the degree ofnegligence should be much higher i.e.gross or of a very high degree.Negligence which is neither gross nor of ahigher degree may provide a ground foraction in civil law but cannot form thebasis for prosecution."

""6) The word "gross" has not beenused in Section 304-A IPC, yet it is settledthat in criminal law negligence orrecklessness, to be so held, must be ofsuch a high degree as to be "gross". Theexpression "rash or negligent act" asoccurring in Section 304-A IPC has to beread as qualified by the word "grossly".

Further, in para 14 of the report, ithas been held as under :

"14. In order to hold the existence ofcriminal rashness or criminal negligenceit shall have to be found out that therashness was of such a degree as toamount to taking a hazard knowing thatthe hazard was of such a degree thatinjury was most likely imminent. Theelement of criminality is introduced by theaccused having run the risk of doing suchan act with recklessness and indifferenceto the consequences. Lord Atkin in hisspeech in Andrews v. Director of PublicProsecutions [1937 AC 576 : (1937) 2 AllER 552 (HL)] stated: (All ER p. 556 C)

"Simple lack of care such as willconstitute civil liability is not enough. Forpurposes of the criminal law there aredegrees of negligence, and a very high


degree of negligence is required to beproved before the felony is established."

Thus, a clear distinction existsbetween "simple lack of care" incurringcivil liability and "very high degree ofnegligence" which is required in criminalcases. In Riddell v. Reid [(1942) 2 All ER161 : 1943 AC 1 (HL)] (AC at p. 31) LordPorter said in his speech --

"A higher degree of negligence hasalways been demanded in order toestablish a criminal offence than issufficient to create civil liability."(Charlesworth & Percy, ibid., para 1.13)"

Para 28 of the report reads as under :"28. A medical practitioner faced

with an emergency ordinarily tries hisbest to redeem the patient out of hissuffering. He does not gain anything byacting with negligence or by omitting todo an act. Obviously, therefore, it will befor the complainant to clearly make out acase of negligence before a medicalpractitioner is charged with or proceededagainst criminally. ................."

11. The following extract from Merryand Mc.Call Smith: Errors, Medicine and thelaw, cited with approval in Dr.Suresh Guptacase, (2004) 6 SCC 422 (at pp. 247-48 of thebook) reads as under:

"Criminal punishment carriessubstantial moral overtones. The doctrine ofstrict liability allows for criminal convictionin the absence of moral blameworthinessonly in very limited circumstances.Conviction of any substantial criminaloffence requires that the accused personshould have acted with a morallyblameworthy state of mind. Recklessness anddeliberate wrongdoing, levels four and fiveare classification of blame, are normallyblameworthy but any conduct falling short ofthat should not be the subject of criminal

liability. Common-law systems havetraditionally only made negligence thesubject of criminal sanction when the level ofnegligence has been high -- a standardtraditionally described as gross negligence."

* *

"Blame is a powerful weapon. Whenused appropriately and according tomorally defensible criteria, it has anindispensable role in human affairs. Itsinappropriate use, however, distortstolerant and constructive relationsbetween people. Some of life's misfortunesare accidents for which nobody is morallyresponsible. Others are wrongs for whichresponsibility is diffuse. Yet others areinstances of culpable conduct, andconstitute grounds for compensation andat times, for punishment. Distinguishingbetween these various categories requirescareful, morally sensitive andscientifically informed analysis."

12. Paragraphs 15 and 17 also needsconsideration. They read as follows :-

"15. The fore-quoted statement of lawin Andrews [1937 AC 576 : (1937) 2 All ER552 (HL)] has been noted with approval bythis Court in Syad Akbar v. State ofKarnataka [(1980) 1 SCC 30 : 1980 SCC(Cri) 59] . The Supreme Court has dealt withand pointed out with reasons the distinctionbetween negligence in civil law and incriminal law. Their Lordships have opinedthat there is a marked difference as to theeffect of evidence viz. the proof, in civil andcriminal proceedings. In civil proceedings, amere preponderance of probability issufficient, and the defendant is notnecessarily entitled to the benefit of everyreasonable doubt; but in criminalproceedings, the persuasion of guilt must


amount to such a moral certainty asconvinces the mind of the Court, as areasonable man, beyond all reasonabledoubt. Where negligence is an essentialingredient of the offence, the negligence to beestablished by the prosecution must beculpable or gross and not the negligencemerely based upon an error of judgment."

"17. In our opinion, the factor ofgrossness or degree does assumesignificance while drawing distinction innegligence actionable in tort andnegligence punishable as a crime. To belatter, the negligence has to be gross or ofa very high degree."

Para 51 of the report reads as follows:

"51. We may not be understood asholding that doctors can never be prosecutedfor an offence of which rashness ornegligence is an essential ingredient. All thatwe are doing is to emphasise the need forcare and caution in the interest of society;for, the service which the medical professionrenders to human beings is probably thenoblest of all, and hence there is a need forprotecting doctors from frivolous or unjustprosecutions. Many a complainant preferrecourse to criminal process as a tool forpressurising the medical professional forextracting uncalled for or unjustcompensation. Such malicious proceedingshave to be guarded against."

13. In a decision reported in (2009) 1SCC (Cri) 958, Martin F.D'Souza v. Mohd.Ishfaq, Hon'ble the Supreme Court hasobserved in paragraphs 103 and 104 asfollows:

"103. ..... However, now what isoften seen is that doctors out of fear offacing legal proceedings do not give first

aid to the patient, and instead tell him toproceed to the hospital by which time thepatient may develop other complications."

"104. Hence courts/Consumer Forashould keep the above factors in mind whendeciding cases related to medical negligence,and not take a view which would be in fact adisservice to the public. The decision of thisCourt in Indian Medical Assn. v. V.P.Shantha [(1995) 6 SCC 651] should not beunderstood to mean that doctors should beharassed merely because their treatment wasunsuccessful or caused some mishap whichwas not necessarily due to negligence. In factin the aforesaid decision it has beenobserved (vide SCC para 22): (V.P. Shanthacase [(1995) 6 SCC 651] , SCC p. 665)"

"22. In the matter of professionalliability professions differ from otheroccupations for the reason that professionsoperate in spheres where success cannot beachieved in every case and very oftensuccess or failure depends upon factorsbeyond the professional man's control."

14. Looking into the facts of the case, Ifind that it is not a case where the doctor hadadministered a wrong medicine, which wasnot to be given. As opined by the Doctor, whoconducted the postmortem, the child wasalready suffering from septicemia, whichmust have taken some time to develop andmust have been at its last stage. There wasabsolutely no gross negligence on part of theapplicant. There may be liability in civil lawor may be not - this Court does not expressany opinion on the same but since there is nocriminal negligence of higher degree, in lightof the observations of Hon'ble the SupremeCourt in the decisions referred to hereinabove, no case under Section 304-A is madeout against the applicant.

15. Accordingly, the applicationunder Section 482 Cr.P.C. is hereby


allowed. The charge sheet of case no.1289/06,State v. Dr.Manoj Kuar; Crime no.220/05,under Section 304-A I.P.C., P.S.Ghazipur,District Lucknow and the proceedings arisingtherefrom including bailable warrant issued on26.9.2006 by Special C.J.M. (Customs),Lucknow are quashed.




ARORA, J.

W.P. No. 5584 (SS) of 2010along with W.P. No. 6851 (SS) of 2010

Jitendra Mohan Pandey ...PetitionerVersus

State of U.P. & Ors. ...Opp.Parties

Counsel for the Petitioner:Om Prakash Mani Tripathi

Counsel for the Opp.Parties:C.S.C. , Jyotinjay Verma , Niraj Chaurasia, Omkar Singh and R.P.Verma

Intermediate Education Act 1921-Section-7-A-read with the U.P. High School &Intermediate Colleges (Payment of salaryof Teachers and employee) Act 1971-Section-9-payment of salary from state-exchequer-teachers in private institutionappointed by management-withoutcreation of post-whether mandamus can beissued for creation of post and payment ofsalary?-held-'No'.

Held: Para-22In the present case also, the petitionerswere appointed on the post of AssistantTeacher in the Institution in question by theCommittee of Management on its own,without their being any valid order issuedby the competent authority. It is also truethat the petitioners were appointed abovethe sanctioned strength. In view of Section

9 of the Payment of Salary Act, theinstitution can make appointment onlyagainst the post which has been created bythe order of Director of Education.Therefore, in view of the aforesaid FullBench judgments of this Court, nomandamus for payment of salary as well ascreation of post of Assistant Teacher in theInstitution in question can be issued whileexercising powers under Article 226 of theConstitution of India.

Case Law discussed:(2000(2); 2004 (1) UPLBEC 746; W.P. No.2054(SS) of 2000 read with W.P. No. 1406(SS) of 2001; 1999 (35) ALR 191; SpecialAppeal Defective No. 673 of 2014; AIR 1995SC 1121


1. Heard Mr. O.P.M. Tripathi, Mr.Shishir Chandra, learned counsel for thepetitioners, Mr. Neeraj Chaurasiya, learnedcounsel for the District Basic EducationOfficer, Ambedkar Nagar (opposite partyNo.3) and Mr. Omkar Singh, learned counselfor the Committee of Management (oppositeparty No.4).

2. By means of the above-captionedwrit petitions under Article 226 of theConstitution of India, petitioners have prayedfor issuance of writ in the nature ofMandamus directing the opposite parties No.2-Director, Basic Education, Uttar Pradeshand opposite party No.3-District BasicEducation Officer, Ambedkar Nagar tocreate post of Assistant Teacher (Science) inPandit Nehru Smarak, Purwa MadhyamikVidyalaya Sarve Nikaspur, DistrictAmbedkar Nagar, and make payment ofsalary in admissible grade of AssistantTeacher to the petitioners with allconsequential benefits w.e.f. the date whenthey joined the aforesaid School on the postof Assistant Teacher (LT Grade) or in the

3 All. Jitendra Mohan Pandey Vs. State of U.P. & Ors. 1485

alternative, to create posts of AssistantTeacher in the School to accommodatepetitioners for the purpose of Payment ofSalary.

3. A brief reference to the factualaspects leaving out the maize ofunnecessary facts would suffice as under :

4. Pandit Nehru Purwa MadhyamikVidyalaya Sarvenikaspur, District AmbedkarNagar (hereinafter referred to as the"Institution"), a recognized institution by theState Government under the provisions ofUttar Pradesh Basic Education Act, 1972, iscovered under grant-in-aid scheme of theState Government w.e.f. 7.4.1980. In order toimpart proper education to the students of theinstitution, the Committee of Managementwrote various letters to the District BasicEducation Officer, Ambedkar Nagar toaccord permission to make appointments ofthe teachers in the institution but no heed waspaid by the District Basic Education Officer,Ambedkar Nagar. Accordingly, theCommittee of Management, after intimatingthe necessities of the teachers to be appointedin the institution, advertised four posts ofAssistant Teachers in daily newspapers,namely, "Mourya Samrat" and "KabeerTimes" dated 5.8.2008. Thereafter, theManager of the Institution wrote a letter tothe District Basic Education Officer,informing thereby that four posts of AssistantTeachers have been advertised on 5.8.2008through daily newspapers, namely, "MouryaSamrat" and "Kabeer Times" andselection/interview on the aforesaid post isscheduled to be held on 24.8.2008 and,therefore, it was requested to send hisrepresentative for holding selection andinterview on the post in question.

5. Pursuant to the advertisement soissued by the Committee of Management

of the Institution, petitioners applied forselection and appointment on the post ofAssistant Teacher along with othercandidates. The Selection Committee soinstituted by the Committee ofManagement had taken interview of thesuitable candidate on 24.8.2008 andsubmitted its report to the Committee ofManagement. Thereafter, on the basis ofthe report of the Selection Committee, theCommittee of Management issuedappointment letters to the petitioners onthe post of Assistant Teacher. Inpursuance to the appointment letter, thepetitioners joined their duties on27.8.2008 and since then, they aredischarging their duties. The Manager ofthe Committee of Management informedthe Basic Education Officer, AmbedkarNagar regarding filling up of four posts ofAssistant Teachers in the institution aswell as their joining, but no heed was paidby the opposite party No.3-District BasicEducation Officer, Ambedkar Nagar,though various letters having been writtenby the Manager of the Institution. In thesecompelling circumstances, the petitionersmade representation to the District BasicEducation, praying therein for issuesuitable direction for payment of salary tothe petitioners but no heed was paid.

6. Feeling aggrieved by the inactionof the opposite parties, petitioners havefiled the above-captioned writ petitions,with the prayer, as referred hereinabove.

7. Submission of the learned counselfor the petitioners is that the petitioners wereappointed on the post in question afterfollowing the procedure of selection strictlyon the basis of quality points obtained bythem. In pursuance to the appointment orderdated 26.8.2008, petitioners resumed theirduties on 27.8.2008 and since then, they have


been discharging their duties to the entiresatisfaction of the authorities concerned. Ithas been submitted that under Section 9 ofthe Payment of Salaries Act, 1978[hereinafter referred to as the "Act"], theDirector is the competent authority to createthe posts as the creation of the posts is in hissole domain and Section 10 of the Actimposes liability upon the State Governmentto ensure payment of salary to the teachersand other employees of every institution inrespect of any period after the date ofappointment. His submission is that in theinstitution in question, six sections areapproved to be run and as per the prescribednorms, 9 teachers are required to be deputedto impart education at the rate of 11/2teachers for one section. In the Institution inquestion, six posts are sanctioned, whereas asper the norms, nine posts ought to have beensanctioned by the competent authority.

8. Elaborating his submissions,counsel for the petitioners submitted thattwo posts of Assistant Teacher resulted onaccount of retirement of Sri R.D. Vermain the year 2008 and in 2009, onretirement of Sri Shyam Raj Mourya,whereas the third post of AssistantTeacher had become available on30.6.2012 on account of retirement of SriUpendra Mohan Tiwari. Thus, in theinstitution in question, total sanctionedposts of Assistant Teacher are fiveincluding one post of Head Master andout of five posts, three posts are lyingvacant. Therefore, the opposite partiesmay be directed to accommodate thepetitioners against the vacant posts and bepaid salary accordingly.

9. It has been stated that once theinstitution is recognized and comes withinthe definition of Section (e) of Section 2of the Uttar Pradesh Junior High School

(Payment of Salary to the teachers andother employees) Act, 1972 and receivesgrant as defined under Section (f) of theAct, the State is liable to make paymentof salary to the petitioner as they areimparting education in the institution inthe subject Science w.e.f. 27.8.2008.Therefore, in denying salary to thepetitioners is violative of Article 14 and16 of the Constitution of India.

10. In support of his submissions,learned counsel for the petitioners haveplaced reliance upon the judgment of theApex Court rendered in ChandigarhAdministration and others Vs. Rajni Vali(Mrs.) and others (2000 (2) SCC 442) andthis Court's judgment reported in 2004 (1)UPLBEC 746 : Committee of ManagmentJaribandhan Higher Secondary School,Baij Nath Ganj, Goriganj, Allahabad andanother Vs. State of U.P. and others andCommittee of Management, Anand SinghIntermediate College, Pratapgarh Vs.State of U.P. and others (writ petition No.2054 (SS) of 2000) read with writ petitionNo. 1406 (SS) of 2001 : Anand PrasadTiwari and others Vs. State of U.P. andothers, decided on 9.2.2004.

11. Per contra, Mr. Neeraj Chaurasiya,learned counsel for the opposite party No.3-District Basic Education Officer, AmbedkarNagar, has submitted that the BasicEducation Officer, Ambedkar Nagar hadwrote letter dated 4.9.2015 and thereafterreminder dated 14.9.2015, seeking theinformation from the Additional DirectorEducation (Basic) with regard to the letterdated 26.9.1992 written by the AssistantDirector Education (Basic) addressed to theAdditional Director Education (Basic),whereby recommendation of the the DistrictBasic Education was forwarded for creationof three additional post of Assistant Teacher


in the institution. In reply to the aforesaidletter, vide letter dated 16.9.2015, the DistrictBasic Education Officer was informed by theEducation Directorate, Allahabad that afterexamination of record, it was found that thematter has not been received in theDirectorate and the Assistant DirectorEducation (Basic) Faizabad has not sent anysubsequent correspondence in this regard,therefore, the question of issuing the postcreation order/permission does not arise atall.

12. Mr. Neeraj Chaurasiya hasfurther contended that as per GovernmentOrder dated 2.7.1990, presently, only onepost of Head Master, four AssistantTeacher, and one Clerk is permissible inthe institution and at the time ofappointment of petitioners in theinstitution in question, four teachers werealready working in the institution.

13. Elaborating his submissions, Mr.Neeraj Chaurasiya has submitted that on21.8.2015, the Block Education Officer,Jahangirgunj, Ambedkar Nagar has made theinspection of the institution in question andduring inspection, in Class-VI, against the 23students enrolled only 13 were found present,in Class-VII, against 37 students enrolled,only 11 were found present and in Class-VIII, against 42 students enrolled, only 19were found present in the institution. In thesebackgrounds, Mr. Chaurasiya has submittedthat since the appointments of the petitionersare de horse the Rules, therefore, the presentwrit petition deserves to be dismissed.

14. I have heard learned Counsel forthe parties and perused the records.

15. In order to appreciate thesubmissions of the learned Counsel forthe parties, it is apt to mention here that

two Full Benches of this Court have heldthat creation of post under Section 9 ofU.P. Act No. 24 of 1971, is a conditionprecedent before a writ of mandamus topay salary to the teachers appointed fromState Exchaquer can be issued. Referencemay be made to the decisions rendered inGopal Dubey vs. District Inspector ofSchools :1999 (35) ALR 191 and State ofU.P. through its Secretary, SecondaryEducation & Ors. Vs. C/M, Sri SukhpalIntermediate College, Tirhut, Sultanpur &Ors. (Special Appeal Defective No.673 of2014 decided on 12.5.2015).

16. In Gopal Dubey (supra), the issuewhich fell for consideration before the FullBench of this Court was whether apresumption can be drawn that the post of aLecturer stands sanctioned by the Director ofEducation merely because recognition hasbeen granted by the Board in respect of asubject under the Act of 1921. The followingissue was formulated:

"Whether on recognition beinggranted by the Board in respect of asubject in an Institution under Section 7-Aof the U.P. Intermediate Education Act,1921 ( (U.P. Act No. II of 1921), it will bepresumed that the post of Lecturer in suchsubject stands sanctioned by the Directorof Education under Section 9 of thePayment of Salaries Act?"

17. The Full Bench in that caserejected the submission that since theDirector of Education is an ex officioChairman of the Board under the Act of1921 and the Board had accorded itsrecognition to the institution for a particularsubject, it must be presumed that theDirector had sanctioned the post of aLecturer in the subject. Dealing with thesubmission, the Full Bench held as follows:


"...This contention does notcommend acceptance. Section 9 of thePayment of Salaries Act expresslymandates that no Institution shall create anew post of teacher or other employeeexcept with the previous approval of theDirector or such other officer as may beempowered in that behalf by the Director.Since the statute requires the thing to bedone in a particular manner, then it has tobe done in that manner or not at all. Itfollows, therefore, that prior approval ofthe Director in writing must be obtainedbefore the management creates a new postof teacher in the recognised Institution.The requirement of the statute cannot bepresumed because the Director happens tobe the authority or one of the authoritiesconcerned in the matter of accord ofrecognition for opening a new subject in aCollege. It is relevant to note here thatrecognition for opening a subject in aCollege is accorded by the Director underthe provisions of the IntermediateEducation Act, which is a statute toestablish a Board to regulate andsupervise the system of High School andIntermediate Education in Uttar Pradesh,prescribe courses therefor and overseerelated activities ; whereas the Payment ofSalaries Act is enacted to regulate thepayment of salaries to teachers and otheremployees of the High Schools andintermediate Colleges and to provide formatters connected therewith. The twostatutes, in our considered view, operatein different fields. While dealing withmatters like recognition and payment ofsalary of teachers and other employeesrelevant matters to be taken intoconsideration are different. Regardingrecognition, the authority has to satisfyitself about necessary infrastructure, thefacilities available in the EducationalInstitution, the benefit to the students of

the locality in opening the new subject inthe Institution, the potentiality of theInstitution to cater to the needs of thestudents of the locality, etc. While dealingwith the question of granting approval forcreation of a post of a teacher or otheremployee in an Institution, the primaryconsideration is the preparedness of theState Government to bear the financialliability of the new post proposed to becreated. It follows, therefore, that thecontention that since the Director isassociated with the matter regarding grantof permission/ recognition for openingnew subject in the Institution, it ispresumed that he has given his consentfor creating new posts of teachers andother employees for that subject is notcorrect. This contention, if accepted, maylead to situation that the managementcreates posts of teachers and otheremployees in connection with the newsubject and the State Government iscompelled to bear the financial liabilitywithout any further involvement in thematter. Such a situation, as we read theprovisions of the two enactments, is notcontemplated. It also does not appeal tocommon logic. The result is that for thepurpose of creating a new post of teacheror other employee for/in connection witha new subject, which it has been permittedto open, the management has to obtainprior approval of the Director as required,under Section 9 of the Payment ofSalaries Act. This statutory mandatecannot be said to have been satisfied byraising a presumption on the basis ofrecognition granted for that subject."

18. In taking this view, the Full Benchplaced reliance on the judgment of theSupreme Court in Director of Education VsGajadhar Prasad Verma :AIR 1995 SC 1121.The Supreme Court in that case has held that


in view of Section 9 of the Payment ofSalaries Act of 1971, no institution couldcreate new posts of teachers or otheremployees except with the previous approvalof the Director and the failure of themanagement to obtain prior approval dis-entitled it to obtain reimbursement of thesalary of such a teacher or employee. TheSupreme Court held as follows:

"4. Be that as it may, the crucialquestion is whether the school of therespondent can claim reimbursement of thesalary of such clerk from the Government?The U.P High Schools and IntermediateColleges (Payment of Salaries of Teachersand Other Employees) Act, 1971 (24 of 1971), regulates the payment of the salary by theGovernment. Section 9 is relevant in thatbehalf. It provides that no institution shallcreate a new post of teacher or otheremployee except with the previous approvalof the Director or such officer as may beempowered in that behalf by the Director.Admittedly, no steps have been taken by theManagement to have obtained prior approvalof the Director or any other authorised officerfor creation of the additional post of clerk.The prior approval of the Director or theempowered officer is a condition precedentand mandatory, for creation of an additionalpost of a teacher or other employee. Thereason behind Section 9 is that prior to grantof aid the Government had before it therelevant data of the posts for which the grantof aid was sanctioned. To make theGovernment to reimburse the salary of anadditional teacher or an employee, theGovernment should have similar relevantmaterial and data to have it duly verified anddecision taken to grant sanction of theadditional post. The inspecting and reportingofficers are enjoined to make personalinspection and submit the report of theexisting correct facts. The dereliction of duty

or incorrect or false reports would bemisconduct entailing them to disciplinaryaction for dismissal from the posts held bythem. Therefore, the failure to obtain priorapproval disentitles the Management toobtain reimbursement of the salary of suchteacher or other employee."

(emphasis supplied)

19. In C/M Sri Sukhpal IntermediateCollege (supra), the Full Bench, in whichI was also one of the Members, wereformulated four questions, which reads asunder :

(1) Whether in the absence of anysanctioned post, can a direction in the exerciseof powers under Article 226 of theConstitution of India be given for payment ofsalary when admittedly no post has beensanctioned by the competent authority;

(2) Which of the two decisions in thecase of Rajesh Yadav (supra) and OmPrakash Verma (supra) keeping in viewthe Full Bench decision in the case ofGopal Dubey (supra), lays down the lawcorrectly;

(3) Whether the State Government orits authorities, who are authorized tocreate posts, by virtue of their inactioncan defy creation of posts in an institutionkeeping in view the larger interest of thesociety namely education which isspecifically in the hands of the StateGovernment; and

(4) Whether the State Governmentunder the garb of threat of contempt couldproceed to issue a direction for payment ofsalary to a teacher who was never appointedin the institution as admitted in the presentcase."

20. The Full Bench, while dealingwith the aforesaid questions, have taken


note of the provisions contained in threestatutes in the State of Uttar Pradesh,which are as under :

(i) The Uttar Pradesh High Schooland Intermediate Colleges (Payment ofSalaries of Teachers and OtherEmployees) Act, 1971;

(ii) The Intermediate Education Act,1921; and

(iii) The Uttar Pradesh SecondaryEducation Services Selection Board Act,1982.

21. On considering the relevantprovisions of the aforesaid Act and alsothe decision of the Full Bench in GopalDubey (supra), Om Prakash Verma(supra) and Rajesh Yadav (supra), theFull Bench has come to the conclusionthat in the absence of a sanctioned post,the High Court under Article 226 of theConstitution would not be justified inissuing a mandamus for the payment ofsalary, particularly since a mandamuscannot lie in the absence of a legal right,based on the existence of a statutory duty.The relevant portion of the judgment isreproduced as under :

"In our view, the field of dispute in thepresent case, is governed by the judgment ofthe Full Bench in Gopal Dubey (supra). Thejudgment in Gopal Dubey clearly holds thatthe Act of 1971 operates in a field which isdistinct from the Act of 1921. The mere factthat recognition has been granted to aninstitution or, for that matter, for conductinga new course or subject or for an additionalsection, would not give rise to a presumptionof a financial sanction having been granted tothe creation of a post. A financial liabilitycannot be foisted on the State to reimbursethe salary payable to the employee or theteacher on the basis of such a presumption.

For the purpose of creating a new post of ateacher or other employee, the managementhas to obtain the prior approval of theDirector as required under Section 9 of theAct 1971. Without the prior approval of theDirector, a new post cannot be sanctioned orcreated. Section 9 is mandatory. Thisprinciple in Gopal Dubey's case followsspecifically the judgment of the SupremeCourt in Gajadhar Prasad Verma's casewhich was rendered while interpreting theprovisions of Section 9 of the Act of 1971.The High Court cannot issue a directioncontrary to the mandate of Section 9. Ordersunder Article 226 must conform to law andcannot be contrary to the mandate of law. Nomandamus can issue - interim or final - forthe payment of salary by the state in theabsence of the prior approval of theDirector."

22. In the present case also, thepetitioners were appointed on the post ofAssistant Teacher in the Institution inquestion by the Committee of Managementon its own, without their being any validorder issued by the competent authority. It isalso true that the petitioners were appointedabove the sanctioned strength. In view ofSection 9 of the Payment of Salary Act, theinstitution can make appointment onlyagainst the post which has been created bythe order of Director of Education.Therefore, in view of the aforesaid FullBench judgments of this Court, nomandamus for payment of salary as well ascreation of post of Assistant Teacher in theInstitution in question can be issued whileexercising powers under Article 226 of theConstitution of India.

23. For the reasons aforesaid, thisCourt is of the view that the judgments,which have been relied by the learnedCounsel for the petitioners, are not

3 All. Daya Ram Vs. State of U.P. 1491

applicable in the facts and circumstancesof the case and the writ petition is liableto be dismissed.

24. Accordingly, the writ petitionsare dismissed. However, there is no orderas to costs.



BEFORETHE HON'BLE RAJAN ROY, J.


Daya Ram ...PetitionerVersus


Counsel for the Petitioner:Dhruv Kumar

Counsel for the Respondent:C.S.C.

Constitution of India, Art.-226-read withU.P. Government Servant (Discipline andAppeal )Rules 1999-Rule 7 (i)-dismissalfrom service-order passed mechanicallywithout considering the conduct ofpetitioner on conviction-held in view ofTulsi Ram Patel as well as Divisional OfficerSouthern Railway-order quashed withliberty to pass fresh order.

Held: Para-6In view of the above, the impugned orderdated 18.05.2009 can not be sustained andthe same is accordingly quashed, however,with liberty to the Disciplinary Authority totake afresh decision keeping in mind thelegal position narrated herein above withina period of two months from the date ofproduction of a certified copy of this order.Consequences shall follow as per law.

Case Law discussed:1985 (3) SCC 398; 1976 (1) SCR 783

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard learned counsel for theparties.

2. The petitioner was employed asStatistical Assistant in the National SavingsDirectorate under the State Government. Hewas involved in a criminal case underSection 304 Part-I/149 I.P.C. wherein aftertrial he was convicted by the Court ofcriminal jurisdiction on 24.04.2009. Hisappeal against the same is pending whereinhe has been enlarged on bail.

3. Consequent to his conviction, thepetitioner was dismissed from servicevide order dated 18.05.2009 passed by theAdditional Director Savings, U.P.

4. On a perusal of the order ofdismissal it is revealed that the same hasbeen passed mechanically merely on theground of conviction. The legal positionis very well settled that a conviction doesnot automatically lead to dismissal,removal, reduction in rank etc. TheDisciplinary Authority has to pass anorder in this regard in writing. It isrequired to consider the conduct whichhas led to his conviction and based onsuch consideration of conduct a finalopinion has to be formed as to whetherany punishment is required to be imposedupon him or not. This is the requirementunder Article 311 (2) of the Proviso asalso Proviso (i) of Rule 7 of the U.P.Government Servants (Discipline &Appeal) Rules, 1999 and the law laiddown by the Hon'ble Supreme Court inthe case of Union of India Vs. Tulsi RamPatel, 1985(3) SCC 398 which still holdsthe ground. In the case of Tulsi Ram Patel(Supra), the Supreme Court observed andheld as under:-


"Not much remains to be said aboutclause (a) of the second proviso to Article311(2). To recapitulate briefly, where adisciplinary authority comes to know thata government servant has been convictedon a criminal charge, it must considerwhether his conduct which has led to hisconviction was such as warrants theimposition of a penalty and, if so, whatthat penalty should be. For that purpose itwill have to peruse the judgment of thecriminal court and consider all the factsand circumstances of the case and thevarious factors set out in Challappan'scase. This, however, has to be done by itex parte and by itself. Once thedisciplinary authority reaches theconclusion that the government servant'sconduct was such as to require hisdismissal or removal from service orreduction in rank he must decide which ofthese three penalties should be imposed onhim. This too it has to do by itself andwithout hearing the concerned governmentservant by reason of the exclusionary effectof the second proviso. The disciplinaryauthority must, however, bear in mind thata conviction on a criminal charge does notautomatically entail dismissal, removal orreduction in rank of the concernedgovernment servant. Having decided whichof these three penalties is required to beimposed, he has to pass the requisite order.A government servant who is aggrieved bythe penalty imposed can agitate in appeal,revision or review, as the case may be, thatthe penalty was too severe or excessive andnot warranted by the facts andcircumstances of the case. If it is his casethat he is not the government servant whohas been in fact convicted, he can alsoagitate this question in appeal, revision orreview. If he fails in all the departmentalremedies and still wants to pursue thematter, he can invoke the court's power of

judicial review subject to the courtpermitting it. If the court finds that he wasnot in fact the person convicted, it will strikedown the impugned order and order him tobe reinstated in service. Where the courtfinds that the penalty imposed by theimpugned order is arbitrary or grosslyexcessive or out of all proportion to theoffence committed or not warranted by thefacts and circumstances of the case or therequirements of that particular governmentservice the court will also strike down theimpugned order. Thus, in Shankar Dass v.Union of India and another, this Court setaside the impugned order of penalty on theground that the penalty of dismissal fromservice imposed upon the appellant waswhimsical and ordered his reinstatement inservice with full back wages. It is, however,not necessary that the Court should alwaysorder reinstatement. The Court can insteadsubstitute a penalty which in its opinionwould be just and proper in thecircumstances of the case."

5. The Supreme Court in the case ofDivisional Officer, Southern Railway andanother Vs. T. R. Challappan, 1976 (1)SCR 783, has held that on the convictionof an employee on a criminal charge, theorder of punishment cannot be passedunless the conduct which had led to hisconviction is also considered. Thescrutiny or examination of conduct of anemployee leading to his conviction is tobe done ex-parte and an opportunity ofhearing is not to be provided for thispurpose to the employee.

6. In view of the above, the impugnedorder dated 18.05.2009 can not be sustainedand the same is accordingly quashed,however, with liberty to the DisciplinaryAuthority to take afresh decision keeping inmind the legal position narrated herein above

3 All. Dhooram Chaudhary Vs. Mr. Mulayam Singh Yadav & Ors. 1493

within a period of two months from the dateof production of a certified copy of thisorder. Consequences shall follow as per law.

7. However, the question of arrearsand salary etc. shall depend upon the freshdecision which is to be taken as aforesaidand shall not be paid till the such decisionthough the petitioner shall be allowed tojoin and discharge the duties as aforesaidand shall be paid the current salary.

8. The petitioner shall submit a copyof the judgment of the Court of criminaljurisdiction convicting him as also theappeal filed by him before theDisciplinary Authority, to facilitate thedecision as aforesaid.

9. The writ petition is allowed in theaforesaid terms.



BEFORETHE HON'BLE SUNEET KUMAR, J.

Matter Under Article 227 No. 6852 of2015

Dhooram Chaudhary ...PetitionerVersus

Mr. Mulayam Singh Yadav & Ors....Respondents

Counsel for the Petitioner:Aseem Kumar Rai


Constitution of India-Art.-227-Petitionagainst interlocutory order-granting stayagainst summoning of O.P. No. 1-firstlythe application on behalf of stranger-not

maintainable -the applicant disclosed hiscredence as “Public Spirited SocialWorker” but concealed the fact of M.L.A.Belonging to opposition-having noconcern with suo moto action-except tofile complaint-petition is nothing but toget cheap popularity-petition dismissedwith cost of Rs. 1 Lacs.

Held: Para-8The applicant has no concern with theproceedings initiated, suo moto, by thecourt below, neither is the applicant acomplainant, therefore, what motivatedthe applicant to approach this courtassailing the impugned order passed bythe revisional court has not beenexplained.

Case Law discussed:(2010) 4 SCC 728; (2012) 6 SCC 430; (2010) 2SCC 114; (2012) 12 SCC 133

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

1. The applicant has approached thisCourt in a petition under Article 227 ofthe Constitution, inter alia, seeking adirection to set aside the order dated 22August 2015 passed by the secondrespondent, Sessions Judge, Mahoba inCriminal Revision being Revision No.46/15; a further direction has been soughtdirecting the "appropriate authorities totake appropriate action against the firstrespondent".

2. The applicant claims to be a "publicspirited social worker". The first respondentis President of the ruling party of the State, aMember of the Parliament, former ChiefMinister of the State and Former DefenceMinister of India. The Judicial Magistrate atKulpahar, District Mahoba had suo mototaken cognizance of certain comments,purportedly, made by the first respondentagainst the modesty of women thus,summoning the first respondent under


Sections 504, 505, 509, 116 IPC read withSection 3 and 4 of the Indian Representationof Women Prohibition Act 1996 by orderdated 21 August 2015, aggrieved, the firstrespondent preferred a revision under Section397 CrPC against the summoning order. Thelearned Revisional Court/Sessions Judge,Mahoba vide order dated 22 August 2015stayed the order summoning the firstrespondent. The order is being assailed in thepresent petition.

3. The applicant claims to be a publicspirited social worker, however, the learnedAdvocate General would inform that theapplicant is a former Member of LegislativeAssembly (MLA) belonging to theopposition party, the petition at this behestunder Article 227 of the Constitution wouldnot be maintainable, rather, the petition is agross misuse of the process of Court, theCriminal Revision against the summoningorder is pending, therefore, there was nooccasion for a stranger to have approachedthis Court.

4. Learned counsel for the applicantwhen confronted with the credentials of theapplicant i.e. being a former MLA belongingto a rival political party, the learned counselfor the applicant would submit that he wouldlike to withdraw the petition.

5. The learned Advocate Generalwould submit that the petition being grossmisuse of the process of the Court shouldbe dismissed with heavy cost.

6. The record would reveal that thelearned Judicial Magistrate had taken suomoto cognizance under Section 190(1)Cr.P.C of the offence mentioned hereinabove, thereafter, it appears that amiscellaneous case was also institutedagainst the first respondent and one

Bhagirath Yadav for threatening thelandlord of the Magistrate. Thecognizance was taken on some newsitems published in the daily "HindustanTimes" and "Kanpur Metro" publishedfrom Lucknow and Kanpur respectively,it was alleged that derogatory remarksuttered by the first respondent was alsocarried by certain news channels of theelectronic media.

7. Be that as it may, the fact remainsthat the first respondent has alreadycommitted himself to the judicial process andhas submitted himself before the revisionalCourt assailing the cognizance order and theconsequent summoning order, in thesecircumstances it appears that the presentproceedings before this Court has beeninitiated in the most casual and irresponsiblemanner. A number of paragraphs of thepetition, viz para 14 would reflect thatinitially a public interest litigation petitionwas sought to be filed but it appears on legaladvise, the petition was converted into apetition under Article 227, however, itappears the pleadings were accordingly, notamended nor corrected.

8. The applicant has no concern withthe proceedings initiated, suo moto, by thecourt below, neither is the applicant acomplainant, therefore, what motivated theapplicant to approach this court assailing theimpugned order passed by the revisionalcourt has not been explained.

9. The learned counsel for theapplicant would not dispute that undercriminal jurisprudence, it was open for theapplicant to file a complaint, against thefirst respondent if he so desired, beforethe concerned Police Station, but insteadof adopting recourse as available underlaw, the applicant appears to have

3 All. Dhooram Chaudhary Vs. Mr. Mulayam Singh Yadav & Ors. 1495

ventured in approaching this Court forpublicity. It is not being disputed that theapplicant is a former MLA and presentlyassociated with a political party which isin opposition to the party to which thefirst respondent is the President.

10. In these circumstances, theobjection raised by the learned AdvocateGeneral that the petition is a gross misuseof the process of the Court cannot bebrushed aside lightly.

11. Another feature of the petition isthat the learned Sessions Judge has beenimpleaded in personal capacity, but thepleadings would reflect that no allegation hasbeen made against the second respondent.The second relief is for a direction to the"appropriate authorities" for taking actionagainst the first respondent, but theauthorities have neither been arrayed asparties nor described in the petition.

12. Supreme Court in of Oswal Fatsand Oils Limited vs. AdditionalCommissioner (Administrative), BareillyDivision1 observed as follows:-

"20. It is settled law that a personwho approaches the court for grant ofrelief, equitable or otherwise, is under asolemn obligation to candidly disclose allthe material/important facts which havebearing on the adjudication of the issuesraised in the case. In other words, heowes a duty to the court to bring out allthe facts and refrain fromconcealing/suppressing any material factwithin his knowledge or which he couldhave known by exercising diligenceexpected of a person of ordinaryprudence. If he is found guilty ofconcealment of material facts or makingan attempt to pollute the pure stream of

justice, the court not only has the rightbut a duty to deny relief to such person."

13. The observations in A. Shanmugamv. Ariya Kshatriya Rajakula VamsathuMadalaya Nandhavana Paripalanai Sangam2are also apposite holding:-

43.2. Every litigant is expected tostate truth before the law court whether itis pleadings, affidavits or evidence.Dishonest and unscrupulous litigantshave no place in law courts.

43.3. The ultimate object of thejudicial proceedings is to discern the truthand do justice. It is imperative thatpleadings and all other presentationsbefore the court should be truthful.

43.4. Once the court discoversfalsehood, concealment, distortion,obstruction or confusion in pleadings anddocuments, the court should in addition tofull restitution impose appropriate costs. Thecourt must ensure that there is no incentivefor wrongdoer in the temple of justice. Truthis the foundation of justice and it has to bethe common endeavour of all to uphold thetruth and no one should be permitted topollute the stream of justice.

43.5. It is the bounden obligation ofthe court to neutralise any unjust and/orundeserved benefit or advantage obtainedby abusing the judicial process."

14. In Dalip Singh v. State of U.P. &Ors.3, Supreme Court noticed an altogethernew creed of dishonest litigants, who haveflooded the Court. The quest for personal gainhas become so intense that those involved inlitigation do not hesitate to seek shelter offalsehood, misrepresentation and suppressionof facts in the course of court proceedings.

15. Supreme Court in the case of V.Chandrashekaran and another vs.


Administrative Officer and others4observed that a petition or affidavitcontaining misleading or inaccuratestatement amounts to abuse of process ofCourt, a litigant cannot take inconsistentpositions. Paras 45, is extracted:-

"45. The judicial process cannotbecome an instrument of oppression orabuse, or a means in the process of the courtto subvert justice, for the reason that thecourt exercises its jurisdiction, only infurtherance of justice. The interests of justiceand public interest coalesce, and therefore,they are very often one and the same. Apetition or an affidavit containing amisleading and/or an inaccurate statement,only to achieve an ulterior purpose, amountsto an abuse of process of the court.

16. In this view of the matter, thepetition is dismissed with heavy cost ofRs. 1,00,000/-.

17. The applicant shall deposit the costwith the District Magistrate, Mahoba withinone month, failing which, it will be open forthe District Magistrate, Mahoba to recoverthe sum as arrears of land revenue. 50percent of the sum to be deposited with theRegistrar General, High Court, Allahabad tobe utilized by the Mediation and ConciliationCenter of the High Court, Allahabad and theremaining 50 percent to be used byMediation and Conciliation Center of theDistrict Mahoba.

18. Registrar General of this Courtshall forward a copy of this order to theDistrict Magistrate, Mahoba forcompliance.




ARORA, J.


Ashok [objection filed] ...PetitionerVersus


Counsel for the Petitioner:S.A. Khan

Counsel for the Respondents:C.S.C., R.D. Shahi

U.P. Regularization of Daily wagesappointment on group 'D' Rules, Rule-4(i)-petitioner working as Mali since 1989-seeking regularization-as juniors topetitioner have already regularized-inJanardan Yadav case-Rule 4(i) interpretedas person seeking regularization must bein service on commencement of the Act-being appointed prior to 29.06.1991-nowhere continuous working required-petition disposed of with direction toconsider regularization within 3 months.

Held: Para-5It is also relevant to mention that thisCourt in the case of Janardan yadavvs.State of U.P. [(2008) 1 UPLBEC 498,held that this Court does not find anyambiguity in Rule 4(1) providing as towhich kind of persons would be entitledfor regularization and it nowhererequires that the incumbent must haveworked throughout from the date ofinitial engagement till the date ofcommencement of the Rules. In thesituation, the stand of the State iscontrary to the Rules and it amounts toadding and reading certain words in Rule4(1) which have not been inserted by thelegislature. As the rules are applicableonly to daily wage employees, the Rulesframing authority was well aware thatsuch employee could not have workedcontinuously throughout and therefore,has clearly provided that the

3 All. Ashok [Objection filed] Vs. State of U.P. 1497

engagement must be before 29.6.1991and he is continuing as such on the dateof commencement of the Rule.

Case Law discussed:[(2008) 1 UPLBEC 498


1. Heard Counsel for the petitionerand the Standing Counsel on behalf of therespondents.

2. Petitioner has filed the instant writpetition praying inter-alia for direction tothe opposite parties to consider the case ofthe petitioner for regularisation on the postof Maali from the date the persons engagedafter the year 1989 have been regularized.

3. Counsel for the petitioner submitsthat the petitioner has performed hisduties in Mahdoiya Gram Samaj Vriksha,Lucknow Range from the year 1989 to1996 and thereafter he was posted underSharda Sahay Nagar, Lucknow Rangefrom 1996 to June,1986. After beingposted at different places, the petitionerwas lastly posted under NarauniVanshigarh LIT Section, and performedduties to the satisfaction of the authoritiesconcerned. The grievance of the petitioneris that his case for regularization has notbeen considered by the opposite parties,though he has served the department formore than two decades and was workingon the cut off date as provided in the U. P.Regularization of Daily WagesAppointments on Group 'D' Rules, 2001.He further submits that six persons wereregularized in the year 2002-03 but thepetitioner has been treated differently andas such the action of the respondents is inbreach of the provisions of Article 14 and16 of the Constitution.

4. Learned counsel for the petitionerhas vehemently contended that denial ofbenefit of regularization for which thepetitioner is legally entitled, is highlyarbitrary, unjustified and causing greatinjustice to the petitioners apart frombeing discriminatory. Further, he submitsthat the petitioner has rendered severallong years of service but he has yet notbeen regularized, whereas persons juniorto him have been regularised. He furthersubmitted that on account of interim orderdated 24.11.2010, the petitioner is beingpaid minimum of pay scale admissible tothe petitioners' cadre. In contrast, learnedStanding Counsel has submitted that thepetitioner has not worked regularly sincethe date of their engagement and infacthad worked intermittently with breaks inhis services and as such in view of Rule4(1)(a) he is not entitled for regularizationas claimed.

5. It is not disputed that thepetitioner was engaged in 1989 and wasworking on the cut off date provided inRegularization Rules The requirementunder the Regularisation Rules is that anincumbent was directly appointed ondaily wage basis in a government servicebefore 29.6.1991 and is/are continuing inservice as such on the date ofcommencement of the said Rules. Thefurther requirement under the Rules is thatthe person must have possessed requisitequalification required for regularappointment on that post at the time ofsuch employment on daily wage basis. Itis also relevant to mention that this Courtin the case of Janardan yadav vs.State ofU.P. [(2008) 1 UPLBEC 498, held thatthis Court does not find any ambiguity inRule 4(1) providing as to which kind ofpersons would be entitled forregularization and it nowhere requires that


the incumbent must have workedthroughout from the date of initialengagement till the date ofcommencement of the Rules. In thesituation, the stand of the State is contraryto the Rules and it amounts to adding andreading certain words in Rule 4(1) whichhave not been inserted by the legislature.As the rules are applicable only to dailywage employees, the Rules framingauthority was well aware that suchemployee could not have workedcontinuously throughout and therefore,has clearly provided that the engagementmust be before 29.6.1991 and he iscontinuing as such on the date ofcommencement of the Rule.

6. Needless to observe here thatrecently the State Government has issueda Government Order dated 13.8.2015whereby it has been provided that personsworking on daily wage/workcharge/contractual basis in the departmentof the State Government, its autonomousbodies, public undertakings/local bodies,development authorities and ZilaPancahyat, who were engaged upto31.3.1996 shall be regularized.

7. In view of above, the oppositeparties are directed to consider the case ofthe petitioners for regularization under theU. P. Regularization of Daily WagesAppointments on Group 'D' Rules, 2001and in the light of law laid down inJanardan case [supra] within a maximumperiod of three months from the date ofpresentation of a certified copy of thisorder.

8. With the aforesaid observationsand directions, the writ petition isdisposed of finally.

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BEFORETHE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No. 12600 of 2015

Smt. Reeta Chaudhary & Anr. ApplicantsVersus

State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:Ram Surat Saroj

Counsel for the Respondents:Govt. Advocate, Manjeet Singh, ShambhuChopra

Cr.P.C.-Section-482-Quashing of criminalproceeding-on basis of compromise-offence u/s 452, 323, 504, 506 IPC-Learned Magistrate-rejected applicationon ground offence under section 452being non compoundable-held-keepingin view of guidelines of Apex Court inGyan Singh case-criminal proceedingquashed.

Held: Para-9 & 129. The parties have entered intocompromise and have decided to keepharmony between them in future and tolive with peace and love. The trial is atthe initial stage of framing charges. Theevidence is yet to be led in the Court. Ithas not even started. In view ofcompromise between the parties, thereis a minimal chance of witnesses comingforward in support of the prosecutioncase. The chance of conviction,therefore, appears to be remote.

12. Considering the facts andcircumstances of this case as discussedearlier in the light of aforesaid guidelineslaid down by the Hon'ble Apex Court, itdoes not appear just and proper todismiss the present application only dueto the reason that the F.I.R. incorporates

3 All. Smt. Reeta Chaudhary & Anr. Vs. State of U.P. & Anr. 1499

one non-compoundable offence i.e. 452I.P.C.

Case Law discussed:(2012) 10 SCC 303; (2015) 8 SCC 307; (2014)6 SCC 466; (2012) 10 SCC 303.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. The applicants have invoked theinherent jurisdiction of this Court underSection 482 Cr.P.C. with prayer to quashthe entire proceedings of Case No. 1365of 2012 (State Vs. Pankaj Chaudhary andothers), arising out of Case Crime No.772 of 2011, under Sections 452, 323,504, 506 I.P.C., P.S. Kasna, DistrictGautam Buddh Nagar, on the basis of acompromise executed between theapplicants and opposite party no. 2.

2. Heard learned counsel for theparties and perused the record.

3. Brief facts of the case are that acivil dispute arose between the parties inrespect of some landed property, whichalso gave rise to lodging of an F.I.R. byopposite party no. 2 against the applicantsunder the aforesaid sections. However,good sense prevailed between the partiesand they entered into a compromisebefore Delhi High Court Mediation andConciliation Centre on 10.01.2014. Anapplication for compounding the offencewas filed before the Court of ChiefJudicial Magistrate-II, Gautam BuddhNagar, but the court below did not takecognizance of that application on theground that Section 452 I.P.C. is a non-compoundable offence. The applicantshave approached this Court for quashingthe criminal proceedings on the basis ofthe fact that compromise between theparties has taken place and now there isno dispute left between them.

4. The submission of learnedcounsel for the applicants is that theparties have settled the matter and theyhave decided to keep harmony betweenthem to enable them to live with peaceand love. The compromise enteredbetween them records that they have nogrudge against each other and thecomplainant / opposite party no. 2 hasspecifically agreed that he has noobjection if the F.I.R. in question isquashed. Further, both the parties haveundertaken not to indulge in any litigationagainst each other in future. Therefore,continuance of the criminal proceedingsin pursuance of the aforesaid F.I.R. willbe an exercise in futile and mere wastageof precious time of this Court as well asInvestigating Agencies.

5. Learned counsel for the applicantshas supported his submissions with theverdict of Hon'ble Apex Court given incase of Gian Singh Vs. State of Punjab(2012) 10 SCC 303.

6. Learned counsel appearing foropposite party no. 2 has not contested thesubmissions of learned counsel for theapplicants and he also prays that thecriminal proceedings be quashed.Opposite party no. 2 has filed an affidavitstating therein that he has no objection ifthe aforesaid F.I.R. is quashed. He hasrequested this Court that the criminalproceedings may be quashed withdirection to the applicants to comply withthe terms and conditions stipulated in thesettlement dated 10.01.2014. However,learned A.G.A. has brought to the noticeof this Court one recent judgment ofHon'ble Supreme Court rendered in thecase of State of Madhya Pradesh Vs.Manish and Others (2015) 8 SCC 307wherein the Apex Court has set aside the


order of Madhya Pradesh High Court bywhich the Madhya Pradesh High Courthad quashed the criminal proceedingsunder Sections 307, 294 read with Section34 I.P.C. as well as Sections 25 and 27 ofthe Arms Act in exercise of its powerunder Section 482 Cr.P.C. on the groundthat the disputes were amicably settledbetween the parties.

7. In the aforesaid case of Manish(supra), the Apex Court has consideredthe law laid down in its earlier judgmentof Gian Singh (supra) and has held thatoffences under Sections 307, 294 readwith Section 34 I.P.C. as well as Sections25 and 27 of the Arms Act are such innature that by no stretch of imaginationthose can be held to be offence betweenprivate parties simpliciter. Such offenceshave serious impact on society at large.As these offences are definitely againstsociety, the private respondents will haveto necessarily face trial and come outunscathed by demonstrating theirinnocence.

8. In so far as the case in hand isconcerned, the submission of learnedA.G.A. is that Section 452 I.P.C. is also anon-compoundable offence having itsimpact on society at large, hence in viewof the recent judgment of the Apex Courtthe criminal proceedings cannot bequashed.

9. Having heard learned counsel forthe parties and having perused the record,it appears that a civil dispute betweenboth the parties had culminated into acriminal case under Sections 452, 323,504. 506 I.P.C. The F.I.R. lodged byopposite party no. 2 which is AnnexureNo. 1 clearly shows that the allegationsagainst the applicants is only of scuffle

(hatha-pai) with opposite party no. 2,using filthy language and threatening. Noserious injury has been caused to anyone.The parties have entered into compromiseand have decided to keep harmonybetween them in future and to live withpeace and love. The trial is at the initialstage of framing charges. The evidence isyet to be led in the Court. It has not evenstarted. In view of compromise betweenthe parties, there is a minimal chance ofwitnesses coming forward in support ofthe prosecution case. The chance ofconviction, therefore, appears to beremote.

10. Hon'ble Apex Court in a recentcase of Narinder Singh & Ors. Vs. Stateof Punjab & Anr. (2014) 6 SCC 466 hasquashed the criminal proceedings underSections 307/324/323/34 I.P.C. on thebasis of compromise entered into betweenthe parties and has quashed the order ofPunjab and Haryana High Court by whichthe High Court had refused to exercise itsextraordinary discretion under Section482 Cr.P.C. on the ground that the injurysuffered by the complainant were seriousin nature.

11. In Gian Singh Vs. State ofPunjab (2012) 10 SCC 303 the threeJudge Bench of Hon'ble Apex Court haslaid down the guidelines regarding thelegal position as to in what circumstnacesand in what type of cases such exercise ofinherent powers under Section 482Cr.P.C. can be invoked dehors Section320 Cr.P.C. for the purpose of quashingof criminal proceedings as under:-

"the power of the High Court inquashing a criminal proceeding or FIR orcomplaint in exercise of its inherentjurisdiction is distinct and different from

3 All. Smt. Reeta Chaudhary & Anr. Vs. State of U.P. & Anr. 1501

the power given to a criminal court forcompounding the offences under Section320 of the Code. Inherent power is ofwide plentitude with no statutorylimitation but it has to be exercised inaccord with the guidelines engrafted insuch power viz.: (i) to secure the ends ofjustice, or (ii) to prevent abuse f theprocess of any court. In what cases powerto quash the criminal proceeding orcomplaint or FIR may be exercised wherethe offender and the victim have settledtheir dispute would depend on the factsand circumstances of each case and nocategory can be prescribed. However,before exercise of such power, the HighCourt must have due regard to the natureand gravity of the crime. Heinous andserious offences of mental depravity oroffences like murder, rape, dacoity, etc.cannot be fittingly quashed even thoughthe victim or victim's family and theoffender have settled the dispute. Suchoffences are not private in nature andhave a serious impact on society.Similarly, any compromise between thevictim and the offender in relation to theoffences under special statutes like thePrevention of Corruption Act, or theoffences committed by public servantswhile working in that capacity, etc.;cannot provide for any basis for quashingcriminal proceedings involving suchoffences. But the criminal cases havingoverwhelmingly and predominatingly civilflavor stand on a different footing for thepurposes of quashing, particularly theoffences arising from commercial,financial, mercantile, civil, partnership orsuch like transactions or the offencesarising out of matrimony relating todowry, etc. or the family disputes wherethe wrong is basically private or personalin nature and the parties have resolvedtheir entire dispute. In this category of

cases, the High Court may quash thecriminal proceedings if in its view,because of the compromise between theoffender and the victim, the possibility ofconviction is remote and bleak andcontinuation of the criminal case wouldput the accused to great oppression andprejudice and extreme injustice would becaused to him by not quashing thecriminal case despite full and completesettlement and compromise with thevictim. In other words, the High Courtmust consider whether it would be unfairor contrary to the interest of justice tocontinue with the criminal proceeding orcontinuation of the criminal proceedingor continuation of the criminalproceeding would tantamount to abuse ofprocess of law despite settlement andcompromise between the victim and thewrongdoer and whether to secure theends of justice, it is appropriate that thecriminal case is put to an end and if theanswer to the above question(s) is in theaffirmative, the High Court shall be wellwithin its jurisdiction to quash thecriminal proceeding."

12. Considering the facts andcircumstances of this case as discussedearlier in the light of aforesaid guidelineslaid down by the Hon'ble Apex Court, itdoes not appear just and proper to dismissthe present application only due to thereason that the F.I.R. incorporates onenon-compoundable offence i.e. 452 I.P.C.

13. Accordingly, the application isallowed and the entire proceedings ofCase No. 1365 of 2012 (State Vs. PankajChaudhary and others), arising out ofCase Crime No. 772 of 2011, underSections 452, 323, 504, 506 I.P.C. arehereby quashed.

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BEFORETHE HON'BLE AMRESHWAR PRATAP

SAHI, J.THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ-C No. -18086 of 2014

Morning Walkers Association & Ors. ...Petitioners

VersusAllahabad Cantonment Board .Respondents

Counsel for the Petitioner:Abu Bakht

Counsel for the Respondents:Prashant Mathur, Satish Kumar Rai

Constitution of India, Art.-19 (i)(d)-Prohibition on morning and eveningwalking in Cant. Area without pass-withoutintention of interruption of right ofmovement-on public road-necessity oftaking pass-held unhealthy decision-whenever such situation occurs-authoritiesto take decision only after discussion fromthe institute like High Court.

Held: Para-50 & 5150. The aforesaid discussion is alsonecessary for any action to be taken infuture as public convenience cannot beoverlooked. A person suffering from anyimmediate serious ailment like a heart-attack at midnight, would not obviouslybe asked to wait upon to obtain a passfor commuting on a road if he resides inthe vicinity to reach the hospital. This isjust one practical aspect of the matterand there are many such shades whichrequire consideration including otherpublic conveniences.

51. It is for all the aforesaid reasonsthat we hold that the petitioners areright in their submission that they do notrequire to be imposed with a condition of

obtaining a pass from the militaryauthorities in the background and purposeaforesaid. We also are of the opinion thatin case the Cantonment Board proceeds totake any steps in future in the light of theletter dated 7th January, 2015, it mayinform to the public at large andparticularly to institutions like the HighCourt before taking up any such measuresfor discussion so that the point of view ofpublic convenience may not be leftunheeded in any of its dimension. Therespondents are therefore directed to actaccordingly.

Case Law discussed:W.P. No. 3549 of 1997; AIR 1998 SC 431;W.P. No. 4271 OF 2007; PIL No. 361 of 2012.

(Delivered by Hon'ble Amreshwar PratapSahi, J.)

1. This petition has been filed by acollective group of individuals describingthemselves as the Morning WalkersAssociation through Sri Promod KumarJain, a Senior Counsel of the High Courtaccompanied by a couple of SeniorCounsels, Sri W.H. Khan and Sri V.M.Zaidi and with the support of Sri G.S.Hajela another counsel of this Court. SriRam Chandra Gupta is the petitioner no.6. They are all residents of adjoininglocalities in the vicinity of NewCantonment at Allahabad. They submitthat they are regular morning and eveningwalkers on the roads that fall inside theNew Cantonment area including the roadsthat are accessible to the public,particularly Cariappa Road, PonappaRoad and Lawrence Road.

2. Their morning walks wereinterrupted by checkings carried out byarmed soldiers of the Indian Army at theentry point and crossings of such roadswith an insistence to obtain a requisitepass from the military authorities. This

3 All. Morning Walkers Association & Ors. Vs. Allahabad Cantonment Board 1503

sparked off the controversy in February,2014.

3. On enquiry, the petitioners allegethat for the purpose of commuting onsuch roads an application for issuance of atemporary pass to a civilian has to bemoved and pass obtained, the formatwhereof is Annexure - 1 to the writpetition. The petitioners were orallyinformed that an amount of Rs.150/- hasto be paid as a fee for the said pass.

4. They contend that the morningand evening walkers in the locality of theCantonment area are all respectable citizensof the city including Hon'ble Judges of theHigh Court, Advocates, Academicians,Businessmen and practically people fromall walks of life that comprise of male andfemale population both. The roads that arebeing used for the said purpose have beenopen to the public at large, particularlyCariappa Road, Ponappa Road, AshokaRoad, Hastings Road, Auckland Road andother connecting roads that crisscross theroads in the Cantt Area. The said roads arealso linked with the other areas and merelybecause these roads are linked with roadswithin the Cantt Area does not changetheir nature as public utility roads so as toimpose such commuting restrictions thatare now sought to be imposed by therespondents by insisting commutation onissuance of passes. It is this routine dailypilgrimage that has come under a militaryscanner that forms the factual matrixgiving rise to the issues involved in thepresent petition.

5. Learned Senior Counsel for thepetitioners Sri Ravi Kiran Jain is rightwhen he submits that a walk for a humanbeing is as essential as a swim for a fishand a flight for a bird. It is natural, as a

human being is physically designed, bynature, to negotiate distances. It is hiselixir of life. Walking, as an exercise andas a means of adventure, is natural to manand the present petitioners have comeforward to protect such natural behaviour,asserting it as a right, calling upon thecourt to instruct the respondents not tointerrupt their morning walks on streetsopen to the public within the cantonmentlimits of the New Cantt. Allahabad bypolicing, as it offends their lawful right totraverse and commute freely on thegrounds of violation of the rights offreedom in its various dimensionsenshrined under Part - III of theConstitution of India.

6. Sri Jain, learned Senior Counselthen invited the attention of the Court toArticle 19(1)(d) of the Constitution ofIndia and also cited the division benchjudgment of the Karnataka High Court inthe case of Nitin G. Khot Vs. StationCommandant, Belgaum, Writ Petition No.3549 of 1997 decided on 23rd January,1998. A copy of the said judgment hasbeen placed before us to contend that thisissue has been decided and the ratio of thesaid decision is clearly attracted on thefacts of the present case to construe thatthe said restrictions which are sought tobe imposed are unreasonable as they tendto close down such roads of theCantonment for commutation includingmorning and evening walks.

7. He has further invited theattention of the Court to the order dated24th August, 1998 in Special Leave toAppeal No. 8218 of 1998 whereby theApex Court dismissed the Special LeavePetition filed by the military authoritieschallenging the aforesaid decision of theKarnataka High Court.


8. To further buttress hissubmissions Sri Jain has fundamentallyquestioned not only the said restrictionsbeing imposed as without authority butalso as unconstitutional and for that hehas referred to the constitutionalprovisions leading to the judgment of theApex Court in the case of Naga People'sMovement of Human Rights Vs. Union ofIndia, AIR 1998 SC 431.

9. He therefore submits that neitherthe roads can be shutout for suchcommutation and even otherwise thesame being a street as defined underSection 2(zza) of the Cantonment Act2006, any attempt for such closure isinvalid through indirect methods by therespondent - military authorities. Hesubmits that such prohibition cannot beimposed except by the procedureprescribed under the 2006 CantonmentAct and which powers cannot be assumedby the military authorities exclusively tothemselves by attempting policing andprohibiting commutation to thedisadvantage of the public at large for novalid purpose. The contention therefore isthat such unreasonable fetters which arenot backed up by any law for the timebeing in force, by imposition of militaryauthority, should not be permitted in themanner as sought to be imposed by therespondents.

10. The respondents filed a shortcounter affidavit asserting their authorityto do so and also have tried to justify theiraction that this was being done in order tosecure military interest as well as it wouldalso protect the citizens at large so thatsecurity is not compromised in anymanner. This was necessary to facilitatemovements with the minimum ofinconvenience. They have taken a

particular plea with regard to three roads,namely Cariappa Road, Ponappa Roadand Rajiv Gandhi Road (Lawrence Road)that these roads are exclusively within thecontrol of the military authorities as suchland is classified as A-1 Defence Landunder the Cantonment LandAdministration Rules 1937.

11. They have also in their affidavitindicated the duties of a StationCommander that includes taking action inthe case of any disturbance in consultationwith the local authorities as well as a hostof other military activities as indicatedtherein. The affidavit also refers to anantiquated rule for the acquisition,custody, relinquishment etc. of militarylands in India (ACR Rules 1944) to urgethat roads which are under the immediatecontrol of the Army include "ImperialMilitary Roads" and for that the said rulesstill hold the field, on the strengthwhereof, military authorities are justifiedin imposing such restrictions.

12. The respondents have also reliedon the judgment of the Delhi High Courtdated 28th May, 2003 in Traders WelfareAssociation Vs. Union of India and othersto contend that wherever there is asecurity concern, the areas exclusivelyused for armed forces can be cordoned offfrom the general public. Anotherjudgment that has been relied on is that inthe case of Dr. G.S. Ahluwalia Vs. Unionof India and others by the MadhyaPradesh High Court in Writ Petition No.4271 of 2007 where in the name ofsecurity, the installation of an iron gatesubject to checking for security has beenupheld. Another judgment of the AndhraPradesh High Court in the case of Father(Parish Priest) Holy Family Church andothers Vs. Government of India and


others in PIL No. 361 of 2012 decided on26.11.2012 has been relied upon tocontend that the category of Class - A(1)Defence Land which has a military road,is not within the exclusive right of thepublic to commute moreso when thepublic already has alternative connectionsto the areas through which commutationis sought.

13. The hearing of this case waspostponed on two occasions on account ofcertain other matters that were beingheard including a PIL No. 4519 of 2011that came to be decided on 14th August,2014 by a division bench of this court inrelation to the restrictions imposed byprohibiting commutation on another roadknown as Newa Road within the sameCantonment at Allahabad. The closure ofthe said road to the public was found to bejustified on the ground that the road wasbeing exclusively used for an approach toa sensitive military installation namely anarsenal and target firing training area, andtherefore when an alternative road isavailable to the affected residentsconnecting the said road via another road,then the closure would be justified. It wasfurther indicated by the respondentstherein that as a temporary measure a roadpassing through Class - A(1) Land wouldbe made available till the construction ofthe military installations are completed.This judgment has also been relied on bythe respondent in their support.

14. Apart from this, the learnedASGI, Sri Ashok Mehta, Sri GyanPrakash and Sri Satish Rai for therespondents have brought to our noticethe decision of the Ministry of Defencecommunicated through Letter dated 27thJanuary, 2015 to urge that in view of theprovisions of Section 258 a street as

defined under Section 2(zza) can bepermanently closed only by theCantonment Board for security reasonsalone upon following the procedure asindicated therein and therefore in order toavoid any inconvenience such stepsshould be taken only after following thesaid procedure and obtaining statutoryapproval.

15. Thus the contention of therespondents is as indicated in Paragraph 26of their counter affidavit that no road asreferred to in the writ petition has beenshutoff completely and instead only securitymeasures are being undertaken. In Paragraph32, they have come up with a case that no feeshall be charged for entry passes and nopolice verification shall be insisted upon asprovided for in the proforma.

16. Sri Rai learned counsel for theCentral Government has passed on a copyof the letter of the Defence Ministry dated6th October, 2008 indicating the categoryof passes that are to be issued for defenceinstallations.

17. It is in the aforesaid backgroundthat we had adjourned the delivery ofjudgment and then again listed the casefor further hearing and upon conclusion ofthe arguments that the judgment wasagain reserved by us.

18. Before we deal with the statutoryprovisions under the Cantonment Act2006 and the Cantonment LandAdministration Rules 1937, it would beappropriate to refer to a briefconstitutional history and also the objectsand reasons that were discussed and arementioned when the Cantonment Act2006 was revisited by the Parliament andamended through Act No. 41 of 2006.


19. After gaining independence andwhile framing the Constitution the longestdebate that occupied the constituentassembly was the Chapter on fundamentalrights enshrined under Part - III of theConstitution including Article 19(1)(d) ofthe Constitution with which we arepresently concerned.

20. Matters of public liberty andreasonable restrictions, the communityinterest of individual and State interestswere debated at length but for the purposeof their interpretation and to spell out theimportance of such rights one has tonecessarily refer to the period ofemergency that was imposed in an around1975 with the advent of certainconstitutional amendments that came tobe challenged in several cases before theApex Court that defined and reiteratedsuch fundamental rights being protectedagainst unreasonable laws that attemptedto hit at the roots of the basic principles ofdemocracy. Matters went so far so as totake away the power of the High Court toissue prerogative writs while consideringvalidity of laws by the Centre. Theinfamous 46 Amendment Act 1976introduce Section 39 whereby theConstitution was amended adding Article226-A which read as follows:-

"226-A. Constitutional validity ofCentral laws not to be considered inproceedings under Article 226. -Notwithstanding anything in Article 226,the High Court shall not consider theconstitutional validity of any Central lawin any proceedings under that article."

21. The parliament swiftly, after thepolitical scenario changed by arevolutionary open public franchisemandate, demolished such unworthy laws

and repealed the same by omitting theabove through Section 8(2) of the 43rdAmendment Act 1977 that reads asfollows:

[Section 8(2) provides. "(2) Anyproceedings pending before a High Courtunder Article 226 of the Constitutionimmediately before the commencement ofthis Act may be dealt with by the HighCourt as if the said Article 226-A hadbeen omitted with effect on and from the1st day of February, 1977."]

22. The question involved herein isthe protection of the fundamental rightsguaranteed under Article 14, 19(1)(d) readwith Article 19(5) and Article 21 of theConstitution of India. The same areextracted hereinunder for reference:-

"Article 14. Equality before law: TheState shall not deny to any personequality before the law or the equalprotection of the laws within the territoryof India.

Article 19. Protection of certainrights regarding freedom of speech, etc:(1) All citizens shall have the right-

(d). to move freely throughout theterritory of India.

Article 19(5). Nothing in [sub-clauses (d) and (e)] of the said clauseshall affect the operation of any existinglaw in so far as it imposes, or prevent theState from making any law imposing,reasonable restrictions on the exercise ofany of the rights conferred by the saidsub-clauses either in the interests of thegeneral public or for the protection of theinterests of any Scheduled Tribe.

Article 21. Protection of life andpersonal liberty: No person shall bedeprived of his life or personal liberty


except according to procedure establishedby law."

23. The constitution very carefullyengrafts the legislative territories betweenthe Parliament and the State Legislaturescaptioned under Part XI, Chapter -I(Distribution of Legislature, powers -Article 245 to 255). Article 246 of theConstitution prescribes the mattersenumerated in List I in the 7th Scheduleto be within the exclusive domain ofParliament. Similarly the StateLegislature has the exclusive powersunder List II of the same schedule tolegislate laws subject to List I and List IIIthereof. The joint obligation, namely whatcan be described as the common areas ofdistribution of legislative powers betweenthe Parliament and the State legislatures,is provided for under List III, theconcurrent list. The residuary powers ofparliament are under Article 248 and tomake laws on the request of the Statesunder Article 249. The emergency powersof Parliament to legislate on State mattersis contained in Article 250. The otherarticles of Chapter I of Part XI also carveout definitions of specific areas ofLegislation and the priority of alegislation to prevail in matters ofinconsistency of laws. Thus thecompetence of the Union Parliament andState legislatures is defined as above.

24. The State legislatures have been,subject to the laws falling within thecompetence of the Parliament, have beengiven exclusive authority to legislate lawson the subject of Public Order (List-IIEntry-1) and Police - including railwayand village police, subject to theprovisions of Entry 2-A of List - I. ThusPublic order and policing is clearly a Statesubject matter. A cantonment area as

defined under Section 3 of CantonmentsAct 2006, is also subject to such lawswith some exceptions vis-a-vis themembers and establishment of exclusivearmed forces. However the Parliamentcan make laws extending the powers andjurisdiction of police forces to any otherState subject to the limitations contained inEntry 80 of List - I. The overriding power ofthe Parliament in respect of policing underEntry 2 of List II (State list, is thedeployment of armed forces of the Union inaid of the civil power of the State as perEntry 2-A of List - I (Union List). Thisexception and its fall outs, as well as theextent of the competence of the UnionGovernment to make such laws and theirenforceability have been dealt with in detailin the judgment of the Apex Court in thecase of Naga People's Movement of HumanRights Vs. Union of India, AIR 1998 SC431 that has been relied on by thepetitioners. Policing and Public Order arethus within the exclusive civil powers of theState but the Centre to aid such civil powerhas been authorized under the Constitutionto frame laws as explained above.

25. A little bit of Constitutional historypost independence may be referred to in thiscontext. After the repeal of Article 259 wayback in 1956 through the 7th AmendmentAct, the 42nd Amendment of 1976 within itssweep also granted the Union Governmentpowers to deploy armed forces to deal withany grave situation of law and order in anyState through Article 257-A quotedhereinunder:-

"[Article 257-A. Assistance to Statesby deployment of armed forces or otherforces of the Union]"

26. This provision was again by aprudent and wide Act of Parliament


namely the 44th Amendment Act 1978,repealed. The parliament therefore twicein the past had intervened and preventedany laws to continue giving formalpowers to the Armed Forces fromentering into the realm of law and order,that touches also public order andpolicing. This is no adjudication on anysuch issue but legislative powers remainlimited within the area of competence ofthe Union Parliament as noted above.

27. The power of the parliament toframe laws about the constitution andregulation of Cantonments is provided forunder Entry 3 of List -I as follows:-

List - I Entry - 3. Delimitation ofcantonment areas, local self-governmentin such areas, the constitution and powerwithin such areas of cantonmentauthorities and the regulation of houseaccommodation (including the control ofrents) in such areas.

28. Cantonments were earliergoverned by the Cantonments Act 1924and its allied laws. The 1924 Act came tobe repealed under Section 360 of theCantonments Act 2006 published in thegazette on 14.9.2006 that came into forcew.e.f. 18.12.2006 as per Section 1(3)thereof. The objects and reasons that werespelt out at the time of presentation of theBill introducing the New Act are asfollows:-

"THE CANTONMENTS ACT,2006

(41 OF 2006)[13th September, 2006]

An act to consolidate and amend thelaw relating to the administration ofcantonments with a view to impart greater

democratization, improvement of theirfinancial base to make provisions fordevelopment activities and for mattersconnected therewith or incidental thereto.

Be it enacted by Parliament in theFifty-seventh Year of the Republic ofIndia as follows:-

Statement of Objects and Reasons. -The Cantonments Act, 1924 (2 of 1924)makes provisions relating to theadministration of cantonments. Ascantonments are Central territories underthe Constitution, the civil bodiesfunctioning in these areas are not coveredunder State municipal laws.

2. In view of the present day,aspirations and needs of the peopleresiding in cantonment areas and in orderto bring in modern municipalmanagement procedures/techniques insuch areas, it is proposed to enact a newlegislation by replacing the CantonmentsAct, 1924 to provide for - (i) greaterdemocratization; (ii) reservation of seatsin Cantonment Boards for women and theScheduled Castes/Scheduled Tribes; (iii)better financial management;(iv)extension of centrally sponsoreddevelopment schemes to such areas; (v)management of defence lands and theiraudit etc.

3. The new legislation has beenmodified with a view to re-enact theexisting Act in the context of Seventy-Fourth Constitutional Amendment and toprovide for better urban management incantonment as recommended by theStanding Committee of Parliament onDefence and the Action Taken Note of theGovernment on their recommendations.Broadly, the proposed modificationscould be caegorised as under:-

(i) Greater Democratisation.- TheBill envisages enhanced representation forelected members to make proper balance


between the elected and nominated one.Reservation of seats in the CantonmentBoards for women and the ScheduledCastes/Scheduled Tribes would also fallin this category. In this proposed Bill,parity has been brought between theofficial and elected members of the Boardand with this, the number of electedmembers would increase. The enhancedrepresentation for elected members willcater for increased civil population in thecantonment areas.

(ii) Land Management;- Over theyears, the defence land ownership hasincreased to 17.31 lakh acres out of whichabout 2 lakh acres of such lands aresituated within 62 notified cantonmentbeing managed under the existing Act.There is no statute to cover themanagement of about 15 lakh acres ofdefence lands lying outside thecantonments. As on date, these defencelands are regulated by executiveinstructions (not covered under anystatute), issued by the CentralGovernment from time-to-time throughAcquisition, Custody, Relinquishment,etc. of Military Lands in India (ACR)Rules, 1944, which are non-statutory innature.

The Management of CantonmentBoard properties and the defence landsoutside the Cantonments is different fromeach other in a sense that the former iscovered under the existing Act and theCantonment Property Rules, 1925 madethereafter, whereas, there is no suchlegislation or rules for the latter. TheStanding Committee of Parliament (12thLok Sabha) recommended that provisionsmay be made in the Cantonments Actitself regarding management of defencelands, their records, consolidation ofearlier policies and land audit.

Statutory provisions haveaccordingly made and a new Chapter onmanagement of defence lands has beenadded in the Bill. The provisionscontained in this chapter will, inter alia,enable the Central Government to notifythe defence lands, consolidate landmanagement policies and records inregard to defence lands, carry out landaudits to detect abuse if any,nonutilisation and sub-optimal utilizationof lands.

[*Received the assent of thePresident on 13.9.2006 and published inthe Gazette of India, Ext.,Pt. II, S. 1,dated 14.9.2006.]

The Standing Committee ofParliament has also recommended makinglegal provisions to tackle encroachmentson defence lands situated all over thecountry. Accordingly, the problem ofencroachment is not proposed to betackled through the provisions containedin Clauses 239, 248, 249, 253 and 257 ofthe proposed Bill. This would be inaddition to the powers available to theGovernment under the Public Premises(Eviction of Unauthorised Occupants)Act, 1971.

(iii) Development impetus;- Inaddition, provisions have been madewhich would given necessary impetus todevelopment activities, To keep pace withrecent developments, provisions have alsobeen made for developmental and welfareactivities like (town planning, old agehomes, houses for disabled and workingwomen hostels, rain water harvesting,nonconventional energy and othermiscellaneous developmental activitieswhich are important to sustain theenvironment and taking steps for socialdevelopment.

(iv) Resource Generation- Provisionshave been incorporated in the new Bill to


streamline financial administration,improve finance base and change the taxmechanism keeping in view the needs ofmodern municipal administration.Provisions have also been made for aCantonment Development Fund in which,any sum received from Government or anindividual or association (by way of giftor deposit) or from centrally sponsoredscheme, may be credited.

The Standing Committee ofParliament (12th Lok Sabha) had alsomade a recommendation for extension ofcentrally sponsored development schemesin cantonments for uniform developmentof States. Provisions in clauses 10 and108 of the Bill have therefore been mademaking every Board a ''deemedmunicipality' for the purpose of Article243-O(e) of the Constitution. This wouldenable the Cantonment Boards to availbenefits and advantages of centrallysponsored schemes for social andeconomic development as are presentlyavailable to other municipalities invarious States.

Under Article 285 of theConstitution, the properties of CentralGovernment are exempted from all taxesimposed by local authorities in the States.Representations were received that for theservices rendered by the local bodies andthe financial implications involved, somepayment in the form of service chargesmay be made to them. Consequently, theCentral Government issued certainexecutive orders making provision forpayment of service charges to local bodiessince 1954.

There is no specific statutoryprovisions to give legal backing to thesaid decision/orders made by theGovernment in this regard from time-to-time. It is, therefore, proposed to make a

provision in the Bill for payments to bemade to the Cantonment Boards forservice charge by the Central and theState Governments, after ascertaining thesame.

4. The Bill seeks to achieve theabove objectives."

29. The aforesaid recital of objectsand reasons in the bill which received theassent of the President in Clause 3(ii) ashighlighted above does indicate the 1944Rules which have been relied upon by therespondents are non-statutory in nature.

30. Having given this backgroundthe real grievance of the petitioners isabout dignified morning or evening walksbeing undertaken by them in the NewCantt area in a respectable way and notunder any shadow of toting guns.

31. Walking with dignity is arespectful way of enjoying this freedom.Brisk walking is a suggested healthyexercise. Thomas Jefferson, the famousAmerican President, responsible for thedrafting of the U.S. Constitution with theideals of freedom enshrined in his'writings' said, "walking is the bestpossible exercise. Habituate yourself towalk very far." Accompanied morningand evening walks are at times a closeknit family routine outing. It also servesas a forum for dialogues and discussionswith exchange of views in a friend'scompany. Many problems that are a causeof deep concern or mental worry getresolved during morning and eveningwalks and one gets also acquainted withpeople and ideas. Maitland describes thisas the motto of the philosophic tramp"Solvitur Ambulando" (it is solved bywalking).


32. To look at a citizen of thiscountry on a morning or evening stroll ona street with unwarranted suspicion istinkering with his constitutional libertiesand therefore the rule of law needs to beobserved when it comes to any reasonablerestrictions being imposed to curtail suchliberty in the name of State interest.Freedom guaranteed in the post-independence republican constitutional erais aimed at removing all unreasonableState - imposed sovereign fetters thatexisted in a colonial regime to promotealien rule interests. The people of Indiahave given unto themselves a constitutionwith fundamental rights that are inalienablesubject only to reasonable restrictions tothe law made by the legislature. They aretherefore to be governed now, not by thecommand of a monarch, but by the rule oflaw. There is a temptation to understandsuch freedoms in one's own individualinterest, but this may reflect a generalcollective interest when it comes to a causerelating to normal public life. This thenbecomes a debate of public interest asagainst exclusive State interest. Arestriction applied in an unreasonable waygives rise to protests, as in the present case,to a call before the courts.

33. To begin with, the first issue iswith regard to the status of such roadswhich is being claimed by the respondentsto be exclusively 'Imperial military roads'as per the 1944 Rules relied upon by therespondents. We may observe that there isno scope for any capitation of any roadbeing "Imperial" in nature after Indiabecame independent and adopted aRepublican Constitution. It is for thisreason that while introducing the bill forthe new Act in Parliament the 1944 Ruleswere not acknowledged to be having astatutory force in the objects and reasons.

Nonetheless merely because a road whichhas been constructed over a land thatcame to be classified as Class A(1) landwould not take away its status of a streetas defined under Section 2(zza) of the2006 Act. The streets which have beenmentioned in the writ petition areconnected with the pure civilian areasdirectly adjacent to such roads, namelythe High Court, Bungalow of Judges andalso civilian occupants of bungalowswithin the cantonment includingresidential areas. Thus these streets androads are an access to civilians as wellwho reside within the cantonment. This isnecessary to emphasize as the respondentsthemselves have not disputed this positionbut they contend that since there aremilitary establishments as well on theseroads, they intend to impose restrictions.

34. We have no doubt that anymilitary installation which is exclusive formilitary purpose, for example the Sub-Area Headquarters or the Residences ofmilitary officials, are not open to thepublic at large for free entry, but streetswhich are being used by the public as wellincluding civilians within the cantonmentand outside, are not even proposed to becompletely shut down by the respondentsthemselves. The petitioners therefore for amorning and evening walk on such streetsare not required to seek entries through apass or on such roads which are also ofpublic utility, for which there is noauthorization either under the 2006 Act orthe Rules framed thereunder. Therespondents have been unable to showany such law or rule requiring morningand evening walkers to obtain passes.What the respondents have come forwardappears to be a letter issued by theMinistry of Defence dated 6th October,2008, that is extracted hereinunder:-


No. 23(26)/2008/D (GS-III)GOVERNMENT OF INDIAMINISTRY OF DEFENCE^^^^^New Delhi - 110 011, dated 6th

October, 2008ToThe Chief of Army StaffThe Chief of Naval StaffThe Chief of Air Staff

Subject: Passes for the DefenceInstallations.

Sir,In supercession of the orders

contained in this Ministry's letter No.PC-19201/2/GSI(b)(v)/2719/I/D(GS.III) dated24-10-1977, I am directed to say that thePresident is pleased to approve theadoption of the following procedure inregard to the provisions of identitydocuments for civilians associated withDefence areas.

2. Following identity document willbe issued to civilian personnel in the formof IAFZ 3049, 3049A, 3050 and 3052:-

(a) IAFZ 3049 - This will be issuedto all Gazetted officers working in a unitlocated within the perimeter of Defenceestablishment.

(b) IAFZ 3049A - This will be issuedto all non-gazetted officers and otheremployees of the Government who areworking in a unit located within theperimeter of Defence establishment.

(c) IAFZ - 3050 - This is a temporarypass that may be issued to Governmentemployees who are entitled for3049/3049A pending delay.

(d) IAFZ - 3052 - Casual Visitorswill be issued with a temporary pass onthe form IAFZ - 3052 valid for the day ofissue only.

(e) For all other personnel such asdependant family members of defencepersonnel/defence civilians, servants,contractors, vendors, shopkeepers, laboursetc. suitable passes, for specified periodsof validity as convenient, may bedesigned with colour codes forclassification, and implemented by theauthorities delegated by MilitaryCommanders of the Area or Stationirrespective of services.

3. Authority for Issue of Passes.Various passes mentioned at para 2 aboveshall be issued by the designated SecurityOfficer/Authority and shall be valid forthe concerned Station/Area only, AreaCommanders shall, nominate SecurityOfficers within their area ofresponsibility. However, CommandingOfficers of respective units may issuespecial passes in respect of areas whererestricted entry of personnel is requiredowing to the sensitiveness, with theapproval of Area Commander.

4. The documents mentioned at para2 above are identity documents and do notentitle the holder to enter anyestablishment.

5. On transfer from one station toanother, the identity document will besurrendered to the issuing authority atnew station. The issuing authority at newstation will, in turn, issue a new pass anddestroy the previous one under intimationto the old station of the individual forcompletion of their records.

6. Cost of Photographs. The cost ofphotographs required for identity passesin respect of the employees, their familiesand dependents will be borne by theindividuals concerned.

7. Replacement. Permanent passeswill be replaced in the following cases:-

(a) when worn out by normal wearand tear.


(b) when more than two alterationsbecome necessary.

(c) when there is a change in thefacial appearance of the holder.

(d) when there is a change in thename of the holder.

(e) when lost.(f) On expiry of validity due to

transfer from one station to another.8. A permanent pass will be

considered as worn out by normal wearand tear on completion of five years of itsissue. A duplication fee of Rs. 20/- will becharged for any replacement that becomesnecessary within this period due todamage of pass under circumstancesbeyond one's control.

9. Labourers will be issued tokensand their records will be maintained byconcerned unit and contractor.

10. Loss of Passes. The loss of anypass should be immediately reported tothe officer commanding/security officerof the unit/establishment, explaining thecircumstances under which it occurred toenable him to issue a new pass. Report ofthe loss should be supported with a reportlodged with the Police Station.Duplication fees of 20/- will be charged inaddition to the cost of photographs.Additionally, a fine of Rs. 100/-, 150/-,200/- will be charged towards First,Second and Third loss respectively apartfrom the normal disciplinary action.

11. Duplication fees towards loss oftokens by labours will be based on actualcost of manufacture of Rs. 20/- whicheveris higher. Fine towards loss of eachpass/token by Contractors, vendors,shopkeepers and labours may beimplemented by pass issuing authority asconsidered suitable however the sameshould not exceed Rs. 500/-.

12. Expenditures incurred towardsprinting of passes and manufacture of

tokens may be met from Public funds.Detailed orders including fines,duplication fees etc. are to be issued byrespective authorities issuing passes.

13. Further amplifying orders may beissued by service Headquarters, asrequired.

14. This letter with the concurrenceof the Ministry of Defence/Finance/GSvide Dy. No. 2194/GS/2008 dated 16thSeptember, 2008.

Yoursfaithfully,

(JAI RAJ)Under

Secretary to the Government of IndiaCopy to:The Controller General of Defence

Accounts*Director of Audit Defence ServiceAll Controllers of Defence

Accounts*All the Senior Dy. Directors of

Audit, D.S.CGS/MI Directorate/GS I (b)(ii)Security Officer, Ministry of

DefenceMinistry of Defence (Coord)Section D(Est-I), D(Civ), D(Coord),

D(FY) to take action regarding ordinanceFactories.

CG (Admin)*(Copies signed in Ink - to be sent to

all the Controllers of Defence Accounts)Copy also to:D(Air-II); D(Navy); Air Hqrs,(Dte of

Int); Navy (Int.) and DGMI/MI-11"

35. The aforesaid letter has beenhanded down by the learned counsel forthe respondents which indicates thatpasses are required for the purposeindicated therein vis-a-vis the defenceinstallations. The said letter does notindicate that a person who is either a


civilian resident of the cantonment or is amorning or evening walker like thepetitioners is also required to get a passfor such commutation over a street that isconstructed over Class A(1) land and isundisputedly a road also open to use forcivilians. The said letter dated 6thOctober, 2008 therefore cannot beimposed upon the petitioners as they arenot demanding a pass for entering into adefence installation. The said letter clearlyindicates that whenever a civilian wants toenter into a defence installation, he maybe required to obtain a pass in a mannerprescribed therein but the present is not acase that in any way can be said to begoverned by the said letter. Thus theinsistence of obtaining a pass by thepetitioners for going on a morning orevening walk does not appeal to reasonand is an unreasonable imposition whichis not supported by any provision of law.

36. The next comes the issue of thestatus of the road on which insistence isbeing made by the respondents relying onthe decisions that have been cited on theirbehalf to contend that if the road isexclusively over Class A-1 land, thensuch restrictions can be imposed. Our taskhas become easier with the handing downof the communication about the decisiontaken by the Ministry of Defence dated7th January, 2015 that is extractedhereinunder:-

"No. 4(2)/2015-D(Q&C)Govt. of IndiaMinistry of DefenceNew Delhi, dated the 7th January,

2015To,1. The Chief of Army Staff,Army Headquarters, New Delhi2. The Chief of Naval Staff,

Naval Headquarters, New Delhi3. The Chief of Air Staff,Air Headquarters, New Delhi4. The Directorate General, Defence

EstatesNew Delhi

Subject: Closure of Roads inCantonments

Sir,It has been brought to the notice of

the Ministry of Defence that public roadsin Cantonments are being closed by theLocal Military Authorities without anystatutory authority to do so and withoutfollowing the procedure prescribed toSection 258 of the Cantonments Act,2006. Under the said Section 258, a street,as defined under section 2(zza) of the saidAct, can be permanently closed only by aCantonment Board for security reasonsalone after:

(c) giving a public notice invitingobjections and suggestions from thegeneral public; and

(d) obtaining prior permission of theGoC-In-C or the Principal Director of theCommand.

2. The matter has been considered inthe Ministry of Defence and it has beendecided that no public road, outside UnitLines, in a Cantonment shall be closed byany authority, other than a CantonmentBoard, for any reasons other than security,and without following the procedure laiddown under section 258 of theCantonments Act, 2006. If in the opinionof LMA, any road needs to be closed forsecurity reasons, it will approach the localCantonment Board to set the process inmotion as required under section 258 ofthe Cantonments Act, 2006.

3. Henceforth, it will be theresponsibility of the GoC-In-C and


Principal Director Defence Estates of theCommand to ensure that no road in aCantonment, outside Unit Lines, is closedarbitrarily or on grounds other thansecurity or without following theprocedure as prescribed under the saidsection 258. While deciding matterspertaining to closure of roads, thecompetent authority shall objectivelyweigh the security considerations and theinconvenience that may be caused togeneral public. Where it becomesunavoidable to close a road, efforts shouldbe made to provide an alternative roadbefore enforcing the closure order.

4. It has further been decided thatroads already closed without followingthe procedure as delineated in theCantonments Act, 2006 should be openedforthwith, and closed again, if suchclosure is required, after following thelaid down procedure and obtaining thestatutory approval.

5. The DG DE and ServicesHeadquarters shall ensure compliance ofthe aforesaid directions. They will alsosubmit a compliance report with regard topara 4 above to the Ministry of Defencewithin 30 days from the issue of thisletter.

Yours faithfully,

(Nitin Chayando)Director (L&C)"

37. In the present case no suchdecision has been taken or brought to ournotice by the respondents under theprocedure laid down under Section 258 ofthe 2006 Act. It is not in dispute that theroads in question are not streets within themeaning of Section 2(zza) of the 2006Act. Consequently, the Defence Ministryitself appears to be aware of suchinsistence coming to their notice that have

been causing public inconvenience andwas sought to be dealt with through theaforesaid clarification. Apart from this,even if any such decision under Section258 is arrived at, its validity or otherwisewould still be a matter of legal debate as itdirectly involves the usage of a street bythe public as defined under Section 2(zza)of the 2006 Act. It is also clear from areading of the said letter that any suchattempt is subject to objections beingtaken by the public at large and would notbe a matter of imposition of any militaryexecutive orders but would rather begoverned by the due process of the 2006Act.

38. It is here that we would like toclarify that none of the judgments thathave been relied upon by the respondentshave dealt with the issue of morning andevening walkers as involved in the presentcase and have applied the law as was tobe understood on the facts of those cases.In particular we would like to mentionthat the decision of this court dated 14thAugust, 2014 in PIL No. 4519 of 2011exclusively was concerned with anapproach road to a sensitive militaryinstallation of an arsenal and a targettraining area and keeping this fact in viewthat the said decision was renderedindicating that closure of road for generalpublic was in the security interest of thearmed forces. The facts of this case areclearly distinguishable where the roads inissue are accessible to the civilians publicand which according to the counteraffidavit filed by the respondents the samehas not been shut down completely. Thereis yet another judgment which deservesmention at this stage which the court hascome across by a learned Single Judge ofthis Court in Second Appeal No. 420 of2006. The right claimed therein was also


of passage over a road in the cantonmentlimits of District Bareilly that arose out ofa suit file in a representative capacity. Thedefendant Defence Department took aplea that there was an alternative roadavailable and even otherwise the road indispute therein was the internal road ofthe Jat Regiment Centre, also constructedover Class A(1) land and maintained bythe Military Engineering Services. Onsuch facts it was found the administrativecontrol of the military authorities toprevent encroachment was available. Thedispute therein was the control over theland between the military authorities andmilitary estate officers and it was heldthat such a land which was not a publicroad and was meant for a militaryestablishment, particularly the Unit of theJat Regimental Centre, the suit wasdismissed and the second appellate courtalso did not find any substantial questionof law involved for interference. It is onthis ground that the judgment of theKarnataka High Court in the case of NitinG. Khot (supra) was found to be notapplicable on the facts of that case.

39. The aforesaid judgment isclearly distinguishable on facts and evenotherwise the said judgment of the learnedSingle Judge on legal issues, particularlythe definition of the word "street" underSection 2(zza) read with the power ofclosure of a street under Section 258 ofthe 2006 Act neither appears to have beenraised or considered. The said judgment isalso not on the provisions of theCantonments Act 2006. Thus theaforesaid judgment also does not come tothe aid of the respondents.

40. Apart from this as indicatedhereinabove the powers to police arenowhere provided under the 2006 Act

allowing any such measure that is soughtto be imposed against morning andevening walkers in the present case. It isnot the case of the respondents in theircounter affidavit that any of thepetitioners have violated any law or thatcommutation on such streets or roadswould be violation of any law if they areused by the public for morning andevening walks or commutation.

41. The present case becomes moredistinguishable as in the past also theattempts made to shutdown roads byinstallation of iron gates and installationof cattle catchers was being attempted.The respondents have relied on thejudgment in the case of G.S. Ahluwalia(supra) to support their contentions. Inthis regard, it would be useful to refer tothe counter affidavits filed by therespondents in Writ Petition (PIL) No.51777 of 2010, Jani Babu Sonkar Vs.Union of India and others. Two counteraffidavits were filed therein, one onbehalf of the Cantonment BoardAllahabad and the other on behalf of theDefence Ministry sworn by Col. G.P.S.Kaushik working as Adm. Commandant,Station Cell, Headquarters MP, C & ASub Area Allahabad.

42. In the counter affidavit filed onbehalf of Cantonment Board through Smt.Bhawana Singh, the then Chief ExecutiveOfficer, Section 258 was clearly reliedupon by the Cantonment Board in relationto closure of streets which has now beenindicated in the present case through thecommunication of the Ministry ofDefence dated 7th January, 2015extracted hereinabove. In Paragraph 6 ofthe said counter affidavit it has beenasserted that certain Schools, Hospitalsand the residential civil areas are


maintained by the Cantonment Board forthe benefit of the residents and employeesresiding within the cantonment limits whonormally uses the roads maintained by thearmy authorities including that situateover Class A(1) land. In Paragraph 7 ofthe said counter affidavit it has beenstated that five schools exist in the NewCantt. Area of Allahabad with which weare presently concerned and a regularhospital is also maintained by thecantonment board to cater a large numberof civilian population who reside in R.A.Bazar, Triveni Vihar Colony, GangaVihar Colony and other colonies and allthe roads connected with the cantonmentareas are used by the residents with theother part of the city of Allahabadconnected to the municipal limits.

43. Another revelation made in thesaid counter affidavit in Paragraph 10thereof is that on the basis of a censuswhich was carried out that an approximate60% of the population was civilian withinthe cantonment area.

44. Apart from this, the counteraffidavit filed on behalf of the Ministry ofDefence and the military authoritiesreferred to hereinabove in PIL No. 51777of 2010 reasserts the maintenance ofLawrence Road (Rajiv Gandhi Road) asan internal cantonment road existing onClass A(1) Land maintained by theMilitary Engineering Services whichconnects army units, army and civiliandefence residential areas with a smallpocket of cantonment civil notified area,R.A. Bazar. It has been asserted inParagraph 15 of the said counter affidavitthat neither the setting up of cattle traps ordigging on the roads had impeded anykind of free passage to the public, SchoolChildren or similarly situate persons. In

Paragraph 18 it has been asserted that themain Rejiv Gandhi Road is open to allkind of traffic. The counter affidavit alsoasserts security concerns but at the sametime Paragraphs 25 and 26 are worthquoting:-

Para 25. That during day time all thegates are open and absolutely norestrictions have been imposed on anykind of movement. Due to increasedsecurity threat during night time gatesonly on Rajiv Gandhi Road and at oneend of Ponappa Road are being closedbetween 10 p.m. to 6 p.m. It will beappreciated that after 10 p.m. little or nomovement takes place on these roads, asSchools, Banks, Offices, market placesclose down by this time.

Para 26. That to allow entry and exit tothe New Cantonment area all other roadsnamely Cariappa Road, Ashoka Road,Nyay Marg, Akbar Road, and south end ofPonappa Road are open during nightallowing absolutely free access to NewCantt. Area including access to Military andCantonment General Hospital.

45. The said petition in which theaforesaid counter affidavit had been filedwas a public interest litigation objectingto impediment of traffic and setting up ofiron gates and cattle traps by the militaryauthorities. For this, the justificationgiven in the counter affidavit was thatcattle traps were being laid in order toavoid stray cattle being huddled withincantonment limits. It also acknowledgesthe existence of the High Court and theJudges Colony in an absolutely closeproximity of the said New Cantt. Area.

46. Learned counsel for thepetitioners has also orally indicated and


which fact does not appear to be disputedthat the very gates of the residence ofHon'ble the Chief Justice opens directly infront of Ponappa Road which is one of theroads presently involved and the access tothe Judges Colony in Shambhu Barracksis also via Cariappa Road.

47. From the aforesaid facts it is clearthat the respondents have not intended tocreate obstructions or restrictions, then it isnot understood as to on what basis aninsistence is being made by the respondentson the petitioners to obtain passes formorning and evening walks. In this regard, itis worth quoting Paragraph 9 of the counteraffidavit sworn by Col. Kaushik in WritPetition (PIL) No. 51777 of 2010, referred tohereinabove, which is as follows:-

Para 9. That Cantonment road are theonly place in the Allahabad where notonly the Cantonment residents but alsolarge number of residents from all overthe Allahabad town come for morning andevening walks. Presence of stray cattleand road littered with cattle dung, urineand nauseating odour denies residents ofAllahabad of such an opportunity besidesposing serious health risks."

48. Thus the very passage andconvenience of morning and eveningwalkers within the cantonment area isacknowledged by the respondentsthemselves.

49. The aforesaid stand taken in theabove mentioned public interest litigationby the respondents themselves leaves noroom for doubt that the petitioners are notunwelcome on the streets in question asmorning and evening walkers. In such asituation, imposing a condition forobtaining passes is neither a legal

requirement under any law as discussedhereinabove nor does it appear to be inconformity with the rights protected andguaranteed under Article 19(1)(d) of theConstitution of India. There is nodiscernible rational nexus for askingmorning and evening walkers to obtain amilitary pass for commuting on a street asinvolved presently in the case.

50. The aforesaid discussion is alsonecessary for any action to be taken in futureas public convenience cannot be overlooked.A person suffering from any immediateserious ailment like a heart-attack atmidnight, would not obviously be asked towait upon to obtain a pass for commuting ona road if he resides in the vicinity to reach thehospital. This is just one practical aspect ofthe matter and there are many such shadeswhich require consideration including otherpublic conveniences.

51. It is for all the aforesaid reasonsthat we hold that the petitioners are right intheir submission that they do not require tobe imposed with a condition of obtaining apass from the military authorities in thebackground and purpose aforesaid. We alsoare of the opinion that in case theCantonment Board proceeds to take anysteps in future in the light of the letter dated7th January, 2015, it may inform to thepublic at large and particularly toinstitutions like the High Court beforetaking up any such measures for discussionso that the point of view of publicconvenience may not be left unheeded inany of its dimension. The respondents aretherefore directed to act accordingly.

52. The writ petition stands allowedwith the aforesaid directions andobservations.

--------

3 All. Sabir & Ors. Vs. State of U.P. & Anr. 1519



BEFORETHE HON'BLE OM PRAKASH-VII, J


Sabir & Ors. ...ApplicantsVersus

State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:Vinod Kumar Shukla

Counsel for the Respondents:G.A.

Cr.P.C. Section-482-complaint case-summoning order-challenged on groundagainst same occurrence-final reportsubmitted-complainant have opportunity to fileprotest application-hence second complainantbarred by law-held-Learned Magistrateconsolidated both cases-no question of secondcomplainant-case law relied by applicant-notapplicable rather support the complainant-application misconceived -rejected.

Held: Para-7From perusal of the revisional court's orderdated 22.9.2015 (annexure 6 to the affidavitaccompanying the application), it appearsthat court concerned has consolidated boththe matter. No any benefit goes in favour ofthe the applicants with the law laid down inthe above cited Jai Ram (Supra) case, rather ithelps to the complainant.

Case Law discussed:(All) 2013-5-16

(Delivered by Hon'ble Om Prakash-VII, J.)

1. Heard learned counsel for theapplicants and learned AGA for the State.

2. This application under Section482 Cr.P.C. has been filed with a prayer

to quash the order dated 22.9.2015 passedby Addl. District & Sessions Judge, CourtNo.5, Bijnor in revision no. 153 of 2015(Sabir & others Vs. Mohd. Irfan andanother) as well as order dated 7.4.2014passed by Additional Chief JudicialMagistrate-I, Bijnor in case no.326 of2013 ( Mohd. Irfan Vs. Sabir & others).Further prayer has been made to stay theeffect and operation of the impugnedorders.

3. Submission of the learned counselfor the applicants is that initially thematter was investigated, in which, policeafter investigation, submitted the finalreport. The opposite party no.2 filed thecomplaint on the basis of same set ofevidence on 27.5.2013. Summoning orderwas passed by the Magistrate concernedagainst the applicants. The applicants hadchallenged the summoning order in thecriminal revision, which was dismissed on22.9.2015 on the basis of insufficientground. It was further submitted that sincethe final report was submitted, thecomplaint filed subsequent thereof isbarred by law. Complainant hadopportunity to file the protest petition inthe final report, but the court concerneddid not take into account this aspect of thematter and illegally taking cognizancesummoned the applicants. Learnedcounsel for the applicants has also placedreliance on the case law of this Court insupport of his contention.

4. On the other hand, learned A.G.A.argued that only on the basis ofsubmission of the final report afterinvestigation by the police, the complaintfiled by the complainant is not barred bythe provisions of law. The presentcomplaint cannot be treated as secondcomplaint. Proceedings of the complaint


case are not barred and cannot be quashedon the ground taken by the applicants.

5. I have considered the rivalsubmissions advanced by the learnedcounsel for the parties and have alsoconsidered the law laid down by thisCourt in the case of Jai Ram Vs. State ofU.P., LAW (All) 2013 - 5 -16, as reliedupon by the learned counsel for theapplicants.

6. Regarding maintainability of thesecond complaint, this Court in the caseof Jai Ram (supra) has held in paragraphs8, 9 & 10 as under.

"8. There is no dispute regardingmaintainability of second complaint aslaid down in various pronouncements.Hon'ble Supreme Court in the case ofPramatha Nath Talukdar and another vs.Saroj Ranjan Sarkar - (AIR 1962 SC 876).has laid down thus:

"There is nothing in law whichprohibits the entertainment of a secondcomplaint on the same allegations when aprevious complaint had been dismissedunder Section 203 of the Code ofCriminal Procedure. As however, a ruleof necessary caution and of properexercise of the discretion given to aMagistrate under Section 204(1) of theCode of Criminal Procedure, exceptionalcircumstances must exist for theentertainment of the second complaint onthe same allegations; in other words,there must be good reasons, why theMagistrate thinks that there is "sufficientground for the proceeding" with thesecond complaint, when a previouscomplaint on the same allegations wasdismissed under s. 203 of the Code ofCriminal Procedure. The question now is,

what should be those exceptionalcircumstances ? In Queen Empress v.Dolagobind Dass (1), Maclean, C. J.said: "I only desire to add that noPresidency Magistrate ought, in myopinion, to rehear a case previously dealtwith by a Magistrate of coordinatejurisdiction upon the same evidence only,unless he is plainly satisfied that there hasbeen some manifest error or manifestmiscarriage of justice.".

In the same decision, the Apex Courtalso has laid down the test to determinethe exceptional circumstances which are.--(1) manifest error; (2) manifestmiscarriage of justice; and (3) new factswhich the complainant had no knowledgeof or could not with reasonable diligencehave brought forward in the previousproceedings".

9. The Hon'ble Apex Court made itvery clear that interest of justice cannotpermit that after a decision has beengiven on a complaint upon fullconsideration of the case, the complainantshould be given another opportunity tohave the complaint enquired into again.In the judgment of Pramatha NathTalukdar and another (supra) the Hon'bleApex Court opined that fresh evidence orfresh facts must be such which could notwith reasonable diligence have beenbrought on record. The Court very clearlyheld that it cannot be settled law whichpermits the complainant to place someevidence before the Magistrate which arein his possession and then if the complaintis dismissed adduce some more evidence.

10. In Mahesh Chand vs. B.Janardhan Reddy and another - (2003) 1SCC 734, the Hon'ble Apex Court heldthat a second complaint is not completelybarred nor is there any statutory bar infiling a second complaint on the samefacts in a case where a previous case was

3 All. Arun Jaitley Vs. State of U.P. 1521

dismissed without assigning any reason.The Magistrate under Section 204 of theCode can take cognizance of an offenceand issue process if there is sufficientground for proceeding. In Mahesh Chand(supra) the Hon'ble Apex Court relied onthe ratio in Pramatha Nath (supra) andheld that if the first complaint had beendismissed the second complaint can beentertained only in exceptionalcircumstances as has been pointed out inPramatha Nath (supra).

In Shiv Shankar Singh Vs State ofBihar and another (2012) 1 SCC 130, theHon'ble Apex Court has held as under:

"It is evident that the law does notprohibit filing or entertaining of thesecond complaint even on the same factsprovided the earlier complaint has beendecided on the basis of insufficientmaterial or the order has been passedwithout understanding the nature of thecomplaint or the complete facts could notbe placed before the court or where thecomplainant came to know certain factsafter disposal of the first complaint whichcould have tilted the balance in hisfavour. However, second complaint wouldnot be maintainable wherein the earliercomplaint has been disposed of on fullconsideration of the case of thecomplainant on merit."

7. In the present matter, as is evidentfrom the record, after initiation of thepolice investigation, complaint was alsofiled by the complainant. Perusal of therecord also shows that no any complaintwas dismissed by the court concerned onmerit. The submission raised by thelearned counsel for the applicants that it isa second complaint is not acceptable. It istrue that the complainant may file theprotest petition on the final report and thecourt dealing with the matter is

empowered to treat the protest petition ascomplaint, but only on this basis thecomplaint filed by the complainant cannotbe treated as second complaint. Learnedcounsel for the applicants also did notdisclose the final result of the final report.From perusal of the revisional court'sorder dated 22.9.2015 (annexure 6 to theaffidavit accompanying the application),it appears that court concerned hasconsolidated both the matter. No anybenefit goes in favour of the theapplicants with the law laid down in theabove cited Jai Ram (Supra) case, rather ithelps to the complainant.

8. In view of the above, no groundfor quashing the proceedings of theaforesaid case as well as the summoningorder is made out which may call for anyinterference by this Court in exercise ofits inherent power under Section 482Cr.P.C. as the same do not suffer fromany illegality or infirmity.

9. The Application u/s 482 Cr.P.C.is devoid of merit and is accordinglydismissed.



BEFORETHE HON'BLE YASHWANT VARMA, J.


Arun Jaitley ...ApplicantVersus

State of U.P. ..Opp. Party

Counsel for the Applicant:Mr. Tarun Agarwal, Mr. Manindar SinghGill, Mr. Ravi Kant, Mr. Nalin Kohli

Counsel for the Opp. Party:


Mr. V.B. Singh, Mr. Imran Ullah, Mr.Akhilesh Singh

(A) Cr.P.C.-Section 196-Suo moto cognizancetaken by Magistrate u/s 190 (i)(a)(b)and (c)-without prior permission from government-held-illegal-not sustainable.

Held: Para-10 & 1310. In the opinion of the Court,therefore, cognizance taken under eitherof clauses (a), (b) or (c) of Section190(1) would have to conform with therequirements of Section 196. This clearlyflows from the opening words of Section190 itself, which make it subject to theprovisions of Chapter XIV. Section 505 ofthe Penal Code finds specific mention inSection 196 Cr.P.C. Admittedly, Section124A stands comprised in Chapter VI ofthe Penal Code and would therefore,stand covered in clause (a) of Section196. It therefore, clearly follows that theMagistrate could not have takencognizance except with the previoussanction of the Government.

13. In light of the above, this Courtholds that the Magistrate clearly erred inproceeding to exercise jurisdiction underSection 190(1)(c) and therefore, theorder taking cognizance of the allegedoffence and issuance of summons cannotbe sustained.

(B) Indian Penal Code-Section 124-A-Offence-what Constitute?-explained-healthy criticism or even intellectualdisagreement to judgment-not a crime-views printed in article may beunacceptable or unpalatable to someone-but not liable to be punished.

Held: Para-26The Magistrate appears to have closedhis eyes to the well-settled view thathealthy criticism or even intellectualdisagreement with a particular view of ajudge contained in a judgment of thecourt is not a crime. The view expressedmay be unacceptable or evenunpalatable to some. However the same

does not render it liable to prosecutionunder the Penal Code.

Case Law discussed:W.P. (Civil) No. 13 of 2015; (1993) 3 SCC 339;(1999) 1 SCC 728; 1999 (3) ALD 193; AIR1962 SC 955; (2003) 8 SCC 461; (2015) 5 SCC1; (1974) 1 SCC 374; (1988) 3 SCC 177; 1993(Supp) 1 SCC 499; (1998) 5 SCC 749; (2015)1 SCC 749.

(Delivered by Hon'ble Yashwant Varma, J.)

1. The applicant seeks to invoke theinherent powers of the Court conferred bySection 482 Cr.P.C. for quashing ofComplaint Case No. 382 of 2015 and anorder dated 19.10.2015, passed by theJudicial Magistrate, Kulpahar, Mahoba,U.P.

A. BACKGROUND FACTS

2. The record reveals that theJudicial Magistrate taking suo motocognizance has proceeded to summon theapplicant under Sections 124 A and 505of the Penal Code. The concernedMagistrate has taken cognizance of thealleged offences on the basis of an articlewritten by the applicant and posted on hisFacebook page. The article is titled as''NJAC Judgement-An Alternative View'.The Magistrate has recorded that nocitizen has a right to disrespect the threepillars of our democracy namely, theExecutive, Legislature and the Judiciary.He then proceeds to record that an orderof a Court can be questioned only byfollowing a procedure prescribed by law.The order then states that no person isentitled to create or generate hatred orcontempt against an elected Governmentestablished by law. The Magistrate uponrecording the above conclusions holdsthat the comments made by the applicantundoubtedly spread hatred and contempt


against a duly elected Government andaccordingly, in his opinion, the applicantprima facie appears to have committedoffences under Section 124A and 505I.P.C.

3. Referring to the provisions ofSection190(1)(c), the Magistrate recordedthat the above mentioned section of theCriminal Procedure Code conferred uponhim a power to take suo moto cognizance.He then records that the power to take suomoto cognizance under clause (c) of sub-Section (1) of Section 190 of Cr.P.C. isnot trammelled by the territorialjurisdiction of a Magistrate and that sincethe comments made by the applicant werewidely published in the print andelectronic media throughout the nation, itwas open to a Magistrate anywhere in thecountry to exercise suo moto powers. Heaccordingly, proceeded to takecognizance under Section 190(1)(c) of theCriminal Procedure Code and issuedsummons to the applicant seeking hisappearance before the Court on 19November 2015.

4. The views expressed by theapplicant in the article authored by him anddated 18 October 2015 is a critique of ajudgement rendered by a ConstitutionBench of the Supreme Court of India1which ruled upon the validity of theNational Judicial AppointmentsCommission Act, 2014 and the NinetyNineth Constitutional amendment. Theexcerpts of the said article read as follows:

"The judgement ignores the largerconstitutional structure of India.Unquestionably, independence of thejudiciary is a part of the basic structure ofthe Constitution. It needs to be preserved.But the judgement ignores the fact that there

are several other features of the Constitutionwhich comprise the basic structure. The mostimportant basic structure of the IndianConstitution is Parliamentary democracy.The next important basic structure of theIndian Constitution is an electedGovernment which represents the will of thesovereign. The Prime Minister inParliamentary democracy is the mostimportant accountable institution. TheLeader of the Opposition is an essentialaspect of that basic structure representingthe alternative voice in Parliament. The LawMinister represents a key basic structure ofthe Constitution; the Council of Ministers,which is accountable to Parliament. All theseinstitutions, Parliamentary sovereignty, anelected Government, a Prime Minister,Leader of Opposition, Law Minister are apart of the Constitution's basic structure.They represent the will of the people. Themajority opinion was understandablyconcerned with one basic structure-independence of judiciary - but to rubbish allother basic structures by referring to them as"politicians" and passing the judgement on arationale that India's democracy has to besaved from its elected representatives. TheIndian democracy cannot be a tyranny of theunelected and if the elected are undermined,democracy itself would be in danger. Are notinstitutions like the Election Commission andthe CAG not credible enough even thoughthey are appointed by elected Governments?

The judgement interprets theprovision of Article 124 and 217 of theConstitution. Article 124 deals with theappointment of Judges in the SupremeCourt and Article 217 deals with theappointment of Judges of the High Court.

Both provide for the appointment to bemade by the President in consultation with theChief Justice of India. The mandate of theConstitution was that Chief Justice of India is


only a 'Consultee'. The President is theAppointing Authority. The basic principle ofinterpretation is that a law may be interpretedto give it an expanded meaning, but theycannot be rewritten to mean the very opposite.In the second Judge's case, the Court declaredChief Justice the Appointing Authority and thePresident a 'Consultee'. In the third Judge'scase, the courts interpreted the Chief Justiceto mean a Collegium of Judges. President'sprimacy was replaced with the Chief Justice'sor the Collegium's primacy. In the fourthJudge's case (the present one) has nowinterpreted Article 124 and 217 to imply'Exclusivity' of the Chief Justice in the matterof appointment excluding the role of thePresident almost entirely.

No principle of interpretation of lawanywhere in the world, gives the judicialinstitutions the jurisdiction to interpret aconstitutional provision to mean the oppositeof what the Constituent Assembly had said.This is the second fundamental error in thejudgement. The court can only interpret - itcannot be the third chamber of the legislatureto rewrite a law.

Having struck down the 99thConstitutional Amendment, the Court decidedto re-legislate. The court quashed the 99thConstitutional Amendment. The court isentitled to do so. While quashing the same, itre-legislated the repealed provisions of Article124 and 217 which only the legislature cando. This is the third error in the judgement.

5. The article then ends with thefollowing words:

As someone who is equallyconcerned about the independence ofjudiciary and the sovereignty of India'sParliament, I believe that the two can andmust co-exist. Independence of the

judiciary is an important basic structureof the Constitution. To strengthen it, onedoes not have to weaken Parliamentarysovereignty which is not only an essentialbasic structure but is the soul of ourdemocracy."

B. SUBMISSIONS

6. The learned Senior Counselappearing in support of this application hasraised both procedural as well as fundamentalobjections to the proceedings initiated by theMagistrate. Elaborating his submissions onthe aspect of the procedural flaws, he submitsthat Section 124A as well as Section 505 IPCare both offences which fall within the ambitof Section 196 of the Criminal ProcedureCode. Referring to the provisions of Section196, the learned counsel submits that there is acomplete bar on any Court taking cognizanceof an offence falling under Chapter VI of thePenal Code as well as Section 505 without theprevious sanction of the Central Governmentor of the State Government. It is, therefore, hissubmission that the Magistrate clearly acted inexcess of jurisdiction in proceeding to takecognizance and summoning the applicantwithout complying with the provisions ofSection 196. Referring to a judgementrendered by two learned Judges of theSupreme Court in State of Maharashtra Vs. DrBudhikota Subbarao2, he submits that the useof the words 'no' and ''shall' in Section 196make it abundantly clear that the bar on thepower of a Court taking cognizance of anoffence is absolute and complete. He submitsthat Section 196 therefore, clearly barred theMagistrate from assuming jurisdiction or eventaking notice. He has also placed reliance onan order of the Supreme Court in Manoj Raiand Others Vs. State of M.P.3 to contend thatin a case where no sanction was given inaccordance with the provisions of Section196, the entire proceedings were liable to be


quashed. On this aspect of the matter, he hasfurther placed reliance upon a judgementrendered by a learned Single Judge of theAndhra Pradesh High Court in Kandi BuchiReddy Vs. State of Andhra Pradesh4. Thiswas a case which dealt with a chargesheetfiled against the petitioner allegingcommission of offences under Section 124Aand 506 IPC. The issue of sanction as requiredunder Section 196 of the Code of CriminalProcedure directly fell for consideration andstood answered in the following terms

"Admittedly, Section 124-A IPC is anoffence contained under Chapter-VI of theIndian Penal Code. Therefore, sanction ofthe appropriate Government is a pre-requisite for taking cognizance of theoffence under the said Section. Thelearned Public Prosecutor has fairlyconceded that before the charge-sheetwas filed, no sanction has been obtained."

7. The second limb of thesubmissions advanced by the learnedSenior Counsel was with respect to thescope and ambit of Sections 124-A and505 of the Penal Code. It was submittedthat the article written by the applicantwas a fair criticism of the judgementrendered by the Constitution Bench andthat nothing contained therein wouldqualify as amounting to a commission ofan offence either under Section 124A orSection 505 of the Penal Code. Thearticle, he would submit, can by no stretchof imagination be said to contain wordswhich were aimed to bring or attemptedto bring into hatred or contempt aGovernment established by law. Referringto the ingredients of Section 505 of thePenal Code, he submits that the articleneither caused nor was it intended tocause any fear or alarm amongst thegeneral public nor did it in any manner

tend to induce any person to commit anoffence against the State or against publictranquillity. He further submits that theapplicant had authored the article bonafidelyand in exercise of the fundamental rightsguaranteed under Article 19(1)(a) of theConstitution of India. He submits thatcriticism of a judgement is not contempt andin any view of the matter can never bedescribed as sedition.

8. The learned Advocate General whoappeared in the proceedings stated that nosanction had been accorded for the initiationof proceedings by the concerned Magistrateand that the suo moto cognizance taken byhim as well as the issuance of summons wasnot preceded by any order having been madeunder Section 196 of the Criminal ProcedureCode.

C. PROCEDURAL ILLEGALITY

9. The provisions of Sub Section 190of the Criminal Procedure Code areprefaced by the words ''subject to theprovisions of this Chapter'. Clause (c) ofsub-Section (1) confers a power on theMagistrate to take cognizance of an offenceupon information received from any personother than a police officer or upon his ownknowledge that such offence has beencommitted. The jurisdiction of theMagistrate therefore, to take suo motocognizance of an offence is not in doubt.What however, falls for consideration iswhether such suo moto cognizance can betaken without following the procedureprescribed under Section 196 of the Code ofCriminal Procedure. The Court must takenote of the fact that Section 190(1)(c) is notgiven overriding effect over otherprovisions falling in Chapter XIV of theCriminal Procedure Code. Neither doesSection 196 carve an exception in respect


thereof or exclude clause (c) of Section 190(1) from the width of its operation.

10. In the opinion of the Court,therefore, cognizance taken under either ofclauses (a), (b) or (c) of Section 190(1)would have to conform with therequirements of Section 196. This clearlyflows from the opening words of Section 190itself, which make it subject to the provisionsof Chapter XIV. Section 505 of the PenalCode finds specific mention in Section 196Cr.P.C. Admittedly, Section 124A standscomprised in Chapter VI of the Penal Codeand would therefore, stand covered in clause(a) of Section 196. It therefore, clearlyfollows that the Magistrate could not havetaken cognizance except with the previoussanction of the Government.

11. The language employed in Section196 is para materia to that used in Section197, which provision fell for considerationbefore the Supreme Court in State ofMaharashtra (supra). Their Lordships held therequirements of that provision to be of amandatory character. Taking note of the useof the words ''no' and ''shall' in the saidprovision, their Lordships proceeded to holdthat it was abundantly clear that the bar on theexercise of the power of the Court to takecognizance of any offence is absolute andcomplete. The bar was held to stand extendedto a Court from entertaining a complaint oreven taking notice or exercising jurisdiction.The principles enunciated in State ofMaharashtra (supra) stands applied in ManojRai (supra) and Kandi Buchi Reddy (supra).

12. The requirement of sanction as aprerequisite for taking cognizance was aprinciple which was reiterated by a learnedJudge of the Calcutta High Court in AveekSarkar Vs. State of West Bengal5. Thelearned Judge held that the absence of

sanction was fatal and could not be broughtwithin the pale of section 460 (e) of theCriminal Procedure Code or in other wordscharacterized as an irregularity of procedurewhich would not vitiate proceedings.

13. In light of the above, this Courtholds that the Magistrate clearly erred inproceeding to exercise jurisdiction underSection 190(1)(c) and therefore, the ordertaking cognizance of the alleged offence andissuance of summons cannot be sustained.

14. The order of the Magistrate inlight of the submissions advanced beforethis Court is liable to be tested on itsmerits also. The expression of views bythe applicant in the article in question isstated to have in the opinion of theMagistrate resulted in a prima faciecommission of offences referable toSection 124A and Section 505 IPC.

D. SEDITION AND PUBLICTRANQUILITY

15. The article is on record andstands appended to the paper book asAnnexure-3. Having gone through thesame, this Court now proceeds to examineas to whether its contents can by anystretch of imagination be said to haveresulted in commission of offences underSection 124A or Section 505 of the PenalCode. Section 124 A of the Penal Codereads as under:

"Whoever by words, either spoken orwritten, or by signs or by visiblerepresentation, or otherwise, brings orattempts to bring into hatred to contempt, orexcites or attempts to excite disaffectiontowards the Government established by law inIndia shall be punished with transportationfor life or any shorter term to which fine may


be added or with imprisonment which mayextend to three years, to which fine may beadded, or with fine.

Explanation 1. The expression"disaffection" includes disloyalty and allfeelings of enmity.

Explanation 2. Comments expressingdisapprobation of the measures of theGovernment with a view to obtain theiralteration by lawful means, withoutexiting or attempting to excite hatred,contempt or disaffection do not constitutean offence under this section.

Explanation 3. Comments expressingdisapprobation of the administrative of otheraction of the Government without exciting orattempting to excite hatred, contempt ordisaffection, do not constitute an offenceunder this section."

16. The ingredients of an offencereferable to Section 124A fell forconsideration before a Constitution Bench ofthe Supreme Court in Kedar Nath Singh Vs.State of Bihar6. Their Lordships lucidly dweltupon the interplay between Section 124 A ofthe Penal Code and Article 19 of theConstitution of India and declared the law inthe following terms:

"24. In this case, we are directlyconcerned with the question how for theoffence, as defined in s. 124A of theIndian Penal Code, is consistent with thefundamental right guaranteed by Art.19(1)(a) of the Constitution, which is inthese terms :

"19. (1) All citizens shall have theright.

(a) to freedom of speech andexpression..."

This guaranteed right is subject to theright of the legislature to imposereasonable restrictions, the ambit of which

is indicated by clause (2), which, in itsamended form, reads as follows :

"(2) Nothing in sub-clause (a) of clause(1) shall affect the operation of any existinglaw or prevent the State from making anylaw, in so far as such law imposes reasonablerestrictions on the exercise of the rightconferred by the said sub-clause in theinterests of the security of the State, friendlyrelations with foreign States, public order,decency or morality, or in relation tocontempt of court, defamation or incitementto an offence."

It has not been questioned before us thatthe fundamental right guaranteed by Art.19(1)(a) of the freedom of speech andexpression is not an absolute right. It iscommon ground that the right is subject tosuch reasonable restrictions as would comewithin the purview of clause (2), whichcomprises (a) security of the State, (b)friendly relations with foreign States, (c)public order, (d) decency or morality, etc.,etc. With reference to the constitutionality ofs. 124A or s. 505 of the Indian Penal Code,as to how far they are consistent with therequirements of clause (2) of Art. 19 withparticular reference to security of the Stateand public order, the section, it must benoted, penalises any spoke or written wordsor signs or visible representations, etc., whichhave the effect of bringing, or which attemptto bring into hatred or contempt or excites orattempts to excite disaffection towards theGovernment established by law. Now, theexpression "the Government established bylaw" has to be distinguished from theperson's for the time being engaged incarrying on the administration. "Governmentestablished by law" is the visible symbol ofthe State. The very existence of the State willbe in jeopardy if the Government establishedby law is subverted. Hence the continued


existence of the Government established bylaw is an essential condition of the stabilityof the State. That is why 'sedition', as theoffence in s. 124A has been characterised,comes under Chapter VI relating to offencesagainst the State. Hence any acts within themeaning of s. 124A which have the effect ofsubverting the Government by bringing thatGovernment into contempt or hatred, orcreating disaffection against it, would bewithin the penal statute because the feeling ofdisloyalty to the Government established bylaw or enmity to it imports the idea oftendency to public disorder by the use ofactual violence or incitement to violence. Inother words, any written or spoken words,etc., which have implicit in them the idea ofsubverting Government by violent means,which are compendiously included in theterm 'revolution', have been made penal bythe section in question. But the section hastaken care to indicate clearly that strongwords used to express disapprobation of themeasures of Government with a view to theirimprovement or alteration by lawful meanswould not come within the section.Similarly, comments, however stronglyworded, expressing disapprobation of actionsof the Government, without exciting thosefeelings which generate the inclination tocause public disorder by acts of violence,would not be penal. In other words,disloyalty to Government established by lawis not the same thing as commenting instrong terms upon the measures or acts ofGovernment, or its agencies, so as toameliorate the condition of the people or tosecure the cancellation or alteration of thoseacts or measures by lawful means, that is tosay, without exciting those feelings of enmityand disloyalty which imply excitement topublic disorder or the use of violence.

25. It has not been contended before usthat if a speech or a writing excites people to

violence or have the tendency to createpublic disorder, it would not come within thedefinition of 'sedition'. What has beencontended is that a person who makes a verystrong speech or uses very vigorous words ina writing directed to a very strong criticismof measures of Government or acts of publicofficials, might also come within the ambitof the penal section. But, in our opinion, suchwords written or spoke would be outside thescope of the section. In this connection, it ispertinent to observe that the security of theState, which depends upon the maintenanceof law and order is the very basicconsideration upon which legislation, withview to punishing offences against the State,is undertaken. Such a legislation has, on theone hand, fully to protect and guarantee thefreedom of speech and expression, which isthe sine quo non of a democratic form ofGovernment that our Constitution hasestablished. This Court, as the custodian andguarantor of the fundamental rights of thecitizens, has the duty cast upon it of strikingdown any law which unduly restricts thefreedom of speech and expression withwhich we are concerned in this case. But thefreedom has to be guarded against becominga licence for vilification and condemnation ofthe Government established by law, inwords, which incite violence or have thetendency to create public disorder. A citizenhas a right to say or write whatever he likesabout the Government, or its measures, byway of criticism or comment, so long as hedoes not incite people to violence against theGovernment established by law or with theintention of creating public disorder. TheCourt, has, therefore, the duty cast upon it ofdrawing a clear line of demarcation betweenthe ambit of a citizen's fundamental rightguaranteed under Art. 19(1)(a) of theConstitution and the power of the legislatureto impose reasonable restrictions on thatguaranteed right in the interest of, inter alia,


security of the State and public order. Wehave, therefore, to determine how far theSections 124A and 505 of the Indian PenalCode could be said to be within thejustifiable limits of legislation. If is held, inconsonance with the views expressed by theFederal Court in the case of Niharendu DuttMajumdar v. The King Emperor (1942)F.C.R. 38 that the gist of the offence of'sedition' is incitement to violence or thetendency or the intention to create publicdisorders by words spoken or written, whichhave the tendency or the effect of bringingthe Government established by law intohatred or contempt or creating disaffection inthe sense of disloyalty to the State in otherwords bringing the law into line with the lawof sedition in England, as was the intentionof the legislators when they introduced s.124A into the Indian Penal Code in 1870 asaforesaid, the law will be within thepermissible limits laid down in clause (2) ofArt. 19 of the Constitution, if on the otherhand we give a literal meaning to the wordsof the section, divorced from all theantecedent background in which the law ofsedition has grown, as load down in theseveral decisions of the Judicial Committeeof the Privy Council, it will be true to saythat the section is not only within but alsovery much beyond the limits laid down inclause (2) aforesaid."

17. The Supreme Court in NazirKhan Vs. State of Delhi7 explained"sedition" in the following words: -

"37. Section 124A deals with ''Sedition'.Sedition is a crime against society nearlyallied to that of treason, and it frequentlyprecedes treason by a short interval. ........Theobject of sedition generally are to inducediscontent and insurrection, and stir upopposition to the Government, and bring theadministration of justice into contempt; and

the very tendency of sedition is to incite thepeople to insurrection and rebellion..."

18. The above guiding principles laiddown by the Supreme Court in the judgmentsnoted above came to be followed in a recentjudgment of the Bombay High Court. Twolearned judges of the Bombay High Court inSanskar Marathe Vs. State of Maharashtra8were faced with a case of a political cartoonistwho was alleged to have defamed Parliament.The criminal complaint alleged that thecartoons apart from being defamatory alsoamounted to acts of sedition. The DivisionBench after noticing the law laid down by theSupreme Court on the subject held: -

"15... A citizen has a right to say orwrite whatever he likes about theGovernment or its measures, by way ofcriticism or comments, so long as he doesnot incite people to violence against theGovernment established by law or withthe intention of creating public disorder..."

16...But for that reason, the freedom ofspeech and expression available to the thirdrespondent to express his indignation againstcorruption in the political system in strongterms or visual representations could not beencroached upon when there is no allegationof incitement to violence or the tendency orthe intention to create public disorder."

19. Now for words written or spoken tofall within the meaning of sedition, the wordswould have to be held to have the effect ofsubverting the Government by violent meansor tend to bring about public disorder or theuse of violence or incitement to violence. Thewords or action in order to fall within themeaning of sedition, it was held by theConstitution Bench, would have to travel orstand raised to a degree of revolution againstthe Government in order to fall within themischief of the penal provision. At the same


time, the Supreme Court held that wordshowever, strongly worded or words whichused strong terms with respect to the measuresor acts of the Government, strong speech,strong criticism would clearly be outside thescope of the section. It was held that a citizenhad a right to say or write whatever he likesabout the Government or its measures by wayof criticism or comments so long as he did notincite people to resort to violence against theGovernment established by law or with theintention of creating public disorder. In fact, itwas upon these considerations that theirLordships held that if the words or actions inquestion had not intended to or had not beenemployed to create disturbance of law andorder and yet been restricted from being airedor voiced then such an interpretation wouldrender the provisions of Section 124 Aunconstitutional in view of Article 19.

20. From the above exposition of thelaw by the Constitution Bench, it is clear thatthe section aims at rendering penal only suchactivity which is intended to or which wouldhave a tendency to create disorder ordisturbance of public peace. In order for thewords written or spoken to fall within theambit of section 124A, they would necessarilyhave to be of a category which would qualifyas having a ''pernicious tendency' of creatingpublic disorder or disturbance of law andorder. Only then would the law step in toprevent such activity.

21. The contents of the article written bythe applicant can by no stretch of imaginationbe said to be intended to create public disorderor be designed or aimed at exciting the publicagainst a Government established by law or anorgan of the State. The article merely seeks tovoice the opinion and the view of the author ofthe need to strike a balance between thefunctioning of two important pillars of thecountry. It is surely not a call to arms.

22. For the aforesaid reasons, thisCourt is of the firm opinion that none ofthe ingredients essential for invoking theprovisions of Sections 124A or 505 of thePenal Code stood attracted to the article inquestion. The Magistrate has committed amanifest illegality in forming an opinionthat an offence under the above provisionsstood prima facie committed.

E. THE FREEDOM OF SPEECH

23. The freedom of speech andexpression guaranteed by our Constitution toall citizens requires us to tolerate evenunpopular views. The free flow of ideas andopinions is an essential concomitant for theintellectual growth of the citizenry. Pluralityof views and opinions is an essential facet of ademocracy and of great societal importance. Itis this underlying theme that envelopes theconcept of the ''market place of ideas'. InShreya Singhal Vs. Union of India9 theSupreme Court quoted with approval theviews expressed by Brandies J. in Whitney v.California [274 US 357] who explained thecontents of the right to free speech in thefollowing words: -

".... Fear of serious injury cannot alonejustify suppression of free speech andassembly. Men feared witches and burntwomen. It is the function of speech to freemen from the bondage of irrational fears....."

24. In Shreya Singhal (supra) theSupreme Court after noticing the body ofprecedents rendered by different Courts ofthe world held:-

"13. This leads us to a discussion ofwhat is the content of the expression"freedom of speech and expression". Thereare three concepts which are fundamentalin understanding the reach of this most


basic of human rights. The first isdiscussion, the second is advocacy and thethird is incitement. Mere discussion or evenadvocacy of a particular cause howsoeverunpopular is at the heart of Article19(1)(a)."

25. The article in question therefore wasliable to be tested on the above principles. TheCourt notes that the order of the Magistratedoes not record that the contents penned bythe applicant would tend to incite the peopleto insurrection or rebellion. Disrespect, even ifit were assumed that the article did so, doesnot render the action liable to prosecution foroffenses under section 124A or section 505.The right to air an opinion, to dissent,intellectual discourse are the heart and soul ofthe freedom of speech and expression whichstands conferred upon all citizens by ourConstitution.

26. The Magistrate appears to haveclosed his eyes to the well-settled view thathealthy criticism or even intellectualdisagreement with a particular view of a judgecontained in a judgment of the court is not acrime. The view expressed may beunacceptable or even unpalatable to some.However the same does not render it liable toprosecution under the Penal Code. TheMagistrate would have done well to rememberthe words of the venerable Justice KrishnaAyer in Baradakant Mishra v. Registrar ofOrissa High Court10 who observed: -

" 409.....Vicious criticism of personaland administrative acts of Judges mayindirectly mar their image and weaken theconfidence of the public in the judiciary,but the countervailing good, not merely offree speech but also of greater faithgenerated by exposure to the actinic lightof bona fide, even if marginallyoverzealous, criticism cannot be

overlooked. Justice is no cloisteredvirtue."

It was in the above light that theSupreme Court in P.N. Duda v. P. ShivShankar11 quoted with approval thefollowing extract from the judgment ofLord Atkin in Ambard v. AttorneyGeneral of Trinidad and Tobago [(1936) 1All ER 704] "Justice is not a cloisteredvirtue: she must be allowed to suffer thescrutiny and respectful, even thoughoutspoken, comments of ordinary men".

F. THE CAUTION

27. One last aspect of the matter whichmust necessarily be adverted to in the opinionof the Court is this. The initiation of criminalprosecution has serious consequences. Itrelates to the life and liberty of a citizen andcarries with it grave consequences. Viewed inthat light it is obvious that the exercise ofpower by the Magistrate must be preceded bydue application of mind and circumspection.A note of caution in this regard was soundedby our Supreme Court as far back as in PunjabNational Bank v. Surendra Prasad Sinha12.This judicial interpose was reiterated in PepsiFoods Ltd. v. Special Judicial Magistrate13and more recently in P.S. Meherhomji v. K.T.Vijaykumar14.

28. However in the facts of the presentcase this Court finds that the assumption ofjurisdiction and the issuance of process failedto adhere to the principles laid down in thejudgments aforementioned. The Magistratefailed to bear in mind the impact of theprohibition under section 196 of the CriminalProcedure Code. Compliance with itsprovisions was a prerequisite for takingcognizance. The contents of the article inquestion was liable to be scrutinized on thetouchstone of whether it containedstatements which met the basic ingredients


required to qualify as an act of ''sedition' oran act intended to induce persons to commitan offense against the State. Was the article acall to arms, rebellion, insurrection? Theanswer must obviously be in the negative.The Magistrate in the opinion of the Courtclearly failed to apply judicial mind, actedirresponsibly and failed to bear in mind thecaution and circumspection which shouldhave preceded his assuming jurisdiction andissuing summons.

G. OPERATIVE DIRECTIONS

29. For the aforesaid reasons, theinstant application shall stand allowed.Consequently all proceedings relating toComplaint Case No. 382 of 2015 State v.Arun Jaitley u/s 124A, 505 IPC P.S.Kulpahar District Mahoba pending in thecourt of the Judicial Magistrate KulpaharMahoba U.P. as well as the order issuingsummons dated 19 October 2015 shallstand quashed and set aside.



BEFORETHE HON'BLE MRS. RANJANA PANDYA, J.


Mohit Chaudhary ...ApplicantVersus

State of U.P. & Anr. …..Opp. Parties

Counsel for the Applicant:Samit Gopal

Counsel for the Opp. Parties:G.A.

Cr.P.C.-Section 482-Quashing of criminalproceeding including summoning order-offence u/s 213 Gangsters & Anti Social

Activities (Prevention) Act 1986-on groundall charge sheet relied by authorities-concluded in acquittal-petitioner beingAddl. Advocate General worked as standingcounsel in different public sector-appearingstanding counsel for state of J & K-beforeHon'ble Supreme Court-held-matterpending Since 1999-applicant not evensurrendered before Trail Court henceproceeding delayed-all ground can beraised and considered by the Trail Courtitself-warrant no interference-Applicationrejected.

Held: Para-12Thus, the factual aspect of the mattercannot be examined by this Court whileexamining the matter under Section 482Cr.P.C. The cases mentioned in the gang-chart have ended in acquittal or not hasto be seen by the trial court whiledeciding the case of applicant underSection 2/3 Gangster Act. The validity ofthe approval/sanction of the D.M. canalso be looked into by the trial court. Thematter is pending since 1999 and theapplicant has not yet surrendered.

Case Law discussed:1992 Supp (1) SCC 335; (2006) 7 SCC 296;(2008) 1 SCC 474; (2008) 8 SCC 781; (2009) 9SCC 682; JT 2010 (6) 588; 2011 (1) SCC 74;JT 2012 (2) SC 237; 2008 (62) ACC 650; AIR1992 Supreme Court 604; AIR 1960 SC 866.

(Delivered by Hon'ble Mrs. RanjanaPandya, J.)

1. This Criminal Misc. ApplicationNo. 32940 of 2015 has been preferredunder Section 482 Cr.P.C. with prayer toquash the proceedings of G.S.T. No. 350of 1999, State of U.P. Vs. RakeshChaudhary and others, arising out of CaseCrime No. 376 of 1997 under Section 2/3of the U.P. Gangsters and Anti SocialActivities (Prevention) Act, 1986, PoliceStation Kotwali, District Mathura as wellas the summoning order dated 29.10.1999passed by the Special Judge (Gangsters

3 All. Mohit Chaudhary Vs. State of U.P. & Anr. 1533

Act), Agra in aforementioned G.S.T No.350 of 1990. Further prayer is to stay theproceedings of G.S.T. No. 350 of 1999and also the summoning order dated29.10.1999 during the pendency of thepresent application.

2. Heard Sri G.S. Chaturvedi,learned counsel for the applicant andlearned A.G.A. for the State.

3. It has been contended on behalf ofthe applicant that the learned court below haspassed a cryptic order without assigning anyreasons. It is further submitted that in all thecases mentioned in the gang-chart, theapplicant has been acquitted. The applicant isa qualified advocate on record of the Hon'bleSupreme Court of India. He has a law firm atNew Delhi and does legal consulting andlitigation cases on behalf of various Indianand Foreign Corporate Groups, LegalEntities and their subsidiary companies. It isfurther submitted that the applicant has beenStanding Counsel for various Public SectorBanks/Entities like PNB, Allahabad Bank,NSIC etc. He has worked in various heavystakes tax matters as a panel counsel for theUnion of India before the Hon'ble ApexCourt and presently is designated as StandingCounsel for State of J & K before theHon'ble Apex Court with the status ofAdditional Advocate General. He has alsobeen appointed as amicus curiae in mattersby the Hon'ble Apex Court. He has alsoqualified A.R.O. Exam. He has been falselyimplicated due to enmity when he was astudent. On 29.10.1999, cognizance wastaken by the Court. No notice of any kindwas ever served upon the applicant.Thereafter, bailable warrants were issuedagainst him which were also not served.Later on, non-bailable warrants were orderedto be issued. The applicant and co-accusedRakesh Chaudhary after lodging of the F.I.R.

moved bail application (bearing number 353of 1997) before the Special Judge (GangstersAct), Agra but, ultimately, the bailapplication was rejected in absence of theapplicant. No approval/sanction was grantedby the District Magistrate. Thus, the prayersought for is liable to be allowed.

4. Learned A.G.A. while supportingsummoning order has stated that the reliefprayed for in this application cannot begranted under the provisions of Section482 Cr.P.C.

5. I am required to consider whethersuch an application under Section 482Cr.P.C. with the prayer, as aforesaid, isentertainable. The scope of Section 482Cr.P.C., as is evident from a bare reading ofaforesaid provision, can be culled out fromthe provision itself, which reads as under:-

"482. Saving of inherent powers ofHigh Court.- Nothing in this Code shallbe deemed to limit or affect the inherentpowers of the High Court to make suchorders as may be necessary to give effectto any order under this Code, or toprevent abuse of the process of any Courtor otherwise to secure the ends of justice."(emphasis added)

6. The power under Section 482Cr.P.C. is not to be exercised in a routinemanner, but it is for limited purposes,namely, to give effect to any order under theCode, or to prevent abuse of process of anyCourt or otherwise to secure ends of justice.Time and again, Supreme Court and variousHigh Courts, including ours one, havereminded when exercise of power underSection 482 Cr.P.C. would be justified,which cannot be placed in straight jacketformula, but one thing is very clear that itshould not preampt a trial and cannot be used


in a routine manner so as to cut short theentire process of trial before the Courtsbelow. If from a bare perusal of firstinformation report or complaint, it is evidentthat it does not disclose any offence at all orit is frivolous, collusive or oppressive on theface of it, the Court may exercise its inherentpower under Section 482 Cr.P.C. but itshould be exercised sparingly. This will notinclude as to whether prosecution is likely toestablish its case or not, whether the evidencein question is reliable or not or whether on areasonable appreciation of it, accusationwould not be sustained, or the othercircumstances, which would not justifyexercise of jurisdiction under Section 482Cr.P.C. I need not go into various aspects indetail but it would be suffice to refer a fewrecent authorities dealing all these matters indetail, namely, State of Haryana and othersVs. Ch. Bhajan Lal and others 1992 Supp (1)SCC 335, Popular Muthiah Vs. Staterepresented by Inspector of Police (2006) 7SCC 296, Hamida vs. Rashid @ Rasheedand Ors. (2008) 1 SCC 474, Dr. MonicaKumar and Anr. vs. State of U.P. and Ors.(2008) 8 SCC 781, M.N. Ojha and Ors. Vs.Alok Kumar Srivastav and Anr. (2009) 9SCC 682, State of A.P. vs. GourishettyMahesh and Ors. JT 2010 (6) SC 588 andIridium India Telecom Ltd. Vs. MotorolaIncorporated and Ors. 2011 (1) SCC 74.

7. In Lee Kun Hee and others Vs. Stateof U.P. and others JT 2012 (2) SC 237, itwas reiterated that Court in exercise of itsjurisdiction under Section 482 Cr.P.C. cannotgo into the truth or otherwise of theallegations and appreciate evidence, if any,available on record. Interference would bejustified only when a clear case of suchinterference is made out. Frequent anduncalled interference even at the preliminarystage by High Court may result in causingobstruction in the progress of inquiry in a

criminal case which may not be in publicinterest. It, however, may not be doubted, ifon the face of it, either from the firstinformation report or complaint, it is evidentthat allegation are so absurd and inherentlyimprobable on the basis of which no fair-minded and informed observer can everreach a just and proper conclusion as to theexistence of sufficient grounds forproceeding, in such cases refusal to exercisejurisdiction may equally result in injustice,more particularly, in cases, where thecomplainant sets the criminal law in motionwith a view to exert pressure and harass thepersons arrayed as accused in the complaint.

8. In the present case, fortunately andinterestingly it is not the allegation ofapplicants that there is any non-complianceof order passed by Court under Cr.P.C. orthat there is any abuse of process on the partof Court or that there is any failure ortravesty of justice on the part of Court below.

9. In 2008 (62) ACC 650, PankajKumar Vs. State of Maharashtra, theHon'ble Court has laid down as under

"10. ....The inherent powers do notconfer an arbitrary jurisdiction on theHigh Court to act according to whim orcaprice. The powers have to be exercisedsaparingly, with circumspection and in therarest of rare cases, where the Court isconvinced, on the basis of material onrecord, that allowing the proceedings tocontinue would be an abuse of the processof the Court or that the ends of justicerequire that the proceedings ought to bequashed. (See: Janata Dal v. H.S.Chowdhary and others, KurukshetraUniversity and another v. State ofHaryana and another, and State ofHaryana and others v. Bhajan Lal andothers).

3 All. Mohit Chaudhary Vs. State of U.P. & Anr. 1535

11. Although in Bhajan Lal's case(supra), the Court by way of illustration,formulated as many as seven categories ofcases, wherein the extra-ordinary power underthe aforestated provisions could be exercisedby the High Court to prevent abuse of processof the Court yet it was clarified that it was notpossible to lay down precise and inflexibleguidelines or any rigid formula or to give anexhaustive list of the circumstances in whichsuch power could be exercised."

10. In State of Haryana and others Vs.Ch. Bhajan Lal and others reported in AIR1992 Supreme Court 604, the Hon'ble ApexCourt while referring the case of R.P. KapurVs. The State of Punjab, AIR 1960 SC 866,has observed in para 88 as under:-

88. Gahendragadkar, J. speaking for theCourt while considering the inherent powersof the High Court in quashing the FirstInformation Report Under Section 561-A ofthe old Code (corresponding to Section 482 ofthe new Code) in R.P. Kapur v. The State ofPunjab (cited above) at page 393 made thefollowing observation:-

Cases may also arise where theallegations in the First Information Report orthe complaint, even if they are taken at theirface value and accepted in their entirety, donot constitute the offence alleged; in suchcases no question of appreciating evidencearises; it is a matter merely of looking at thecomplaint or the First Information Report todecide whether the offence alleged isdisclosed or not. In such cases, it would belegitimate for the High Court to hold that itwould be manifestly unjust to allow theprocess of the criminal court to be issuesagainst the accused person.

11. In State of Haryana and othersVs. Ch. Bhajan Lal and others (supra), the

Hon'ble Apex Court has further observedin paras 105 and 106 as under:-

"105. In the backdrop of the interpretationof the various relevant provisions of the Codeunder Chapter XIV and of the principles of lawenunciated by this Court in a series of decisionsrelating to the exercise of the extra-ordinarypower under Article 226 or the inherent powersUnder Section 482 of the Code which we haveextracted and reproduced above, we give thefollowing categories of cases by way ofillustration wherein such power could beexercised either to prevent abuse of the processof any Court or otherwise to secure the ends ofjustice, though it may not be possible to laydown any precise, clearly defined andsufficiently channelised and inflexibleguidelines or rigid formulae and to give anexhaustive list of myriad kinds of caseswherein such power should be exercised.

1. Where the allegations made in theFirst Information Report or the complaint,even if they are taken at their face valueand accepted in their entirety do notprima-facie constitute any offence ormake out a case against the accused.

2. Where the allegations in the FirstInformation Report and other materials, if any,accompanying the F.I.R. do not disclose acognizable offence, justifying an investigation bypolice officers Under Section 156(1) of the Codeexcept under an order of a Magistrate within thepurview of Section 155 (2) of the Code.

3. Where the uncontroverted allegationsmade in the FIR or complaint and theevidence collected in support of the same donot disclose the commission of any offenceand make out a case against the accused.

4. Where, the allegations in the F.I.R. donot constitute a cognizable offence butconstitute only a non-cognizable offence, noinvestigation is permitted by a police officerwithout an order of a Magistrate as


contemplated Under Section 155 (2) of theCode.

5. Where the allegations made in theFIR or complaint are so absurd andinherently improbable on the basis of whichno prudent person can ever reach a justconclusion that there is sufficient ground forproceeding against the accused.

6. Where there is an express legal barengrafted in any of the provisions of theCode or the concerned Act (under which acriminal proceeding is instituted) to theinstitution and continuance of theproceedings and/or where there is aspecific provision in the Code or theconcerned Act, providing efficaciousredress for the grievance of the aggrievedparty.

7. Where a criminal proceeding ismanifestly attended with mala fide and/orwhere theproceeding is maliciouslyinstituted with an ulterior motive forwreaking vengeance on the accused andwith a view to spite him due to privateand personal grudge.

106. We also give a note of caution tothe effect that the power of quashing acriminal proceeding should be exercised verysparingly and with circumspection and thattoo in the rarest of rare cases; that the Courtwill not be justified in embarking upon anenquiry as to the reliability or genuineness orotherwise of the allegations made in theF.I.R. or the complaint and that theextraordinary or inherent powers do notconfer an arbitrary jurisdiction on the Courtto act according to its whim and caprice."

12. Thus, the factual aspect of thematter cannot be examined by this Courtwhile examining the matter under Section482 Cr.P.C. The cases mentioned in thegang-chart have ended in acquittal or not hasto be seen by the trial court while decidingthe case of applicant under Section 2/3

Gangster Act. The validity of theapproval/sanction of the D.M. can also belooked into by the trial court. The matter ispending since 1999 and the applicant has notyet surrendered.

13. Accordingly, this application hasno force, which is dismissed.

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3 all. munni lal verma & anr. vs. the state of u.p. & ors. … all. munni lal verma &...

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