3 All]. Raj Guru and Ors. Vs. State 1177 · of village Kohadi Khurd to see Dwarpooja in village...

3 All]. Raj Guru and Ors. Vs. State 1177

APPELLATE JURISDICTIONCRIMINAL SIDE

DATED: ALLAHABAD 31.10.2014

BEFORETHE HON'BLE ARUN TANDON, J.

THE HON'BLE AKHTAR HUSAIN KHAN, J.

Criminal Appeal No. 18 of 1986

Raj Guru and Ors. AppellantsVersus

State ..Opp. Party

Counsel for the Petitioner:Sri Pratap Narain Misra, Sri Brijesh Sahai,Sri Janardan YadavSri Narendra Kumar, Sri Rajiv LochanShukla, Sri S.K. Dubey

Counsel for the Respondents:A.G.A., Sri S.M. Mishra

Cr.P.C. Section 374 (2)-Criminal Appeal-against conviction life imprisonment-underSection 302 read with 34 IPC-on ground ofmatterial contradictions between versionof FIR and prosecution witness, delayedFIR based on connected prosecution story-held-from evidence available on record-allprosecution witnesses being trustworthy-having no ground to disbelieve them-considering entire evidence as well as allaspects relevant points for determinationof case-conclusion drawn by Trail Courtbased on judicious analysis as per verdictof Apex Court-rightly placed reliance uponprosecution witness-no ground forinterference made out-Appeal dismissed.

Held: Para-79Perusal of impugned judgement andorder passed by trial court shows thattrial court has gone through entireevidence available on record and hasconsidered all aspects and relevantpoints for determination of the case atlength. The conclusions drawn andfindings recorded by trial court are basedon judicious analysis of facts and

evidence in the light of various judicialpronouncements of Hon'ble Apex Court.

Case Law discussed:AIR 2011 SC 255; (2009) 14 SCC 494;(AIR2009) SC 2573); 2010 Cri. L.J. 3889 (SC);2012 (IV) SCC 124; AIR 2011 S.C. 280; (2008)1 SCC (Cri.) 91; A.I.R. 2011 S.C. 255; A.I.R.2011 S.C. 280; 1977 Cr.L.J. 642 SC; (2010) 13SCC 657; A.I.R. 2009 SC 152.

(Delivered by Hon'ble Akhtar Husain Khan, J)

1. Accused-appellants Raj Guru Mishr,Gorakh Dubey and Paras Dubey have filedthis criminal appeal under Section 374 (2)Cr.P.C. against judgement and order dated23.12.1985 passed by Sessions Judge,Azamgarh in Session Trial No. 463 of 1983(State Vs. Raj Guru and others), underSections 302/34 I.P.C., P.S. Kandhrapur,District Azamgarh whereby learned SessionsJudge has convicted accused-appellants RajGuru, Gorakh Dubey and Paras Dubey foroffence punishable under Section 302 I.P.C.read with Section 34 I.P.C. and sentencedeach of them to imprisonment for lifethereunder.

2. Accused-appellant Gorakh Dubeyis reported dead. Appeal abated in respectof him.

3. Sri Brijesh Sahai and Sri RajivLochan Shukla, learned counsel appearedfor accused-appellants and Sri NarendraKumar Singh Yadav, learned AGAappeared for the State respondent as wellas Sri S.M. Mishra, appeared forcomplainant.

4. We have heard learned counselfor the parties and perused the record.

5. According to first informationreport Ex. Ka-1 in brief prosecution case

1178 INDIAN LAW REPORTS ALLAHABAD SERIES

is that complainant Jagdamba Dubey sonof Sri Dudh Nath Dubey is resident ofvillage Kapsa, P.S. Kandhrapur, DistrictAzamgarh. On the date of occurrence i.e.on 11.5.1981 at about 7 p.m. after sunset,complainant Jagdamba Dubey was goingalong with Shesh Nath Dubey and DurgaPrasad Dubey @ Keertan Dubey of hisown village and one Maheep Pasi residentof village Kohadi Khurd to seeDwarpooja in village Chevta. At the sametime, Ram Prakat Dubey was comingfrom Jhajhava Pokhar towards his houseand in the east of said Pokhar accusedGorakh Dubey and Paras Dubey werestanding towards west in their Chak alongwith co-accused Raj Guru Mishr. As soonas Ram Prakat Dubey came at Chak roadsuddenly said three accused began toassault him, after having encircled him.Ram Prakat Dubey sustained injuries ofbomb blast, Katta and Lathi.

6. According to F.I.R. Ex. Ka.-1,accused-appellant Gorakh Dubey hadBomb in his hand, accused-appellantParas Dubey had Katta and accused-appellant Raj Guru had Lathi.

7. According to F.I.R. Ex. Ka-1,when complainant and other personsaccompanying him raised alarm accusedappellant ran towards south, thereafter,other persons came on spot and arrangedto send injured Ram Prakat Dubey toSadar Hospital for medical treatment.Thereafter, complainant Jagdamba Dubeywent to P.S. Kandhrapur and presentedwritten report i.e. Ex. Ka.-1.

8. In first information report (Ex.Ka-1) a note has been written that due tofear, complainant did not go Kandhrapurstraightway, he went to Kaptanganjthrough canal and in Kaptanganj due to

unavailability of conveyance delay hasbeen caused in reaching P.S. Kandhrapur.

9. On the basis of first informationreport (Ex. Ka-1) Crime No. 99 of 1981,under Section 307 I.P.C. was registered inP.S. Kandhrapur on 11.5.1981 at 22.00 p.m.against accused Gorakh Nath Dubey, ParasDubey and Raj Guru Mishr. On 12.5.1981,an information was received from SadarHospital to P.S. Kotwali, Azamgarhregarding death of injured Ram PrakatDubey. Thereafter, an information was sentto P.S. Kandhrapur through R.T. Set by P.S.Kotwali regarding death of injured RamPrakat Dubey whereupon crime wasconverted into Section 302 I.P.C. on12.5.1981 and entry of conversion of crimewas made in Rapat No. 17 of G.D. Dated12.5.1981 of P.S. Kandharapur.

10. Inquest report of deceased RamPrakat Dubey was prepared by police ofP.S. Kotwali and dead body was sent forpost-morterm in sealed cover, after havingcomplete necessary formalities.

11. Investigation was completed bypolice of P.S. Kandharapur in accordancewith law and after having completedinvestigation police submitted charge-sheet against all accused under Sections307 and 302 I.P.C. whereupon concernedMagistrate took cognizance and aftercompliance of Section 207 Cr.P.C.committed the case to the Court ofSession for trial of all accused. ThereafterSessions Trial No. 463 of 1983 wasregistered in the Session Court of DistrictAzamgarh.

12. Learned Sessions Judge,Azamgarh framed charge against accusedRaj Guru Mishra, Gorakh Dubey andParas Dubey for offence punishable under


Sections 302 read with Section 34 I.P.C.All the accused pleaded not guilty andclaimed to be tried.

13. Prosecution examined P.W. 1,complainant Shesh Nath Dubey, P.W. 2,Durga Prasad Dubey, P.W. 3,complainant Jagdamba Dubey, P.W. 4 Dr.K.S. Mishra, P.W. 5 Head MoharrirAchhaibar dubey, P.W. 6, Head ConstableMishri Lal Gupta and P.W. 7,Investigation Officer Sahdeo Mishra(S.I.).

14. After prosecution evidencestatement of all accused were recordedunder Section 313 Cr.P.C. All of themstated that they have been falselyimplicated due to enmity. No evidencewas adduced on behalf of accused indefence.

15. Learned Sessions Judge,Azamgarh heard the arguments of boththe parties and passed impugnedjudgement and order dated 23.12.1985whereby he has convicted and sentencedaccused-appellants as mentioned above.

16. Learned counsel for the accused-appellants contended that the accused-appellants are innocent and has beenfalsely implicated.

17. Learned counsel for the accused-appellants contended that the medicalevidence and post-morterm report areinconsistent with the version of F.I.R.

18. Learned counsel for the accused-appellants contended that there is materialcontradiction between version of F.I.R.and statement of witnesses of fact andoccurrence.

19. Learned counsel for the accused-appellants further contended that F.I.R. isdelayed and prosecution story isconcocted.

20. Learned counsel for the accused-appellants contended that witnesses ofoccurrence examined by prosecution arerelated to deceased Ram Prakat Dubey.Their testimony may not be relied toconvict the accused appellant.

21. Learned counsel for the accused-appellants prayed that appeal should beallowed and all accused-appellants shouldbe acquitted.

22. Learned AGA contended thatconviction and sentence recorded by trialcourt is in accordance with evidence andlaw. There is no sufficient ground tointerfere in the impugned judgement andorder passed by the trial court.

23. Learned AGA prayed that appealshould be dismissed.

24. We have considered thesubmissions made by the parties.

25. Out of seven witnessesexamined by prosecution, P.W. 1 SheshNath Dubey, P.W. 2 Durga Prasad Dubeyand P.W. 3 complainant Jagdamba Dubeyare witnesses of fact and occurrence.These witnesses have supported versionof prosecution in their statements on oathwith variation. All of them have statedthat accused-appellant Raj Guru assaulteddeceased Ram Prakat Dubey with Lathiwhile accused-appellant Paras Dubeyassaulted deceased Ram Prakat Dubeywith Katar. They have stated thataccused-appellant Paras Dubey had Katta


in his left hand and Katar in his right handbut used Katar for causing injury todeceased Ram Prakat Dubey. All of themhave stated that accused-appellant Gorakhhad bomb in his hand. All of them havestated that Katta (country made pistol)and bomb were used for threatening. P.W.3 Jagdamba Dubey, complainant hasproved first information report (Ex. Ka-1)also in his statement.

26. P.W. 4 Dr. K.S. Mishra hasstated on oath that on 12.5.2981, he wasposted as Medical Officer in DistrictHospital, Azamgarh. On that date at 4.00p.m. he conducted post-morterm ofdeceased Ram Prakat Dubey son of LallanDubey, resident of village Kapsa, PoliceStation Kandharapur. The dead body wasidentified by Constable No. 160Bhrigunath Yadav, P.S. Kotwali.

27. P.W. 4 Dr. K.S. Mishra hasproved post-morterm report of deceasedRam Prakat Dubey (Ex. Ka-2). He hasstated in his statement that the death ofdeceased Ram Prakat Dubey might haveoccurred on 11.5.1981 at about 10.30 p.m.He has further stated that anti-morterminjuries found on his body were sufficientto cause death in ordinary course. P.W. 4Dr. K.S. Mishra has stated in hisstatement on oath that inquest report ofdeceased Ram Prakat Dubey, ChallanNash, Photo Nash, letter to C.M.O., letterof information regarding death of RamPrakat Dubey and copy of G.D. dated12.5.1981 of P.S. Kotwali were receivedalong with dead body and on the saidpapers, he had signed. Trial court hasmarked (Ex. Ka-3 to Ex. Ka-8) on saidpapers.

28. P.W. 5 head Moharrir,Achhaibar Dubey has stated in his

statement on oath that on 12.5.1981, he wasposted as Head Moharrir at P.S. KotwaliAzamgarh. He has stated that on that date at7.10 a.m. Ram Subodh, Ward Boypresented memo dated 11.5.1981 regardingdeath of Ram Prakat Dubey son of LallanDubey resident of Kapsa, P.S. Kandharapur,District Azamgarh. He made entry of saidmemo in G.D. He has proved copy of thesaid G.D. as Ex. Ka-8).

29. P.W. 6 Head Constable Mishri LalGupta has stated in his statement that on11.5.1981 he was posted as Head Constableat P.S. Kandharapur. He has stated that onthat date at 22.00 p.m., complainantJagdamba Dubey presented written report(Ex. Ka-1) in P.S. Kandharapur on the basisof which he registered Crime No. 99 of1981 under Section 307 I.P.C. and preparedChick report (Ex. Ka-9). He has stated thatat the same time he made entry regardingregistration of Crime in G.D. He has provedcopy of G.D. relating to registration ofcrime (Ex. Ka-10) also.

30. P.W. 6, Head Constable MishriLal Gupta ha stated that chick F.I.R. (Ex.Ka-9) bears signature of S.I. SahdeoMishra also. He has stated that SahdeoMishra had been entrusted investigation.P.W. 6, Head Constable Mishri Lal Guptahas further stated that on 12.5.1981, aninformation was received by R.T. Set tohis police station from P.S. Kotwali thatinjured Ram Prakat Dubey has diedwhereupon crime under Section 307I.P.C. was converted into Section 302I.P.C. and an entry was made in G.D. Hehas proved copy of G.D. regardingconversion of crime (Ex. Ka-11) also.

31. P.W. 7 I.O., Sub InspectorSahdeo Mishra, has stated in his statementthat on 11.5.1981, he was posted as Station


Officer at P.S. Kandharapur. Crime No. 99of 1981 under Section 307 I.P.C. wasregistered on 11.5.1981 at his police stationand he took investigation into his hand. Herecorded statement of complainant JagdambaDubey and went to place of occurrence. Hesearched the accused but could not tracethem. Thereafter, on 12.5.1981, he recordedstatement of witnesses Mahesh Pasi andShesh Nath Dubey and inspected place ofoccurrence. He has proved site plan of placeof occurrence (Ex. Ka-12) in his statement.

32. P.W. 7, S.I. Sahdeo Mishra hasstated in his statement that he took Bloodstained earth and plain earth from theplace of occurrence and kept in sealedcontainer. He recovered a peace of Lathias well as blood stained residue of Lathiand kept in sealed cover. He has furtherstated that one fired cartridge was alsorecovered from the place of occurrence.He has stated that four broken teeth werealso recovered from the place ofoccurrence. He kept all the said articlesrecovered from the place of occurrence insealed cover and prepared recovery memoof all above articles (Ex. Ka-13).

33. P.W. 7, S.I. Sahdeo Mishra hasstated in his statement that he madesearch of houses of accused-appellantGorakh, Paras and Raj Guru and preparedsearch memos (Ex. Ka-14 and 15).

34. P.W. 7 Sahdeoi Mishra has statedin his statement that he went to SadarHospital, Azamgarh on the same day andrecorded statement of Durga Prasad Dubey@ Keertan Dubey son of deceased.

35. P.W. 7 S.I. Sahdeo Mishra hasstated that the case was converted intoSection 302 I.P.C. on receiving

information regarding death of RamPrakat Dubey.

36. P.W. 7 S.I. Sahdeo Mishra hasstated that on 13.5.1981 he made searchof accused-appellant and executed processunder Sections 82 / 83 Cr.P.C.

37. P.W. 7 S.I. Sahdeo Mishra hasstated that he completed investigation inaccordance with law and submittedcharge-sheet against accused ParasDubey, Gorakh Dubey and Raj Guru. Hehas proved charge-sheet (Ex. Ka.14) inhis statement.

38. All the accused appellants havestated in their statements under Section313 Cr.P.C. that they have been falselyimplicated .

39. Accused-appellant GorakhDubey (now deceased) has stated in hisstatement under Section 313 Cr.P.C. thatthey have enmity with P.W. 3complainant Jagadamba Dubey. Theyhave no enmity with deceased Ram PrakatDubey. Jagadamba Dubey has falselyimplicated them due to animosity.

40. We have examined the evidencein the light of contentions of parties.

41. In F.I.R. it has been mentionedthat accused appellant Gorakh Dubey hadbomb in his hand, accused Paras Dubeyhad Katta and accused Raj Guru hadLathi. But in statements on oath beforetrial court all the three witnesses of factand occurrence, namely, P.W. 1 SheshNath Dubey, P.W. 2 Durga Prasad Dubeyand P.W. 3 Jagdamba Dubey have statedthat accused Raj Guru had Lathi, accusedGorakh Dubey had bomb and accused


Paras Dubey had Katta in his left handand Katar in his right hand. Defence hasgiven suggestion to P.W. 7 I.O. SahdeoMishra, S.I. in cross-examination thatafter post-morterm he has introducedKatar in the hand of accused Paras Dubeyin statements of witnesses recorded underSection 161 Cr.P.C. P.W. 7 S.I. SahdeoMishra has negatived the suggestion ofdefence. P.W. 7 Sahdeo Mishra has statedin examination-in-Chief that he recordedstatement of complainant P.W. 3Jagdamba Dubey under Section 161Cr.p.C. just after registration of crime andwent to place of occurrence. He hasfurther stated in examination-in-chief thathe recorded statement of P.W. 1 SheshNath Dubey on 12.5.1981 and on thesame day he went to Sadar Hospital andrecorded statement of P.W. 2 DurgaPrasad Dubey. In cross-examination hehas stated that he recorded statement ofDurga Prasad Dubey P.W. 2 on 12.5.1981at 3.00 p.m. Post-morterm of deceasedRam Prakat Dubey has been conducted on12.5.1981 at 4.00 p.m. Thus it is apparentthat statements of P.W. 1 Shesh NathDubey, P.W. 2 Durga Prasad Dubey andP.W. 3 complainant Jagdamba Dubeyhave been recorded by S.I., P.W. 7Shahdeo Mishra before post-morterm ofdeceased and all of the said witnesseshave stated in their statements recordedunder Section 161 Cr.P.C. that accusedParas Dubey had Katar also. Thus it isapparent that these witnesses have notintroduced Katar for first time beforeCourt. Katar has been stated by P.W. 3complainant Jagdamba Dubey in hisstatement recorded under Section 161Cr.P.C. immediately after registration ofF.I.R. There is no sufficient ground tobelieve that statements of witnessesrecorded under Section 161 Cr.P.C. areanti time. Illustration (e) of Section 114 of

Evidence Act provides that court maypresume that "the judicial and official actshave been regularly performed."Therefore, under Section 114 of EvidenceAct presumption arises that case diary hasbeen properly maintained by I.O.

42. In view of facts mentionedabove, we are of the view that non-mentioning of Katar in the hands ofaccused appellant Paras Dubey in F.I.R. isan accidental slip or mistake ofcomplainant P.W. 3 Jagdamba Dubey andmerely on this ground prosecution caseshould not be discarded.

43. P.W. 1 Shesh Nath Dubey hasstated that all the accused encircled RamPrakat Dubey and accused Raj Gurubegan to assault him with Lathi. Havingreceived injuries Ram Prakat Dubey felldown then accused Paras Dubey, who hadKatta in his left hand and Katar in hisright hand assaulted him with Katar. Hehas further stated that accused GorakhDubey gave threatening by show of bomband said who ever come forward, he shallbe killed. P.W. 1 Shesh Nath Dubey hasfurther stated in his statement on oath thatwhen after having heard noise JagatPradhan, Jangali Singh and DalsingarYadav began to come from the village theaccused fired with Katta and thrownbomb and ran away towards south.

44. P.W. 2 Durga Prasad Dubey hasstated in his statement on oath before trialcourt that all the three accused encircledhis father now deceased Ram PrakatDubey and Raj Guru began to assault himwith lathi. His father fell down afterhaving received injuries then accusedParas assaulted him with Katar. P.W. 2Durga Prasad Dubey has further statedthat accused Paras had Katta in his left


hand and Katar in his right hand. He hasfurther stated that accused Parasthreatened by Katta and stated who evercome forward, he shall kill him. P.W. 2Durga Prasad Dubey has stated in hisstatement that accused Gorakh Dubey hadbomb in his left hand and was makingexhortation. P.W. 2 Durga Prasad Dubeyhas stated in cross-examination that hisfather was caused injuries not with bomband Katta but threatening were given bybomb and katta.

45. P.W. 3 Jagdamba Dubey hasalso stated in his statement that accusedParas Dubey, Gorakh Dubey and RajGuru encircled Ram Prakat Dubey andaccused Raj Guru began to assault himwith lathi. Ram Prakat Dubey fell downafter having received injuries thenaccused Paras Dubey assaulted him withKatar. He has further stated that ParasDubey was threatening by Katta and saidthat who ever come, he shall be killed.P.W. 3 Jagdamba Dubey has stated in hisstatement that accused Gorakh Dubey hadbomb in his hand and he was makingexhortation and was saying that who evercome he shall be killed. P.W. 3complainant Jagdamba Dubey has statedin cross-examination at page 12 (page 66of paper book) that he had seen accusedGorakh Dubey throwing bomb ondeceased Ram Prakat Dubey. He hasfurther stated in cross-examination on thesame page that he has seen Paras Dubeymaking fire with Katta at Ram PrakatDubey.

46. Description of statements ofP.W. 1 Shesh Nath Dubey, P.W. 2 DurgaPrasad Dubey and P.W. 3 JagdambaDubey mentioned above shows that all ofthem have stated that accused Raj GuruMishr had Lathi, accused Gorakh Dubey

had bomb and accused Paras Dubey hadKatta and Katar both but Ram PrakatDubey (now deceased) was causedinjuries by Lathi and Katar. All of themhave stated that Katta and Bomb wereused for threatening. Statement of P.W. 1Shesh Nath Dubey and statement of P.W.3 complainant Jagdamba Dubeymentioned above, clearly show that bombwas thrown and katta was fired.

47. Recovery memo (Ex. Ka-13) aswell as statement of P.W. 7 InvestigatingOfficer, S.I. Sahdeo Mishra shows thatfired cartridge as well as broken piece oflathi were recovered from the place ofoccurrence. The said recovery memo (Ex.Ka-13) as well as statement of P.W. 7Sahdeo Mishra shows that four brokenteeth were also recovered from the placeof occurrence.

48. Perusal of post-morterm reportof deceased Ram Prakat (Ex. Ka-2) aswell as statement of P.W. 4 Dr. K.S.Mishra shows that 21 anti-morterminjuries were found on the dead body ofdeceased Ram Prakat Dubey. Descriptionof 21 anti-morterm injuries found on thedead body of deceased Ram Prakat Dubeyhas been given in the judgement of trialcourt as well as in post-morterm report(Ex. Ka-2).

49. Description of anti-morterminjuries mentioned in the post-mortermreport (Ex. Ka-2) shows that injury no. 21was multiple abraded contusion 16 cm x16 cm on back at the right scapularregion.

50. Perusal of post-morterm report(Ex. Ka-2) shows that buccal cavity wasdisfigured. As mentioned above fourbroken teeth have also been recovered


from the place of occurrence. Therefore,considering the nature of injuries ofdeceased Ram Prakat Dubey as well asfour broken teeth recovered from theplace of occurrence, it is apparent thatdeceased Ram Prakat Dubey had sufferedinjuries of explosion of bomb also.

51. P.W. 4 Dr. K.S. Mishra hasstated in his statement that the incisedwounds found on the dead body ofdeceased may be caused by Katar. He hasnot stated about the weapon of remaininginjuries found on the body of deceased.Description of anti-morterm injuresmentioned in post-morterm report (Ex.Ka-2) as well as statement of P.W. 4 Dr.K.S. Mishra show that out of 21 anti-morterim injuries found on the dead bodyof the deceased Ram Prakat Dubey, 8injuries were lacerated wound, 7 injurieswere incised wound, 3 injuries werecontusion, 2 injuries were abradedcontusion and one injury was sub-conjuntival haemorrhage.

52. In view of the discussion madeabove, we are of the view that deceasedRam Prakat Dubey had suffered injuriesof bomb blast also and throwing of bombat the time of occurrence by accusedGorakh Dubey is proved by statement ofwitnesses P.W. 1 Shesh Nath Dubey,P.W. 2 Durga Prasad Dubey and P.W. 3complainant Jagdamba Dubey.

53. In case of bomb blast, it isdifficult to see movement of splinters ofbomb causing injuries because of smokearising out of explosion. Later on injuriesthemselves shall speak their cause. Asconcluded above, nature of injuries showsthat deceased Ram Prakat Dubey hadsuffered bomb injuries also. Therefore,the complainant Jagdamba Dubey, P.W. 3

has rightly mentioned in F.I.R. (Ex. Ka.-1) that deceased Ram Prakat Dubey hassuffered injuries of bomb and throwing ofbomb by accused-appellant GorakhDubey now deceased is fully proved withstatements of P.W. 1 Shesh Nath Dubey,P.W. 2 Durga Prasad Dubey and P.W. 3complainant Jagdamba Dubey.

54. As mentioned above one firedcartridge has been recovered from placeof occurrence and it has been proved thatfire has also been made by Katta at thetime of occurrence. Therefore, mention offire arm (Katta) injury in F.I.R. does notlead to infer that complainant had notseen occurrence.

55. In view of the discussion madeabove, we are of the view that there is nomaterial contradiction between version ofF.I.R. (Ex. Ka-1) and statements ofwitnesses namely, P.W. 1 Shesh NathDubey, P.W. Durga Prasad Dubey andP.W. 3 complainant Jagdamba Dubey.Non mentioning of Katar in F.I.R. (Ex.Ka-1) is an accidental slip or mistake ofcomplainant Jagdamba Dubey and inview of statements of witnesses recordedby I.O. it cannot be said that Katar hasbeen introduced for the first time beforeCourt with legal advice.

56. In the case of Ranjit Singh andothers Vs. State of Madhya Pradesh, A.I.R.2011 SC 255, Hon'ble Apex Court hasplaced reliance on its previous judgementrendered in the case of Prem Singh andothers Vs. State of Haryana, (2009) 14 SCC494; (AIR 2009 SC 2573), wherein Hon'bleApex court has held as under:

"It is now a well settled principle oflaw that the doctrine "falsus in uno, falsusin omnibus" has no application in India.


In view of above, the law can besummarised to the effect that theaforesaid legal maxim is not applicable inIndia and the court has to assess to whatextent the deposition of a witness can berelied upon. The Court has to separate thefalsehood from the truth and it is only inexceptional circumstances when it is notpossible to separate the grain from thechaff because they are inextricably mixedup, that the whole evidence of such awitness can be discarded."

57. In the case of State of U.P. Vs.Krishna Master and others; 2010 Cri. L.J.3889 (SC) Hon'ble Apex Court has heldthat "prosecution evidence may sufferfrom inconsistencies here anddiscrepancies there, but that is ashortcoming from which no criminal caseis free. The main thing to be seen iswhether those inconsistencies go to theroot of the matter or pertain toinsignificant aspects thereof."

58. In the case of State of U.P. Vs.Krishna Master and others (supra), Hon'bleApex Court has further held that "the basicprinciple of appreciation of evidence of arustic witness who is not educated andcomes from a poor strata of society is thatthe evidence of such a witness should beappreciated as a whole."

59. In the case of Sampath KumarVs. Inspector of Police, Krishnagiri 2012(IV) SCC 124, Hon'ble Apex Court heldthat "minor contradictions are bound toappear in the statement of truthfulwitnesses as memory sometimes playsfalse, sense of observation differs fromperson to person."

60. We have perused the entirestatements of P.W. 1 Shesh Nath Dubey,

P.W. 2 Durga Prasad Dubey and P.W. 3complainant Jagdamba Dubey. In view ofabove pronouncements of Hon'ble ApexCourt we are of the view that there is nomaterial contradiction in their statementsto disbelieve them.

61. In F.I.R. specific mention hasbeen made that at the time of occurrencecomplainant Jagdamba Dubey was goingto village Chevta to see Dwarpooja alongwith P.W. 1 Shesh Nath Dubey, P.W. 2,Durga Prasad Dubey and one Mahip Pasi,resident of village Kohadi Khurd. P.W. 1Shesh Nath Dubey, P.W. 2 Durga PrasadDubey and P.W. 3 Jagdamba Dubey, allhave stated in their statement on oath thatat the time of occurrence they were goingto village chevta to see Dwarpooja alongwith one Mahip Pasi but the defence hasnot cross-examined all the said threewitnesses on the point of Dwarpooja andhas not given them suggestion in cross-examination that there was no Dwarpoojain the village Chevta on the date ofoccurrence or they were not going tovillage Chevta to see Dwarpooja on thedate of occurrence. Therefore, the versionof prosecution that P.W. 1 Shesh NathDubey, P.W. 2 Durga Prasad Dubey andP.W. 3 Jagdamba Dubey were going tovillage Chevta to see Dwarpooja at thetime of occurrence is un-challenged andthere is no sufficient ground to disbelievethe statements on oath given by all thethree witnesses in this respect. It has alsonot been challenged by defence that theplace of occurrence is not on the chackroad leading from the village of thecomplainant to village Chevta. Afterconsidering the all facts andcircumstances of the case, we are of theview that the presence of P.W. 1 SheshNath Dubey, P.W. 2 Durga Prasad Dubeyand P.W. 3 complainant Jagdamba Dubey


at the time and place of occurrence ishighly probable and there is no ground todisbelieve them.

62. P.W. 1 Shesh Nath Dubey hasadmitted in cross-examination at page 5and 6 (Page 22 and 23 of paper book) thathe is step brother of father of the deceasedRam Prakat Dubey. He has also admittedin cross-examination at page 6 (Page 23of paper book) that P.W. 3 complainantJagdamba Dubey is son of his step brotherDoodh Nath Dubey. Admittedly, P.W. 2Durga Prasad Dubey is son of deceased.Thus, it is apparent that all the threewitnesses are related to deceased andbelong to same family. But Hon'ble ApexCourt has consistently held that testimonyof witnesses may not be discarded merelyon the ground of relationship. Forreference following pronouncements ofHon'ble Apex Court may be cited.

(1) Brahm Swaroop and another Vs.State of U.P. A.I.R. 2011 S.C. 280.

(2) Vithal Vs. State of Maharastra(2008) 1 SCC (Crl.) 91

(3) Ranjit Singh and others Vs. Stateof Madhya Pradesh A.I.R. 2011 S.C. 255

63. P.W. 1 Shesh Nath Dubey hasstated in his statement on oath that therewas chack road between chack ofdeceased Ram Prakat Dubey and that ofaccused Gorakh Dubey and Paras Dubey.He has further stated in his statement thatabout 5 or 6 days before occurrence,accused were making encroachment onsaid chack road by cutting the chack roadinto their chack. Deceased Ram PrakatDubey prohibited them whereupon analtercation took place between them.

64. P.W. 2 Durga Prasad Dubey andP.W. 3 complainant Jagdamba Dubey

both have also stated in their statement onoath that about 4 to 5 days beforeoccurrence there had been an altercationbetween Ram Prakat Dubey (Nowdeceased) and accused-appellants ParasDubey and Gorakh Dubey regardingencroachment on chack road.

65. P.W. 7, S.I., Sahdeo Mishra,Investigating Officer has shown chackroad in site plan (Ex. Ka.-12). He hasshown in site plan (Ex. Ka. 12) chackroad ploughed in chak of accused-appellants. Thus, the statements of P.W. 1Shesh Nath Dubey, P.W. 2 Durga PrasadDubey and P.W. 3 Jagdamba Dubeyregarding encroachment of chack road byaccused-appellants are corroborated bysite plan (Ex. Ka-12).

66. In view of above, after havinggone through the whole evidence onrecord as well as facts and circumstancesof the case, we are of the view that causeor motive for the occurrence alleged bythe prosecution has been fully proved.Morevoer, in the case of Brahm Swaroopand another Vs. State of U.P. A.I.R. 2011S.C. 280 Hon'ble Apex Court has heldthat "if evidence of the eye witnesses istrustworthy and believed by the court, thequestion of motive becomes totalirrelevant."

67. Perusal of statement of P.W. 6Mishri Lal, Head Moharrir as well asChick F.I.R. (Ex. Ka-9) and G.D. relatingto registration of Crime (Ex. Ka-10)shows that F.I.R. has been lodged at P.S.Kandharapur at 10.00 p.m. Time ofoccurrence has been alleged 7.00 p.m.Thus, it is apparent that F.I.R. has beenlodged in police station Kandharapurwithin 3 hours of occurrence. Distance ofpolice station Kandharapur from the place


of occurrence is four mile as is apparentfrom Chick F.I.R. (Ex. Ka-9). P.W. 3complainant Jagdamba Dubey has writtena note in F.I.R. (Ex. Ka-1) that due tofear, he could not go to police stationKandharapur straight way. He went toKaptanganj through canal and due to nonavailability of conveyance delay wascaused in reaching police stationKandharapur. P.W. 3 Jagdamba Dubeycomplainant has stated in his statement onoath that after occurrence injured RamPrakat Dubey was carried to Kaptanganjby his son P.W. 2 Durga Prasad Dubeyand others on cot. He went to his houseand wrote F.I.R. (Ex. Ka-1). Thereafter,he went to Kaptanganj where he met withinjured Ram Prakat Dubey and others andthereafter a tempo was made available, bywhich they carried Ram Prakat Dubey toAzamgarh hospital. He also accompaniedthem and dropped tempo in the way atKandharapur. Thereafter, he went to P.S.Kandharapur and presented report (Ex.Ka-1). Thus, it is apparent that there is areasonable explanation for delay inlodging F.I.R. Moreover, F.I.R. lodgedwithin 3 hours of occurrence may not besaid to be delayed F.I.R.

68. Defence has given suggestion toP.W. 1 Shesh Nath Dubey, P.W. 2 DurgaPrasad Dubey and P.W. 3 JagdambaDubey that deceased Ram Prakat Dubeyhas been killed in darkness at late night byother persons and none has seen theoccurrence. All the said witnesses havenegatives the suggestion of defence andthere is no sufficient ground to disbelievethe time of occurrence alleged byprosecution.

69. In view of above, we are of theview that F.I.R. is prompt and there is nochance of concoction in version of F.I.R.

70. The time of occurrence allegedby prosecution is 7.00 p.m. on 11th May,1981 sunset will be at 6.55 p.m. Thus, it isapparent that at about 7 p.m. darknessshall not prevail. Therefore, without anysource of light occurrence may be seen bywitnesses.

71. Statement of P.W. 4, Dr. K.S.Mishra as well as post-morterm report(Ex. Ka-2) shows that out of 21 anti-morterm injuries found on the dead bodyof deceased Ram Prakat Dubey, therewere incised wounds, lacerated wounds,contusions, abraded contusions and sub-conjuntival haemorrhage in left eye.Contusion and lacerated wounds may becaused by blunt object and Lathi is a bluntobject, incised wounds may be caused bysharp edged weapon and Katar is a sharpedged weapon.

72. In view of conclusion drawnabove, it is apparent that injury no. 21 andcondition of buccal cavity shows thatdeceased had suffered bomb blast injuriesalso. Therefore, having considered all thefacts and circumstances of the case andevidence on record, we are of the viewthat post-morterm report (Ex. Ka-2) aswell as statement of P.W. 4 K.S. Mishrafully corroborates the version of F.I.R.and ocular evidence adduced by theprosecution. Time of death is alsocorroborated by post-morterm report (Ex.Ka-2) as well as statement of P.W. 4 Dr.K.S. Mishra.

73. Statement of P.W. 7, S.I. SahdeoMishra as well as recovery memo (Ex.Ka-13) shows that one fired cartridgepellets and four broken teeth have beenrecovered from the place of occurrence byI.O. I.O. has taken blood stained earthalso from the place of occurrence.


Defence has not challenged place ofoccurrence. Defence has merelysuggested that deceased Ram PrakatDubey has been assaulted in darkness atlate night by other persons and none hasseen the occurrence. Therefore,considering all the facts andcircumstances of the case as well asevidence on record, we are of the viewthat place of occurrence alleged byprosecution is proved beyond doubt.

74. In view of discussion made andconclusions drawn above, after havinggone through whole facts andcircumstances of the case as well asevidence on record, we are of the viewthat P.W. 1 Shesh Nath Dubey, P.W. 2Durga Prasad Dubey and P.W. 3Jagdamba Dubey are trustworthywitnesses and there is no sufficientground to disbelieve their testimony.

75. In the case of Narpal Singh Vs.State of Haryana 1977 Cr.L.J., 642 SC,Hon'ble Apex Court held that, "If thewitnesses examined are believed, thequestion of inference for non-examinationdoes not arise."

76. In view of this pronouncementof Hon'ble Apex Court no adverseinference may be drawn againstprosecution for non-examination of otherwitnesses of occurrence.

77. Accused-appellant GorakhDubey (now deceased) has stated instatement under Section 313 Cr.P.C. thathe had no enmity with deceased RamPrakat Dubey. He has enmity withcomplainant Jagdamba Dubey andJagdamba Dubey has falsely implicatedhim due to animosity. In view of thisstatement of accused-appellant Gorakh

dubey there is no reason for giving falseevidence against him by P.W. 2 DurgaPrasad Dubey son of deceased RamPrakat Dubey, who has also fullysupported version of F.I.R. in hisstatement.

78. In view of discussion madeabove, we are of the view that evidenceadduced by prosecution is sufficient toconvict surviving accused-appellants RajGuru Mishra and Paras Dubey for offencepunishable under Sections 302 / 34 I.P.C.

79. Perusal of impugned judgementand order passed by trial court shows thattrial court has gone through entire evidenceavailable on record and has considered allaspects and relevant points for determinationof the case at length. The conclusions drawnand findings recorded by trial court are basedon judicious analysis of facts and evidence inthe light of various judicial pronouncementsof Hon'ble Apex Court.

80. In view of discussion made andconclusion drawn above, we are of theview that the learned trial court hasrightly placed reliance upon evidenceadduced by prosecution to convictsurviving accused appellants for offencepunishable under section 302 read withsection 34 I.P.C.

81. In the case of Sunil KumarSambhudayal Gupta (Dr.) and others vs.State of Maharashtra, (2010) 13 SCC 657,Hon'ble Apex Court has placed relianceon its previous judgement rendered in thecase of State Vs. Saravanan; A.I.R. 2009SC 152, wherein Hon'ble Apex court hasheld as under:

"The trial court, after going throughthe entire evidence, must form an opinion

3 All]. Prabhat Pandey Vs. Dimple Yadav & Anr. 1189

about the credibility of the witnesses andthe appellate court in normal coursewould not be justified in reviewing thesame again without justifiable reasons."

82. In view of this pronouncementof Hon'ble Apex Court as well asdiscussion made and conclusion drawnabove, we are of the view that there is nosufficient ground to disturb the findings aswell as conviction recorded by trial court.

83. Sentence awarded by learned trialcourt is not excessive and State has not filedappeal for enhancement of sentence.

84. In view of discussion made andconclusion drawn above, we are of the viewthat there is no sufficient ground forinterference in the impugned judgement andorder passed by learned trial court. Appealhas no merit and is liable to be dismissed.

85. Appeal is dismissed accordingly.

86. Surviving accused appellantsParas Dubey and Raj Guru are on bail.They shall surrender before the trial courtfor serving sentence within 30 days fromthe date of judgement of this Court,failing which trial court shall ensure theirarrest and shall send them to jail forserving sentence in accordance with law.

87. Office is directed to send copyof judgement to trial court for securingcompliance.

88. Lower court record shall bereturned to the concerned courtimmediately.

--------ORIGINAL JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 03.09.2014

BEFORETHE HON'BLE DEVENDRA PRATAP SINGH, J.

Election Petition No. 19 of 2012

Prabhat Pandey ...PetitionerVersus

Dimple Yadav & Anr. ...Respondents

Counsel for the Petitioner:In Person, Sri Asit Kumar Roy, Sri M.P.Sinha, Sri Pradeep Verma, Sri RajenndraKumar Pandey, Sri Sunil Kumar Tiwari, SriVijai Prakash Shukla

Counsel for the Respondents:Sri K.R. Singh, Sri Bhopendra Nath SinghSri H.P. Dubey, Sri Shivam Yadav

Representation of People Act 1951-Section 86(1)-Application to dismisselection petition-on ground of nondisclosure of particulars of corruptpractices-as per requirement of section100(i)(b) of the Act-total absence ofcharge either bribery or undue influencein affidavit filed in support of petition-affidavit-not conformity with prescribedformat in terms of order XVI Rule 15(4)CPC-even on objection-no effort made toremove the same-being a practicinglawyer-held-Court has no option exceptto allow the application and dismiss thepetition.

Held: Para-54Applying, generally the principlespropounded in the above mentioneddecisions, especially those extracted bythe three judge decision in G MSiddeshwar's case (supra) and in AzharHussain' case (supra), five things areabsolutely clear: (a) Full material facts ofcorrupt practice are missing, especiallythe pivotal fact of consent; (b) there istotal non compliance of proviso toSection 83(1) and therefore it is not ascontemplated by Section 81; © total lackof statement of complete cause of actionin violation of Order VII Rule 11 (a) ofCPC read with Section 83 of the Act; (d)


merely because the returned candidatewas the wife of the sitting Chief Minister,it cannot be presumed that the allegedaction of the Returning Officer and theclaimed action of her workers and partyleaders could be presumed to have beentaken with her consent, without therebeing specific, clear and unambiguouspleadings to that effect and (e) even ifthe respondent had not appeared tooppose the petition, being a half bakedpetition, court could not have given theverdict in favour of the petitioner.

Case Law discussed:AIR 1954 SC 210; AIR 1982 SC 983; AIR 1964SC 1366; (1970) 3 SCC 647 (2); AIR 1984 SC309; 1994 Supp. (2) Supreme Court Cases446; 2009 (10) SCC 541; AIR 1969 SC 1201;AIR 1984 SC 621; (1996(1) SCC 399); 2000(8)SCC 191; 2012(V) SCC 511; 2013 (4) SCC 799.

(Delivered by Hon'ble Devendra PratapSingh, J.)

1. Heard learned counsel for theparties on a combined application underOrder 6 Rule 16 read with Order 7 Rule11 of the Code of Civil Procedure(hereinafter referred to as the "CPC")alongwith another application underSection 86(1) of the Representation ofPeople Act, 1951 (hereinafter referred toas the "Act") and also perused the record.

2. The present election petition hasbeen filed challenging the election of Smt.Dimpal Yadav, respondent no.1, from theKannauj Lok Sabha Constituency No.42in the By Election held in accordance tothe programme.

3. Briefly, the facts are that SriAkhilesh Yadav, the husband of therespondent no.1 and Leader of theSamajwadi Party (hereinafter referred asthe "SP") was the elected representativeof the Constituency. In the Assembly

election held for the State of U.P. inMarch 2012, the SP came to power andSri Akhilesh Yadav became the ChiefMinister and thus vacated the seat. TheElection Commission of India issued anotification on 30th of May 2012 andnotified the following programme for theBy Election :

Last date of filing nomination -6.6.2012

Date of scrutiny of nomination -7.6.2012

Date of withdrawal -9.6.2012Date of polling -24.6.2012Date of counting of votes - 27.6.2012

4. In pursuance thereof, threecandidates, including the respondent no.1had filed their respective nominations.However, the two other candidateswithdrew their candidature andaccordingly, the respondent no.1 wasdeclared elected unopposed. It is pleadedthat the Voters Party International(hereinafter referred to as the "VPI"), anon political organization, has a hugemembership in and around Kannauj and,therefore, its Central Committeenominated the petitioner, one of its activemembers, to contest the seat. It is furtherpleaded that the petitioner, in accordancewith the directions of the CentralCommittee, prepared his nominationpapers, but members of the SP and itsleaders, with the help of the DistrictAdministration, did not allow thepetitioner to file his nomination, thus thepresent petition.

5. It is urged on behalf of therespondents in support of the twoapplications that the petition is notmaintainable as it has not been filed byany "candidate" or "elector", as provided


in Section 81 of the Act and, therefore, ithas to be thrown out on this ground alone.It is also asserted that the pleadings do notdisclose a complete cause of action asthere is no pleading, even if accepting allthe incidents as correct, that the allegedincidents were committed with theconsent and knowledge of the respondentno.1. It is further urged that the petition isbased only on corrupt practices, but theaffidavit in support of the allegation asprescribed by the proviso to Section 83(1) of the Act, has not been filed and,therefore, also the petition does notdisclose a complete cause of action andcannot be put to trial.

6. To the contrary, it is contendedthat the petitioner made all possibleefforts to file his nomination paperswithin the time prescribed after depositingthe security, but due to the influence ofthe respondent no.1, the Returning Officerdid not accept it and supporters ofrespondent no.1 snatched away and torethe nomination papers. It is further urgedthat all the material facts and particularshave been given with specific details andit discloses complete cause of action. It isalso urged that being the wife of thesitting Chief Minister, she was exercisingundue influence on the DistrictAdministration, including the DistrictMagistrate and also local leaders of SPwere working in unison to ensure that shegets elected unopposed. It is further urgedthat the affidavit has already been filedand the second affidavit was not required.It is also urged that the petition cannot bedismissed at the threshold as Section 83of the Act does not find mention inSection 86. Lastly it is urged that"consent" on the facts pleaded can bepresumed because the respondent no. 1colluded with the Returning Officer and

that is why the nomination papers werenot accepted and she had full knowledgeof these facts.

7. Before the Court deals with thearguments of the respective parties, itwould be appropriate to examine thenature of the proceedings under the Act.

8. The Constitution Bench of theApex Court, more than half a century ago,in Jagan Nath vs. Jaswant Singh & others(AIR 1954 SC 210) commented upon theproceedings of an election petition underthe Act in the following words :

"The general rule is well settled thatthe statutory requirements of election lawmust be strictly observed and that anelection contest is not an action at law ora suit in equity but is a purely statutoryproceeding unknown to the common lawand that the court possesses no commonlaw power. It is also well settled that it isa sound principle of natural justice thatthe success of a candidate who has won atan election should not be lightlyinterfered with and any petition seekingsuch interference must strictly conform tothe requirements of the law. None of thesepropositions however have anyapplication if the special law itself confersauthority on a Tribunal to proceed with apetition in accordance with certainprocedure and when it does not state theconsequences of non-compliance withcertain procedural requirements laiddown by it.

It is always to be borne in mind thatthough the election of a successfulcandidate is not to be lightly interferedwith, one of the essentials of that law isalso to safeguard the purity of the electionprocess and also to see that people do notget elected by flagrant breaches of that


law or by corrupt practices. In caseswhere the election law does not prescribethe consequence, or does not lay downpenalty for non-compliance with certainprocedural requirements of that law, thejurisdiction of the Tribunal entrusted withthe trial of the case is not affected."

It further went on to declare that :

" It is also well settled that it is asound principle of natural justice that thesuccess of a candidate who has won at anelection should not be lightly interferedwith and any petition seeking suchinterference must strictly conform to therequirements of the law."

9. It went on to reiterate the positionin Jyoti Basu & others vs. Debi Ghosal &others (AIR 1982 SC 983) in thefollowing words :

"A right to elect, fundamental thoughit is to democracy is, anomalouslyenough, neither a fundamental right nor aCommon Law Right. It is pure andsimple, a statutory right. So is the right tobe elected. So is the right to dispute anelection. Outside of statute, there is noright to elect, no right to be elected and noright to dispute an election. Statutorycreations they are, and therefore, subjectto statutory limitation. An electionpetition is not an action at Common Lawnor in equity. It is a statutory proceedingto which neither the common law nor theprinciples of equity apply but only thoserules which the statute makes and applies.It is a special jurisdiction, and a specialjurisdiction has always to be exercised inaccordance with the statute creating it.Concepts familiar to Common Law andEquity must remain strangers to ElectionLaw unless statutorily embodied. A Court

has no right to resort to them onconsiderations of alleged policy becausepolicy in such matters, as those, relatingto the trial of election disputes, is what thestatute lays down. In the trial of electiondisputes, Court is put in a straight jacket.Thus the entire election processcommencing from the issuance of thenotification calling upon a constituency toelect a member or members right up to thefinal resolution of the dispute, if any,concerning the election is regulated by theRepresentation of the People Act, 1951,different stages of the process being dealtwith by different provisions of the Act.There can be no election to Parliament orthe State Legislature except as providedby the Representation of the People Act,1951 and again, no such election may bequestioned except in the manner providedby the Representation of the People Act.So the Representation of the People Acthas been held to be a complete and self-contained code within which must befound any right claimed in relation to anelection or an election dispute. .........."

10. In Mohan Singh vs Bhanwar Lal(AIR 1964 SC 1366 ), the apex courtwhile dealing with the challenge ongrounds of corrupt practices, speakingthrough Justice Shah, commented that :

"The onus of establishing a corruptpractice is undoubtedly on the person whosets it up, and the onus is not dischargedon proof of mere preponderance ofprobability, as in the trial of a civil suit;the corrupt practice must be establishedbeyond reasonable doubt by evidencewhich is clear and unambiguous"

11. Again it reiterated the position inMahant Shreo Nath v. Choudhry RanbirSingh (1970) 3 SCC 647 (2), as follows :


"A plea in an election petition that acandidate or his election agent or anyperson with his consent has committed acorrupt practice raises a grave charge,proof of which results in disqualificationfrom taking part in elections for six years.The charge in its very nature must beestablished by clear and cogent evidenceby those who seek to prove it. The Courtdoes not hold such a charge provedmerely on preponderance of probability;the Court requires that the conductattributed to the offender is proved byevidence which establishes it beyondreasonable doubt."

12. This position remains unalteredtill date.

13. It is evident from the aforesaiddecisions that the right to challenge anelection is not a common law right but theright has specially been conferred by theAct for maintaining the purity of election.However, when a candidate employs oradopts any of the corrupt practicesmentioned in the Act, his election shouldbe set aside where the corrupt practice isproved. But, the procedure prescribed bythe Act for challenging the election mustbe strictly followed and in case there isnon-compliance of the mandatoryprovisions or there is any deviation, theCourt will have no other alternative thanto dismiss the election petition. Charge ofcorrupt practice has to be proved beyondreasonable doubt like in criminal cases.

14. Let us now consider the relevantprovisions of the Constitution, the Actand CPC which have a direct bearing onthe decision of this case.

15. Article 329(b) of theConstitution of India bars any challenge

to the election of either Houses ofParliament except through an electionpetition as provided under the Act, in thefollowing words :

"329. Bar to interference by Court inelectoral matters-

(a)..............(b) no election to either house of

Parliament or to the House or eitherHouse of the Legislature of a State shallbe called in question except by an electionpetition presented to such authority and insuch manner as may be provided for by orunder any law made by the appropriateLegislature."

16. In pursuance of the powersconferred by the Constitution, the Act waspromulgated wherein Part VI deals withdisputes regarding Elections and thereinSection 80 provides that no election shallbe called in question except through anelection petition under the Act which runsas below :

"80- Election petitions- No electionshall be called in question except by anelection petition presented in accordancewith the provisions of this Part.

Section 81 of the same Part of theAct provides as to who and on whatground can file an election petitionchallenging the election :

"81. Presentation of petitions- (1) Anelection petition calling in question anyelection may be presented on one or moreof the grounds specified in sub-section (1)of section 100 and section 101 to the HighCourt by any candidate at such electionor any elector within forty-five days from,but not earlier than the date of election ofthe returned candidate or if there are


more than one returned candidate at theelection and dates of their election aredifferent, the later of those two dates.

The same Part contains Section 79sub-clause (b) which defines the word"candidate", while sub-clause (d) defines"electoral right" as follows :

"79. Definitions: In this Part and inPart VII unless the context otherwiserequires,-

(a)..............(b) "candidate" means a person who

has been or claims to have been dulynominated as a candidate at any election.

(c)...............(d) "electoral right" means the right

of a person to stand or not to stand as, orto withdraw or not to withdraw frombeing, a candidate, or to vote or refrainfrom voting at an election:

Section 100 of the same Partprovides for the grounds on which anelection may be held to be void asfollows:

"100. Grounds for declaring electionto be void- (1) Subject to the provisions ofsub-section (2) if the High Court is ofopinion-

(a) ..................(b) that any corrupt practice has

been committed by a returned candidateor his election agent or by any otherperson with the consent of a returnedcandidate or his election agent; or

(c) that any nomination has beenimproperly rejected; or

(d) ........................(i) ........................(ii) by any corrupt practice

committed in the interest of the returned

candidate by an agent other than hiselection agent, or

(iii) .............................

iv. by any non-compliance with theprovisions of the Constitution or of thisAct or of any rules or orders made underthis Act,the High Court shall declare theelection of the returned candidate to bevoid."

In the same Part Section 83 mandatesas to what should be the contents of anelection petition, as under :

"83. Contents of petition- (1) Anelection petition-

(a) shall contain a concise statementof the material facts on which thepetitioner relies;

(b) shall set forth full particulars ofany corrupt practice that the petitioneralleges, including as full a statement aspossible of the names of the partiesalleged to have committed such corruptpractice and the date and place of thecommission of each such practice; and

(c) shall be signed by the petitionerand verified in the manner laid down inthe Code of Civil Procedure, 1908 (5 of1908) for the verification of pleadings:

Provided that where the petitioneralleges any corrupt practice, the petitionshall also be accompanied by an affidavitin the prescribed form in support of theallegation of such corrupt practice andthe particulars thereof.

(2) Any schedule or annexure to thepetition shall also be signed by thepetitioner and verified in the same manneras the petition."

Section 86(1) of the same Partmandates as to when an election petition


can be dismissed summarily, in thefollowing words :

"86. Trial of election petitions- (1)The High Court shall dismiss an electionpetition which does not comply with theprovisions of section 81 or section 82 orsection 117.

Explanation- An order of the HighCourt dismissing an election petitionunder this sub-section shall be deemed tobe an order made under clause (a) ofsection 98".

17. Part VII of the Act deals withCorrupt Practices and Electoral Offenceswherein Section 123 is a deeming clausein respect to corrupt practices andprovides as below :-

"123. Corrupt practices- Thefollowing shall be deemed to be corruptpractices for the purposes of this Act-

(1)"Bribery", that is to say,-

(A) any gift, offer or promise by acandidate or his agent or by any otherperson with the consent of a candidate orhis election agent of any gratification, toany person whomsoever, with the object,directly or indirectly of inducing-

(a) a person to stand or not to standas, or to withdraw or not to withdrawfrom being a candidate at an election, or

(b) .....................(B) .........(a) .........(b) ..................

Explanation- For the purpose of thisclause the term "gratification" is notrestricted to pecuniary gratifications orgratifications estimable in money and itincludes any forms of entertainment andall forms of employment for reward but it

does not include the payment of anyexpenses bona fide incurred at, or for thepurpose of, any election and duly enteredin the account of election expensesreferred to in section 78.

2. Under influence, that is to say, anydirect or indirect interference or attemptto interfere on the part of the candidate orhis agent, or of any other person with theconsent of the candidate or his electionagent, with the free exercise of anyelectoral right:

Provided that-

(a) without prejudice to thegenerality of the provisions of this clauseany such person as is referred to thereinwho-

(i) threatens any candidate or anyelector, or any person in whom acandidate or an elector interested, withinjury of any kind including socialostracism and ex-communication orexpulsion from any caste or community;or

(ii) ..... shall be deemed to interferewith the free exercise of the electoralright of such candidate or elector withinthe meaning of this clause;

(b) .............(3) ...............(4) ..............(5) ...............(6) ...............

7. The obtaining or procuring orabetting or attempting to obtain orprocure by a candidate or his agent or, byany other person with the consent of acandidate or his election agent, anyassistance other than the giving of votefor the furtherance of the prospects of thatcandidate's election, from any person


whether or not in the service of theGovernment or belonging to any of thefollowing classes, namely :-

(a) gazetted officers;(b) .........(c)...........(d) members of police forces(e)..................(f) ..................(g) such other class of persons in the

service of the Government as may beprescribed:

(h) .............."

18. Section 87 of the Act provides thatan election petition shall be tried as nearly aspossible in accordance to the procedureprescribed under the CPC. The relevantprovisions of CPC which have a bearing inthe decision of this petition are quoted below :

Order VI Rule XV of C.P.C.provides as under :

"15. Verification of pleadings :- (1)Save as otherwise provided by any law forthe time being in force, every pleading shallbe verified at the foot by the party or by oneof the parties pleading or by some otherperson proved to the satisfaction of the Courtto be acquainted with the facts of the case.

(2).......(3) .....(4) The person verifying the pleading

shall also furnish an affidavit in supportof his pleadings."

and Order VI Rule XVI reads asunder :

"16. Striking out pleadings- TheCourt may at any stage of the proceedingsorder to be struck out or amended anymatter in any pleading-

(a) which may be unnecessary,scandalous, frivolous or vexatious, or

(b) which may tend to prejudice,embarrass or delay the fair trial of thesuit, or

(c) which is otherwise an abuse ofthe process of the Court."

Order VII Rule XI makes a provisionfor rejecting a plaint, as under:

"11. Rejection of plaint- The plaintshall be rejected in the following cases:-

(a) where it does not disclose a causeof action;

(b) .........(c) ..........(d)...........(e)...........(f).............

19. Let us first consider whether thepetition is liable to be thrown out on theground that it has neither been filed by a''Candidate' nor any ''Elector'

20. It is not the case of the petitionerthat he was an electorate of thatconstituency, but it has been filed as a''Candidate'. It is a pleaded fact that he didnot, or rather, could not file hisnomination papers. It is amply pleadedthat he firstly made an effort to file it on5th June, 2012 at about 2 pm, tendered hispapers to the Returning Officer along withsecurity deposit in cash, but she refused toaccept it without disclosing any reason,presumably on the ground that he shoulddeposit the security amount in theTreasury and submit the receipt. He madeanother effort on 6th June, 2012 afterdepositing the security in the Treasury,but he was prevented from filing it and hispapers were snatched and torn by thesupporters of respondent no 1 and he was


confined to an unknown place andreleased only after the period of filing hadelapsed. He also alleges that thenomination papers were faxed to theElection Commission and also sent byregistered post to it. Copy of thenomination papers together with thesecurity deposit receipt which was soughtto be filed is also annexed with thepetition and has not been shown to bewanting in any respect. No doubt thedefinition of ''Candidate' as mentioned insection 79 confines itself to Parts VI andVII, but help can also be sought fromsection 34, which reads as under:

"34. Deposits- (1) A candidate shallnot be deemed to be duly nominated forelection from a constituency unless hedeposits or causes to be deposited-

(a) in the case of an election from aParliamentary constituency (a sum oftwenty-five thousand rupees or where thecandidate is a member of a ScheduledCaste or Scheduled Tribe, a sum of twelvethousand five hundred rupees]; and

(b)...................(2) Any sum required to be deposited

under sub-section (1) shall not be deemedto have been deposited under that sub-section unless at the time of delivery ofthe nomination paper [under sub-section(1) or, as the case may be, sub-section (1-A) of section 33] the candidate has eitherdeposited or caused to be deposited thatsum with the returning officer in cash orenclosed with the nomination paper areceipt showing that the said sum hasbeen deposited by him or on his behalf inthe Reserve Bank of India or in aGovernment Treasury."

21. Thus, it is clear that if thepleadings are to be believed, he did tender

the nomination papers and the security incash on 5th, but it was unlawfully refusedto be accepted. This is a question whichcan be considered only after evidence isled by the parties. The effort made on 6thalso is a question which can de decidedafter evidence. What else was expected ofthe petitioner than to tender his papers ?The definition of the word ''Candidate' isin two parts. ''Candidate' means a personwho has either in fact filed his nominationpapers, or, a person who claims to havebeen nominated. The case of thepetitioner squarely falls in the secondpart. As already herein above commentedupon, copy of nomination papers togetherwith security deposit receipt has beenfiled but the respondents do not claim thatit is defective in any respect. The ApexCourt in the case of Charan Lal Sahu vsGiani Zail Singh (AIR 1984 SC 309) wasconsidering an identical provision anddefinition occurring in Presidential andVice Presidential Elections Act, where anelection petition was filed by a personwhose nomination papers were rejected asit was not proposed by the requirednumber of the electors. It went on to holdin paragraph 12:

"Thus, the occasion for a person tomake a claim that he was duly nominatedcan arise only if his nomination papercomplies with the statutory requirementswhich govern the filing of nominationpapers and not otherwise. The claim thathe was ''duly' nominated necessarilyimplies and involves the claim that hisnomination papers conformed to therequirements of the statute. Therefore, acontestant whose nomination paper is notsubscribed by at least ten electors asproposers and ten electors as secondersas required by S. 5B (1)(a) of the Actcannot claim to have been duly nominated


any more than a contestant who had notsubscribed his assent to his own nominationcan. The claim of a contestant that he wasduly nominated must arise out of hiscompliance with the provisions of the Act.Otherwise, a person who had not filed anynomination paper at all but who had onlyinformed the Returning Officer orally thathe desired to contest the election could alsocontend that he "claims to have been dulynominated as a candidate".

22. Therefore, it is still open to thepetitioner to prove that his pleadings aretruthful and he did tender his nominationpapers complete in all respects, togetherwith security deposit, to the ReturningOfficer. Accordingly, at this stage itcannot be said that the petition can bethrown out on this ground. Thus, theargument is rejected.

23. Let us now consider whether allthe material facts for constituting anycorrupt practice have been disclosed and acomplete cause of action has been statedand whether any affidavit in conformitywith the proviso to Section 83(1) has beenfiled because the petition is based only oncorrupt practices.

24. Before dealing with the materialfacts and cause of action, it would beappropriate to consider the settled law onthe issue.

25. The Apex Court in the case ofAzhar Hussain vs. Rajiv Gandhi (AIR1986 SC 1253), while consideringwhether the publications were made withthe knowledge or consent of the returnedcandidate, has held that the consentshould be detailed in the affidavit and itspelt out the requirement in the followingwords in paragraph 31:

"31. There is no averment to showthat the publication was made with theknowledge or consent of the returnedcandidate when the book was published inJune, 1983. In fact, in 1983 there was noquestion of having acted in anticipation ofthe future elections of 1985 and inanticipation of the respondent contestingthe same. In the election petition even theoffending paragraphs have not beenquoted. The petitioner has set out inparagraphs (a) to (h) the inferencesdrawn by him or the purport according tohim. This apart, the main deficiencyarises in the following manner. Theessence of the charge is that this bookcontaining alleged objectionable materialwas distributed with the consent of therespondent. Even so strangely enougheven a bare or bald averment is not madeas to :

i whom the returned candidate gaveconsent;

ii in what manner and how; andiii. when and in whose presence the

consent was given,

to distribute these books in theconstituency. Nor does it contain anymaterial particulars as to in whichlocality it was distributed or to whom itwas distributed, or on what date it wasdistributed. Nor are any facts mentionedwhich taken at their face value wouldshow that there was consent on the part ofthe returned candidate. Under thecircumstances it is difficult tocomprehend how exception can be takento the view taken by the High Court."

26. A three judge bench of the ApexCourt in the case of Subhash Desai vsSharad J Rao (1994 Supp (2) SupremeCourt Cases 446 ) while considering theimport of Section 86 vis a vis Section 83


of the Act after relying upon the decisionin Azhar Hussain's Case, has held that :

" Section 86 vests power in the HighCourt to dismiss an election petitionwhich has not been properly presented asrequired by Section 81; or where there hasbeen non-compliance of Section 82 i.e.non-joinder of the necessary parties to theelection petition; or for non-complianceof Section 117 i.e. non-deposit of therequired amount as security for the costsof the election petition. Section 86 doesnot contemplate dismissal of the electionpetition for non-compliance of therequirement of Section 83 of the Act. ButSection 83 enjoins that an electionpetition shall contain concise statement ofmaterial facts, and shall set forth fullparticulars of any corrupt practice that thepetitioner alleges, which should beverified and supported by affidavit, so farthe allegations of corrupt practices areconcerned. This provision is not onlyprocedural, but has an object behind it; sothat a person declared to have beenelected, is not dragged to court to defendand support the validity of his election, onallegations of corrupt practice which arenot precise and detail whereof have notbeen supported by a proper affidavit.Apart from that, unless the material factsand full particulars of the corruptpractices are set forth properly in theelection petition, the person whoseelection is challenged, is bound to beprejudiced in defending himself of thecharges, which have been leveled againsthim. In view of the repeatedpronouncements of this Court, that thecharge of corrupt practice is quasi-criminal in nature, the person challengingan election on the ground of corruptpractice, cannot take liberty of makingany vague or reckless allegation, without

taking the responsibility about thecorrectness thereof. Before the courtproceeds to investigate such allegations,the court must be satisfied, that thematerial facts have been stated along withthe full particulars of the corrupt practice,alleged by the petitioner, which have beenduly supported by an affidavit. In caseswhere the court finds that neither materialfacts have been stated, nor full particularsof the corrupt practice, as required bySection 83, have been furnished in theelection petition, the election petition canbe dismissed, not under Section 86 butunder the provisions of the Code of CivilProcedure, which are applicable read withSection 83(1) of the Act, saying that itdoes not disclose a cause of action...."

27. The aforesaid judgment in AzharHussain's case (supra) was againreiterated by the Apex Court in the case ofRam Sukh vs. Dinesh Aggarwal (2009(10) SCC 541) where it held that even if asingle material fact is not pleaded, thecause of action would be incomplete inthe following words in paragraph 20 :

"20. The issue was again dealt withby this Court in Azhar Hussain v. RajivGandhi. Referring to earlierpronouncements of this Court in SamantN. Balkrishna and Udhav Singh vs.Madhav Rao Scindia wherein it wasobserved that the omission of a singlematerial fact would lead to incompletecause of action and that an electionpetition without the material facts is notan election petition at all, the Bench inAzhar Hussain case held that all the factswhich are essential to clothe the petitionwith complete cause of action must bepleaded and omission of even a singlematerial fact would amount todisobedience of the mandate of Section


83(1)(a) of the Act and an electionpetition can be and must be dismissed if itsuffers from any such vice."

28. The principle enshrined in theabove decision can be crystallized assuch. The facts which constitute corruptpractice must be stated and should becorrelated to one of the heads mentionedu/s 123 of the Act. The omission of asingle material fact would lead to anincomplete cause of action and in thecontext of corrupt practice, all the basicfacts which constitutes it, must bedisclosed in the petition. In cases coveredby section.100(1)(b) read withS.123(1)(b) and (2) consent of thecandidate is of vital importance. This isnot a matter of better particulars but amaterial fact and as such indispensablepart of the cause of action. Betterparticulars may be furnished byamendment in the petition but not amaterial fact because, consent, in suchcases is the link to connect the candidatewith the action of another person whichmay amount to corrupt practice and leadtopenal consequences. In Azhar Hussain'scase(supra) the apex court has aptlypropounded the litmus test of ascertainingwhat are material facts which ought to bepleaded for stating a complete cause ofaction as " whether the court could havegiven a direct verdict in favour of theelection petitioner in case the returnedcandidate had not appeared to oppose theelection petition on the basis of the factspleaded in the petition."

29. Let us now consider theargument as to whether ''connivance' and''knowledge' are sufficient to draw apresumption of consent and whether thereturned candidate would be bound by theactions of his workers and party leaders. It

has been settled in large number ofdecision that the charge of corruptpractice is quasi criminal in nature andhas to be specifically pleaded and provedand no amount of evidence can cure adefective pleading.

30. The Apex Court in the case ofSamant N. Balakrishna vs. GeorgeFernandez & others (AIR 1969 SC 1201)has held that after the amendment to theAct, ''knowledge' or ''connivance' is notsufficient to infer consent, in thefollowing words in paragraph 50 of thejudgment :

"50. Now it may be stated that mereknowledge is not enough. Consent cannotbe inferred from knowledge alone. Mr.Jethamalani relied upon the Tauntoncase, (1869) I O' M & H 181 at p.185where Blackburn, J., said that one mustsee how much was being done for thecandidate and the candidate then musttake the good with the bad. There isdifficulty in accepting this contention.Formerly the Indian Election Lawmentioned 'knowledge and connivance'but now it insists on consent. Sincereference to the earlier phrase has beendropped it is reasonable to think that thelaw requires some concrete proof, director circumstantial of consent, and notmerely of knowledge and connivance. It issignificant that the drafters of the electionpetition use the phrase "knowledge andconnivance" and it is reasonable to thinkthat they consulted the old Act andmoulded the case round "knowledge andconnivance" and thought that wassufficient."

31. In Daulat Ram Chauhan vs.Anand Sharma (AIR 1984 SC 621) it hasfurther gone on to hold in paragraphs 18


and 19 that the consent should beexplicitly pleaded in the following words :

"18. We must remember that in orderto constitute corrupt practice, whichentails not only the dismissal of theelection petition but also other seriousconsequences like disbarring thecandidate concerned from contestingfuture election for a period of six years,the allegations must be very strongly andnarrowly construed to the very spirit andletter of the law. In other words, in orderto constitute corrupt practices thefollowing necessary particulars, statementof facts and essential ingredients must becontained in the pleadings :-

(1) Direct and detailed nature of thecorrupt practice as defined in the Act.

(2) Details of every importantparticular must be stated giving the timeplace, names of persons, use of words andexpressions, etc.

(3) It must clearly appear from theallegations that the corrupt practicesalleged were indulged in by (a) thecandidate himself (b) his authorisedelection agent or any other person withhis express or implied consent.

19. A person may, due to sympathyor on his own, support the candidature ofa particular candidate but unless a closeand direct nexus is proved between theact of the person and the consent given tohim by the candidate or his electionagent, the same would not amount to apleading of corrupt practice ascontemplated by law. It cannot be left totime, chance or conjecture for the court todraw an inference by adopting aninvolved process of reasoning. In fine, theallegation must be so clear and specificthat the inference of corrupt practice willirresistibly admit of no doubt or qualm."

32. In Charan Lal Sahu vs. GianiZail Singh (supra) it has gone on to holdthat "connivance" and "consent" are notone and the same thing in paras 30 and 31:

"30. It is contended by ShriShujatullah Khan who appears on behalfof the petitioners that connivance andconsent are one and the same thing andthere is no legal distinction between thetwo concepts...... The relevant questionfor consideration for the decision of theissue is whether there is any pleading inthe petition to the effect that the offence ofundue influence was committed with theconsent of the returned candidate.Admittedly, there is no pleading ofconsent. It is then no answer to say thatthe petitioners have pleaded connivanceand according to dictionaries connivancemeans consent. The plea of consent is onething: the fact that connivance meansconsent (assuming that it does) is quiteanother. It is not open to a petitioner inan election petition to plead in terms ofsynonyms. In these petitions, pleadingshave to be precise, specific andunambiguous so as to put the respondenton notice .The rule of pleadings that factsconstituting the cause of action must bespecifically pleaded is as fundamental asit is elementary. ''Connivance' may incertain situations amount to consent,which explains why the dictionaries give''consent' as one of the meanings of theword ''connivance'. But it is not true tosay that ''connivance' invariably andnecessarily means or amounts to consent,that is to say irrespective of the context ofthe given situation. The two cannot,therefore, be equated. Consent impliesthat parties are ad idem. Connivance doesnot necessarily imply that parties are ofone mind. They may or may not be,


depending upon the facts of the situation.That is why, in the absence of a pleadingthat the offence of undue influence wascommitted with the consent of thereturned candidate, one of the ingredientsof Section 18 (1) (a) remains unsatisfied.

31. The importance of a specificpleading in these matters can beappreciated only if it is realized that theabsence of a specific plea puts therespondent at a great disadvantage. Hemust know what case he has to meet. Hecannot be kept guessing whether thepetitioner means what he says,''connivance' here, or whether thepetitioner has used that expression asmeaning ''consent'. It is remarkable that intheir petition, the petitioners havefurnished no particulars of the allegedconsent, if what is meant by the use of theword connivance is consent. They cannotbe allowed to keep their options openuntil the trial and adduce such evidence ofconsent as seems convenient and comeshandy. That is the importance of precisionin pleadings, particularly in electionpetitions. Accordingly, it is impermissibleto substitute the word ''consent' for theword ''connivance' which occurs in thepleadings of the petitioners. "

33. In Ramakant Mayekar vs. CelineD'Silva (1996 (1) SCC 399) it has beenheld that action of a party leader ipsofacto cannot be said to have been takenwith the consent of the returnedcandidate. It has further been held thatthere can be no presumption in law withregard to consent in the following wordsin paragraph 32 :

"32. The requisite consent of thecandidate cannot be assumed merely fromthe fact that the candidate belongs to the

same political party of which thewrongdoer was a leader since there canbe no presumption in law that there isconsent of every candidate of the politicalparty for every act done by everyacknowledged leader of that party. Thecorrupt practice for which a candidatecan be held vicariously guilty for an act ofany other person who is not his agent inwhose favour general authority ispresumed, must be pleaded and proved tobe with the consent of the candidate.Obviously, it is so because the penalconsequences resulting from the findingof a corrupt practice against thecandidate are visited on the candidateincluding the setting aside of his election.The High Court assumed for the purposeof pleading as well as proof that nospecific pleading or proof of consent ofthe candidate was necessary if the act wasattributed to any leader or even a memberof the same political party...."

34. In the background of theprinciples enumerated above, let us nowexamine the grounds of challenge and thepleadings in its support.

35. Though three grounds have beenmentioned in the petition, but the onlysubstantial ground relates to corruptpractices, which have been raised by thepetitioner for challenging the election.According to the petitioner the allegationsof corrupt practices have been mentionedfrom paragraphs 8 to 12 in the petitionand discloses the eight incidents to showhow and at whose instance, the petitionerwas prevented from filing his nominationpapers. Let us examine the saidparagraphs after noticing them. (Theaverments have been quoted in verbatimwithout attempting to correct the apparentgrammatical errors or even where they


lack clear and unambiguouscomprehension) :

"8. On 04.06.2012, Petitioner wastraveling from Amethi to Kannauj by trainto file his nomination papers beforeRespondent No.2 for contesting theelection for the 42 ParliamentaryConstituency. At about at Manimohi justbefore the Kannauj Railway Station someunknown persons/passengers caught holdof the petitioner and snatched the a briefcase of the petitioner containing thedocuments related to the filing ofnomination papers. Petitioner visited theoffice of the Railway Protection Forceand Local Police station also to lodge thecomplaint GRP but both of them refusedto entertain the complaint of thepetitioner. Local police station deniedlodging the complaint on the pretext thatthe police force was busy with the event ofnomination of candidature by Smt.Dimple Yadav wife of sitting ChiefMinister of U.P.

9. Petitioner visited the office of theRailway Protection Force and LocalPolice station to lodge the complaint GRPbut both of them refused to entertain thecomplaint of the petitioner. Local policestation denied to lodge the complaint onthe pretext that the police force was busywith the event of nomination ofcandidature by Smt. Dimple Yadav, thewife of sitting Chief Minister of U.P.

10. Since petitioner had to file thenomination for contesting the Electionpetitioner chooses not to pursue thecomplaint anymore and concentrate hisall effort and energy on filing of theNomination Papers as last date of filingwas next day on 06.06.2012".

36. In the three paragraphs hemerely says that his brief case containing

papers was snatched by unknownpassengers/persons on 4th June nearKannauj railway station on the train andthough he went to the GRP and RPF theydid not register his complaint on thepretext that they were busy in thenomination of respondent no 1. There isabsolutely no corrupt practice alleged oreven hinted. Appears to be a pure law andorder situation and has nothing to do withthe cause of action required to file anelection petition under the Act.

"11. On 05.06.2012, after preparingfresh set of papers, petitioner at about 2pm reached the office of DistrictMagistrate Kannauj who was also theReturning Officer to file his nominationpaper for contesting the election for the42 Kannauj Parliamentary Constituency.Respondent no.2 without giving anyexplanation refused to accept thenomination paper of the petitioner. At5:41 PM a complaint against Ms. ShilvaKumari J, the DM of the Kannauj waslodged in the office of Chief ElectionCommission Nirvachan Sadan, AshokaRoad, New Delhi by email. Thereafter atabout 6.30 PM one S. Nawab SinghYadav a Samajwadi Party leader ofKannauj and Ex-Block Pramukh fromKannauj Sadar from his mobileNo.9415473092 called Sh. Arun KumarBaudh, the local resident and leader ofVPI athis mobile No.9794198252 andstated that VPI candidate S. PrabhatKumar Pandey should not file nominationfor contesting election against Smt.Dimple Yadav who has filed hernomination today. He also stated thatonly Smt. Dimple Yadav the wife of sittingChief Minister was entitled to representhis constituency in the Parliament,because her husband had recentlyvacated this seat to work as Chief


Minister of UP. It was stated that Sh.Akhilesh Yadav was representing theconstituency before and, therefore, it's notonly the will of Respondent No.1 but alsoof all the people of the constitution thatRespondent No.1 represent theConstituency. On 06.06.2012, around 7am Sh. Nawab Singh Yadav again madetelephone to Sh. Arun Kumar Baudh andthreatened to assault and kidnap thedaughters of Sh. Baudh, if petitioner thecandidate of his party dared to file thenomination papers against RespondentNo.1".

37. In this paragraph the petitionercites two incidents of 5th June, 2012. 1stinstance of filing the papers. Here also nocorrupt practice has been alleged againstthe respondent no 1, her election agent oranybody with her consent, except that hisnomination was refused to be acceptedwithout any reason. There is neither anyallegation that the refusal of nominationpapers by the Returning Officer was theresult of undue influence, direction,consent or even knowledge of respondentno 1 or her election agent. The allegationsas they stand can only give a cause ofaction against the respondent no2 forother action under the Act but not forchallenging the election through anelection petition under the Act.

38. 2nd instance of the phone call byNawab Singh. Here also there is noallegation of any corrupt practice ofundue influence. It is a call by NawabSingh Yadav to Arun Kumar Baudh butthere is no threat or intimidation pleaded,there is no assertion that the petitionershould not be allowed to file hisnomination papers. It is only acommunication of a fact between the two.The court fails to comprehend how this

assertion, without anything more, createsany cause of action to enable thepetitioner to file this petition on thisground. It is not only vexatious but totalabuse of the process of law.

"12. On 06.06.2012, around 7 am Sh.Nawab Singh Yadav again madetelephone to Sh. Arun Kumar Baudh andthreatened to assault and kidnap thedaughters of Sh. Baudh, if petitioner, thecandidate of his party dared to file thenomination papers against RespondentNo.1. Petitioner at about 10 am alongwith his proposers again made efforts tofile nomination paper so as to contestelection for the 42-ParlimamentaryConstituency of Kannauj but he wasmanhandled and stopped from filing thenomination papers, party worker ofRespondent No.1 also torn two sets ofnomination papers and abducted twoworkers of ''VPI' with the aid and supportfrom the police and Civil Administration.Petitioner through an email narrated thewhole incident to the Chief ElectionCommissioner at 10:30 AM with regardto kidnapping of the two workers andtearing of the nomination papers by thesupport of Respondent No.1 Sh. BharatGhandi mentor of the VPI madetelephonic calls to the Personal Secretaryof Chief Election Commissioner of Indiaand Sh. Umesh Sharma, Chief Election incharge of the State of Uttar Pradesh at11:37 am and 02:44 pm with regard to anirregularity and corrupt practicescommitted by Supporters of RespondentNo.1 and officers of Respondent No.2 andwith regard to undue influence of theRespondent No.1. Both of them gave oralassurance of providing security to thePetitioner but no security was everprovided to Petitioner. Smt. AnguriDharia, an active member of VPI was


demonstrating against the irregularitiescommitted by Respondent No.1 andRespondent No.2 and restrainingPetitioner from filing nomination forcontesting election for the 42-KannaujParliamentary Constituency alongwithother 500 workers of the VPI, when atabout 12.30 she was approached byManta Kanaujia a Samajwadi Partyleader and was told to take to someperson on her mobile phone havingno.9415483403 who was Sh. NawabSingh Yadav on his mobileNo.9415473092. Sh. Nawab Singh invitedSmt. Dharia to discuss the issue withRespondent No.1 and in lieu of that shewould be granted any benefit of herchoice. On not been convinced he statedthat Respondent No.2 and Policeadministration was working on dictates ofRespondent No.1 to pave her path for un-opposed victory in the election andtherefore, she should not waste her timein demonstration. She was told that anymedia or TV Channels would not coverthe demonstration and the agitation of theVPI as they had already been managedand taken care of and this will broadcastthe contents which will be issued by theLucknow State Office of the SamajwadiParty. Therefore, her demonstration wasworthless and she would not find a singlenews item in print and electronic media ofgroup kidnapping. He further threatenedto assault the family members of Smt.Dharia too if she would not stop thedemonstration. In that view of the matterand the inability to file the nominationand exercise the electoral rights vested inthe petitioner, the petitioner soonthereafter the Chief ElectionCommissioner assured the petitioner thathis nomination papers will be dulyaccepted. At about 1 pm got theNomination Papers containing 21 pages

were faxed and sent by Registered Post tothe Election Commission of India, HeadOffice in New Delhi. Relying on theassurance given by the Chief ElectionCommissioner, the petitioner PrabhatPandey called upon Respondent no.2 onCUG no.9454417555. Respondent No.2directed petitioner to come at 1:30 pm tofile the nomination and assured that ofadequate security arrangement would bemade to enable him to file the nominationpapers. However, when at about 1.30 pmpetitioner reached the office of theRespondent No.2, workers and her agentsabducted him at gunpoint and detainedhim at about 1.45 pm. Petitioner wasbrought to a room where many otherpersons who also keen in contesting theelection and were abducted were kept. At7.30 am. Petitioner was released from theillegal detention in the nearby jungle ofKannauj. A true copy of the nominationpapers, complaint and other documentsare collectively filed as Annexure No.IIIto the election petition".

39. Paragraph 12 cites 5 instances of6thJune, 2012. 1st with regard to the callby Nawab Singh Yadav to Arun KumarBaudh and the threat. It is not evenpleaded that the call was made by NawabSingh Yadav with the consent or evenknowledge of respondent no. 1 or herelection agent. Who informed thepetitioner about the call, what were theactual words used by Nawab Singn Yadavhave also not been disclosed.

40. 2nd incident is with regard tosnatching and tearing of the nominationpapers and abducting two supporters byparty workers of respondent no. 1 with theaid and support of Police and CivilAdministration. Here also there is noaverment that it was done with the


consent or even knowledge of therespondent no. 1 or her election agent.Even the names of the alleged partyworkers has not been disclosed. Neitherthe names of the police officers nor civilofficers has been disclosed who aided andsupported the party workers and in whatmanner did they extend support or help,has also not been disclosed.

41. 3rd incident is with regard toSmt. Anguri Dharia and the offer made toher by Nawab Singh Yadav. Again, it has notbeen disclosed who told the petitioner aboutit, whether offer was made with the consentof respondent no. 1 or her election agent hasalso not been alleged, leave alone thepleadings with regard to the exact words ofoffer. The allegation that respondent no. 2and the administration was working on thedictates of respondent no. 1 for unopposedvictory, is also highly vague. There is noteven an averment before whom, when and inwhat words the diktat was issued. This is avery serous charge not only upon a seniorofficer but casts an aspersion upon the entirelocal administration and therefore also fulldetails are imperative and it cannot be left tothe sweet will of the petitioner to supplydetails at his own leisure to take therespondent no. 1 by complete surprise. Thepetitioner upon a query from the court couldnot point out even from the annexures as towhether the said details are mentionedtherein.

42. 4th incident relates to the threatextended to Smt. Anguri Dharia. Again, itis not disclosed who informed thepetitioner about it, what were the exactwords and before whom it was extendedhas been suppressed.

43. 5th incident relates to abductionof the petitioner. Here also, the names of

the persons abducting the petitioner hasnot been disclosed, who held the gun andthe manner of abduction has also not beendisclosed. Further, whether it was done onthe direction or with the consent or evenknowledge of the respondent no 1 hasbeen suppressed.

44. It is evident from a perusal of thepetition that there is absolutely not even abald assertion that the respondent no.1 orher election agent had given her consentto any one for restraining the petitionerfrom filing his nomination papers.Further, even the details when the consentwas given and before whom it was givenhas not been disclosed. Simply put, itlacks complete cause of action as thematerial fact of consent is missing.Though ''Knowledge' and ''Connivance'are not the same thing, but even that hasnot been pleaded. Further, the action ofthe alleged party leaders or the workersalso cannot be attributed to the returnedcandidate without specific pleading onthat behalf.

45. Let us now examine theaffidavit. It would be appropriate to firstnotice the format as provided in Form 25in view of rule 94A of the Conduct ofElection Rules,1961.

FORM 25AFFIDAVIT

I ................. the petitioner in theaccompanying election petition calling inquestion the election of Shri/Smt. ...........(respondent No. ............. in the saidpetition) make solemn affirmation/oathand say-

(a) that the statements made inparagraphs ......... of the accompanyingelection petition about the commission of thecorrupt practice of* ...... and the particulars


of such corrupt practice mentioned inparagraphs ........... of the same petition andin paragraphs ................ of the Scheduleannexed thereto are true to my knowledge;

(b) that the statements made inparagraphs .......... of the said petition aboutthe commission of the corrupt practice of*............ and the particulars of such corruptpractice given in paragraphs ................ of thesaid petition and in paragraphs ....................of the Schedule annexed thereto are true tomy information;

(c)(d)etc. Signature of deponentSolemnly affirm by Shri/Smt. .............

before me ............... at .....................this............ day of .........20.............

Before the Magistrate of the firstclass/Notary/

Commissioner of Oaths}.* Here specify the name of the

corrupt practice}

46. Let us now examine the affidavitwhich has been filed with the petition.

"IN THE HIGH COURT OFJUDICATURE AT ALLAHABAD

AFFIDAVITIN

ELECTION PETITION NO. OF2012

(Under Section 80/81 ofRepresentation of the people Act, 1951)

(District: Kannauj)Prabhat Pandey ............ PetitionerversusDimple Yadav & another ............

Respondents

Affidavit of Prabhat Pandey agedabout 33 years, Son of Om PrakashPandey, Resident of Sarvanpur, Antu

Road, Amethi, CSM Nagar, UttarPradesh.

(Deponent)

I, the deponent abovenamed dohereby solemnly affirm and state on oathas under :-

1. That the deponent is the solepetitioner in the above Election Petitionand his religion is Hindu and is practisingAdvocate of High Court at Judicature atAllahabad, having EnrollmentNo.UP2633/05 and as such fullyacquainted with the facts, deposed tobelow.

2. That the contents of accompanyingaffidavit has been read over and explainto the deponent and the deponent hasunderstood the same.

I, the deponent above named dohereby verify that the contents ofparagraph nos. 1 to 2 and statement madein para no.1 to 35 of the election petitionare true to my personal knowledge.................. of this affidavit are based onperusal of records; the contents ofparagraph nos. ... of this affidavit arebased on legal advice; which all I believeto be true that no part of it is false andnothing material has been concealed in it.

So Help Me God.DEPONENT

I, Pradeep Verma, Advocate, HighCourt, Allahabad, do hereby declare thatthe person making this affidavit andalleging himself to be the deponent isknown to me from the perusal of papers;produced before me in this case.

(ADVOCATE)

Solemnly affirmed before me on this21st day of July, 2012 at about 11:00 a.m.


by the deponent who has been identifiedby the aforesaid person.

I have fully satisfied myself byexamining the deponent that heunderstood the contents of this affidavitand its annexure which have been readover and explained to him by me.

OATH COMMISSIONER."

47. We may first consider the lawwhich has been propounded and settled bythe Apex Court with regard to filing of anaffidavit as required by the proviso toSection 83 sub-clause (1) of the Act.

48. The Apex Court was consideringthe effect of non filing of affidavit asrequired by the proviso to Section 83(1)of the Act in the case of allegation ofcorrupt practice under Section 123 of theAct, in the case of Ravinder Singh vs.Janmeja Singh (2000 (8) SCC 191) and atwo Judge Bench held to the followingeffect :

"9. Coming now to the charge ofcorrupt practice falling under Section123(1) of the Act, for which material factsand particulars have been detailed inparas 28 to 39 of the election petition, wefind that those allegations could not beput to trial either. There is no affidavitfiled in support of the allegations ofcorrupt practice of bribery.

10. Proviso to Section 83 (1) of theAct lays down, in mandatory terms thatwhere an election petitioner alleges anycorrupt practice, the election petitionshall also be accompanied by an affidavit,in the prescribed form, in support of theallegations of such practice and theparticulars thereof. The affidavit, whichhas been filed in support of the election

petition, does not at all deal with thecharge of bribery falling under Section123(1) of the Act. Leaving aside thequestions that the affidavit is not even inthe prescribed form- Form 25 of theConduct of Elections Rules, theallegations of corrupt practice made inthe election petition are not supported bythe otherwise defective affidavit either. Allthe names of the informants which havebeen given in the affidavit relate to thecorrupt practice under Section 123(4) ofthe affidavit in this respect is a verbatimreproduction of the verification clause ofthe election petition concerning corruptpractice under Section 123(4). No nameof any informant has been mentioned inrespect of the allegations of corruptpractice under Section 123(1) in theaffidavit. In the absence of the requisiteaffidavit filed in support of the allegationof corrupt practice under Section 123(1)of the Act, as detailed in the electionpetition, no issue could be raised for trial.

11. Section 83 of the Act ismandatory in character and requires notonly a concise statement of material factsand full particulars of the alleged corruptpractice, so as to present a full andcomplete picture of the action to bedetailed in the election petition but underthe proviso to Section 83(1) of the Act, theelection petition leveling a charge ofcorrupt practice is required, by law, to besupported by an affidavit in which theelection petitioner is obliged to disclosehis source of information in respect of thecommission of that corrupt practice. Thereason for this insistence is obvious. It isnecessary for an election petitioner tomake such a charge with fullresponsibility and to prevent any fishingand roving inquiry and save the returnedcandidate from being taken by surprise.


In the absence of proper affidavit, in theprescribed form, filed in support of thecorrupt practice of bribery, the allegationpertaining thereto, could not be put totrial - the defect being of a fatal nature."

49. In P.A.Mohammad Riyas Vs.M.K.Raghavan & others (2012 (V) SCC511), again a two judge bench of theApex Court was considering an appealagainst the order of the High Court, whichhad dismissed the election petition at thethreshold on the ground that thoughcorrupt practice was alleged in thepetition, but the affidavit to be filedalleging corrupt practice as required byclause (4) of Order VI Rule XV had notbeen filed, therefore, it did not disclose acomplete cause of action. Considering thearguments as to whether a separateaffidavit is required, it went on to hold inparagraph 44 to the following effect:

"44. In the present case, althoughallegations as to corrupt practices allegedto have been employed by the respondenthad been mentioned in the body of thepetition, the petition itself had not beenverified in the manner specified in Order6 Rule 15 of the Code of Civil Procedure.Sub-section (4) of Section 123 of the 1951defines "corrupt practice" and thepublication of various statements againstthe appellant which were not supportedby affidavit could not, therefore, havebeen taken into consideration by the HighCourt while considering the electionpetition. In the absence of properverification, it has to be accepted that theelection petition was incomplete as it didnot contain a complete cause of action."

50. It further repelled the argumentsthat though Section 83 of the Act is notmentioned in Section 86 of the Act, even

then incomplete cause of action wouldrelate to Section 81 of the Act and,therefore, the issue would be renderedunworthy of any trial in the followingwords :

"47. In our view, the objections takenby Mr. P. P. Rao must succeed, since inthe absence of proper verification ascontemplated in Section 83, it cannot besaid that the cause of action wascomplete. The consequences of Section 86of the 1951 Act came into playimmediately in view of sub-section (1)which relates to trial of election petitionsand provides that the High Court shalldismiss the election petition which doesnot comply with the provisions of Section81 or Section 82 or Section 117 of the1951 Act. Although Section 83 has notbeen mentioned in sub-section (1) ofSection 86, in the absence of properverification, it must be held that theprovisions of Section 81 had also not beenfulfilled and the cause of action for theelection petition remained incomplete.The petitioner had the opportunity ofcuring the defect, but it chose not to doso."

51. The correctness of the aforesaiddecision in P A Mohd Riyas' case (supra)with regard to filing of the secondaffidavit in terms of Order VI Rule XV(4)was called in question by another twojudge bench in G M Siddeshwar vsPrasanna Kumar ( 2013 (4) SCC 799).After noticing several of its decisions,including two Constitution Benchdecisions in Murarka Radhey Shyam RamKumar vs Roop Singh Rathore (AIR 1964SC 1545) Subbarao vs Election Tribunal(AIR 1964 1027) and a three judgedecision in G. Mallikarjunappa vsShamanur Shivshankarappa (2001 (4)


SCC 428, it referred the question to alarger bench.

52. On aforesaid reference, a threejudge bench in GM Siddehwar vsPrasanna Kumar (2013 (4) SCC 799),after considering large number ofdecisions, extracted the followingprinciple in paragraph 52 :

"52. The principles emerging fromthese decisions are that although non-compliance with the provisions of Section83 of the Act is a curable defect, yet theremust be substantial compliance with theprovisions thereof. However, if there istotal and complete non-compliance withthe provisions of Section 83 of the Act,then the petition cannot be described asan election petition and may be dismissedat the threshold." (emphasis supplied)

53. The election of the respondentno. 1 has been challenged on the groundof employing corrupt practice asmentioned in section 100(1)(b) of the Act.The charges are of using bribery asmentioned in section 123(1)(b) and ofundue influence under section 123(2) ofthe Act. The affidavit which has beenfiled along with the petition does not at alldeal with either the charge of bribery orundue influence, further it is not even inconformity with the prescribed format.The affidavit appears to be in terms ofOrder XVI Rule 15(4) CPC and cannotalso be said to be even a defectiveaffidavit which could be cured. A perusalof the Form 25 shows that the affidavitshould disclose the nature of the corruptpractice with its particulars. Even theannexures filed in support of the petitionare also to be sworn, but both therequirements are totally lacking. Aspecific objection was raised in the

written statement filed by the respondentno.1 with regard to total absence of theaffidavit as required by the proviso toSection 83(1) of the Act, but even then noeffort was made by the petitioner to file itor to even seek permission of the Court tofile the affidavit. Whether this total noncompliance could be cured at a later stageis not a question which falls forconsideration in this case, but it disclosesthe cavalier approach in making suchcharges but shunning the responsibility tostand by it. It has to be remembered, thatthe petitioner is not a layman but is apracticineg lawyer of this court

54. Applying, generally theprinciples propounded in the abovementioned decisions, especially thoseextracted by the three judge decision in G MSiddeshwar's case (supra) and in AzharHussain' case (supra), five things areabsolutely clear: (a) Full material facts ofcorrupt practice are missing, especially thepivotal fact of consent; (b) there is total noncompliance of proviso to Section 83(1) andtherefore it is not as contemplated by Section81; © total lack of statement of completecause of action in violation of Order VII Rule11 (a) of CPC read with Section 83 of theAct; (d) merely because the returnedcandidate was the wife of the sitting ChiefMinister, it cannot be presumed that thealleged action of the Returning Officer andthe claimed action of her workers and partyleaders could be presumed to have beentaken with her consent, without there beingspecific, clear and unambiguous pleadings tothat effect and (e) even if the respondent hadnot appeared to oppose the petition, being ahalf baked petition, court could not havegiven the verdict in favour of the petitioner.

55. Therefore, there is not otheroption except to allow the two

3 All]. Smt. Payal Agarwal Vs. Vinay Kumar Agarwal 1211

applications and to dismiss the petition atthe threshold as if fails the test of statingcomplete cause of action.

56. However, in the circumstancesof the case, no order as to costs.



BEFORETHE HON'BLE MOHD. TAHIR, J.

Civil Misc. Transfer Application No. 19 of2014

Smt. Payal Agarwal l ApplicantVersus

Vinay Kumar Agarwal ...Opp. Party

Counsel for the Applicant:Sri Vaibhav Kaushik

Counsel for the Opp. Party:Sri Swetashwa Agarwal

Code of Civil Procedure Section-24-Transfer of divorce petition- pendingbefore Family Court Lucknow toMuzaffarnagar-High Court at Allahabad-no jurisdiction-except Lucknow Bench-held-instead of rejection-liberty to filebefore appropriate Bench-record oftransfer application-registry to sendbefore Lucknow Bench.

Case Law discussed:AIR 1976 SC 331; LAWS (All)-1997-12-59; AIR1988 All 48; AIR 1953 All 99.

(Delivered by Hon'ble Mohd. Tahir, J.)

1. Case called out. Counsels forboth the parties are present.

2. The applicant wife is seekingtransfer of Divorce Petition No.1631 of2013 (Vinay Kumar Agarwal vs. Smt.

Payal Agarwal), u/s 13 of Hindu MarriageAct, pending before the Principal Judge,Family Court, Lucknow to Muzaffarnagaron the ground of her convenience and thatcertain proceedings between the partiesare pending at Muzaffarnagar.

3. Heard learned counsels for boththe parties on the point of maintainabilityof this transfer application in this Court atAllahabad and perused the record.

4. Admittedly, the case sought to betransferred relates to district Lucknow.According to the ruling of the Hon'bleSupreme Court given in the case ofNasiruddin vs. State Transport AppellateTribunal, AIR 1976 SC 331 as well as theruling of the Allahabad High Court givenin the case of Jyotsan Dixit vs. CivilJudge, Khiri, reported in LAWS (All)-1997-12-59, this transfer application isnot maintainable in this Court atAllahabad but the same is maintainablebefore Lucknow Bench of AllahabadHigh Court. In the case of Sushma vs.Vikramaditya, AIR 1988 All 48 also inwhich the Division Bench ruling of thisCourt, namely, Nem Chand vs. The State,AIR 1953 All 99 has been referred to, ithas been held that a proceeding underSection 24 C.P.C. is to be initiated beforethe Bench within whose jurisdiction thesuit sought to be transferred, is pending.In the case of Nasiruddin (supra), it hasalso been held that if any case has beenmistakenly or inadvertently entertained atAllahabad, a direction should be made tothe High Court Office to transmit thepapers of the case to Lucknow instead ofreturning back the case for filing beforethe Judges at Lucknow.

5. Since the case at hand has beenentertained at Allahabad vide order dated


27.1.2014, so it will not be proper forreturning the same to the applicant forfiling it before Lucknow Bench. Underthese circumstances, this transferapplication is transferred to the LucknowBench with notice to both the learnedcounsel. Record be sent to the LucknowBench within two weeks and the same belisted subject to permission of the courtconcerned.

6. Registry is directed to takenecessary action for transferring this caseto Lucknow Bench.


CIVIL SIDEDATED: LUCKNOW 10.09.2014

BEFORETHE HON'BLE B. AMIT STHALEKAR, J.

Arbitration Application No. 34 of 2013

G K Traders Sole Proprietorship ApplicantVersus

UPPCL ...Opp. Party

Counsel for the Applicant:Sri Jaspreet Singh

Counsel for the Opp. Party:Sri M.P. Yadav

Arbitration and Reconciliation Act-1996-11(6)-Application for appointment ofarbitrator-on ground award given byarbitrator-set-a-side by District Judge andremanded for fresh consideration-argumentthat remand without appointment ofarbitration-hence present application-inabsence of pleading about death ofprevious arbitrator-without opportunity ofcontradiction-can not be basis forappointment of new arbitrator-held-application not maintainable.

Held: Para-17

In the entire body of the applicationnowhere it has been stated that Shri R.D.Maheshwari has expired and thattherefore it was necessary to appoint anew Arbitrator. It is only in thechronology list of dates and events thatit has been stated that Shri R.D.Maheshwari had expired in themeantime. However, since this fact hasnot been categorically stated in theapplication under Section 11(6) of theAct, 1996 and does not appear to becorrect in view of the categorical denialof his death in paragraph 3 of thecounter affidavit and undenied by theapplicant, I do not find any illegality orinfirmity if the dispute has beenremanded to Shri R.D. Maheshwari toconsider afresh in the light of theobservations made by the District Judge.

Case Law discussed:(2006) 6 SCC 204; (2006) 10 SCC 763; (2012)7 SCC 71.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. This is an application filed undersection 11(6) of the Arbitration andConciliation Act, 1996 ( the Act, 1996)praying for appointment of an Arbitratorto resolve the dispute between theapplicant and the respondent.

2. Briefly stated the facts of the caseare that tenders were invited for sale of 15.6Megawatt Power House at ChandausiDistrict Moradabad. The said power plantwas to be sold on "as is where is" basis. Theapplicant's bid was found to be the highestbid at Rs.2,21,56,000/-. The agreement wassigned between the applicant and therespondent on 18.5.1996 but thereafter somedispute arose between the parties with regardto implementation of the contract. Theapplicant submitted an application before theChairman/Managing Director of the U.P.Power Corporation Ltd. ( U.P. PCL) to

3 All]. G.K. Traders Sole Proprietorship Vs. UPPCL 1213

nominate an Arbitrator. TheChairman/Managing Director, U.P. PCL byhis letter dated 1.4.2002 appointed one ShriR.D. Maheshwari as the sole Arbitrator. ShriR.D. Maheshwari issued notices to theparties on 29.7.2002 calling upon them toappear before him on 16.8.2002. Thearbitration proceedings proceeded beforeShri R.D. Maheshwari and an award wasgiven on 27.5.2007 by which the claim of theapplicant as well as the counter claim of therespondent was rejected. Aggrieved theapplicant filed an application before theCourt of District Judge, Lucknow undersection 34 of the Act, 1996 being R.S. No.56 of 2007. The District Judge, Lucknow byhis judgment dated 20.4.2013 set aside theaward holding that the Arbitrator has ignoredvoluminous records and documents as wellas oral evidence in the form of differentletters issued by the Chief Engineer and itwas held that it was also the obligation of theArbitrator to refer to each and everysubstantive letter indicated by the parties insupport of their respective contentions. Thematter was referred to the Arbitrator with adirection to hear the learned counsel for theparties again and to pass award afresh bydisposing of issues and every issue supportedwith reasons within a period of four months.

3. On receipt of the judgment of theDistrict Judge, Lucknow, the applicant isstated to have approached theChairman/Managing Director, U.P. PCLrequesting him to appoint an Arbitrator tohear and decide the dispute in the light ofthe judgment passed by the District Judge,Lucknow. However, when no Arbitratorwas appointed the applicant had no optionbut to file the present application beforethis Court under Section 11(6) of the Act,1996.

4. I have heard Shri Jaspreet Singh,learned counsel for the applicant and Shri

M.P. Yadav, learned counsel for therespondent-U.P. PCL and perused thedocuments on record.

5. The principal submission of thelearned counsel for the applicant is thatonce the Arbitrator has given his award hehad become functus officio and thereforeon remand by the District Judge,Lucknow, the matter could not have beenreferred to or heard by the sameArbitrator and it was obligatory on thepart of the respondent-Corporation toappoint another Arbitrator who wouldhear the matter afresh and it was onlywhen the Chairman/Managing Director,U.P. PCL did not appoint an Arbitratorthat this application under Section 11(6)of the Act, 1996 had to be filed forintervention of the High Court inappointing an Arbitrator. In support of hissubmission, learned counsel for theapplicant has referred to the provisions ofSection 14 and 15 of the Act, 1996 and hesubmitted that the mandate of anArbitrator shall terminate if:

(a) he becomes de jure or de factounable to perform his function or for otherreasons fails to act without undue delay;and

(b) he withdraws from his office orthe parties agree to the termination of hismandate or as provided under Section 15of the Act the mandate of the Arbitratorshall terminate.

6. Shri Jaspreet Singh, learnedcounsel for the applicant further referredto the provisions of Section 32 of the Act,1996 and submitted that the arbitralproceedings shall be terminated by thefinal arbitral award or by order of theArbitral Tribunal under sub section (2)and further submits that the Arbitral


Tribunal shall issue an order for thetermination of the arbitral proceedings forthe reasons mentioned in sub Section (2)of Section 32 and in the sub Section (3) ofSection 32 the mandate of the ArbitralTribunal shall terminate with thetermination of the arbitral proceedings.

7. Shri M.P. Yadav, learned counselfor the respondent-U.P. PCL, on the otherhand, submitted that the provisions ofSections 14 and 15 and 32 of the Act, 1996would have no application to the facts of thepresent case inasmuch as the Act, 1996 itselfcame into force w.e.f. 22.8.1996 and sincethe agreement itself was entered intobetween the parties on 18.5.1996 thereforethe Act, 1996 would not apply and theparties would be governed by the provisionsof the Arbitration Act, 1940. He furthersubmitted that on receipt of notice from theapplicant to appoint an Arbitrator the matterwas considered and it was decided that it wasnot necessary to appoint an Arbitrator as theDistrict Judge, Lucknow had remanded thematter to the Arbitrator after setting aside hisaward and that Shri R.D. Maheshwari, thethen Arbitrator was still alive and had notexpired as wrongly stated in the applicationand that Shri R.D. Maheshwari was fullycompetent to hear the matter afresh.

8. In paragraph 3 of the counteraffidavit filed by the respondents it hasbeen stated that the Arbitrator had alreadybeen appointed and the matter had beenremanded to him and therefore there wasno need of appointment of anotherArbitrator.

9. To be able to appreciate thesubmissions made by the learned counselfor the applicant it would be necessary toreproduce here the provisions of Sections14, 15 and 32 of the Act, 1996:

"14. Failure or impossibility to act. -(1) The mandate of an arbitrator shallterminate if -

(a) he becomes de jure or de factounable to perform his functions or forother reasons fails to act without unduedelay; and

(b) he withdraws from his office orthe parties agree to the termination of hismandate.

(2)If a controversy remainsconcerning any of the grounds referred toin clause (a) of sub-section (1), a partymay, unless otherwise agreed by theparties, apply to the Court to decide onthe termination of the mandate.

(3)If, under this section or sub-section (3) of section 13, an arbitratorwithdraws from his office or a partyagrees to the termination of the mandateof an arbitrator, it shall not implyacceptance of the validity of any groundreferred to in this section or sub-section(3) of section 12.

15. Termination of mandate andsubstitution of arbitrator. - (1) In additionto the circumstances referred to in section13 or section 14, the mandate of anarbitrator shal terminate-

(a) where he withdraws from officefor any reason; or

(b) by or pursuant to agreement ofthe parties.

(2) Where the mandate of anarbitrator terminates, a substitutearbitrator shall be appointed according tothe rules that were applicable to the

3 All]. G.K. Traders Sole Proprietorship Vs. UPPCL 1215

appointment of the arbitrator beingreplaced.

(3) Unless otherwise agreed by theparties, where an arbitrator is replacedunder sub-section (2), any hearingspreviously held may be repeated at thediscretion of the arbitral tribunal.

(4) Unless otherwise agreed by theparties, an order or ruling of the arbitraltribunal made prior to the replacement ofan arbitrator under this section shall notbe invalid solely because there has been achange in the composition of the arbitraltribunal.

32. Termination of proceedings.- (1)The arbitral proceedings shall beterminated by the final arbitral award orby an order of the arbitral tribunal undersub-section (2).

(2) The arbitral tribunal shall issue anorder for the termination of the arbitralproceedings where-

(a) the claimant withdraws his claim,unless the respondent objects to the orderand the arbitral tribunal recognises alegitimate interest on his part in obtaininga final settlement of the dispute,

(b) the parties agree on thetermination of the proceedings, or

(c) the arbitral tribunal finds that thecontinuation of the proceedings has forany other reason become unnecessary orimpossible.

(3) Subject to section 33 sub-section(4) of section 34, the mandate of thearbitral tribunal shall terminate with theterminaton of the arbitral proceedings."

10. Learned counsel for theapplicant submitted that since the

Arbitrator has already given his awardtherefore he became de jure unable toperform his function. He further referredto the provisions of Section 15 of the Actto submit that the mandate of theArbitrator had come to an end andtherefore on remand the dispute could nothave been referred to the same Arbitrator.He further referred to the provisions ofSection 32 of the Act to submit that themandate of the Arbitral Tribunal stoodterminated with the termination of thearbitral proceedings and therefore theArbitrator became functus officio andtherefore incompetent to hear the disputeafresh. Reliance has been placed on thefollowing judgments of the SupremeCourt:

1.(2006) 6 SCC 204 (YashwithConstructions (P) Ltd. Vs. SimplexConcrete Piles India Ltd. and another)

2.(2006) 10 SCC 763 (NationalHighways Authority of India and anotherVs. Bumihiway DDB Ltd. (JV) andothers;

3.(2012) 7 SCC 71 (ACC LimitedVs. Global Cements Limited)

11. In paragraph 4 of the judgmentin the case of Yashwith Construction(supra) the Supreme Court specificallyreferred to the provisions of Section 15 ofthe Act, 1996 and has observed that whenthe Arbitrator originally appointed interms of the arbitration agreementwithdrew for health reasons, theManaging Director, as authorizedoriginally by the arbitration agreement,promptly appointed a substitute arbitrator.The question therefore was whether in theabsence of power vested upon theManaging Director could the substituteArbitrator have been appointed. TheSupreme Court held that what Section


15(2) contemplates is the appointment ofa substitute Arbitrator or replacing of theArbitrator by another according to Rulesthat were applicable to the appointment ofthe original Arbitrator who was beingreplaced and held that there was no failureon the part of the party concerned as perthe arbitration agreement to fulfill hisobligation in terms of the Section 11 ofthe Act so as to attract the jurisdiction ofthe Chief Justice under Section 11(6) ofthe Act for appointing a substituteArbitrator. Section 11(6) of the Act hasapplication only when a party or theperson concerned had failed to act interms of the arbitration agreement.

12. In this case the Chief Justice of theHigh Court had declined to exercise hispower under section 11(5) read with Section15(2) of the Act, 1996 to appoint a substituteArbitrator and the appointment of thesubstitute Arbitrator by the ManagingDirector after the resignation of the firstArbitrator was found to be valid. In myopinion the said judgment has no applicationto the facts of the present case.

13. In National Highways (supra)the Supreme Court was again consideringthe provisions of Section 15(2) of the Actand on the facts of that case held that theHigh Court had failed to appreciate that inaccordance with Section 15(2) of the Acton termination of the mandate of thePresiding Arbitrator the two nominatedArbitrators were first required to arrive ata consensus and on their failure to arriveat a consensus only was the respondentno. 2 authorized to make the appointment.Unless respondent no. 2 failed to exerciseits jurisdiction, the High Court could notassume jurisdiction under section 11(6) ofthe Act. This judgment also does not help

to advance the submission of the learnedcounsel for the applicant.

14. In ACC Ltd. (supra) also theCourt was considering the provisions ofSections 14 and 15 of the Act, 1996particularly with regard to theappointment of a substitute Arbitrator andSupreme Court held that on theappointment of a substitute Arbitrator noapplication for appointment ofindependent Arbitrator under Section 11of the Act, 1996 could be filed. This casealso does not help the applicant.

15. The provisions of Sections 14,15 and 32 of the Act, 1996 speak oftermination of the mandate of theArbitrator where he becomes de jure or defacto unable to perform his function or forother reasons fails to act without unduedelay or withdraws from his office or theparties agree to termination of hismandate. In the present case theArbitrator has neither withdrawn from hisoffice nor has he avoided performance ofhis function de jure or de facto. All thathas happened is that he gave an awardwhich was set aside by the District Judgeand the matter was remanded to theArbitrator to consider the dispute afresh inthe light of the observations made by theDistrict Judge in his judgment. It is theclear stand of the respondents inparagraph 7 of their counter affidavit andnot denied by the applicant that thedispute has been referred to the Arbitratorfor decision on the points referred by theDistrict Judge and therefore there was noneed of appointment of an Arbitrator.

16. In paragraph 3 of the counteraffidavit it has also been stated that theearlier Arbitrator Shri R.D. Maheshwari is

3 All]. Rakesh Srivastava “Nyayik” Vs. State of U.P. & Anr. 1217

still alive and it has wrongly beenmentioned that he has expired.

17. In the entire body of theapplication nowhere it has been stated thatShri R.D. Maheshwari has expired andthat therefore it was necessary to appointa new Arbitrator. It is only in thechronology list of dates and events that ithas been stated that Shri R.D.Maheshwari had expired in the meantime.However, since this fact has not beencategorically stated in the applicationunder Section 11(6) of the Act, 1996 anddoes not appear to be correct in view ofthe categorical denial of his death inparagraph 3 of the counter affidavit andundenied by the applicant, I do not findany illegality or infirmity if the disputehas been remanded to Shri R.D.Maheshwari to consider afresh in the lightof the observations made by the DistrictJudge.

18. In this view of the matter, theapplication under section 11(6) of the Act,1996 is absolutely misconceived in law,devoid of merit and not maintainable andis accordingly rejected.


CRIMINAL SIDEDATED: ALLAHABAD 15.10.2014

BEFORETHE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Transfer Application No. 64of 2008

Rakesh Srivastava "Nyayik" ...ApplicantVersus

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

Counsel for the Petitioner:Sri Sanjay Srivastava, Sri S.I. Siddiqui,S.M.A Kazmi

Sri Saiful Islam Siddiqui, Tahira Kazmi, SriSyed Safdar Ali Kazmi

Counsel for the Respondents:A.G.A., Sri Manish Tewari, Sri AnkurTandon, Sri Ashwani Kumar Awasthi

Cr.P.C. Section 407- Transfer of SessionTrail Case from Varanasi to anotheradjoining district-on ground the applicantbeing social worker and author of booksubject to life of prisoners- explosure ofmafia, bureaucrats and politicians-safety ofapplicant in danger as per report confirmedby SSP-held-mere apprehension notenough-unless supported by samematerial-can not be grated on a fanciednotion of litigant-transfer not be allowed-but considering entire fact and with consentof both parties counsel-application allowedwith observation of expedition conclusionof Tail within 6 month-necessary followupdirections to jailor, SSP given.

Held: Para-15 & 1715. Mere allegations like substantialprejudice, non-availability of congenialatmosphere for a free trial cannot beheld the sole ground of transfer. Mereapprehension is not enough unless it issupported with some material. A party,either complainant or the accused shouldnot ordinarily be allowed to have theForum of his/her own choice. A transferapplicant cannot be allowed to makeunfounded charges. A transfer shouldnot be granted on a fancied notion of alitigant. Where the ground for transfer isnot substantiated and as such does notexist, the application for transfer shouldnot be allowed. It should not be allowedto help a litigant to choose a Bench of hisown choice.

17. Looking to the entire facts of thecase and also with consent of learnedcounsel appearing for parties, fortransfer of trial at Allahabad, in my view,it would be appropriate if the aforesaidSessions Trial is transferred to Allahabadwith appropriate direction for itsexpeditious adjudication and conclusion.


Case Law discussed:1999 (9) SCC 67

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri S.M.A.Kazmi, learnedSenior Advocate, assisted by Sri SaifulIslam Siddiqui, learned counsel for theapplicant, Sri Ankur Tandon, Advocate,holding brief of Sri Manish Tewari,learned counsel for opposite party no.2,learned A.G.A and perused the record.

2. This is an application underSection 407 Cr.P.C. filed by applicantseeking transfer of Session Trial No.201of 2007 (State Vs. Rakesh SrivastavaNyayik), pending in the Court of SpecialJudge, SC/ST Act, Varanasi to some otherdistrict on the ground that opposite partyno.2, complainant, is influential person inVaranasi and therefore, applicant hasseveral apprehension, which have beendetailed in the application.

3. In fact further proceeding of trialwas stayed by this Court in 2008 and forthe last six years and more, nothing hasproceeded in the matter.

4. Facts in brief as disclosed in theaffidavit accompanying transfer applicationare, that, the applicant is a social worker. Heis also author of the book on the subject ofLife of prisoners in U.P., titled as "JailApradh". A number of other facts have beenstated in respect of various other litigations inwhich the applicant is involved, which,according to him were for reform of socialsystem, exposure of mafia, bureaucrats andpoliticians' nexus etc, which in my view isnot necessary to be detailed so far as thistransfer application is concerned. Suffice it tomention that the applicant is a retired CustomOfficer. FIR was lodged on 27.05.1990 by

the applicant's father against one RajendraKumar Gaur who is alleged to be closestman of Awadhesh Rai, brother of respondentno.2. In the aforesaid matter, chargesheetwas filed and Sessions Trial No. 155 of 1991under Sections 452/307/504 IPC commencedin the Ciourt of 8th Additional SessionsJudge, Varanasi. It is said that the aforesaidreport caused reason of enmity betweenapplicant and his family vis a vis the familyof Awadhesh Rai, elder brother ofrespondent no.2 Ajay Rai.

5. Respondent no.2 lodged a reportagainst applicant, being Case Crime No.229 of 1991, under Sections147/148/149/302 IPC, at P.S. Chetganj on3.8.1991 reporting an incident of firing inwhich Awadhesh Rai, brother ofrespondent no.2 died. The applicant wasnamed as one of the accused therein alongwith Mukhtar Ansari, Kamlesh Singh,Bheem Singh and Abdul Kalam.

6. Police submitted chargesheetno.101 of 1991 dated 02.10.1991whereupon the Court took cognizance andtrial proceeded against applicant andothers. The applicant is being tried inSessions Trial No. 201 of 2007 underSections 147/148/149/302 IPC.

7. It is said that respondent no.2used to threat the applicant in Courtpremises to eliminate him. The applicantbrought this fact to the notice of Courtvide application dated 23.11.2007 and26.11.2007, whereupon trial court soughtreport from Senior Superintendent ofPolice, Varanasi (hereinafter referred to as"S.S.P.") vide order dated 07.12.2007.The report was submitted on 10.12.2007in which threat to safety of applicant wasconfirmed by S.S.P. and he clearly saidthat trial involves a notorious criminal


mafia and may go to the extent ofeliminating, even by taking recourse tohelp of unsocial elements. Herecommended that trial may be held atCentral Jail Varanasi, instead of Courtpremises. It is in these circumstances, thisapplication has been filed seeking transferof Sessions Trial No. 201 of 2007 to someother district from Varanasi.

8. At the initial stage, when thismatter was taken up by on 29.01.2008,notice was issued to respondent no.2 andlearned A.G.A. was also permitted to filecounter affidavit. The Court in themeantime, stayed further proceedings inthe aforesaid Sessions Trial until furtherorders. That is how trial has notproceeded at all for the last more than sixyears.

9. A Parcha has been filed by SriAshwini Kumar Awasthi and ManishTiwary Advocates on behalf of oppositeparty but no counter affidavit has beenfiled at all.

10. On behalf of the State respondentno.1, a counter affidavit through AdditionalGovernment Advocate has been filed statingthat the present application has been filedonly to linger trial and therefore, it should berejected. It is said that the applicant evenotherwise has no grievance and he canalways approach S.S.P. for redressal of hisgrievance.

11. When this matter was taken upfor hearing, learned counsel appearing forrespective parties did not seriouslydispute transfer of trial. Report of SSPwhich has been filed as Annexure 18 tothe application is self speaking andparagraphs no. 3 and 4 thereof may bereproduced as under:

^^3- mDr eqdnesa dhlquokbZ ,d dq[;kr ekfQ;k dsfo:) py jgh gSA og vius fo:)lk{; dks lekIr djus ds fy;sfdlh Hkh vlekftd rRo dklgkjk ysdj ?k`f.kr dk;Z djkldrk gSA

4- mDr fjiksVZ }kjkmijksDr eqdnesa dh lquokbZU;k;ky; ds ctk; lsUVªy tsy]okjk.klh esa djk;s tkus dkvuqjks/k fd;k x;k gSA**

"3. Hearing of the aforesaid case isgoing on against a notorious Mafia. Inorder to eliminate evidence against him,he can take resort to any vicious act withthe help of unsocial elements.

4. Through the aforesaid report, aprayer for conducting hearing of theaforesaid case at Central Jail, Varanasiinstead of Court, has been made."(Englishtranslation by Court)

12. The aforesaid report, facts andrecommendation contained in paras 3 and 4of the report of S.S.P., as noted above, showseriousness of the matter and degree of threatperception in the case in hand. This fact byitself is sufficient for this Court to passappropriate order so that trial must concludeexpeditiously and within reasonable time butwithout possibility of any untoward incident.In case like the present one, finaladjudication of the matter at the earliest is ofutmost importance. In the garb of transferapplication, trial in the matter of a heinouscrime can/should not be allowed to remainsuspended for a long time.

13. Power under Section 407Cr.P.C. can be exercised by this Courtwhere it is made to appear:


(a) that a fair and impartial inquiryor trial cannot be had in any CriminalCourt subordinate thereto, or

(b) that some question of law ofunusual difficulty is likely to arise, or

(c) that an order under this section isrequired by any provision of this Code, orwill tend to the general convenience of theparties or witnesses, or is expedient forthe ends of justice.

14. The Court, therefore, can act suomoto or when such an request comes fromCourt below or on an application made bya party concerned. The conditions, onwhich the power can be exercised underSection 407 Cr.P.C., are:

(i) fair and impartial inquiry or trialcannot be had;

(ii) some question of law of unusualdifficulty is likely to arise;

(iii)an order under Section 407Cr.P.C. is required by any provision ofCode of Criminal Procedure, i.e.,Cr.P.C.;

(iv) it will tend to the generalconvenience of the parties or witnesses;

(v) it is expedient for the ends ofjustice.

15. Mere allegations like substantialprejudice, non-availability of congenialatmosphere for a free trial cannot be heldthe sole ground of transfer. Mereapprehension is not enough unless it issupported with some material. A party,either complainant or the accused shouldnot ordinarily be allowed to have theForum of his/her own choice. A transferapplicant cannot be allowed to makeunfounded charges. A transfer should notbe granted on a fancied notion of a

litigant. Where the ground for transfer isnot substantiated and as such does notexist, the application for transfer shouldnot be allowed. It should not be allowedto help a litigant to choose a Bench of hisown choice.

16 In Vijay Pal and others Vs. Stateof Haryana and another 1999 (9) SCC 67,the Court said that in absence of anyjustified reason, it is not proper and legalto exercise power under Section 407Cr.P.C.

17. Looking to the entire facts of thecase and also with consent of learnedcounsel appearing for parties, for transferof trial at Allahabad, in my view, it wouldbe appropriate if the aforesaid SessionsTrial is transferred to Allahabad withappropriate direction for its expeditiousadjudication and conclusion.

18. The application is accordinglydisposed of. I direct that Sessions TrialNo. 201 of 2007 (State Vs. RakeshSrivastava Nyayik), pending in the Courtof Special Judge, SC/ST Act, Varanasishall stand transferred to a competentSessions Court at Allahabad. The trialcourt at Varanasi shall forthwith transmitrecord of the aforesaid trial to Allahabadand the District and Sessions Judge,Allahabad, after receiving record, shalleither hear the case himself or nominateany other Court of competent jurisdictionfor trial, expeditiously. The Court atAllahabad shall make endeavour toconclude trial within six months. In casethe Presiding Officer of Trial Court atAllahabad finds difficulty in completionof trial within six months, a progressreport, justifying extension of time shallbe submitted to this Court, before expiryof the period of six months, for


appropriate order. If any such report orapplication is submitted by Trial Court,the Registry shall place the same beforeCourt for appropriate order.

19. Before parting, this Court wouldlike to place on record another aspect, whichhas seriously disturbed it. It is evident fromthe record that earlier Sessions Trial No. 201of 2007 was proceeding against the applicantand other co-accused. However, the TrialCourt used to adjourn, noticing the messageconveyed to it by a co-accused or thecomplainant's witness that they shall notremain present in Court on that date and,therefore, the matter should be adjourned.Similarly on another date, again trial wasadjourned because the accused detained injail could not be produced by jail authorities.Two orders of Trial Court dated 19.12.2007and 08.01.2008 are on record as Annexure22 to the affidavit filed in support of transferapplication. It would be appropriate toreproduce orders dated 19.12.2007 and08.01.2008, passed by Trial Court, to see themanner, in which, Trial Court wasadjourning the case, as if it was workingunder the command of the accused orcomplainant. In fact the tone and tenor of theorder is sufficient to show otherwiseinfluence enjoyed by such persons. Theorders dated 19.12.2007 and 08.01.2008 readas under:

^^19-12-0746&[k] 47&[k] 48&[k] 49&[k] 50&[kvkt eqdnek izLrqr gqvkA vkt

vfHk;qDr eq[rkj vgen is'kh ij vfHkj{kkesa xkthiqj tsy ls ugha vk;saxsD;ksafd bl ckcr xkthiqj tsy v/kh{kd dki= Hkstk x;k gS tks i=koyh esa 50[klayXu gSa ! vfHk;qDrx.k jkds'k dqekjJhokLro] deys'k dh gktjh ekQh dhnj[okLrA is'k gksdj vkns'k gqvk fd vktds fy, Lohd`rA vkt vt; jk; xokg ds rjQ lsmuds vf/koDrk us izkFkZuk i= fn;k fd

os xSj ftyk x;s gSaA vkt mifLFkr ughajgsaxs] vr% vYi frfFk gsrq izkFkZukLohd`rA eqdnek fnukad 08-01-2008okLrs 'ks"k ftjg is'k gSA**

^^08-01-0851&[k] 52&[k] 53&[k]^vkt eqdnek izzLrqr gqvkA

vfHk;qDr jkds'k dqekj U;kf;d dh gktjhvkt muds vf/koDrk }kjk ekQ dh x;hAeqyfteku Hkhe flag o deys'k ftyk dkjkxkjxkthiqj ls ryc gksdj U;k;ky; esa is'k ughafd;s x;sA vfHk;qDr eq[rkj vgen ds ckjsesa ftyk dkjkxkj v/kh{kd xkthiqj ls i= dslkFk Nk;k izfr esfMdy Hksth x;h gS fdmudks is'kh ij Hkstuk laHko ugha gSD;ksafd chekj gSaA vkt vfHk;qDrx.k dsvf/koDrk mifLFkr gSaA vkt oknh vt; jk; dsvf/koDrk }kjk izkFkZuk i= izLrqr fd;k x;k fdos xSj ftyk ls okil ugha vk;s gSa vr% vYifrfFk okLrs - - - fu;r fd;k tk;A nj[kkLr,Mhthlh dksVZ }kjk lefiZr fd;k x;kA vr%Lohd`r fd;k x;kA i=koyh fnukad 22-01-2008 okLrs 'ks"k ftjg ihMCyw0 1 is'kgksA**"19-12-07

46 Kha, 47-Kha,48-Kha,49-Kha, 50Kha

Case was presented today. Todayaccused Mukhtar Ahmad in custody shall notappear before the Court from Ghazipur Jailbecause in this regard a letter of GhazipurJail Superintendent has been received whichis enclosed to file as Paper no. 50 Kha.Application of accused Rakesh KumarSrivastava and Kamlesh for exemption frompersonal appearance, presented and ordered-Allowed for today. On behalf of witnessAjay Rai, his counsel has given applicationthat he has gone outside the District and willnot remain present, therefore theadjournment application for a short period, isallowed. The case be placed on 08.01.2008for remaining cross examination.


"08.01.200851 Kha, 52-Kha,53 Kha

Case was presented today. Personalappearance of accused Rakesh Kumarexempted through counsel. AccusedBheem Singh and Kamlesh were notproduced in Court from District JailGhazipur. With respect to accusedMukhtar Ahmad, medical certificatealong with a letter has been sent by theSuperintendent, District Jail, Ghazipur,stating that it is not possible to presenthim in Court because he is ill. Counsel foraccused persons is present today. Anapplication has been moved by counselfor complainant Ajay Rai, praying that hehas not come back from outside thedistrict, hence the case may be fixed aftershort period..... Application moved inCourt by ADG (ADGC). Hence, allowed.File be put up on 22.01.2008 forremaining cross examination of PW-1."

20. This attitude of Presiding Officerof Trial Court, proceeding on the dictates ofeither accused or complainant, or on mereinaction on the part of jail authorities inproducing accused before it in their owndiscretion and command, deserves to becondemned and deprecated seriously. Itappears as if the Trial Court proceeded snailpace for convenience of the accused andothers and under their command. The twoorders placed on record do not show that itwas the Presiding Officer of Trial Court whowas commanding proceedings of his Court.Once trial starts, it is duty of Trial Court toproceed with trial on day to day basis andcomplete it without any unnecessary delay. Ifjail authorities, including Jail Superintendentand concerned police authorities are actingwith laxity, causing non-production ofaccused, detained in jail, on the date fixedbefore Trial Court, enough powers are

conferred upon Trial Court to takeappropriate action against such erringofficials but instead thereof, it has chosen tosimply adjourn the matter as if it is solelyhelpless. This Court could not understand asto why appropriate action against erringofficials of jail authorities was notrecommended by Trial Court to higherauthorities, besides taking judicial deterrentaction available under various statutes, byitself.

21. It is in these circumstances,taking cognizance of the manner, inwhich trials in certain criminal cases,where accused etc. are quite influential,resourceful and powerful personalities, donot proceed with due expedience, somedirections are required be issued. I orderaccordingly and as under:

(I)It shall be personal as well asofficial responsibility of jail authoritiesincluding Jail Superintendent/ Jailer asalso local police authorities to ensure thatall the accused are presented, without fail,in concerned Court(s) on the date fixedfor trial.

(II)In case any accused is not able togo to Court on account of medicalreason(s), a proper certificate issued byGovernment Medical Officer. Jail Doctor,duly countersigned by Chief MedicalOfficer concerned must be producedbefore the Court concerned. Inappropriate cases wherever Trial Courtfinds any reason for doubt or suspicion, itshall take appropriate steps forverification of such ground of non-production of accused in Court.

(III)In case there is any laxity orfailure on the part of authoritiesconcerned, Courts concerned shall takeimmediate deterrent action against erringofficer/officials. It will also be open to


them to make reference for contempt tothis Court under Contempt of Courts Act1971.

(IV)I also direct the Chief Secretary,Government of U.P., Lucknow, PrincipalSecretary, Home, Government of U.P.Lucknow, Director General of Police,

U.P., Lucknow and Additional DirectorGeneral (Prison), U.P., Lucknow to takeappropriate steps in this regard and issuenecessary directions to all the jailauthorities to ensure presence of allunder-trials before the Court(s) concernedon the date fixed for trial.

(V)Similarly, if any other witness orcomplainant is causing delay in trial,appropriate action must be taken againsthim/them also, in the same manner.

22. Registrar General is directed toserve a copy of this order to the ChiefSecretary, Government of U.P. Lucknow,Principal Secretary, Home, Governmentof U.P., Lucknow, Director General ofPolice, U.P., Lucknow, AdditionalDirector General (Prison) Government ofU.P., Lucknow for communicationforthwith. They shall also submitcompliance report after three months i.e.,20th January 2015.

23. Let a copy of this order becirculated to all the Judicial Officers inthe State of U.P. through concernedDistrict Judges for communication andcompliance.

--------APPELLATE JURISDICTION


BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE SHRI NARAYAN SHUKLA, J.

First Appeal from Order No. 83 of 2008

The United India Insurance Co. Ltd....Appellant

VersusSmt. Meera Devi & Ors. ..Claimants

Counsel for the Appellant:Sri Saral Srivastava

Counsel for the Claimants:Sri S.C. Kesarwani

Motor Vehicle Act, 1988 Section-2 (9)and 166- Owner of vehicle-driving TataSumo-died in accident-Tribunal-considering difination of 'Driver' as givenunder Section 2(9)-held owner beingbehind stearing is driver-awardedcompensation-appeal by Isnsurancecompany as no separate premium paid forowner-insurance company not liable-held-once the comprehensive insurance policyof vehicle there-Rs. 15/ extra paid tocover the driver-keeping in view ofdefination of Driver the owner-driving thevehicle being behind the stearing-coveresthe personal insurance of owner also-appeal dismissed.

Held: Para-14 & 1514. Section 2(9) of the Act defines driver,which in our view encompasses the owneralso to be the person who is behind thesteering wheel and driving the vehicle. Thecover note of the insurance policy in theinstant case includes the insured and anyother person, who is entitled to drive. Thewords used in the insurance policy are asunder:

"Persons or classes of persons entitled todriveAny person including insured:"

15. The premium of Rs.15/- was paid fordriver. Nothing has been indicated in theappeal nor has anything been addressedby the learned counsel for the appellantto the effect that personal insurance ofthe owner of the vehicle under thecomprehensive policy could invite adifferent premium other than that


premium paid for the driver. In theabsence of any such pleading, we are ofthe opinion, that the comprehensivepolicy in the instance case also coveredthe personal insurance of the owner ofthe vehicle.

Case Law discussed:2008 (2) T.A.C. 752 (S.C.); 2006 (9) SCC 174;2004 (5) SCC 385; 2000 (3) TAC 585.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The owner Sri Pravendra Singhwas driving his vehicle "Tata Sumo" andcollided with a tractor, on account ofwhich, he suffered injuries andsubsequently died. The dependants of thedeceased, Pravendra Singh, filed a claimapplication claiming compensation ofRs.22,36,768/-. The Tribunal gave anaward allowing the claim applicationawarding Rs.6,60,000/- along withinterest @ 6.5% per annum ascompensation to the claimants. TheInsurance Company of the vehicle TATASUMO, being aggrieved by the saidaward, has filed the present appeal underSection 173 of the Motor Vehicles Act(hereinafter referred to as the "Act").

2. Heard Sri Saral Srivastava, thelearned counsel for the appellant and SriS.C.Kesarwani, the learned counsel forthe claimants.

3. The learned counsel for theappellant has attacked the award on threegrounds, namely:-

1.That the deceased was the ownerand driving the vehicle and was notpersonally insured under the policy and,therefore, his dependants were not entitledfor any compensation. In support of hissubmission, the learned counsel placedreliance on a decision of the Supreme

Court in Oriental Insurance Company Ltd.vs. Rajni Devi and others, 2008 (2)T.A.C.752(S.C.) as well as the decision of theSupreme Court in New India AssuranceCompany Ltd.vs. Meera Bai and others,2006(9)SCC 174.

2.The claim application was filedunder Section 163-A of the Act showingan income of the deceased atRs.1,21,094/- which was more thanRs.40,000/- per annum and, therefore, theclaim application was not maintainable inview of the decision of the Supreme Courtin Deepal Girishbhai Soni and others vs.United India Insurance Co. Ltd., 2004 (5)SCC 385.

3.The compensation has beenawarded without any proof of income ofthe deceased being filed by the claimantsand, accordingly, notional income ofRs.15,000/- per annum could have beenawarded.

4. On the other hand, the learnedcounsel for the claimant contended that acomprehensive policy was taken of thevehicle in question, in which the deceasedwas also insured and, consequently, theInsurance Company was liable to pay thecompensation. In support of his contentionthe learned counsel placed reliance upon adecision in Chimaji Rao Shirke and anothervs. Oriental Fire and General InsuranceCompany Ltd., 2000 (3) TAC 585 whereinthe Supreme Court held, that the InsuranceCompany was liable to pay compensation tothe heirs on the death of the owner who wasdriving the vehicle.

5. The learned counsel furthersubmitted that necessary proof of the incomeof the deceased was filed before the Tribunalby way of filing the Income Tax return of thedeceased, which was duly considered andaccepted by the Tribunal and, therefore, the

3 All]. The United India Insurance Co. Ltd. Vs. Smt. Meera Devi & Ors. 1225

contention of the appellant that no proof ofincome of the deceased was filed, waspatently erroneous. It was also contendedthat initially the claim application was filedunder Section 163-A of the Act, but,subsequently, an amendment application wasfiled, which was allowed by the Tribunal byan order dated 6.8.2007 and thereafter theappeal was converted as having been filedunder Section 166 of the Act. The learnedcounsel contended that the contention of theappellant that the claim application was notmaintainable, was wholly erroneous andagainst the record.

6. Having heard the learned counsel forthe parties, we find that the claim applicationwas maintainable, inasmuch as, the claimapplication was converted from Section 163-A to Section 166 of the Act. Further, proof ofincome of the deceased was filed by filing theIncome Tax return of the deceased, which wasduly accepted. The contention of the appellanton these two issues is patently misconceivedand is rejected.

7. Admittedly, the owner wasdriving his own vehicle, when it met withan accident. The question is, whether theinsurance policy covered the personalinsurance of the owner or not. In thisregard the cover note and the insurancepolicy has been filed before the Tribunalas well as before this Court.

8. Upon its perusal, the Court finds thatthe policy was given in the name of theinsured Sri Pravendra Singh Yadav, who wasthe owner of the "Tata Sumo" and who diedin the accident. The insurance policyindicates that any person including theinsured was entitled to drive the vehicle.Under the heading "Liability" we find that apremium of Rs.15/- was paid towards "legalliability to paid driver as per Endt. IMT 19".

9. The question is, whether the word"driver" would include owner of thevehicle or not.

10. Section 2(9) of the MotorVehicles Act defines "driver" as under:

"2(9). "driver" includes, in relation toa motor vehicle which is drawn byanother motor vehicle, the person whoacts as a steersman of the drawn vehicle;"

11. A perusal of the aforesaidprovision indicates that any person, whois behind the steering wheel is a driverand, consequently, we are of the opinion,that the owner of the vehicle who isbehind the steering wheel of the vehiclewould also be a driver.

12. The learned counsel for theappellant has relied upon the decision ofRajni Devi (supra). We are of the opinion,that the said decision has no applicationas in that case a claim was made by theclaimants of the deceased/owner, on theground, that the policy covered thepersonal insurance. The Supreme Courtheld, that the premium paid under theheading "own damage" was to cover thedamage occurred to a vehicle and not forinjury to a person or the owner. TheSupreme Court held, that the owner of thevehicle can only claim compensationprovided the personal accident insurancehad been taken out, which in the said casehad not been done.

13. The Supreme Court, in MeeraBai's case(supra) held, that the insurancepolicy does not cover the risk to the driverof the vehicle in view of the insurancepolicy, which indicated liability to paiddriver and/or conductor and, in thatscenario, the Supreme Court held, that the


owner, who was driving the vehicle, wasnot covered under the policy. The saidcase in our humble view is distinguishablefor the following reasons.

14. Section 2(9) of the Act definesdriver, which in our view encompassesthe owner also to be the person who isbehind the steering wheel and driving thevehicle. The cover note of the insurancepolicy in the instant case includes theinsured and any other person, who isentitled to drive. The words used in theinsurance policy are as under:

"Persons or classes of personsentitled to driveAny person including insured:"

15. The premium of Rs.15/- was paidfor driver. Nothing has been indicated in theappeal nor has anything been addressed bythe learned counsel for the appellant to theeffect that personal insurance of the owner ofthe vehicle under the comprehensive policycould invite a different premium other thanthat premium paid for the driver. In theabsence of any such pleading, we are of theopinion, that the comprehensive policy in theinstance case also covered the personalinsurance of the owner of the vehicle.

16. Consequently, we do not findany error in the order of the Tribunal. Theappeal fails and is dismissed.

17. In the circumstances of the caseparties shall bear their own cost.



BEFORETHE HON'BLE ANIL KUMAR, J.

Civil Misc. Application No. 306325 of 2013

InSecond Appeal No. 344 of 2009

Smt. Ganga Devi ...AppellantVersus

Sri Bhagwan Dass & Ors. ...Respondents

Counsel for the Appellant:Sri Sankatha Rai, Sri Vinod Kumar Rai,Sri Vijay Kumar Rai, Sri Ashok Kumar Singh

Counsel for the Respondents:Sri Madhav Jain, Sri M. Jain, Sri MukeshKumar, Sri Nirvikar Gupta, Sri PrakashChandraC.P.C.- Order XXXXI Rule-27-AdditionalEvidence-Second Appeal-documentsought to filed-already rejected bylower Appellate Court-under challenge inSecond Appeal-unless the contingenciesof Rule 27 there-addition evidence cannot be allowed to fill up lacuna of case-rejected.

Held: Para-18Order 41 Rule 27 CPC is clearly not intendto allow a litigant who had beenunsuccessful in the lower court to patch upthe weak parts of his case and to fill up theomission in appeal. Additional evidence canbe admitted only where the Appellate courtrequires it, i.e. finds it needful, to enable itto pronounce judgment, or for any othersubstantial cause. In either case it must bethe court that requires it. The legitimateoccasion for the exercise of this discretion iswhen on an examination of the evidence asit stands, some inherent lacuna or defectbecomes apparent, not where a discovery ismade, outside the court, of fresh evidence,and an application is made to import it. Itmay well be that the defect, but therequirement must be the requirement of thecourt upon its appreciation of the evidenceas it stands (See. Arjan Vs. Kartar, 1951SCR 258, Parsotim Thakur and others Vs.Lal Mohan and others, AIR 1931 P.C. 143).

3 All]. The United India Insurance Co. Ltd. Vs. Smt. Meera Devi & Ors. 1227

Case Law discussed:A 1974 SC 2069; AIR 1995 ALL 70; 1951 SCR258; AIR 1931 P.C. 143.

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

1. Heard Sri Ashok Kumar Singh,learned counsel for the appellant, Shri

Madhav Jain, learned counsel for therespondents and perused the record.

2. The present application has beenmoved by the appellant under Order 41Rule 27 read with Section 151 C.P.C. in

order to bring the following additionalevidence on record :-

"The appellant application no.22C/1to 22 C/3 under order 41 rule 27 C.P.C.Purported to file additional evidenceannexing with the documents was rejectedby the learned VII Additional DistrictJudge vide order dated 2.2.2009 in firstappeal no.110 of 1994 on the ground thatthe document seeking to produce inadditional evidence are the photo copies.

The present supplementary affidavitand its annexure is being filed bydeponent to avoid the delay. The Hon'bleCourt may be pleased to the allow thesame in exercise the inherent power of thecourt in the interest of justice."

3. On the said application, an orderhas been passed on 26.09.2013. Therelevant portion of the same is quotedherein below :-

"The question whether the appellatecourt was justified in rejecting theapplication of appellant under Order 41Rule 27 CPC shall be considered at thetime of hearing of the appeal. Theapplication is rejected."

4. While pressing the application inquestion, learned counsel for the appellantsubmits that the original appellant/Smt.Ganga devi (now deceased) who wasilliterate lady and ignorant of the complicatedquestions of law and fact, therefore, same

documents/admissions of the respondentscould not be filed on record. When it came toher knowledge that Rsmesh Chand has filedWrit Petition No.1087 of 1987 (RameshChandra vs. Additional District Magistrate,Agra and others) before this Court, theappellant sent letter to the clerk of hiscounsel Shri R. N. Bhalla, Advocate toobtain the copy of aforesaid writ petition.

5. Thereafter, the photostat copy ofthe said writ petition was obtained andfrom perusal of paragraph no.2 of the saidwrit petition, it came to knowledge thatRamesh Chandra himself has admittedthat he and Smt. Ganga Devi (nowdeceased) were owner and londlord of thehouse in dispute in an application filedunder Section 16 of U.P. Act 13 of 1972against Munna Lal for release of theHouse No.24/106, Kazi Para, Agra. So,keeping in view the said facts, theappellant filed an application under Order41 Rule 27 (1) C.P.C. Supported by anaffidavit (registered as paper Nos.22-Cand 23-C) before the appellate court.

6. By means of order dated2.2.2009, the same has been rejected onthe ground that the document sought to bebrought on record, is a photostat copy, notadmissible under evidence. Further theappellate court while rejecting the saidapplication has also given a finding thatmatter is to be decided expeditiously asper the order passed by this Court dated18.4.1988 expeditiously.


7. During the pendency of the presentappeal, on behalf of the appellant, anapplication (C.M.A.No. 102352 of 2009) hasbeen moved under Order 41 Rule 27 (1)C.P.C. to bring the document on record inrespect to which an order dated 2.2.2009 hasbeen passed by the appellate court on anapplication moved under Order 41 Rule 27C.P.C.. After hearing learned counsel for theparties on 25.7.2014 the following order hasbeen passed :-

( C.M. Application No. 102352 of2009)

Heard Sri Ashok Kumar Singh,learned counsel for the appellant, SriPrakash Chandra, learned counsel for therespondents and perused the record.

In the present case , presentapplication under Order 41 Rule 27 CPChas been moved by defendant/ appellantin which this Court on 29.9.2013 haspassed the following orders:-

"Heard learned counsel for the partieson civil misc. application no. 102352 of 2009under Order 41, Rule 27 CPC.

Learned counsel for the appellantmoved this application to bring certaindocuments on record under Order 41Rule 27 CPC.

The main contention of the appellant isthat he also filed the same documents in theAppellate Court in First Appeal, which wasrejected by the Appellate Court.

The documents which the appellantwish to file here in this Appeal are also onrecord in First Appeal. Now the onlyquestion is whether trial court wasjustified in rejecting his application underOrder 41 Rule 27.

The question whether the appellate courtwas justified in rejecting the application ofappellant under Order 41 Rule 27 CPC shallbe considered at the time of hearing of theappeal. The application is rejected.

Since no application is pending, listthis appeal for hearing of the appeal inthe week commencing 21.10.2013."

After arguing at some length, learnedcounsel for the appellant prays that hedoes not want to press this application.

Learned Standing Counsel has noobjection to the above said prayer.

For the forgoing reasons, theapplication is rejected."

8. In view of the above said factualbackground, the present application(C.M.A.No.306325 of 2013) moved by himunder Order 41 Rule 27 C.P.C. has come upfor consideration and the same has beenpressed on behalf of the appellant as per thefacts stated herein above and mentioned inthe affidavit filed along with the applicationin question and on the basis of the same, it issubmitted that the same may be allowed.

9. After hearing learned counsel forparties in order to decide the controversyin question, it would be appropriate to gothrough the provisions of Order 41 Rule27(1) C.P.C. which reads as under:-

"Rule 27- Production of additionalevidence in Appellate Court-- (1) Theparties to an appeal shall not been titledto produce additional evidence, whetheroral or documentary, in the AppellateCourt, But if--

3 All]. Smt. Ganga Devi Vs. Sri Bhagwan Dass & Ors. 1229

(a) the Court from whose decree theappeal is preferred has refused to admitevidence which ought to have beenadmitted, or

[(aa) the party seeking to produceadditional evidence, establishes thatnotwithstanding the exercise of due diligence,such evidence was not within his knowledge orcould not, after the exercise of due diligence, beproduced by him at the time when the decreeappealed against was passed, or]

(b) the Appellate Court requires anydocument to be produced or any witnessto be examined to enable it to pronouncejudgment, or for any other substantialcause, the Appellate Court may allowsuch evidence or document to beproduced, or witness to be examined."

10. Under Sub-Rule (1) (a) anappellate court can direct additionalevidence to be recoded if the trial courthad improperly rejected to recordevidence which a party was prepared toproduce. (See Offl Liquidator vs.Raghava, A 1974 SC 2069). However, ifthe document was not tendered at the trial,Rule 27 (1) (a) does not apply coupledwith the fact that when no explanation isgiven why those documents were notproduced before the trial court, theycannot be received as additional evidence(See Raj Kishore Mishra v. MeenaMishra, AIR 1995 ALL 70). Moreover,the permission to produce additionalevidence cannot be given unless it isestablished that such evidence was notwithin the knowledge or could not beproduced after due diligence at the time ofpassing of decree.

11. Further on plain reading of Sub-rule (1)(aa) of Order 41 rule 27, the

position which emerges out is that whenapplication is made at a late stage to putin evidence res moviter ad notitiantpreventa, one of the primary duties of theapplicant is to show that it was owing tono want of diligence on his part that thematter/evidence was not discoveredbefore, so he was not able to file the samebefore the court below and if a appellantfalls to satisfy the said condition hisapplication to produce the same at abelated stage is liable to be rejected.

12. The party seeking to produceadditional evidence, whether oral ordocumentary additional evidence, is toestablish that notwithstanding to exerciseof due diligence, such evidence was notwithin his knowledge or could not, afterthe exercise of due diligence, suchevidence was not within his knowledge orcould not, after the exercise of duediligence, be produced by him at the timewhen the decree appealed against waspassed and in order to bring the additionalevidence on record, the appellant shouldestablish that he made application to getthe certified copies prior to the disposal ofthe suit, and they were not available andadjournment was refused by the Court.Where it is not stated that the trial courtrefused to admit the documents or that thedocuments were not available at the timeof trial, they cannot be admitted in theappellate court to fill up the gaps in theevidence or to better the case of theappellant.

13. Before a party is allowed toproduce additional evidence he has toestablish that the evidence was not inexistence, was not within his knowledgeor could not after the exercise of duediligence be produced by him at the time


when the decree appealed against waspassed.

14. Sub-Rule (1)(b) of Order 41Rule 27 CPC has two importantingredients, namely, (a) 'requires' (b) forany substantial justice' in order to invokethe said provision.

15. As per the said provision "therequirement" must be of the court and notof any party to the suit. When the court isof opinion that without fresh evidence itcannot pronounce judgment and performits functions, then and then only will it beallowed because requires means needs orfinds needful or that it is necessary fordoing real justice (substantial justice) andfor just decision of an appeal, theappellate Court has discretion to take suchdocuments on record.

16. Accordingly, , the true test iswhether the appellate court is able topronounce judgment on the materials beforeit, without taking into consideration theadditional evidence sought to be adduced.The mere discovery of fresh evidencesubsequent to the decision of the lowercourt is not a ground for its admission inappeal unless the appellate court requiresthat evidence to enable it to pronouncejudgment. So, additional evidence shouldnot be permitted at the appellate stage toenable a party to remove certain lacunaeand to fill in gaps. It should be proved thatthe evidence sought to be let in was notavailable at the trial. The rule does notauthorise admission of additional evidencefor the purpose of removal of lacunae andfilling in gaps in evidence.

17. Further, "any other substantialcause" need not be ejusdem generis withthe cause stated in the earlier part of the

rule and the words "or for any othersubstantial cause" must be read with theword "requires" which is set out at thecommencement of the provision, so that itis only where for any other substantialcause, the appellate court requiresadditional evidence.

18. Order 41 Rule 27 CPC is clearlynot intend to allow a litigant who hadbeen unsuccessful in the lower court topatch up the weak parts of his case and tofill up the omission in appeal. Additionalevidence can be admitted only where theAppellate court requires it, i.e. finds itneedful, to enable it to pronouncejudgment, or for any other substantialcause. In either case it must be the courtthat requires it. The legitimate occasionfor the exercise of this discretion is whenon an examination of the evidence as itstands, some inherent lacuna or defectbecomes apparent, not where a discoveryis made, outside the court, of freshevidence, and an application is made toimport it. It may well be that the defect,but the requirement must be therequirement of the court upon itsappreciation of the evidence as it stands(See. Arjan Vs. Kartar, 1951 SCR 258,Parsotim Thakur and others Vs. LalMohan and others, AIR 1931 P.C. 143).

19. In view of the above saiddiscussions and the facts as taken by theappellant in order to bring the additionalevidence as per the provisions of Order 41Rule 27 (1) C.P.C. , I do not find that onthe said facts, the application in questioncan be allowed as per the discussionsmade herein above and in regard toapplicability of the Order 41 Rule 27 (1)C.P.C., so the same is rejected.

3 All]. Smt. Ganga Devi Vs. Sri Bhagwan Dass & Ors. 1231

20. List the matter beforeappropriate Bench after three weeks.


CRIMINAL SIDEDATED: 31.10.2014

BEFORETHE HON'BLE RAKESH TIWARI, J.

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Crl. Misc. Application (Leave to Appeal)No. 400 of 2014

Neeraj Kumar Kanaujia ...ComplainantVersus

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

Counsel for the Complainant:

Sri Gulab Chandra

Counsel for the Respondents:A.G.A.

Cr.P.C. Section-372-Leave to appeal-against acquittal-on ground thedeceased made dying declaration beforehis death-assigning role of accused-under Section 27 of evidence Act-validu/s 32 of Evidence Act-held that dyingdeclaration recorded by constable ondictation of I.O.-No declaration in eye oflaw-blood sustained clothes neither sentfor forensic test not produced beforeTrail Court-material contradiction inprosecution witnesses-no independentwitness-examined-Trail Court notcommitted any illegality or infirmity-requires no interference by High Court-Appeal dismissed.

Held: Para-16The Apex Court in the case of Murlidharalias Gidda and others versus State ofKarnataka, 2014 (2) SCC (Crl.) 690 hasheld that if a dying declaration of theinjured was recorded by a Constable onthe dictation of I.O. it will not be a dyingdeclaration in the eye of law. Hence, in thefacts of this case it is established from thestatements of P.W.2 and P.W.4 thatinjured was not in a position to give hisstatement. The trial Court has therefore,rightly disbelieved the dying declaration ofthe deceased recorded by the I.O. It is alsosignificant to note that the blood stainedclothes of the deceased were neither sentfor forensic test nor the same wereproduced before the trial Court.

Case Law discussed:(2014) 5 SCC-509; SCC-2011 (7) page-295;SCC-2011 (2) page 490; Cr. L.J. 2006 page2618; AIR 1995 SC-2472; AIR 2004 SC 1920;1999 (2) SCC-126; 2014 (2) SCC (Crl.) 690.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri Gulab Chandra, learnedcounsel for the appellant, learned AGAfor the accused-respondents and perusedthe record.

2. In view of the judgment renderedin the case of Lekhraj versus State of U.P.and others (Criminal Misc. Applicationunder Section 372 Cr.P.C. ( Leave toAppeal) No. 6 of 2014 decided on 10thOctober, 2014, no leave to appeal isrequired for the victim to prefer an appealon the grounds mentioned in proviso toSection 372 Cr.P.C. as he has anindefeasible statutory right to file theappeal.

3. Criminal Appeal No. 400 of 2014under Section 372 Cr.P.C. has beenpreferred challenging the impugnedjudgment and order dated 20.9.2014passed by the Addl. Sessions Judge, CourtNo. 10, Allahabad in S.T. No. 757 of2011 (State Vs. Sunil Kumar Kaushik andanother along with connected S.T.No. 758of 2011, State versus Sunil KumarKaushik) acquitting the accused-respondents of the charges framed againstthem under Sections 302 read with


Section 34 IPC and Section 3/25 of theArms Act.

4. The facts of the case as are culledout from record are that on 23.11.2010 atabout 9.15 P.M. when complainant NeerajKumar Kannauji was returning on hismotorcycle along with his father RameshChandra Kannaujia after attending themarriage of daughter of his uncle atTransport Nagar, all of a sudden twopersons came on a motorcycle and the firewas made by the pillion rider. After firingthey fled away towards Karbala. Onhearing the sound of firearm shots thepeople began to run away due to fear. Thecomplainant brought his injured father toColvin Hospital from where he along withhis uncle and other persons was broughtto Jeevan Jyoti Hospital for treatment.Dying declaration of Ramesh ChandraKannaujia was recorded by the PoliceOfficer at that hospital. The appellant-complainant then lodged an FIR of theincident at P.S. Khuldabad, Allahabad onthe same day.

5. Pursuant to the report, case crimenos. 758 of 2011 and 77 of 2011 underSection 302 and Section 3/25 of the ArmsAct were registered on 24.11.2010 at00.10 A.M. at P.S.Khuldabad againstunknown persons. During theinvestigation, the names of the accusedpersons came to light. Accused SunilKumar Kaushik while on police remandpointed a recovery of 315 bore tamanchaand one blank cartridge used in themurder of Ramesh Chandra Kannaujia.After investigation, the I.O. submittedcharge sheet against the accused personsunder Sections 302 IPC and 3/25 of theArms Act.

6. The case on being committed tothe Court of Session, the charge underSection 302 read with Section 34 IPC wasframed against accused-respondents SunilKumar Kaushik and Tinku Kaushik and aseparate charge under Section 3/25 of theArms Act was framed against accusedSunil Kumar Kaushik, who denied thecharges and claimed trial.

7. In order to prove its case theprosecution examined eleven witnesses,namely, Neeraj Kumar Kannaujia (PW-1)Arjun Lal (PW-2), Dr. Santosh Kumar,Orthopedic Surgeon, T.B. Sapru Hospital,Allahabad (PW-3), S.O. Anjani KumarMishra (PW-4), Hajari Lal (PW-5), S.I.Ram Asre Mishra (PW-6) S.O. RajeshKumar (PW-7), Retired Dy. S.P. JitendraNath Pandey (PW-8), Head ConstableShyam Lal (PW-9), Surendra Singh,Inspector Food & Civil Supplies,Varanasi (PW-10) and Dr. S.K. Dubey(PW-11) whereas the accused persons intheir statements under Section 313Cr.P.C. denied the entire circumstancesappearing in story against them statingthat they have been falsely implicated inthis case. The accused-respondents alsoproduced five defence witnesses, namely,Raj Kumari Devi (DW-1), PradeepChaudhari (DW-2), Suresh Mahajan(DW-3), Sri Apoorva Vrat Pathak, Dy.Jailer, Central Jail, Naini, Allahabad(DW-4) and Devendra Kumar Pandey(DW-5) in support of their case.

8. The impugned judgment isassailed on the ground that from theevidence of Neeraj Kannaujia (PW-1) andArjun Kannaujia (PW-2) it is establishedthat the accused-respondents wereinimical with Ramesh Chandra Kannaujia(since deceased ) on account ofencroachment over the land of Dhobi

3 All]. Neeraj Kumar Kanaujia Vs. State of U.P. & Ors. 1233

Ghat which was motive for commissionof crime; that accused Sunil KumarKaushik on remand had himself pointedout recovery of tamancha of .315 borealong with a blank cartridge used in themurder of Ramesh Chandra Kannaujia;that recovery memo has also been provedby the concerned Police officer andwitnesses in the trial Court which itselfwas sufficient to convict the accused-respondents in view of Section 27 of theEvidence Act; that deceased made hisstatement soon prior to his death inhospital before the Police Officerassigning the role of committing themurder to accused Sunil Kumar Kaushikon account of enmity arising out ofencroachment over the land of DhobiGhat, which is valid under Section 32 ofthe Evidence Act but the trial Court hasnot considered these facts and evidenceon record while acquitting the accused-respondents. Learned counsel has placedreliance upon the judgment rendered inDharam Deo Yadav versus State of UttarPradesh, (2014) 5 SCC-509 in support ofthese contentions.

9. It is also submitted that NeerajKannaujia (PW-1) who was with hisfather Ramesh Chandra Kannaujia on23.11.2010 when murder was committedhad identified accused Sunil KumarKaushik before the Court. He also statedthe manner and involvement of theaccused in murder. It is stated that there isa clear, cogent and credit worthy evidenceon record explaining the injuries sustainedby the deceased which were illegallydiscarded by the trial Court on ground ofcontradictions in the statement ofwitnesses and medical evidence, thoughminor contradictions cannot be a groundof acquittal as has been held in the casesof Waman and others versus State of

Maharasthra, SCC-2011 (7) page-295,Ravindra Kumar Pal versus Republic ofIndia, SCC-2011 (2) page-490 and that asper the decision rendered in the case ofKishore Sindhi versus State ofMaharshtra, Cr.L.J. 2006 page 2618,Karnail Singh versus State of M.P., AIR1995 SC-2472, Dhanraj alias Shera andothers versus State of Punjab, AIR 2004SC 1920, Paras Yadav and others versusState of Bihar, 1999 (2) SCC-126.

10. On the basis of aforesaidjudgments Counsel has argued that anyirregularity in the investigation cannot bea ground for acquittal but the trial Courthas passed the impugned judgment ofacquittal taking into account theirregularities and omissions in theinvestigation. In so far as the dyingdeclaration is concerned, it is submittedthat it was not signed by the deceased orthe doctor; that it is well established lawthat the FIR is not a encyclopedia wherefacts to be mentioned but the trial Courthas discarded the prosecution storymerely because of non-mentioning of thename of accused-respondents in the FIRand that Ramesh Chandra Kannaujia(since deceased) was in a seriouscondition, hence could not have given anydeclaration in that state. Therefore, theentire facts and evidence available onrecord clearly go to show that there is astrong prosecution story with creditworthy evidence proving the prosecutioncase, hence the impugned judgment andorder of the trial Court based on illegaland perverse finding is liable to be setaside.

11. After considering the evidence,material on record and hearing counsel forthe parties, the trial Court acquitted theaccused-respondents vide impugned


judgment and order dated 20.9.2014holding that the prosecution has failed toprove its case beyond all reasonabledoubts.

12. On perusal of the impugnedjudgment of the trial Court, evidence aswell as the record it appears that theincident is said to have taken place on23.11.2010 at about 9.15 P.M. atChauphatka bridge whereas the reportwas lodged at P.S. Khuldabad on24.11.2010 at 00.10 A.M. against twounknown persons. Complainant NeerajKumar Kannaujia (PW-1) in his evidencehas stated that he had seen the assailantsfor the first time at Dhobi Ghat where heused to go off and on along with hisfather; that neither he nor his father werehaving any land in their name at DhobiGhat and that there was a dispute with theaccused persons, who wanted to grab theland of Ghobi Ghat on which accusedSunil Kumar Kaushik had madeencroachment and had started running ashop dealing in footwear. RameshChandra Kannaujia (since deceased) hadopposed this whereupon the accusedpersons had threatened him with direconsequences.

13. PW-1 has further stated in hisoral evidence that when his fathersustained bullet injuries he was in aconscious state and speaking but had nottold the names of the assailants to him orany other members of his family. He alsostated that he knew the names of theassailants from before. There is no reasongiven by him as to why he did notmention the names of the accused personsin the FIR if he knew them from before.

14. Similar is the statement of ArjunLal (PW-2) who is brother of the

deceased- Ramesh Chandra Kannaujia.He has stated in his evidence that whendeceased was got admitted in Colvinhospital he was speaking but neither henor any persons present there, hadenquired from the deceased as to who hadattacked and caused bullet injuries. It maybe pointed out here that if injured is in aconscious state and is aware of theassailants surrounded by his familymembers or well wishers as perprosecution story then he will certainlytell them the names of the assailants.Therefore, his statement of the witnessappears to be very unnatural

15. The dying declaration ofdeceased-Ramesh Chandra Kannaujia issaid to have been recorded by I.O. SriAnjani Kumar Mishra on 24.11.2010 at12.00 in the night. From the statement ofDr. S.K. Dubey, (PW-11) it appears thathe was kept on ventilator. He has statedthat the patient who is kept on ventilator,will not be in a position to speak. Doctortreating the injured at Jeevan JyotiHopsital has not given any certificate thathe was in a conscious state to givestatement. The Doctor could have alsorecorded the dying declaration of theinjured but he has not done so. Frompaper nos. (Ex.Ka-21 and Ex.Ka-22)issued by Dr. Ashok Kumar Srivastava ofJeevan Jyoti Hospital it appears that theinjured was not in a position to speak dueto tubes in his throat and mask ofventilator covering his face but was alsonot examined by the prosecution to provethat the injured was in a position to speak.Arjun Lal (PW-2) has stated that thedying declaration of his brother wasrecorded by the I.O. Sri Anjani KumarMishra (PW-4) in his evidence has statedthat on 24.11.2010 at 12.30 when hereached Jeevan Jyoti Hospital in the night

3 All]. Neeraj Kumar Kanaujia Vs. State of U.P. & Ors. 1235

he had to take permission from the Doctorfor going in the ICU room. He has alsostated that the dying declaration of injuredwas recorded by Munshi PurshottamPandey on his dictation in the hospital buthe was not examined by the prosecution.In this situation, the I.O. could have gothis dying declaration recorded by aMagistrate but it has not been done in theinstant case.

16. The Apex Court in the case ofMurlidhar alias Gidda and others versusState of Karnataka, 2014 (2) SCC (Crl.)690 has held that if a dying declaration ofthe injured was recorded by a Constableon the dictation of I.O. it will not be adying declaration in the eye of law.Hence, in the facts of this case it is

established from the statements of P.W.2and P.W.4 that injured was not in aposition to give his statement. The trialCourt has therefore, rightly disbelievedthe dying declaration of the deceasedrecorded by the I.O. It is also significantto note that the blood stained clothes ofthe deceased were neither sent forforensic test nor the same were producedbefore the trial Court.

17. Raj Kumari (DW-1) has stated inher evidence that accused Sunil KumarKaushik is the father-in-law of herdaughter. He along with his familymembers had come to attend the Tilakceremony of Ramu on 23.11.2010 at 7.00P.M. at Ashok Nagar. Dinner at Tilakceremony took place till 12.00 in the nightand that she saw accused Sunil KumarKaushik had not gone any where elseduring this period i.e. he had stayed thereduring the whole of the ceremony till12.00 midnight. Pradeep Chaudhari (DW-2) and Suresh Mahajan (DW-3) in theirstatements have stated that on 23.11.2010in the Tilak ceremony of Ramu Gautamson of Banshi Lal at Ashok Nagar theaccused persons were present and accusedSunil Kumar Kaushik had stayed thereduring the whole night. There is nothingin their statements which may indicatethat the accused persons were not presentin the Tilak ceremony, the night of23.11.2010 at between 8.00 to 9.30 P.M.

when the murder of Ramesh ChandraKannaujia was committed.

18. In so far as the recovery ofcountry made pistol from the possessionof accused Sunil Kumar Kaushik isconcerned, it has come in the evidence ofconstable Kalp Nath Singh (PW-7) thatthe colour of the country made pistol waswhite steel whereas S.I. Ram Asre Mishra(PW6) in his evidence has stated that thecolour of country made pistol was ironand not in steel colour. The rulings citedby the learned counsel for the appellantare not applicable to the facts andcircumstances of the present case and areclearly distinguishable.

19. From the above discussions, wefind that there are material contradictionsin the statements of prosecution witnessesand the medical evidence. No independentwitness has been examined by theprosecution.

20. In our considered opinion, thetrial Court has not committed anyillegality or infirmity in acquitting theaccused persons through the impugnedjudgment and order dated 20.9.2014,hence requires no interference by thisCourt.


21. For the reasons stated above, theCriminal Appeal lacks merit and isdismissed at the admission stage itself.




THE HON'BLE ASHOK PAL SINGH, J.

Special Appeal No. 445 of 2011

Bhuneshwar Rai ...AppellantVersus

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

Counsel for the Petitioner:Sri Anil Kumar Srivastava, Sri SwarnKumar Srivastava

Counsel for the Respondents:C.S.C.U.P. Civil Services Regulation-370-Pensionary benefit-deniel in garb ofRegulation 370-identical provision ofPunjab State government-quashed-affirmed by Hon'ble Supreme Court-further Hon'ble Supreme Court clarified-Regulation 370 to be read in the line ofjudgment of Apex Court-held-workcharge employee working for more than10 years continuously-entitled forpension benefit.

Held: Para-13For all these reasons the dispute in thepresent special appeal is no longer res-integra. The appellant has put in morethan 10 years regular service as workcharge employees w.e.f. 26.3.76 to30.4.2006, hence he is entitled to thebenefit of pension etc. in view of the lawstated above.

Case Law discussed:2010-Laws (SC)-2-40; (2010 (1) ADJ-329 (All)(LB); (2006 (1) ESC 611 (All)(DB); (2006 (6)ADJ-384 (DB).


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

2. The appellant has filed this intracourt appeal challenging the validity andcorrectness of the judgment and orderdated 3.3.2011 passed by the Writ Courtin Civil Misc. Writ Petition No. 43822 of2008, Bhuneshar Rai versus the State ofU.P. and others, whereby the aforesaidwrit petition had been dismissed.

3. Brief facts giving rise to theinstant appeal are that the appellant wasworking in work charge establishment asChaukidar/helper since 26.6.1976 andcontinued to work as such till 30.4.2006.The proceedings for regularization wasinitiated by the respondents in April,2006. The Executive Engineer issuedletter dated 18.4.2006 directing theappellant to produce the certificates ofeducational qualification etc. forconsidering his case for regularization on25.4.2006 so that formality could becompleted. He retired on attaining age ofsuperannuation on 30.4.2006.

4. It is contended that appellantought to have been regularized in April,2006 and that his entire services from26.6.1976 be counted for his pension andother retiral benefits.

5. In support of his aforesaidcontention, learned counsel for theappellant has relied upon the judgmentrendered by the Apex Court in the case ofPunjab State Electricity Board andanother versus Narata Singh, 2010-Laws(SC)-2-40, which has been relied upon bythe learned Single Judge of this Court inthe case of Mohd. Mustafa versus State of

3 All]. Bhuneshwar Rai Vs. The State of U.P. & Ors. 1237

U.P., (2010 (1) ADJ-329 (All)(LB).holding that where the petitioner has putin 23 years of service including 113months and 11 days i.e. 9 years 5 months& 11 days of regular service then denialof pension for not having completed 10years of regular service, was not proper.In that case, the Court directed therespondents to grant pensionary benefit tothe petitioner considering him to havecompleted 10 years of regular service andpay him regularly every month from thedate of retirement. The State of U.P.preferred an appeal against the aforesaidjudgment in re: Mohd. Mustafa versusState of U.P.(Special Appeal DefectiveNo. 254 of 2013), State of U.P. and othersversus Prem Chandra and others whereinthe Court relying upon the judgment ofthe Apex Court in Punjab ElectricityBoard (supra) vide its judgment dated13.5.2013 held that the provisions ofregulation 370 of the U.P. Civil ServiceRegulation have to be read down in linewith the judgment of the Apex Court.Aggrieved , the State of U.P. preferredSLP (Civil) No. CC 22271 of 2013, Stateof U.P. and others versus Prem Chandraand others before the Apex Court, whichwas dismissed vide judgment and orderdated 7.1.2014.

6. We may also refer to thejudgments rendered in the cases of Boardof Revenue and others versus PrasidhNarain Upadhyaya, (2006 (1) ESC-611(All) (DB) and Bansh Gopal versus Stateof U.P., (2006(6) ADJ-384 (DB).

7. Learned Standing counsel doesnot dispute this legal position butcontends that the appellant's case is notcovered by the Government Order dated1.7.89 which required that pension shallbe payable also to temporary employee

who have rendered at least 10 years ofregular service; that the appellant cannotbe said to have rendered 10 years regularservice since he was taken into regularservice from work-charge establishmentonly by order dated 12.10.1999 and heretired on 21.5.2005.

8. Before considering the case lawswe may reproduce the G.O. dated1.7.1989.

"vLFkk;h lsodksa gsrq isa'kujhykHk

mRrj izns'k ljdkjla0 lk& 3&1152@nl&915@89foRr ¼lkekU;½ vuqHkkx&3 y[kuÅ

fnukad% 1 tqykbZ 1989dk;kZyd&Kkifo"k;& vLFkk;h ljdkjh lsodksa dh

lsok fuo`Rr@eqR;q ij isa'kujh ykHkksadh vuqeU;rkA

mi;qZDr fo"k; ij v/kksgLrk{kjh dks;g dgus dk funsZ'k gqvk gS fd flfoylfoZl jsxqys'ku ds vuqPNsn 368 dhO;oLFkk ds vuqlkj jkT; ljdkj ds vUrxZrdh x;h lsok isa'ku gsrq rc rd vgZ ughekuh tkrh gS tc rd fd ljdkjh lsod fdlh inij LFkk;h u gks x;k gksA ljdkjh lsodksads ;Fkk le; LFkk;hdj.k fd;s tkus gsrq'kklu ds fo|eku vkns'kksa ds ckotwndqN ekeyksa esa izfdz;k lEcU/khvis{kk;s iwjh u gks ikus ds dkj.klEcfU/kr deZpkjh LFkk;h gq, fcuk ghvf/ko"kZrk ij lsokfuo`Rr gks tkrs gS ftllsmUgs isa'kuh; ykHk vuqeU; ugh gSA

2& mijksDrkuqlkj vLFkk;h jgrs gq,lsokfuo`Rr gks tkus ds dkj.k ljdkjhlsodks dks gksus okyh dfBukb;ksa dksnwj fd;s tkus dk iz'u dkQh le; ls 'kkluds fopkjk/khu jgk gS vkSj lE;d~fopkjksijkUr jkT;iky egksn; us lg"kZ ;gvkns'k iznku fd;s gS fd ,sls ljdkjhlsodks dh ftUgksusa de ls de 10 o"kZ


dh fu;fer lsok iw.kZ dj yh gks]vf/ko"kZrk ij lsok fuo`Rr gksus vFkokl{ke fpfdRlk izkf/kdkjh }kjk vkxs lsokdjus gsrq iw.kZr;k v{ke ?kksf"kr dj fn;stkus ij vf/ko"kZrk@v'kDrrk isa'ku lsokfuo`fRr xzsP;qVh rFkk ikfjokfjd isa'kumlh izdkj ,oa mUgh njksa ij ns; gksxhtSlk fd LFkk;h deZpkfj;ksa dks mUghifjfLFkfr;ksa esa laxr fu;eksa ds vUrxZrvuqeU; gksrh gSA

3& ;g O;oLFkk mu ekeyksa esaHkh ykxw gksxh tgkW vLFkk;h jgrsgq, 20 o"kZ dh lsok iw.kZ djus vFkok45 o"kZ dh vk;q iw.kZ djus] tks Hkhigys gks] ds mijkUr ewy fu;e 56 dsvUrxZr LosPN;k lsok fuo`Rr gksus dhvuqefr iznku dh x;h gksA

4& ;g vkns'k 1&6&89 ls ykxwekus tk;saxsA mDr fnukad ls iwoZvLFkk;h jgrs gq, vf/ko"kZrk@v'kDdrrkij vFkok LosPN;k lsokfuo`Rr gks pqds,sls deZpkfj;ksa ds ekeyksa es tksmDr fnukad dks thfor gks] laxrO;oLFkkvksa ds vUrxZr fey pqdhxzsP;qVh] ;fn dksbZ gks] dk dksbZiqujh{k.k ugh gksxhA ,sls ljdkjhlsodksa dks tks vLFkk;h jgrs gq,fnukad 1&6&89 ds iwoZ lsokfuo`Rrgks pqds Fks vkSj ftUgs mlds dkj.kdksbZ isa'ku vuqeU; ugh gqbZ Fkh]fnukad 1&6&89 ls lsokfuo`Rr ds iwoZlsokfuo`fRr deZpkfj;ksa ds ekeyksa esvkSlr ifjyfC/k;ksa dk vk'k; ml osru ls gStks mUgsa ewy osru 9 ¼21½ dsvUrxZr fey jgk Fkk rFkk 1&1&86vFkok mlds mijkUr ds ekeyksa esaifjyfC/k;ksa dk vk'k; ml osru ls gs tksewy fu;e 9 ¼21½ ¼1½ esa ifjHkkf"krgS fd 50 izfr'kr dh nj ls ml n'kk esaisa'ku vuqeU; gksxh tc lsokfuo`fRr dsiwoZ mUgksus 33 o"kZ dh vgZdkjhlsok iw.kZ dj yh gksA ;fn vgZdkjh lsok33 o"kZ ls de jgh gks rks isa'ku mlhvuqikr es de gks tk;sxhA bl izdkjvkxf.kr ,sls deZpkfj;ksa dh isa'kuks dh

tks fnukad 1&1&86 ds iwoZ lsokfuo`Rrgks pqds Fks foRr foHkkx }kjk fuxZr'kklukns'k la[;klk&4&1120@nl&37&301@1987fnukad 28&7&87 ds jsMh&jsdulZHkkx&1 ,oa Hkkx&2 tSlh fLFkfr gks dsvuqlkj 608 ewY; lwpdkad ds cjkcjeagxkbZ jkgr dk ykHk nsrs gq,iqujhf{kr dj fn;k tk;sxk vkSj fnukad1&6&89 ls iqujhf{kr /kujkf'k dk ykHkfn;k tk;xkA

5& bl dk;kZy; Kki ds vUrxZr isa'kudk fdlh ,sls deZpkjh dks jkf'kdj.kvuqcU/k ugh gksxk tks fnukad31&5&1974 vFkok mlds iwoZlsokfuo`Rr gqvk gksA ;fn bl dk;kZy;Kki ds vUrxZr fdlh ,sls deZpkjh dksisa'ku nh tk; tks 31&5&1974 ds mijkUrlsokfuo`Rr gqvk gks rks mls 1&6&89ds mijkUr vxyh tUe frfFk ds le; mldhvk;q ds le:i nj ij ewy isa'ku dh /kujkf'k ijjkf'kdj.k vuqeU; gksxk vkSj mldh isa'kuls de dh x;h /kujkf'k mldks okLrfodlsokfuo`Rr fnukad ls 15 o"kZ cknfjLVksj dj nh tk;sxhA

6& fnukad 1&8&1989 vFkok mldsckn lsokfuo`fRr@eqR;q ls ftu ekeyksaes mi;qZDr O;oLFkk dk ykHk fn;ktk;xk] muesa dkfeZd vuqHkkx&1 ds'kklukns'k la[;k 19&8&1980dkfeZd&1&fnukad 29&4&89 ds vUrxZrvkuqrksf"kd dk ykHk ns; ugh gksxkA

Hkonh;]fot; d`".k lDlsuk] ¼izeq[klfpo½"

9. We may now proceed to considerthe ratio laid in the judgments cited by thelearned counsel for the appellant whichhas not been disputed by the learnedStanding counsel.

10. In the case of Board of Revenue(supra) the respondent was appointed onthe post of Collection Peon in 1962 ontemporary basis and he was continued in

3 All]. Bhuneshwar Rai Vs. The State of U.P. & Ors. 1239

service till the date of his retirement in1999. In that case, it has been held by theCourt that even in cases where anemployee may not have worked as apermanent employee but had workedregular for more than 10 years, he isentitled for pension and other retiralbenefits in view of Fundamental Rules 56and Paras 361, 465 and 465-A ofRegulations. Mere fact that he was neitherconfirmed nor regularized in service wouldnot take away his right to get pension whichflows from law and also from period of morethan 10 years of continuous service whichcannot be ignored.

11. Similarly in the case of BanshGopal (supra) the appellant therein hadput in only six years of regular serviceand had not rendered 10 years of serviceregularly. Previously, the appellant wasengaged as Muster Roll employee in theestablishment and thereafter he was takenunder work-charge establishment. In thepresent case, the appellant was givenregular appointment as class IVemployee. After his superannuation it wascontended by the respondent that he had

in fact put in six years of regular serviceand not 10 years of regular service asrequired in G.O. dated 1.7.1989, hence hewas not granted pension.

12. Repelling this contention onconsideration of the case laws and variousprovisions dismissing the writ petition theCourt has held that in paragraph nos. 18to 21 of the judgment thus:-

" 18. The relevant rules for paymentof pension are contained in Civil ServicesRegulation. There is nothing inconsistentbetween Fundamental Rule 56 andRegulation 370 so as to not followRegulation 370. According to Regulation370, the services rendered by appellant inwork charge establishment does notqualify for purposes of pension.

19. The appellant's case is also notcovered by the Government Order dated1.7.89. The Government Order requiredthat pension shall be payable also totemporary employe who have rendered atleast 10 years of regular service. The

appellant cannot be said to have rendered10 years regular service since he wastaken into regular service from work-charge establishment only by order dated12.10.1999 and he retired on 31.5.2005.

20. An unreported judgment ofHon'ble Single Judge delivered on 22.2.2005in Civil Misc. Writ Petition No. 53568 of1999 (Shri Gangoo vs. Executive Engineer)is relied upon by the appellant also. Nodoubt there his Lordship allowed pension tothe writ petitioner on the basis of temporaryservice and the reading of the judgmentshows that his Lordship drew no distinctionbetween temporary service and work-chargeservice. To this extent, we are in respectful

disagreement with the opinion given by theHon'ble Single Judge.

21. The writ petitioner-appellantcannot in any manner be granted pensionon the basis of only six years of regularservice.

22. The appeal is dismissed."

13. For all these reasons the disputein the present special appeal is no longerres-integra. The appellant has put in morethan 10 years regular service as workcharge employees w.e.f. 26.3.76 to30.4.2006, hence he is entitled to thebenefit of pension etc. in view of the lawstated above.


14. Accordingly, the appeal isallowed and the impugned judgment andorder dated 3.3.2011 is quashed.



BEFORETHE HON'BLE RAJES KUMAR, J.

THE HON'BLE OM PRAKASH-VII, J.

First Appeal No. 447 of 2014Smt. Rekha Mishra & Anr. ...Appellants

VersusShiv Prasad Srivastava & Ors. Respondents

Counsel for the Appellants:Sri Sandeep Kumar Srivastava, Sri PranabKr. Ganguly

Counsel for the Respondents:Sri Anil Kr. Srivastava

C.P.C. Order VII Rule-11-read with SpecificRelief Act-34-Rejection of Plaint-suit fordeclaration without possession-held-notmaintainable-held Trail Court notcommitted any error-Appeal dismissed.

Held: Para-10We do not find any error in the impugnedorder. The relief sought in the plaint hasbeen referred hereinabove. The admittedfact is that the appellants were not inpossession of one of the shop on the groundfloor and the other on the first floor of thehouse in dispute, while the decree ofdeclaration was being sought to declare theappellants as the sole and exclusive ownersof the house no. 117/193/I, block, NavinNagar, Kanpur Nagar, without seeking therelief of possession of those portions of thehouse which were not in the possession ofthe appellants.

Case Law discussed:AIR 1993 SC 957; (2002) 7 SCC 559; (2003) 1SCC 557; (2005) 7 SCC 510; (1993) Suppl. 3 SC129; (2007) 14 SCC 535; (2013) 3 AWC (SC)

2213; AIR 1996 SC 642; (2005) 5 SCC 390: 2005(2) SCCD 838:2005(2) AWC 1599 (SC)

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

1. Heard Sri P.K. Ganguly, learnedcounsel for the appellants and Sri M.D.Singh Shekhar, learned Senior Advocate,appearing on behalf of the respondents.

2. This is an Appeal against the orderof the Civil Judge (Senior Division), KanpurNagar, dated 2nd August, 2014 by which theSuit no. 107/14, filed by the appellants, underOrder VII, Rule 11 of the Code of CivilProcedure (In short 'CPC'), has been rejectedon the ground that the suit for declarationwithout seeking the relief of possession is notmaintainable.

3. The appellants filed the Suit No.107 of 2014, seeking following reliefs:

"A) A decree for Declaration that theplaintiffs are the sole and exclusiveowners of the premises No. 117/193, I-block, Navin Nagar, Kanpur Nagar, fullydetailed and bounded below.

B) A decree for Permanent Injunctionrestraining the defendants, their agentsservants and assigns from causing anyinterference in the free ingress and egress bythe plaintiffs and from forcefullydispossessing the plaintiffs from the suitaccommodation viz ground floor portion,excluding one room on the front side ofpremises no. 117/193, I-block, Navin Nagar,Kakadeo, Kanpur, both fully detained at thefoot of the plaint, and from taking its illegalpossession till disposal of the suit.

C) Cost of the suit be passed infavour of the plaintiffs and against thedefendant.

D)Any other relief which this learnedcourt deems fit and proper in the

3 All]. Smt. Rekha Mishra & Anr. Shiv Prasad Srivastava & Ors. 1241

circumstances of the case may also bepassed in favour of the plaintiffs againstthe defendant."

4. It appears that the appellants alsomoved an application, under Order 39,Rule 1 of the CPC, seeking the interimrelief. The court below, after hearing boththe parties, granted interim injunction on15th April, 2014. It further appears thatthe respondent-defendants filed anapplication, under Order VII, Rule 11 ofthe CPC, with the prayer to reject theplaint as the suit is barred by theprovisions of Section 34 of the SpecificRelief Act. The respondent-defendantsalso filed FAFO No. 1512 of 2014 beforethis Court against the order dated 15thApril, 2014, passed by the Trial court,granting interim injunction. This Court,by the order dated 20th May, 2014, hasdirected the Trial court to dispose of theapplication, under Order VII, Rule 11 ofthe CPC pursuant to which presentimpugned order has been passed by theTrial court.

5. Learned counsel for the appellantssubmitted that in the house in dispute, therespondent-defendants are in possessionof one room on the ground floor and oneroom on the first floor. Rest portion of thehouse in dispute is in the possession of theappellants.

6. There is no dispute about this fact.The Trial court has rejected the suit on theground that in the suit, relief ofdeclaration, declaring the plaintiffs as thesole and exclusive owners of premises no.117/193, I-block, Navin Nagar, KanpurNagar, has been sought, though thedefendants are in possession of one of theroom on the ground floor and one of theroom on the first floor, but no relief has

been sought seeking possession of thesaid room on the ground floor and theother room on the first floor. Therefore,the suit is barred by Section 34 of theSpecific Relief Act. Reliance has beenplaced by the Trial court on the decisionsof the Apex Court in the case of VinayKrishna v. Keshav Chandra, reported inAIR 1993 SC 957 and the case reported inAIR 2002 SC 1499.

7. Learned counsel for the appellantssubmitted that no opportunity has beengiven to the appellants to amend theplaint. If the opportunity would have beenafforded to them, they would have wouldhave amended the plaint. The reliance isbeing placed on the decision of the ApexCourt in the case of Sampath Kumar v.Ayya Kannu and another, reported in(2002) 7 SCC 559. He further submittedthat under Order VII, Rule 11 of the CPC,the application, under Order VII, Rule 1 isto be decided on the basis of the avermentsmade in the plaint and not on the basis ofthe plea taken in the written statement. Tostrengthen his submission, learned counselplaced reliance on the decision of the ApexCourt in the case of Saleem Bhai and othersv. State of Maharashtra and others, reportedin (2003) 1 SCC 557. The submission isthat Order VII, Rule 11(d) applies only in asituation where the statement, as made inthe plaint, without any doubt or dispute,shows that the suit is barred by any law inforce. It does not apply in a case wheredisputed questions are involved. Reliance isbeing placed on a decision of the ApexCourt in the case of Popat and KotechaProperty v. State Bank of India StaffAssociation, reported in (2005) 7 SCC 510.

8. Learned counsel for therespondents submitted that it is apparentfrom the plaint that a decree for


declaration to declare the appellants as thesole and exclusive owners of house no.117/193, I-block, Navin Nagar, KanpurNagar, has been sought. Admittedly, oneof the shop on the ground floor and on thefirst floor are in possession of therespondents. Therefore, without seekingthe relief for possession of those portions,which are not in the possession of theappellants, suit for declaration is barredby Section 34 of the Specific Relief Actand proviso to Section 42. To buttress thesubmission, Reliance is being placed onthe decision of the Apex Court in the caseof Vinay Krishna v. Keshav Chandra,reported in (1993) Suppl. 3 SC 129. Hesubmitted that ample time was availableto the appellants to move the amendmentapplication to amend the relief, if they sodesired, but no such amendmentapplication has been moved. Therefore,the court below proceeded to decide thesuit on the basis of the admitted facts andthe averments made in the plaint. It issubmitted by Sri Shekhar that theappellants are not remedy-less, even afterdismissal of the present suit, it is open tothem to file a fresh suit as provided underOrder 7, Rule 13 of the CPC.

9. We have considered rivalsubmission and perused the record.

10. We do not find any error in theimpugned order. The relief sought in theplaint has been referred hereinabove. Theadmitted fact is that the appellants werenot in possession of one of the shop onthe ground floor and the other on the firstfloor of the house in dispute, while thedecree of declaration was being sought todeclare the appellants as the sole andexclusive owners of the house no.117/193/I, block, Navin Nagar, KanpurNagar, without seeking the relief of

possession of those portions of the housewhich were not in the possession of theappellants.

11. Section 34 of the Specific ReliefAct reads as follows:

34. Discretion of court as to declarationof status or right.-Any person entitled to anylegal character, or to any right as to anyproperty, may institute a suit against anyperson denying or interested to deny, his titleto such character or right, and the court mayin its discretion make therein a declarationthat he is so entitled, and the plaintiff neednot in such suit ask for any further relief:

Provided that no court shall makeany such declaration where the plaintiff,being able to seek further relief than amere declaration of title, omits to do so.

Explanation.--A trustee of property isa "person interested to deny" a littleadverse to the title of someone who is notin existence, and for whom, if in existence,he would be a trustee."

12. Section 34 is pari materia toSection 42 of the Specific Relief Act,1877 before the amendment.

13. In the case of Vinay Krishna v.Keshav Chandra (Supra), the Apex Courtcategorically held that if the plaintiff hadbeen in possession, then a suit of meredeclaration would be maintainable. TheApex Court in paragraph 14 of the saidjudgment held as follows:

"14- From the reading of the plaint it isclear that the specific case of the plaintiffJamuna Kunwar was that she was inexclusive possession of property bearing No.

3 All]. Smt. Rekha Mishra & Anr. Shiv Prasad Srivastava & Ors. 1243

52 as well. She thought that it was notnecessary to seek the additional relief ofpossession. However, in view of the writtenstatement of both the first and the seconddefendant raising the plea of bar underSection 42, the plaintiff ought to haveamended and prayed for the relief ofpossession also. Inasmuch as the plaintiff didnot choose to do so she took a risk. It is alsonow evident that she was not in exclusivepossession because admittedly KeshavChandra and Jagdish Chandra were inpossession. There was also other tenants inoccupation. In such an event the relief ofpossession ought to have been asked for. Thefailure to do so undoubtedly bars thediscretion of the Court in granting the decreefor declaration."

14. In the case of Mehar ChandraDas v. Lal Babu Siddiqui, reported in(2007) 14 SCC 535, the apex Court heldas follows:

"11. The appellant defendant,therefore, had been in possession of thesuit property. In that view of the matterthe respondent-plaintiffs could seek forfurther relief other than for a decree ofmere declaration of title.

12. The High Court, in our opinion,committed a manifest error in not relying thedecision of this Court in Vinay Krishna. Thesaid decision categorically lays down the lawthat if the plaintiff had been in possession,then a suit for mere declaration would bemaintainable; the logical corollary whereofwould be that if the plaintiff is not inpossession, a suit for mere declaration wouldnot be maintainable."

15. In a recent case, reported in(2013) 3 AWC (SC) 2213, Venkata Rajaand others v. Vidyane Doureradjaperumal(D) through Lrs and others, the ApexCourt held as follows:

"17. A mere declaratory decree remainsnon-executable in most cases generally.However, there is no prohibition upon a partyfrom seeking an amendment in the plaint toinclude the unsought relief, provided that it issaved by limitation. However, it is obligatoryon the part of the defendants to raise the issueat the earliest. (Vide : Prakash ChandKhurana etc. v. Harnam Singh and others,AIR 1973 SC 2065 and State of M.P. v.Mangilal Sharma, AIR 1998 SC 743).

In Muni Lal v. Oriental Fire andGeneral Insurance Co. Ltd. And another,AIR 1996 SC 642, this Court dealt withdeclaratory decree, and observed that "meredeclaration without consequential relief dosnot provide the needed relief in the suit; itwould be for the plaintiff to seek both reliefs.The omission thereof mandates the Court torefuse the grant of declaratory relief."

In Shakuntla Devi v. Kamla and others,(2005) 5 SCC 390 : 2005 (2) SCCD 838 :2005 (2) AWC 1599 (SC), this Court whiledealing with the issue held:

"..............a declaratory decreesimpliciter does not attain finality if it hasto be used for obtaining any future decreelike possession. In such cases, if suit forpossession based on an earlierdeclaratory decree is filed, it is open tothe defendant to establish that thedeclaratory decree on which the suit isbased is not a lawful decree."

18. In view of the above, it is evidentthat the suit filed by the appellants/plaintiffswas not maintainable, as they did not claimconsequential relief. The respondent nos. 3and 10 being admittedly in possession of the


suit property, the appellants/plaintiffs had tonecessarily claim the consequential relief ofpossession of the property . Such a plea wastaken by the respondents/defendants whilefiling the written statement. Theappellants/plaintiffs did not make anyattempt to amend the plaint at this stage, oreven at a later stage. The declaration soughtby the appellants/plaintiffs was not in thenature of a relief. A worshiper may seek thata decree between the two parties is notbinding on the deity, as mere declaration canprotect the interest of the deity. The reliefsought therein was for the benefit of theappellants/plaintiffs themselves.

As a consequence, the appeals lackmerit and, are accordingly dismissed.There is no order as to costs."

16. In view of the law laid down bythe Apex Court, we are of the view thatthe Trial court has not committed anyerror in rejecting the suit as barred bySection 34 of the Specific Relief Act.

17. The decisions cited by the learnedcounsel for the appellants, referredhereinabove, are not applicable to the presentcase and are of no help to the appellants. Theappellants are not remedy-less. It is open tothem to file a fresh suit, as provided underOrder VII, Rule 11 of the CPC.

18. In view of what has beendiscussed above, in the result, the Appeal,being devoid of merits, fails and isdismissed.




THE HON'BLE ASHOK PAL SINGH, J.

Special Appeal No. 497 of 2013

Seema Srivastava ...AppellantVersus

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

Counsel for the Appellant:Sri Prabhakar Awasthi

Counsel for the Respondents:C.S.C. Sri P.D. Tripathi

Constitution of India, Art.-226-Cancellationof appointment-part time teacher (Art &Music)-honorarium payable subject toverification of educational testimonials-admittedly appellant/petitioner-not possessTET certificate-contention that norequirement of TET-under Basic Educations(teacher) Service Rules 1981-held-inabsence of requisite qualification-onceparticipated in pursuance of advertisement-joined with open eye-can not be allowed toquestion the validity of such requirement ofadvertisement-Single Judge rightly refusedto interfere-appeal dismissed.

Held: Para-12We have considered the rival contentionsof learned counsel for the parties and inour opinion, the appellant-petitioner onone hand, cannot take advantage ofadvertisement for appointment and onthe other hand, challenge theadvertisement. After verification of hereducational testimonials she has beenfound to be unqualified for the post.Hence, she cannot now turn around nowand challenge the advertisement as wellas the order of termination passed onthe ground that she was ineligible forappointment for the post in question. Itis always open to the college to inviteapplications from the candidates who areeligible and having better qualificationsthan the minimum qualificationsprescribed in the statute itself. Thepetitioner was found ineligible forappointment on the post in question,hence her appointment has rightly beencancelled by the authority.

3 All]. Seema Srivastava Vs. The State of U.P. & Ors. 1245


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

2. This intra court appeal has beenpreferred by the appellant challenging thevalidity and correctness of the judgmentand order dated 12.9.2012 passed by theWrit Court in Civil Misc. Writ PetitionNo. 46336 of 2012, Seema Srivastavaversus State of U.P. and others, wherebythe aforesaid writ petition had beendismissed.

3. Relevant facts giving rise to theinstant appeal are that the appellant hereinapplied for consideration of hercandidature for appointment as part timeteacher (Art and Music). In terms of theadvertisement, the incumbent wasrequired to be trained graduate. Afterselection proceedings, the District BasicEducation Officer with concurrence of theDistrict Magistrate issued letter ofappointment to the petitioner-appellant.As per terms and conditions ofappointment letter, her appointment wastemporary and in case her work andconduct was not found satisfactory, herservices were liable to be terminatedwithout any notice. It was also providedthat honorarium was payable to her onlyafter verification of her educationaltestimonials.

4. It appears that on verification ofthe testimonials, it was found that thepetitioner-appellant was not at all atrained graduate, hence a show causenotice was given to her. She preferred tochallenge the same in Civil Misc. WritPetition No. 22487 of 2012, which wasdisposed of directing the authorityconcerned to take a decision in the matter.Subsequently, her appointment was

thereafter cancelled by order dated7.6.2012. The aforesaid writ petition no.46366 of 2012 was preferred by herchallenging the order dated 7.6.2012,which was dismissed by the Writ Courtvide its impugned judgment and orderdated 12.9.2012.

5. For ready reference the relevantextract of the impugned judgment andorder dated 12.9.2012 reads thus:-

"Petitioner has rushed to this Courtwith request to quash the order dated07.06.2012, wherein District BasicEducation Officer, Kaushambi hasproceeded to pass order mentioningtherein that the petitioner had beenselected as part time teacher (Art andMusic) and when verification proceedingshave been undertaken, then it has beenreflected that the petitioner was not at alleligible to be selected, as minimumeligibility criteria is not being fulfilled byher.

On show cause notice being issuedon 04.04.2012, petitioner filed writpetition No.22487 of 2012, wherein thisCourt asked the authority concerned totake decision in the matter. Thereafterdecision has been taken cancelling hercandidature.

Sri Ranjeet Asthana, learned counselfor the petitioner, contended withvehemence that in the present caseappointment in question had been madewith the concurrence of the DistrictMagistrate, as such the District BasicEducation Officer has no authority tocancel the appointment so made, andcoupled with this petitioner fulfills theeligibility criteria, as such action taken isbad.


Countering the said submissions,learned standing counsel as well as SriJayram Pandey, Advocate, on the otherhand, contended that the petitioner lacksminimum eligibility criteria, as such theDistrict Basic Education Officer hasrightly cancelled her candidature.

After respective arguments have beenadvanced, factual situation which has soemerged in the present case, is that thepetitioner had applied for considerationof her candidature for appointment aspart time teacher (Art & Music). As peradvertisement, the incumbent was requiredto be trained graduate. Selectionproceedings were finalized, whereupon withdue concurrence of the District Magistrate,the District Basic Education Officerproceeded to issue appointment letter to thepetitioner. As per terms and conditions of theappointment letter, the appointment inquestion was temporary and in case workand conduct of the incumbent was not foundsatisfactory, same was liable to beterminated without any notice, andhonourarium was to be ensured onlyverification of educational testimonials. Onverification being conducted, it was foundthat the petitioner was not at all trainedgraduate, and in view of this show causenotice was given to her and thereafter hercandidature has been cancelled.

The argument, that the District BasicEducation Officer has no authority tocancel the appointment,is misconceived,for the simple reason that once theDistrict Basic Education Officer hadproceeded to issue appointment letter infavour of the petitioner, then the DistrictBasic Education Officer has everyauthority to vary, rescind or modify theaforesaid appointment letter, specially

when honourarium has to be ensured tothe incumbent only after verification ofthe educational testimonials. Inverification proceeding the record of thepetitioner has been examined and it hasbeen found that the petitioner has got notraining qualification to her credit.

Petitioner is contending before thisCourt that apart from her graduate degree,she has got to her credit certificate inDrawing Grade Examination issued byDirectorate of Art & Chairman, ArtExamination Committee, Maharashtra StateMumbai. Said certificate, by no stretch ofimagination, can be equated with trainingqualification.

Once such is the factual situationthat the petitioner lacks minimumeligibility criteria, then the decision takencannot be faulted. In view of the abovefacts, writ petition is dismissed."

6. The impugned judgment and orderdated 12.9.2012 passed by the Writ Court ischallenged on the ground that the factescaped from the notice of the Court thatunder the U.P. Basic Education (Teachers)Service Rules, 1981 the subject of Art hasnot been specified, hence qualification ofteacher (Art and Music) has to be thequalification as provided under the regulationframed under the U.P. IntermediateEducation Act, 1921; that the Writ Courtreturned no finding regarding informationwhich was sought by the appellant from theU.P. Secondary Education Service SelectionBoard for qualification of Assistant Teacherin the subject of Art and Music; that the WritCourt has failed to take into consideration thegenerality of acquisition of trained graduateas a qualification sine-qua-non for thepurpose of recruitment of Assistant Teacher(Art & Music) as mentioned in the

3 All]. Seema Srivastava Vs. The State of U.P. & Ors. 1247

advertisement for the purpose of recruitmentto be an essential qualification and that saidqualification was not either in consonancewith the provisions of U.P. Basic Education(Teachers) Service Rules, 1981 or theregulations framed under the U.P.Intermediate Education Act, 1921.

7. Learned counsel for the appellantsubmits that the Writ Court has failed totake into consideration that as thepetitioner had passed Intermediate GradeDrawing Examination (I.G.D.), there was norequirement of an incumbent to be a trainedteacher for the purpose of appointment asAssistant Teacher in the Art and Musicwhich is recognized only at High Schoollevel for appointment as Assistant Teacherwhere Basic Education in subject of Art orany other subject is not recognized. It isstated that this very important aspect of thematter has been overlooked by the WritCourt while passing the impugned orderdated 12.8.2012.

8. Lastly, it is submitted that in anyview of the matter the impugned orderdated 12.9.2012 of the Writ Courtaffirming the order dated 7.6.2012 passedby the District Basic Education Officer is

unsustainable, unrealistic and unreasonedin the eye of law and as such is liable tobe quashed.

9. Sri P.D. Tripathi, learned counsel forthe private respondents and the learnedStanding counsel for respondent nos. 1 to 4have supported the findings recorded by theWrit Court in the impugned judgment andsubmits that no illegality or infirmity in theorder impugned has been shown by thepetitioner, hence no interference is requiredby this Court.

10. After hearing learned counsel forthe parties and on perusal of the record itappears that the appointment of theappellant was made pursuant to anadvertisement as part time teacher in thecollege in question. In the writ petitionshe had prayed for the following reliefs.

I. "Issue a writ, order or direction inthe nature of certiorari to quash theimpugned order dated 7.6.2012 issued bythe respondent no.5, which is containedas Annexure-7 to this writ petition ;

II. Issue a writ, order or direction inthe nature of certiorari to quash the

column 3 of the above said impugnedadvertisement dated 02.11.2011 publishedin daily newspaper Dainik Jagran whichis contained as Annexure-1 to this writpetition in which the educationalqualification mentioned TrainedGraduate against the column 2 withrespect to petitioner only '

III. Issue a writ, order or direction inthe nature of mandamus directing therespondent authorities to permit thepetitioner function on the post of part timeArt Teacher in Kastoorba Gandhi BalikaVidyalya, Nevada, Kaushambi, during thependency of the writ petition ;

IV. Issue a writ, order or direction inthe nature of mandamus directing therespondent authorities to release thearrears of the salary and salary of thepetitioner time to time which falls duecontinuously ;

V. Issue any other suitable order ordirection which this Court may deem fitand proper in the circumstances of thecase;

VI. To award the cost of writ petitionin favour of the petitioner."

11. It appears that on verification ofeducational testimonials of the appellant it


was found that she was not having requisitequalification for the post in question asadvertised. However, she accepted theappointment with open eyes without even amurmur and rushed to this Court andchallenged the advertisement as well as theorder dated 7.6.2012 by which her serviceswere terminated, praying that therespondents may be directed to permit her tofunction as a part time teacher in KastoorbaGandhi Balika Vidyalya, Nevada,Kaushambi and make payment of her salary.

12. We have considered the rivalcontentions of learned counsel for theparties and in our opinion, the appellant-petitioner on one hand, cannot takeadvantage of advertisement for appointmentand on the other hand, challenge theadvertisement. After verification of hereducational testimonials she has been foundto be unqualified for the post. Hence, shecannot now turn around now and challengethe advertisement as well as the order oftermination passed on the ground that shewas ineligible for appointment for the post inquestion. It is always open to the college toinvite applications from the candidates whoare eligible and having better qualificationsthan the minimum qualifications prescribedin the statute itself. The petitioner was foundineligible for appointment on the post inquestion, hence her appointment has rightlybeen cancelled by the authority.

13. We, therefore, do not find anyillegality or infirmity in the impugnedjudgment and order dated 12.9.2012 ofthe Writ Court dismissing the writ petitionpreferred by the appellant-petitioner andaffirming the order dated 7.6.2012 passedby the District Basic Education Officer,Kaushambi.

14. For all the reasons stated above,the appeal is dismissed. Parties to beartheir own costs.

--------REVISIONAL JURISDICTION


BEFORETHE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Civil Revision No. 602 of 2010

Sri Vikas Gupta ...RevisionistVersus

M/s Shri Ram Mahadev Prasad & Anr....Opp. Parties

Counsel for the Revisionist:Sri Ramendra Asthana, Sri Vijay KumarOjha, Sri M.L. Maurya

Counsel for the Opp. Parties:Sri M.K. Gupta, Sri Arun Kumar Shukla, SriAbhinav Shukla

C.P.C. Order XX Rule 4 & 5-Framing ofissues-proceeding before judge smallcauses court, being summery in naturewith limited pecuniary jurisdiction-solepurpose of expeditions disposal-framingissues-held-not necessary like regularcivil suits.

Held: Para-12 & 1312. The distinction between sub rule (1)and (2) of Rule 4 of Order XX of the CPCby itself is sufficient to indicate that theSmall Causes Court is a summaryproceedings and detailed reasons are notrequired to be given in judgements. Thepoint for determination does not needfor framing an issue and there is no needfor the procedure applicable for theregular civil suits. In case the detailprocedure of regular suit is also followedin the matter of the Small Causes Court,the very object of the Act No. 9 of 1887shall be frustrated. Therefore, thesubmission of the learned Counsel forthe revisionist does not stand to reasons.

3 All]. Sri Vikas Gupta Vs. M/s Shri Ram Mahadev Prasad & Anr. 1249

13. After careful consideration of thematter, I am of the view that framing ofthe issue in the suits under the Act No. 9of 1887 is not mandatory. It is adiscretion of the court to formulate somepoints for determination, if it needs it isnecessary to meet the ends of justice,but framing of the issue like a regularsuit, as stated above, would be againstthe object of the Act to dispose of smallmatters expeditiously.

Case Law discussed:1982 (1) ARC 356; 2013 (2) ARC 376.

(Delivered by Hon'ble Pradeep KumarSingh Baghel, J.)

1. This is a defendant's CivilRevision under Section 25 of theProvincial Small Cause Courts Act, 1887(Act No. 9 of 1887) against the orderdated 30.10.2010 passed by the learnedAdditional District Judge/ Judge, SmallCause Court, Kanpur Nagar, whereby hisapplication (49-Ga) for framing the issueshas been rejected.

2. The essential facts are; theapplicant / revisionist is a tenant of thepremises bearing Municipal No. 361,Harrisganj, Cantt., Kanpur Nagar. Thelandlord-opposite party gave a noticeunder Section 106 of the Transfer ofProperty Act, 1882 (Act No. 4 of 1882) tothe tenant-revisionist for eviction andarrear of rent. The landlord instituted SCCSuit No. 79 of 2007 in the court of Judge,Small Cause Court for recovery of arrearsof rent and eviction. The applicant-defendant contested the suit by filing hiswritten statement on 23 December 2009.

3. On 17 July 2010 the tenant-revisionist moved an application 49-Gafor framing the issues. The saidapplication has been rejected by the Court

of Small Causes vide impugned orderdated 31.10.2010. Feeling aggrieved thetenant/ revisionist has filed the presentrevision.

4. Learned Counsel for therevisionist submits that a conjoint readingof the provisions of law contained inSection 15 of the Act No. 9 of 1887 andOrder XIV Rules 4 & 5 of the Code ofCivil Procedure, 1908 (for short, "theCPC") makes it clear that in theproceedings before the Judge, SmallCause Court, the issue should be framedbefore proceeding to decide the suit. Hefurther urged that point for determinationreferred to in Rule 4(1) of the Order XXof CPC enjoins the Small Cause Court toframe the issue as the words "points fordetermination" have been used in the saidRule.

5. I have heard Sri Vijay KumarOjha, learned Counsel for the revisionistand Sri Arun Kumar Shukla, learnedCounsel for the opposite parties.

6. The only issue, which falls fordetermination in the present revision, iswhether in a suit filed under theprovisions of the Provincial Small CauseCourts Act, 1887, is it imperative uponthe Judge, Small Cause Court to frame theissues.

7. The Chapter III of the Act No. 9of 1887 deals with the jurisdiction of theCourts of Small Causes. Section 15enjoins that all suits of civil nature, ofwhich the value does not exceed Rs. 500/-shall be cognizable by the court of smallcauses. (vide Uttar Pradesh Act 17 of1991 in Section 15, for sub sections (2)and (3), has been inserted. The Section


15, as applicable in the State of U.P.,reads thus;

"15. Cognizance of suits by Courts ofSmall Causes.---(1) A Court of SmallCauses shall not take cognizance of thesuits specified in the Second Schedule assuits excepted from the cognizance of aCourt of Small Causes.

(2) Subject to the exceptionsspecified in that Schedule and to theprovisions of any enactment for the timebeing in force, all suits of a civil nature ofwhich the value does not exceed fivehundred rupees shall be cognizable by aCourt of Small Causes.

(3) Subject as aforesaid, the 1[StateGovernment] may, by order in writing,direct that all suits of a civil nature ofwhich the value does not exceed onethousand rupees shall be cognizable by aCourt of Small Causes mentioned in theorder.2

State Amendment

3Uttar Pradesh.---In section 15, forsub-sections (2) and (3), substitute thefollowing:-

(2) Subject to the exceptionsspecified in that Schedule and to theprovisions of any enactment for the timebeing in force, all suits of a civil nature ofwhich the value does not exceed fivethousand rupees shall be cognizable by aCourt of Small Causes.

Provided that in relation to suits bythe lessor for the eviction of a lessee froma building after the determination of hislease, or for recovery from him of rent inrespect of the period of occupation thereofduring the continuance of the lease, or ofcompensation for the use and occupationthereof after the determination of the

lease, the reference in this sub-section tofive thousand rupees shall be construed asa reference to twenty-five thousandrupees.

Explanation.-- For the purposes ofthis sub-section, the expression 'building'has the same meaning as in Art. (4) in theSecond Schedule."

8. From a perusal of the said Sectionit is manifest that the Small Cause Courthas limited pecuniary jurisdiction. Theintent of the legislature is manifest thatthe suits of small causes should bedecided expeditiously. With the said viewof the matter the detail procedure of theregular suit is not applicable.

9. This Court in the case of DauDayal Tandon v. Addl. District Judge,Naini Tal and others, 1982 (1) ARC 356has held that Section 15 of the Act No. 9of 1887 provides that the proceedingsshall be summary in nature. Recently thesaid view has been reiterated by thisCourt in the case of Yasin and another v.Murari Lal, 2013 (2) ARC 376. Relevantparagraph in the case of Yasin (supra)reads as under;

"4. The suit in question is one underSection 15 of the Act and is of a summarynature. It is well settled that in a suit ofsuch a nature it is not mandatory to frameissues. The provisions of Order XIVC.P.C. relating to settlement of issues arenot applicable to proceedings beforeSmall Cause Court in view of Order LRule 1(a) C.P.C. as has been held in DauDayal Tandon Vs. Additional DistrictJudge, Naini Tal and others 1982 ARC356 and a series of decision thereafter.The only thing required is that the courtbelow on consideration of the plaint caseand the defence may indicate the pointswhich arise for consideration."

3 All]. Sri Vikas Gupta Vs. M/s Shri Ram Mahadev Prasad & Anr. 1251

10. As regards the submission of SriAsthana that the Order XX Rule 4 and 5of CPC makes it clear that the Judge,Small Cause Courts should frame theissue for determination hardly meritacceptance. The Order XX Rule 4 and 5of CPC reads as under;

"44. Judgments of Small CauseCourts.---(1) Judgments of a Court ofSmall Causes need not contain more thanthe points for determination and thedecision thereon.

(2) Judgments of other Courts.---Judgments of other Courts shall contain aconcise statement of the case, the pointsfor determination, the decision thereon,and the reasons for such decision.

5. Court to state its decision on eachissue.---In suits in which issues have beenframed, the Court shall state its finding ordecision, with the reasons therefor, uponeach separate issue, unless the findingupon any one or more of the issue issufficient for the decision of the suit."

11. A simple reading of aforesaidRules 4 and 5 make it clear that thejudgment of a Court of Small Causes neednot contain more than the points for

determination and the decision thereon,whereas judgements of other Courts shallcontain a concise statement of the case,the points for determination, the decisionthereon, and the reasons for such decision.

12. The distinction between sub rule(1) and (2) of Rule 4 of Order XX of theCPC by itself is sufficient to indicate that theSmall Causes Court is a summaryproceedings and detailed reasons are notrequired to be given in judgements. The pointfor determination does not need for framingan issue and there is no need for the procedureapplicable for the regular civil suits. In casethe detail procedure of regular suit is alsofollowed in the matter of the Small CausesCourt, the very object of the Act No. 9 of1887 shall be frustrated. Therefore, thesubmission of the learned Counsel for therevisionist does not stand to reasons.

13. After careful consideration ofthe matter, I am of the view that framingof the issue in the suits under the Act No.9 of 1887 is not mandatory. It isdiscretion of the court to formulate somepoints for determination, if it needs it isnecessary to meet the ends of justice, butframing of the issue like a regular suit, asstated above, would be against the object

of the Act to dispose of small mattersexpeditiously.

14. Resultantly, the order of thecourt below does not suffer any errorhence Civil Revision is liable to bedismissed. Accordingly, it is dismissed.

15. No order as to costs.--------

APPELLATE JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 04.09.2014

BEFORE

THE HON'BLE DEVI PRASAD SINGH, J.THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Special Appeal No. 625 of 2008Connected with Special Appeal (D) No.186 of 2009, 662 of 2008, 669 of 2008

and Special Appeal No. 631 of 2008

Ravindra Nath Pandey (S/S 6985/2005)...Appellant

VersusState of U.P. ...Respondent

Counsel for the Appellant:Sri Rajan Roy, Sri Rahul Srivastava


Ranjana Agnihotri, Sudha Sharma

Counsel for the Respondent:C.S.C., Sri Gyanendra Kumar SrivastavaSri Y.K. Mishra

U.P. Revenue Consolidation Service Rules1992-Rule 8(8) read with U.P. GovernmentServants Seniority Rules 1991-Rule-8(3)-Seniority-Assistant Consolidation Officer-appointed under promotion quota on16.12.97-where as direct recruitmentAugust 97-learned Single Judge held-promotee be placed above than directrecruitee-held-recruitment year accordingto Rule 2 of 1991 material-when Rota Ruleavailable in Rule-preparation of seniority-it should be followed-to this extent orderpassed by Single Judge is modified.Held: Para-31 & 3731. So far as the mandate contained in Rule2 of 1991 Seniority Rules to the effectwhere appointments are made both bypromotion and direct recruitment on theresult of one selection, seniority ofpromotee and direct recruits will bedetermined by a cyclic order, is concerned,since admittedly and ordinarily, in oneselection, appointment and directrecruitment may not be done, then whileconstruing the provisions harmoniously, theprovision contained in Sub Rule (3) may beinterpreted relating it to the year ofrecruitment as defined by Sub Rule (m) ofRule 3 of 1992 Rules. It means all personswho have been appointed by directrecruitment or by promotion in arecruitment year shall be entitled to beconsidered for seniority in pursuance to1991 Seniority Rules. The seniority list shallcontain the names of officers in order oftheir recruitment against substantivevacancy relating back to the recruitmentyear. The appointment should have beendone in accordance with rules.

37. In (2000)7 SCC 561 Suraj ParkashGupta and others versus State of J & K andothers, Hon'ble Supreme Court held thateven if on account of delay and lethargicattitude of the State Government,promotion and appointment is delayed, it

does not lead to an inference that the quotarule has broken down and where there is noexplicit provision with regard to rota rule,then rota rule may not be applied.Employees cannot claim rota merely on thebasis of post and perks.

Case Law discussed:(2001) 2 SCC 441; (2002) 8 SCC 409; (2002) 4SCC 297; (2002) 4 SCC 105; UOI (2004) 1 SCC256; A.P.SRTC (2004) 6 SCC 729; (2004) 11SCC 625; (2004) 5 SCC 385; (2005) 3 SCC551; (2007) 6 SCC 81; (2007) 10 SCC 528;(2007) 7 SCC 394; 2010 (9) SCC 280; 2010 (7)SCC 129; 1992 Supp. 1 SCC 272; (2007) 1SCC 683; (2005) 8 SCC 454 D; (1996) 11 SCC361.

(Delivered by Hon'ble Devi Prasad Singh, J.)1. These special appeals under the

Rules of the Court (Chapter VIII Rule 5)have been preferred, being aggrieved withthe judgment and order dated 29.9.2008,passed by learned Single Judge in writpetition No.6015(S/S) of 2005 and otherconnected petitions deciding an issuerelating to inter se dispute between thedirect recruits and promotees in the cadreof Assistant Consolidation Officer.

2. We have heard Mr. R.K. Tiwari,learned Senior counsel, Mr. Shobhit MohanShukla and other counsels on behalf of theappellants as well as Mr. S.K. Kalia, learnedSenior Counsel and others representing therespondents.

3. Controversy relates to inter seseniority of the cadre of AssistantConsolidation Officers between directrecruits and promotees in pursuance to U.P.Government Servants Seniority Rules, 1991(in short, 1991 Seniority Rules).

4. It has been admitted at bar that thedirect recruits were appointed on18.8.1997 whereas the promotees were

3 All]. Ravindra Nath Pandey (S/S 6985/2005) Vs. State of U.P. 1253

promoted on the post of AssistantConsolidation Officer on 16.12.1997within their quota (67%) in pursuance toU.P. Revenue Consolidation ServiceRules, 1992 (In short, 1992 Rules).Promotions were done within the quota onthe post of Assistant ConsolidationOfficer from the persons who wereworking on the post of Consolidators.

5. Under these admitted facts onrecord, it has been argued by theappellants' counsel that the direct recruitsare entitled to be placed over and abovethe promotees since they were appointedearlier than the promotees, i.e. in themonth of August, 1997.

It has been further argued by theappellants' counsel that the learned SingleJudge while allowing the writ petitionsdirected that all the promotees who werepromoted and appointed in the year 1997should be placed over and above thedirect recruits ignoring the roster. LearnedSingle Judge while allowing the writpetition has not only directed to place thepromotees over and above direct recruitsbut also directed for en-block placementof all the promotees promoted in the year1997 over and above direct recruits.

6. On the other hand, Mr. S.K.Kalia, learned Senior Counsel submitsthat since the direct recruits as well as thepromotees were appointed in the samerecruitment year in accordance with rules,the promotees were entitled to be placedover and above the direct recruits inaccordance with rules.

7. 1991 Seniority Rules framedunder the proviso to Art. 309 of theConstitution of India have overridingeffect (Rule 3) and deals with the matterwith regard to determination of seniority.

According to Sub Rule (h) of Rule 4,substantive appointment has been definedas appointment, not being an ad hocappointment, on a post in the cadre of theService, made after selection inaccordance with the service rules of therespective services.

8. Rule 5 deals with determinationof seniority where appointment is done bydirect recruitment only and Rule 6 dealswith the situation where seniority is liableto be determined in a situation whereappointment is done only by promotionfrom a single feeding cadre. Rule 7 dealswith a situation where appointment bypromotion is done from several feedingcadres. However, Rule 8 deals with asituation where appointments are done bypromotion and direct recruitment. Rule 8is relevant for the purpose ofdetermination of present controversy. Forconvenience, Rule 8 is reproduced asunder :

8. Seniority where appointments bypromotion and direct recruitment.--(1)Where according to the service rulesappointments are made both by promotionand by direct recruitment, the seniority ofpersons appointed shall, subject to theprovisions of the following sub- rules, bedetermined from the date of the order oftheir substantive appointments, and if twoor more persons are appointed together, inthe order in which their names arearranged in the appointment order :

Provided that if the appointmentorder specifies a particular back date, witheffect from which a person issubstantively appointed, that date will bedeemed to be the date of order ofsubstantive appointment and, in other


cases, it will mean the date of issuance ofthe order:

Provided further that a candidaterecruited directly may lose his seniority ifhe fails to join without valid reasons,when vacancy is offered to him thedecision of the appointing authority as tothe validity of reasons, shall be final.

(2) The seniority inter se of personsappointed on the result of any oneselection,--

(a) through direct recruitment, shallbe the same as it is shown in the merit listprepared by the Commission or by theCommittee, as the case may be;

(b) by promotion, shall be asdetermined in accordance with theprinciples laid down in Rule 6 or Rule 7,as the case may be, according as thepromotion are to be made from a singlefeeding cadre or several feeding cadres.

(3) Where appointments are madeboth by promotion and direct recruitmenton the result of any one selection theseniority of promotees vis-`-vis directrecruits shall be determined in a cyclicorder (the first being a promotee) so far asmay be, in accordance with the quotaprescribed for the two sources.

Illustrations.--(1) Where the quota ofpromotees and direct recruits is in theproportion of 1 : 1 the seniority shall be inthe following order :

First .. .. .. PromoteeSecond .. .. .. Direct Recruitsand so on(2) Where the said quota is in the

proportion of 1 : 3 the seniority shall be inthe following order :

First .. .. .. PromoteeSecond to fourth .. .. Direct Recruits

Fifth .. .. .. PromoteeSixth of eight .. .. Direct recruitsand so on

Provided that :

(i) where appointment from anysource are made in excess of theprescribed quota, the persons appointed inexcess of quota shall be pushed down, forseniority, to subsequent year or years inwhich there are vacancies in accordancewith the quota;

(ii) where appointment from anysource fall short of the prescribed quotaand appointment against such unfilledvacancies are made in subsequent year oryears, the persons so appointed shall notget seniority of any earlier year but shallget the seniority of the year in which theirappointments are made, so however, thattheir names shall be placed at the topfollowed by the names, in the cyclic orderof the other appointees;

(iii) where, in accordance with theservice rules the unfilled vacancies fromany source could, in the circumstancesmentioned in the relevant service rules befilled from the other source andappointment in excess of quota are somade, the persons so appointed shall getthe seniority of that very year as if theyare appointed against the vacancies oftheir quota."

9. Thus, under Sub Rule (1) of Rule8, seniority is to be determined from thedate of the order of substantiveappointment. The proviso of Sub Rule (1)provides that if the appointment orderspecifies a particular back date, witheffect from which a person issubstantively appointed, that date will bedeemed to be the date of order ofsubstantive appointment but in other cases


it will mean the date of issuance of theorder. In the event of direct recruitment,the direct recruit shall lose seniority if hefails to join without valid reasons, whenvacancy is offered to him. Under SubRule (2) of Rule 8, inter se seniority ofpersons appointed on the result of any oneselection shall be the same as shown inthe merit list prepared by theCommission.

10. However, under Sub Rule (3),where appointments are made both bypromotion and direct recruitment on theresult of any one selection, the seniorityof promotees vis-a-vis direct recruitsshould be determined in a cyclic order(the first being a promotee) in accordancewith the quota prescribed for the twosources. Where the quota of promoteesand direct recruits is in the proportion of1:1, the first shall be promotee and secondshall be direct recruit but where the quotais in the proportion of 1:3, the senioritylist shall give first place to promotee,second to fourth to direct recruits, fifth topromotee and sixth of eight to directrecruits. However, this shall be subject tocertain conditions provided under theproviso to Rule 8 (supra).

11. Much emphasis has been givenby the learned counsel for the appellant tothe words, used in Sub Rule (3), "whereappointments are made both by promotionand direct recruitment on the result of anyone selection".

It is agreed at bar that ordinarily, it isnot possible to make selection throughdirect recruitment and promote persons ina single selection process.

12. In District Mining officer vs.Tata Iron and Steel co. (2001) 7 SCC 358,

Hon'ble Supreme court has held thatfunction of the court is only to expoundthe law and not to legislate. A statute hasto be construed according to the intent ofthem and make it the duty of the court toact upon true intention of the legislature.If a statutory provision is open to morethan one interpretation, the court has tochoose the interpretation which representsthe true intention of the legislature.

13. In Krishna vs. state ofMaharashtra (2001)2 SCC 441: Hon'bleSupreme court has held that, in absence ofclear words indicating legislature intent, itis open to the court ,when interpreting anyprovision , to read with other provision ofthe same statute.

14. In Essen Deinki vs. Rajiv Kumar(2002)8 SCC 409, it has been observedthat it is the duty of the court to givebroad interpretation keeping in view thepurpose of such legislation of preventingarbitrary action .however statutoryrequirement can not be ignored.

15. In Grasim industries ltd. vs.Collector of Custom (2002) 4 SCC297, ithas been held that while interpreting anyword of a statute every word andprovision should be looked at generallyand in the context in which it is used andnot in isolation.

16. In Bhatia international vs. Bulktrading S.A. (2002)4 SCC 105, it has beenheld that where statutory provision can beinterpreted in more than one way , courtmust identify the interpretation whichrepresents the true intention of legislature.While deciding which is the true meaningand intention of the legislature, court mustconsider the consequences that wouldresult from the various alternativeconstructions. Court must reject the


construction which leads to hardship,serious inconvenience, injustice, anomalyor uncertainty and friction in the verysystem that the statute concerned issuppose to regulate.

17. In S.Samuel M.D. HarresonsMalayalam vs. UOI (2004)1 SCC 256, ithas been held that when a word is notdefined in the statute a commonparallence meaning out of severalmeanings provided in the dictionaries canbe selected having regard to the context inwhich the appeared in the statute.

18. In M. Subba Reddy vs. A.P.SRTC (2004) 6 SCC 729, it has been heldthat although hardships can not be aground for striking down the legislation,but where ever possible statute to beinterpreted to avoid hardships.

19. In Delhi Financial Corpn. Vs.Rajiv Anand (2004)11 SCC 625, it hasbeen held that legislature is presumed tohave made no mistake and that it intendedto say what it said. Assuming there is adefect or an omission in the words usedby the legislature , the court can notcorrect or make up the deficiency ,especially where a literal reading there ofproduces an intelligible result .the court isnot authorized to alter words or provide acasus omissus.

20. In Deepal Girish bhai soni vs.United India insurance ltd. (2004) 5 SCC385, it has been held that statute to beread in entirety and purport and object ofAct to be given its full effect by applyingprinciple of purposive construction.

21. In Pratap Singh vs. State ofJharkhand (2005) 3 SCC 551, it has beenheld that interpretation of a statute

depends upon the text and context there ofand object with which the same wasmade. It must be construed having regardto its scheme and the ordinary state ofaffairs and consequences flowing therefrom - must be construed in such amanner so as to effective and operative onthe principle of "ut res magis valeat quampereat". When there is to meaning of aword and one making the statuteabsolutely vague, and meaningless andother leading to certainty and ameaningful interpretation are given, insuch an event the later should befollowed.

22. In Bharat petroleum corpn.ltd.vs. Maddula Ratnavali (2007) 6 SCC 81,it has been observed that Court shouldconstrue a statute justly. An unjust law isno law at all. Maxim "Lex in justa nonest."

23. Deevan Singh vs. Rajendra Pd.Ardevi (2007)10 SCC528, it has beenheld that while interpreting a statute theentire statute must be first read as a wholethen section by section , clause by clause ,phrase by phrase and word by word .therelevant provision of statute must thusread harmoniously.

24. In Japani sahoo vs. Chandrashekhar mohanty (2007) 7 SCC 394, ithas been held that a court would sointerpret a provision as would helpsustaining the validity of law by applyingthe doctrine of reasonable constructionrather than making it vulnerable andunconditional by adopting rule of literallegis.

25. In 2010 (9) SCC 280, ZakiyaBegum Vs. Shanaz Ali, it has been held thatan Explanation to a section should normally


be read to harmonise with and clear up anyambiguity in the main section and normallynot to widen its ambit.

26. In 2010 (7) SCC 129, BonduRamaswamy Vs. Bangalore DevelopmentAuthority, it has been observed that aninterpretation that would avoid absurdresults should be adopted - When theobject or policy of a statute can beascertained, imprecision in its languagenot to be allowed in the way of adopting areasonable construction which avoidsabsurdities and incongruities and carriesout the object or policy.

27. In view of above, sub Rule (3) ofRule 8 of 1991 Seniority Rules should beconstrued in such a manner which maynot make the rule inoperative. Furtherexternal aid from 1992 Service Rules maybe taken while interpreting 1991 SeniorityRules for removal of ambiguity anddoubt, if any.

28. Accordingly, the provisionscontained in Sub Rule (3) of Rule 8should be construed harmoniously tomake it effective after taking into accountthe other rules as well as the purpose andobject of the rule.

29. 1992 Rules deals with theservice conditions of Asstt. ConsolidationOfficer and Consolidation Officer. Rule22 of 1992 Rules provides that theseniority of persons substantivelyappointed in any category of posts shallbe determined in accordance with 1991Rules (supra). Sub Rule (m) of Rule 3defines the year of recruitment as under :

""year of recruitment" means aperiod of twelve months commencing

from the first day of July of calendaryear."

Rule 19 deals with appointment onthe respective posts. For convenience,Rule 19 is reproduced as under :

"19. appointments :- (1) Subject tothe provisions of sub-rule (2) theappointing authority shall makeappointment by taking the names ofcandidates in order in which they stand inthe list prepared under Rule 15, 16 or 17,as the case may be.

(2) Where in any year of recruitment,appointments are to be made both bydirect recruitment and by promotion,regular appointments shall not be madeunless selections are made from both thesources and a combined list is prepared inaccordance with Rule 18.

(3) If more than one orders ofappointments are issued in respect of anyone selection, a combined order shall alsobe issued, mentioning the names of thepersons in order of seniority asdetermined in the selection or, as the casemay be, as it stood in the cadre fromwhich they are promoted. If theappointments are made both by directrecruitment and by promotion, namesshall be arranged in accordance with thecyclic order referred to in Rule 18."

Under Sub Rule (2) of Rule 19, it hasbeen provided that in every recruitmentyear, appointment shall be made both bydirect recruitment and by promotion, i.e.from both sources.

30. Under Sub Rule (3) of Rule 19,it has been provided that if theappointments are made both by directrecruitment and by promotion, namesshall be arranged in accordance with thecyclic order referred to in Rule 18. Itmeans a roster shall be provided in terms


of rule 18 in the cadre of Assistantconsolidation Officer containing directrecruits and promotees. Since 1991Seniority Rules have got overridingeffect, so far as seniority is concerned,roster shall be in accordance with SubRule (3) of Rule 8(supra). In case thenumber of candidates are not available toapply roster for each and every personselected through direct recruitment andpromotion, then remaining may be placedin block at appropriate place in theseniority list.

31. So far as the mandate containedin Rule 2 of 1991 Seniority Rules to theeffect where appointments are made bothby promotion and direct recruitment onthe result of one selection, seniority ofpromotee and direct recruits will bedetermined by a cyclic order, isconcerned, since admittedly andordinarily, in one selection, appointmentand direct recruitment may not be done,then while construing the provisionsharmoniously, the provision contained inSub Rule (3) may be interpreted relating itto the year of recruitment as defined bySub Rule (m) of Rule 3 of 1992 Rules. Itmeans all persons who have beenappointed by direct recruitment or bypromotion in a recruitment year shall beentitled to be considered for seniority inpursuance to 1991 Seniority Rules. Theseniority list shall contain the names ofofficers in order of their recruitmentagainst substantive vacancy relating backto the recruitment year. The appointmentshould have been done in accordance withrules.

32. So far as the order passed bylearned Single Judge for enblockplacement of promotees is concerned, itseem to be contrary to Rules (supra)

which provides roster for the placement ofpromotees and direct recruits in a cyclicmanner. To that extent, the impugnedorder passed by learned Single Judgerequired to be modified. It shall beappropriate to consider some of the cases,relied upon by learned counsels.

33. In the case of Uttaranchal forestRangers versus State of U.P and othersJT2006(12)SC513, their Lordships ofHon'ble Supreme court held that noretrospective promotion or seniority canbe granted from a date when an employeehas not even been borne in the cadre so asto be adversely appointed validly in themeantime. Supreme Court relied uponearlier judgment reported in 1992 Supp. 1SCC 272 Keshav Chandra Joshi andothers versus Union of India and others. Itmeans seniority may be given to directrecruits only from the date they wereappointed or joined service and not earlierto it. While interpreting Rule 8(1) ofSeniority Rules, 1991, the conferment ofseniority to an employee from a previousdate provided that the date of suchconferment along with substantiveappointment is mentioned in the order ofsubstantive appointment which seems toexist in the case of Uttaranchal but suchprovision does not seem to exist in theService Rules in question.

While interpreting Rule 8(3) of theService Rules(supra), Hon'ble Supremecourt observed as under :

"Rule 8(3) of the Rules is notapplicable in this case because theappointments were not made by both thedirect and promoted sources ofrecruitment as a result of one selection.Moreover, definite quota is not prescribedfor the two sources of appointment ? As


per Rule 8 of the Seniority Rules, there isa provision that if the appointment orderspecifies a particular back date with effectfrom which a person is substantivelyappointed, that date will be deemed to bethe date of order of substantiveappointment and in other cases, it willmean the date of issuance of the order.This implies that there is a provision ofvacancies of being carried over.Moreover, it is also in the interest ofnatural justice that employees arepromoted from the date they becomeeligible and the vacancy exits. Otherwise,it would result in denying promotion tothem for no fault of theirs and onlybecause of not holding selectionprocedure on time for which they cannotbe held responsible. As far as Rule 8(3) isconcerned, it applies to one selectionmade both for promotion and directrecruitment, which is not the case underconsideration."

34. In views of above, sinceselection and promotion has not beendone in a single process, seniority may beconsidered as observed hereinabovekeeping in view the year of recruitment.

35. Their Lordships furtherproceeded to hold that no seniority can begranted from the date when an employeewas even not borne in the cadre. To quoterelevant portion :

"We are also of the view that noretrospective promotion or seniority canbe granted from a date when an employeehas not even been borne in the cadre so asto be adversely appointed validly in themeantime, as decided by this court in thecase of K.C. Joshi & others vs. Union ofIndia, 1992 Suppl (1) SCC 272 held thatwhen promotion is outside the quota,

seniority would be reckoned from the dateof the vacancy within the quota renderingthe previous service fortuitous."

36. In the State of Uttaranchal andanother versus Dinesh Kumar Sharma(2007)1 SCC 683, Hon. Supreme Courtruled that the seniority should bereckoned from the date of substantiveappointment and not from the date ofoccurrence of vacancy. The provisionscontained in the Rules cannot be ignored.While dealing with the matter with regardto Service Rules of U.P. AgricultureGroup B, their Lordships further held thatthere can be no automatic appointment/promotion on mere recommendation ofPSC unless Government sanctions suchappointment/promotion.

37. In (2000)7 SCC 561 SurajParkash Gupta and others versus State ofJ & K and others, Hon'ble Supreme Courtheld that even if on account of delay andlethargic attitude of the StateGovernment, promotion and appointmentis delayed, it does not lead to an inferencethat the quota rule has broken down andwhere there is no explicit provision withregard to rota rule, then rota rule may notbe applied. Employees cannot claim rotamerely on the basis of post and perks.

However, in the present case, rotarule has been provided under both theService Rules (supra), hence that shouldbe applied while preparing the senioritylist.

38. In Special Appeal No.1304 of2003 Arun Kumar Saxena versus State ofUttar Pradesh and others, this Court hasobserved that under proviso 3 of Rule8(3) (supra), a promotee shall be entitledfor seniority from the date of promotionsubject to fulfillment of other conditions.


While considering Clause (3) of Rule 8,this Court held as under :

"Clause (3) or Rule 8 of 1991 Rulesprovides for the inter se seniority of directrecruits and promotees to be appointed onthe basis of one selection and illustrations1 and 2 thereto provide for the manner inwhich the direct recruits and thepro9motees are to be adjusted. Thereafterthere are three provisions (i) to (iii) to thesub rule 3 of rule 8. However, it must beremembered that the provisos are to beread in a manner to suggest thatsomething is being carved out from themain clause. As already noticed above,Rule 8(3) itself contemplatesdetermination of seniority between thepro9motees and direct recruits as a resultof any one selection, meaning thereby thatthe aforesaid rule will have applicationonly where appointments both by directrecruitments and promotions are beingmade as a result of one selection. Ifselections are made in different years,Rule 8(3) will have no application, as aresult whereof the proviso to the aforesaidRule would also not apply."

39. However, the 1992 Rules as wellas applicability of rota rule seems to havenot been considered. Attention of thisCourt has not been invited to any findingwith regard to applicability of rota ruleunder Rule 8(8) read with the provisionscontained in 1992 Rules (supra) byHon'ble Supreme Court.

40. In (2005)8 SCC 454 D. GaneshRao Patnaik and others versus State ofJharkhand and others, their Lordshipsinterpreted the definition of cadre andconsidered the right of the employeesappointed within and beyond the quota.

41. In (1996) 11 SCC 361 M.S.L.Patil, Asstt. Conservator of Forests,Solarpur (Maharashtra) and others versusState of Maharashtra and others, thequestion before the Supreme Court relatesto binding nature of judgment andinterpretation of Civil ServicesRegulations of Seniority Rules whichdoes not seem to be applicable in the factsof the present case. However, theirLordships of Supreme Court havereiterated the principle emerging from thecase of Keshav Chandra Joshi (supra).

42. In view of above, the impugnedorder passed by learned Single Judge doesnot seem to suffer from any improprietyor illegality subject to modification thatkeeping in view the Service Rules inquestion (supra), rota should be appliedby the authorities of direct recruits andpromotees appointed in one recruitmentyear. Accordingly, the order passed byHon'ble Single Judge is modified to theextent that the State shall apply rotasystem to direct recruits and promoteesappointed in one recruitment year.

The appeal is allowed in partaccordingly.



BEFORETHE HON'BLE DR. DHANANJAY YESHWANT

CHANDRACHUD, C.J.THE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Special Appeal Defective No. 840 of 2014

Additional Director General of P.H.Q. &Ors. Appellants

VersusRadhey Shyam Sharma ...Respondent


Counsel for the Appellants:S.C.

Counsel for the Respondents:Shiv Krishna Bahadur

Civil Services Regulation-Regulation 351 AA-Withholding pension gratuity-respondent/petitioner working as S.I.-convicted for offence under Section 302read with 149/364 IPC-Appeal admitted-realization of fine stayed-Single Judgeallowed the petition as no peeunary losscaused to the government-held-LearnedSingle Judge totally over sighted provisionsof Regulation 351-AA read with Regulation919-A (3) held-government reserves itsright to with hold pension under Regulation351-AA-direction of Single Judge notsustainable-Appeal allowed.Held: Para-11However, it has been urged on behalf ofthe respondent that full pensionarybenefits have been released to some ofthe other accused, who were tried alongwith the respondent. In view of the clearmandate of the provisions contained inRegulation 351-AA read with Regulation919-A, we are of the view that such adirection cannot be issued by this Courtsupposedly on the basis of parity. In thepresent case, the respondent has beenconvicted of a serious crime within themeaning of Regulation 351. UnderRegulation 351 the Government reservesto itself the right to withhold a pension if

the pensioner is convicted of a seriouscrime. In view of the provisions ofRegulation 351-AA, the StateGovernment was acting within itsstatutory powers in withholding regularpension and as provided underRegulation 919-A(1) provisional pensionhas been released to the respondent.

Case Law discussed:Special Appeal Defective No. 1278 of 2013decided on 17 Dec. 2013.

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

1. The special appeal arises from ajudgment and order of the learned SingleJudge dated 29 November 2013 directingthe appellants to release all the retiralbenefits of the respondent with interest atthe rate of 12% per annum including fullpensionary benefits.

2. The respondent was appointed asa Sub Inspector in the State Police. Therespondent was committed to trial and bya judgment of the Sessions Judge, Etahdated 20 November 1998, he wasconvicted of the offences inter alia underSection 302 read with Section 149 andunder Section 364 of the Indian PenalCode and was sentenced to undergo

imprisonment for life. The respondent hasfiled a criminal appeal, which has beenadmitted by this Court on 24 November1998 and he has been released on bail.Realisation of the fine imposed by theSessions Judge has been stayed during thependency of the appeal.

3. The respondent attained the age ofsuperannuation on 31 May 1999. Aprovisional pension has been released to himbut full pensionary benefits, gratuity andother retiral dues were withheld on the

ground that an appeal against the order ofconviction inter alia under Sections 302 and364 of the Indian Penal Code is pendingbefore this Court. The respondent filed a writpetition1, which came up for hearing beforethe learned Single Judge. The learned SingleJudge was of the view that in the present caseno pecuniary loss was caused to thedepartment or to the Government and evenafter the criminal proceeding is finalized, norecovery would be made from therespondent. For this reason, the petition wasallowed with a direction for payment of full


pensionary benefits together with all otherretiral dues with interest at the rate of 12%per annum.

4. The submission, which has beenurged by the learned Standing Counsel, isthat the view which has been taken by thelearned Single Judge is directly contrary tothe provisions of Regulation 351-AA of theCivil Service Regulations2 read withRegulation 919-A(3). These provisions, itwas urged, have been construed in ajudgment of a Division Bench of this Courtin State of U.P. and others v. Jai Prakash3.

5. On the other hand, it has beensubmitted on behalf of the respondent thatthe pensionary dues have been allowed tothe other accused who were tried andconvicted with the respondent and who,like the respondent, were engaged in thePolice Service of the State of UttarPradesh. Hence, it was urged that on aparity of reasoning, the respondent shouldbe granted the same benefit.

6. Regulation 351-AA of theRegulations provides as follows:

"351-AA. In the case of aGovernment Servant who retires onattaining the age of superannuation orotherwise and against whom anydepartmental or Judicial proceedings orany enquiry by Administrative Tribunal ispending on the date of retirement or is tobe instituted after retirement a provisionalpension as provided in Regulation 919-Amay be sanctioned."

7. Regulation 919-A of theRegulations is in the following terms:

"919-A. (1) In case referred to inRegulation 351-AA the Head of Department

may authorise the provisional pension equal tothe maximum pension which would havebeen admissible on the basis of qualifyingservice upto the date of retirement of theGovernment servant or if he was undersuspension on the date of retirement upto thedate immediately preceding the date on whichhe was placed under suspension.

(2) The provisional pension shall beauthorised for the period commencing fromthe date of retirement upto and including thedate on which after conclusion ofdepartmental or judicial proceeding or theenquiry by the administrative Tribunal; as thecase may be, final orders are passed by thecompetent authority.

(3) No death-cum-retirement gratuityshall be paid to the Government servantuntil the conclusion of the departmental orjudicial proceedings or the enquiry by theAdministrative Tribunal and issue of finalorders thereon.

(4) Payment of provisional pensionmade under clause (1) above shall beadjusted against final retirement benefitssanctioned to such Government servantupon conclusion of the proceedings orenquiry referred to in clause (3) but norecovery shall be made where the pensionfinally sanctioned is less than theprovisional pension or withheld eitherpermanently or for special period."

8. Besides these two regulations,Regulation 351 stipulates that the StateGovernment reserves to itself the right ofwithholding or withdrawing a pension orany part of it, if the pensioner beconvicted of serious crime or be guilty ofgrave misconduct.

9. These regulations have beenconstrued in the judgment of the Divisionof this Court in State of U.P. and others v.

3 All]. Additional Director General of PHQ & Ors. Vs. Radhey Shyam Sharma 1263

Jai Prakash (supra), rendered on 17December 2013, where it has been held asfollows:

"Government has the power to withholdor withdraw the pension and a power torecover any pecuniary loss suffered.Regulation 351-A postulates that there has tobe a determination in departmental or judicialproceedings. Regulation 351-AA deals with asituation where a departmental or judicialproceeding or any enquiry by theAdministrative Tribunal is pending on thedate of retirement or is to be instituted afterretirement in which case a provisional pensionunder regulation 919-A may be sanctioned.Where a departmental or judicial proceedingis pending on the date of retirement,regulation 351-AA stipulates that aprovisional pension would be admissible andthe modalities for the payment of aprovisional pension are prescribed underregulation 919-A. Regulation 919-A (1)makes a reference to the situation which isreferred in regulation 351-AA and authorisesthe payment of a provisional pension by theHead of Department. The provisional pensionis to be authorised for the period commencingfrom the date of retirement upto and includingthe date of conclusion of departmental orjudicial proceedings or, as the case may be,the enquiry by the Administrative Tribunal.

Regulation 919-A (3) contains an expressionprohibition on the payment of death-cum-retirement gratuity to a government servantuntil the conclusion of the departmentalproceeding, judicial proceeding or as the casemay be, an enquiry by the AdministrativeTribunal. Regulation 41 provides that exceptwhen the term 'Pension' is used incontradistinction to gratuity, 'Pension' wouldinclude gratuity. Consequently, regulation 919(3) which contains a bar on the payment ofgratuity till the conclusion of a departmentalor judicial proceeding would allow thepayment of a provisional pension stipulated inclause (1) of regulation 919-A.

8. The learned Single Judge, in thepresent case, has proceeded on the basis thatneither in regulation 351 nor in regulation351-A is a withholding of gratuitycontemplated during the pendency of ajudicial proceeding. The learned SingleJudge, with respect, has overlooked theprovisions of regulation 351-AA and aspecific bar which is contained in regulation919-A (3). In view of the specificprohibition which is contained in regulation919-A (3), no death-cum-retirement gratuitywould be admissible until the conclusion ofa departmental or judicial proceeding. Theexpression 'judicial proceeding' wouldnecessarily include the pendency of acriminal case."

10. In view of the law as laid down inthe aforesaid decision, the judgment of thelearned Single Judge would, in our view, beunsustainable. The clear mandate ofRegulation 351-AA is that in case of aGovernment servant who retires on attainingthe age of superannuation or otherwise andagainst whom judicial proceedings arepending on the date of retirement or areinstituted thereafter, a provisional pensionmay be sanctioned. Regulation 919-A(3)contains a specific prohibition on thepayment of death-cum-retirement gratuity

until the conclusion of judicial proceedings.In terms of Regulation 919-A a provisionalpension has been made admissible to therespondent.

11. However, it has been urged onbehalf of the respondent that full pensionarybenefits have been released to some of theother accused, who were tried along with therespondent. In view of the clear mandate ofthe provisions contained in Regulation 351-AA read with Regulation 919-A, we are ofthe view that such a direction cannot be


issued by this Court supposedly on the basisof parity. In the present case, the respondenthas been convicted of a serious crime withinthe meaning of Regulation 351. UnderRegulation 351 the Government reserves toitself the right to withhold a pension if thepensioner is convicted of a serious crime. Inview of the provisions of Regulation 351-AA, the State Government was acting withinits statutory powers in withholding regularpension and as provided under Regulation919-A(1) provisional pension has beenreleased to the respondent.

12. In this view of the matter, thejudgment and order of the learned SingleJudge is, with respect, erroneous. Thelearned Single Judge was in error inholding that merely because no pecuniaryloss was caused to the department or to theGovernment, no recovery would berequired to be made and hence, the entirepensionary dues should be released.Regulation 351-A of the Regulations, whichhas been noticed in the decision in State ofU.P. and others v. Jai Prakash (supra), dealswith a situation where inter alia a pensioneris found to have caused a pecuniary loss tothe State by his misconduct or negligenceduring service. Regulation 351 andRegulation 351-AA of the Regulations donot confine the power of the Government towithhold the pensionary dues until a loss isshown to be caused to the State.

13. For these reasons, we allow thespecial appeal and set aside the impugnedjudgment and order of the learned SingleJudge dated 29 November 2013. However,we clarify that upon the disposal of thecriminal appeal by this Court, necessaryconsequences under the law shall followbased on the outcome of the case.

14. The special appeal, isaccordingly, allowed. There shall be noorder as to costs.





BAGHEL, J.

Special Appeal Defective No. 850 of 2014

Birjesh Kumar ...PetitionerVersus

State of U.P. & Ors. .Respondents

Counsel for the Petitioner:Sri B.K. Srivastava, Sri Dhiraj SrivastavaCounsel for the RespondentsC.S.C.

Constitution of India Art. 226-Service Law-termination on conviction in criminal case-without inquiry-without considering theconduct of employee-in utter violation ofguide lines of Apex Court in Tulsiram Patelcase-held-disciplinary authority as well asSingle Judge proceeded on wrongfulpremises-mere conviction would not resulttermination automatically-appeal allowed.

Held: Para-6In the counter affidavit, which was filedon behalf of the State before the learnedSingle Judge, it was specifically admittedin paragraph-8 that the appellant wasdismissed from service "on the basis ofthe conviction". Hence, it is clear thatthe order of dismissal has been passedon the erroneous basis that theconviction in the criminal case wouldipso facto result in an order oftermination. In this view of the matter,we are of the view that it would beappropriate and in the interest of justiceto set aside the impugned order of thelearned Single Judge and to remit the

3 All]. Brijesh Kumar Vs. State of U.P. & Ors. 1265

proceedings back to the disciplinaryauthority.

Case Law discussed:AIR 1985 SC 1416

(Deliverd by Hon'ble Dr. DhananjayYeshwant Chandrachud, C.J.)

1. The appellant was appointed in aGroup 'D' post in the Trade Tax Tribunal on08 September 1989. The appellant wasconvicted by the VIIth Additional SessionsJudge, Meerut in Session Trial No. 146 of1986 of offences under Sections 147, 325read with Section 149, 324 read with Section149, and 452 of the Indian Penal Code andwas sentenced to undergo rigorousimprisonment respectively for a period of sixmonths, two years, three years and threeyears. Based on the order of conviction, theservices of the appellant were terminated bythe Chairperson of the Trade Tax Tribunalon 11 July 1990. The appellant filed a writpetition, being Civil Misc. Writ Petition No.17805 of 1990 (Biresh Kumar v. State ofU.P. and others), before the learned SingleJudge questioning the legality of thetermination. The writ petition has beendismissed by the impugned judgment andorder dated 02 December 2011 on theground that Article 311 (2) of theConstitution provides that without anyenquiry, an order of punishment can bepassed if a civil servant has been convicted ina criminal case after considering his conductwhich led to the conviction.

2. The submission, which has beenurged on behalf of the appellant, is that inview of the decision of the ConstitutionBench of the Supreme Court in Union ofIndia and another v. Tulsiram Patel1, thedisciplinary authority is required toconsider whether the conduct of theGovernment servant was such as to

require his dismissal or removal fromservice or reduction in rank following hisconviction in a criminal case. In thepresent case, it was submitted that thedisciplinary authority proceeded on awrongful premise that a mere convictionwould result in an order of termination.

3. Article 311 of the Constitution,insofar as is material, provides as follows:

"311. Dismissal, removal or reductionin rank of person employed in civilcapacities under the Union or a State.--(1)No person who is a member of a civil serviceof the Union or an all-India service or a civilservice of a State or holds a civil post underthe Union or a State shall be dismissed orremoved by an authority subordinate to thatby which he was 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 himany 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 reduce


him in rank is 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."

4. The provisions of Clause (a) of thesecond proviso to Clause (2) of Article 311of the Constitution have been construed inthe judgment of the Constitution Bench ofthe Supreme Court in Union of India andanother v. Tulsiram Patel (supra), where ithas been held as follows:

"127. ...... To recapitulate briefly,where a disciplinary authority comes toknow that a government servant has beenconvicted on a criminal charge, it mustconsider whether his conduct which hasled to his conviction was such as warrantsthe imposition of a penalty and, if so,what that penalty should be. For thatpurpose it will have to peruse thejudgment of the criminal court andconsider all the facts and circumstances ofthe case and the various factors set out inChallappan's case (AIR 1975 SC 2216).This, however, has to be done by it exparte and by itself. Once the disciplinaryauthority reaches the conclusion that thegovernment servant's conduct was such asto require his dismissal or removal fromservice or reduction in rank he mustdecide which of these three penaltiesshould be imposed on him. This too it hasto do by itself and without hearing theconcerned government servant by reasonof the exclusionary effect of the secondproviso. The disciplinary authority must,however, bear in mind that a convictionon a criminal charge does not

automatically entail dismissal, removal orreduction in rank of the concernedgovernment servant."

5. In the present case, the order oftermination does not indicate that thedisciplinary authority had applied its mindto the nature of conviction or to the questionas to whether the conduct of theGovernment servant was such as to requirehis dismissal or removal from service. Thedecision in Union of India and another v.Tulsiram Patel (supra) specifically requiresthe disciplinary authority to bear in mindthat a conviction on a criminal charge doesnot automatically entail dismissal, removalor reduction in rank.

6. In the counter affidavit, whichwas filed on behalf of the State before thelearned Single Judge, it was specificallyadmitted in paragraph-8 that the appellantwas dismissed from service "on the basisof the conviction". Hence, it is clear thatthe order of dismissal has been passed onthe erroneous basis that the conviction inthe criminal case would ipso facto resultin an order of termination. In this view ofthe matter, we are of the view that itwould be appropriate and in the interest ofjustice to set aside the impugned order ofthe learned Single Judge and to remit theproceedings back to the disciplinaryauthority.

7. For the aforesaid reasons, thespecial appeal is allowed by setting asidethe impugned order of the learned SingleJudge dated 02 December 2011. Theorder passed by the disciplinary authorityon 11 July 1990 is set aside. Thedisciplinary authority shall have dueregard to the law laid down by theSupreme Court in Union of India andanother v. Tulsiram Patel, AIR 1985 SC

3 All]. Brijesh Kumar Vs. State of U.P. & Ors. 1267

1416, and then determine as to whetherthe conduct of the appellant is such as towarrant his dismissal, removal orreduction in rank within the meaning ofproviso (a) to Clause (2) of Article 311 ofthe Constitution.

8. There shall be no order as tocosts.





BAGHEL, J.

Special Appeal Defective No. 861 of 2014State of U.P. & Ors. Appellants

VersusMahipal Singh & Anr. Respondents

Counsel for the Appellants:S.C., Sri A.K. Mishra

Counsel for the RespondentsSri Jitendra Singh, Sri Veer Singh

Constitution of India, Art.-226- claim forRegularization and payment of salary-respondent/petitioner working on dailywages basis since 1986-on post of parttime sweeper-claim of Regularization not

accepted by learned Single Judge-however till consideration of request forcreation of regular post-direction to giveminimum basic pay-admissible to regularemployee along with arrears from thedate of initial engagement-notsustainable modification with currentpayment of wages as per direction oflearned Single Judge maintainable.

Held: Para-14-In several judgements of the SupremeCourt, it has been held that the principleof 'equal pay for equal work' cannot beattracted merely on the nature of thework, irrespective of the educationalqualifications attached to a post orirrespective of the source of recruitmentand other relevant considerations.Hence, it is now a well settled principleof law that the doctrine of 'equal pay forequal work' is not a matter of abstractapplication or a mathematical formulathat can be applied to a case.

Case Law discussed:(2006) 4 SCC 1; (2003) 6 SCC 123; (1996) 11SCC 77; (2009) 9 SCC 514; (2003) 5 SCC 188;(2004) 1 SCC 347; (2006) 9 SCC 321; (2009) 8SCC 556.

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

1. This special appeal arises from ajudgement of the learned Single Judge dated

16 April 2014 by which the StateGovernment has been directed to take adecision in regard to the creation of a post ofsweeper for the office of the Sub-DivisionalOfficer1, Dhampur, Bijnor within twomonths, on a letter which was addressed bythe Board of Revenue on 8 February 1994.The learned Single Judge has also directedthat from 8 February 1994 till the creation ofthe post, the first respondent shall be allowedsalary equivalent to the salary at the lowestgrade of an employee on the post of sweeper

in the State, in the office of the Collector.Arrears have been directed to be worked outwithin a period of three months and to bepaid over to the first respondent. The firstrespondent has also been granted continuityof service.

2. The first respondent was engagedas a sweeper by the SDO when a new officewas established in 1986. By a letter dated 8February 1990, the SDO requested theDistrict Magistrate to grant him permission


to appoint the sweeper. On 2 March 1990,the District Magistrate issued directions forthe appointment of the first respondent on apart-time basis as a sweeper on aconsolidated salary of Rs. 76/- per month.The consolidated payment has since beenrevised from time to time. On 24 January1992, the District Magistrate addressed acommunication to the Board of Revenue forthe creation of a permanent post of sweeperin the office of the SDO at Dhampur.Correspondence ensued between the Boardof Revenue and the District Magistrate. Bya letter dated 8 February 1994, theSecretary, Board of Revenue forwarded thepapers to the State Government for thecreation of a permanent post of sweeper inthe office of the SDO at Dhampur.

3. The first respondent had movedthe State Public Services Tribunal atLucknow by filing a claim petition2. Theclaim petition was dismissed by an orderdated 13 February 1996 with thefollowing observations:

"At the time of admission stage, fromthe record it is clear that he is part timeemployee and he has worked as such. Hecannot show any rule under which a parttime employee can be converted into afull time employee. It is also clear fromrecord that no post has been created inwhich he might be considered as full timeemployee. It is also clear that therecommendation has been made by thelower authority of the Govt. to create thepost so that the petitioner may beconsidered for appointment as full timeemployee on that post. No post has beencreated so far, the petitioner cannot begiven a legal right to get a declaration asfull time employee.

Thus for the above reasons the claimpetition is not maintainable and is liableto be dismissed at the admission stage."

4. Eventually, a writ petition3 wasfiled by the first respondent. In the saidwrit petition, the reliefs that were claimedwere for a direction in the nature ofmandamus directing the appellants toregularize the services of the firstrespondent as a class-IV employee in thepost of sweeper; for the payment ofarrears of salary since 1990 as payable toa regular class-IV employee; andrestraining the appellants from interferingwith the discharge of duties by the firstrespondent.

5. The learned Single Judge has,after noticing the decision of the SupremeCourt in Secretary, State of Karnataka andothers v. Uma Devi (3) and others4, heldthat the first respondent was continuouslyworking as a part-time employee since hisappointment on 2 March 1990 and hadcompleted ten years of continuousservice, the Board of Revenue had alsorecommended to the State Governmentfor creation of a permanent post, sincethere is a permanent establishment of theSDO at Dhampur but the State haddelayed in taking a decision thereon. Inthe meantime, the petition which wasfiled in March 1996 remained pending.On these facts, the learned Single Judgeissued the following directions whileallowing the aforesaid petition:

"9...State of U.P. is directed to takedecision relating to creation of post of'sweeper' for the office of Sub-DivisionalOfficer, Dhampur, Bijnor within a periodof two months, on the letter of Board ofRevenue U.P. at Lucknow dated08.02.1994. From 08.02.1994 till creation

3 All]. State of U.P. & Ors. Vs. Mahipal Singh & Anr. 1269

of the post, the petitioner be given salaryequal to the salary at the lowest grade ofemployees of the post of sweeper in Stateof U.P., in the office of Collector. Thearrears be worked out within three monthsand paid to the petitioner. The petitionershall be entitled for other benefits ofcontinuity in service."

6. Learned Standing Counselappearing on behalf of the appellants hasquestioned both the direction to the Stateto consider the request of the Board ofRevenue as well as the direction to allowsalary to the first respondent from 8February 1994 on the lowest grade of anemployee in the post of sweeper in theState. It is urged that no direction can beissued for the payment of salary on theminimum of the pay scale in the case of aperson who is admittedly a daily wager. Itis further urged that the principle of 'equalpay for equal work' has no applicationwhere an employee is not borne on thepermanent establishment, and in thisregard reliance is placed on a decision ofthe Supreme Court in State of Haryanaand another Vs Tilak Raj and others5.

7. On the other hand, learned SeniorAdvocate appearing on behalf of the firstrespondent relied upon the observationscontained in Para-55 of the decision inUma Devi (supra), to the following effect:

"55...We are, therefore, of the viewthat, at best, the Division Bench of the HighCourt should have directed that wages equalto the salary that is being paid to regularemployees be paid to these daily-wageemployees with effect from the date of itsjudgment. Hence, that part of the directionof the Division Bench is modified and it isdirected that these daily-wage earners bepaid wages equal to the salary at the lowest

grade of employees of their cadre in theCommercial Taxes Department ingovernment service, from the date of thejudgment of the Division Bench of the HighCourt. Since, they are only daily-wageearners, there would be no question of otherallowances being paid to them..."

8. In the first part of the directionwhich has been issued by the learnedSingle Judge, the State Government hasbeen directed to take a decision on therequest which was made by the Board ofRevenue in regard to the creation of apermanent post of sweeper on theestablishment of the SDO, Dhampur,Bijnor. On this aspect, the direction of thelearned Single Judge, it must be noted, isnot a direction either to create the post orto regularize the first respondent. Whethera post should be created or sanctioned, isa matter entirely for the State Governmentto decide.

9. In the present case, the office ofthe SDO was established in 1986 andsince a sweeper had to be appointed, therespondent workman was engaged on apart-time basis, which arrangement hasbeen continuing since then. The Board ofRevenue had written to the StateGovernment as far back as on 8 February1994 recommending the creation of apermanent post. The State Governmenthad not taken its decision. The directionof the learned Single Judge to the StateGovernment to take a decision, therefore,cannot be faulted since the learned SingleJudge has neither directed the creation ofthe post nor issued a mandamus forregularization of the first respondent. Adirection for taking a decision, in fact, is adirection to take a decision in accordancewith law and hence that part of the orderis unexceptionable.


10. The real bone of contention inthe special appeal is in regard to thedirection of the learned Single Judge topay to the first respondent the salary at thelowest grade or, in other words, in theminimum of the salary payable to aregular employee of the State holding thepost of sweeper and to pay arrears w.e.f. 8February 1994. On this direction of thelearned Single Judge for payment ofarrears, the learned Senior Advocateappearing on behalf of the first respondentfairly stated before the Court that this partof the order for payment of arrears from 8February 1994 cannot be sustained but itwas sought to be submitted that inconsistent with the direction contained inPara-55 of the decision in Uma Devi'scase (supra), a direction for the paymentof salary on the minimum of the pay scalewould be justified and in accordance withlaw. Learned Senior Advocate submittedthat the direction of the Supreme Court inPara-55 of the decision in Uma Devi'scase can be divided in two parts, the firstin regard to the grant of minimum of thescale of pay and the second in regard tothe grant of relaxation in the matter ofpermanent engagement Hence, it wasurged that only the latter part constitutes adirection under Article 142 of theConstitution.

11. Before we deal with thesubmissions, we must, at this stage, takedue note of the position which was laiddown in a judgement of the SupremeCourt in State of Haryana Vs Tilak Raj(supra), which has been followed since inseveral decisions of the Supreme Court.The Supreme Court held that a scale ofpay is attached to a definite post, whereasa daily wager does not hold a post.Moreover, it was held that the doctrine of'equal pay for equal work' applies as

between equivalents and would have noapplication where a parity is sought by adaily wager with permanent employees.In that context, the following principleswere laid down:

"11. A scale of pay is attachedto a definite post and in case of a daily-wager, he holds no posts. The respondentworkers cannot be held to hold any poststo claim even any comparison with theregular and permanent staff for any or allpurposes including a claim for equal payand allowances. To claim a relief on thebasis of equality, it is for the claimants tosubstantiate a clear-cut basis ofequivalence and a resultant hostilediscrimination before becoming eligibleto claim rights on a par with the othergroup vis-a-vis an alleged discrimination.No material was placed before the HighCourt as to the nature of the duties ofeither categories and it is not possible tohold that the principle of "equal pay forequal work" is an abstract one.

12. "Equal pay for equal work"is a concept which requires for itsapplicability complete and wholesaleidentity between a group of employeesclaiming identical pay scales and the othergroup of employees who have alreadyearned such pay scales. The problemabout equal pay cannot always betranslated in a mathematical formula."

12. The same principle, it must benoted, was laid down in an earlierdecision in State of Haryana Vs JasmerSingh6.

13. The decision of the SupremeCourt in Uma Devi's case, morespecifically Para-55, has been consideredin State of Punjab Vs Surjit Singh7 by theSupreme Court. The Supreme Court has

3 All]. State of U.P. & Ors. Vs. Mahipal Singh & Anr. 1271

considered the entirety of the observationscontained in Para-55, as extracted therein,as constituting directions which arereferable to the exercise of jurisdictionunder Article 142 of the Constitution.This is clear from the following extractscontained in Paragraphs 29 & 30 of thedecision:

"29. It is in the aforementionedfactual backdrop, this Court in exercise ofits jurisdiction under Article 142 of theConstitution of India, directed: (Umadevicase8, SCC p. 43, para 55)

"55.....Hence, that part of thedirection of the Division Bench ismodified and it is directed that thesedaily-wage earners be paid wages equal tothe salary at the lowest grade ofemployees of their cadre in theCommercial Taxes Department ingovernment service, from the date of thejudgment of the Division Bench of theHigh Court. Since, they are only daily-wage earners, there would be no questionof other allowances being paid to them. Inview of our conclusion, that the courts arenot expected to issue directions formaking such persons permanent inservice, we set aside that part of thedirection of the High Court directing theGovernment to consider their cases forregularisation. We also notice that theHigh Court has not adverted to the aspect

as to whether it was regularization or itwas giving permanency that was beingdirected by the High Court. In such asituation, the direction in that regard willstand deleted and the appeals filed by theState would stand allowed to that extent.If sanctioned posts are vacant (they aresaid to be vacant) the State will takeimmediate steps for filling those posts bya regular process of selection. But whenregular recruitment is undertaken, therespondents in CAs Nos. 3595-612 andthose in the Commercial TaxesDepartment similarly situated, will beallowed to compete, waiving the agerestriction imposed for the recruitmentand giving some weightage for theirhaving been engaged for work in theDepartment for a significant period oftime. That would be the extent of theexercise of power by this Court underArticle 142 of the Constitution to dojustice to them.

30. We, therefore, do not see that anylaw has been laid down in para 55 of thejudgement in Umadevi (3) case9.Directions were issued in view of thelimited controversy. As indicated, theState's grievances were limited."

14. In several judgements of theSupreme Court, it has been held that theprinciple of 'equal pay for equal work'cannot be attracted merely on the nature

of the work, irrespective of theeducational qualifications attached to apost or irrespective of the source ofrecruitment and other relevantconsiderations. Hence, it is now a wellsettled principle of law that the doctrineof 'equal pay for equal work' is not amatter of abstract application or amathematical formula that can be appliedto a case.

15. In this regard we may only refer,at this stage, to the decisions of theSupreme Court in Orissa University ofAgriculture & Technology and another VsManoj K. Mohanty10, Government ofW.B. Vs Tarun K. Roy and others11, andState of Haryana and others Vs CharanjitSingh and others12.

16. We may also note that whereState legislation, such as the Maharashtra


Recognition of Trade Unions andPrevention of Unfair Labour PracticesAct, 1971 provides for a catalogue ofunfair labour practices, such as engagingemployees on daily wage, casual ortemporary basis, the remedy under theindustrial law would, in such cases, beavailable, as held by the Supreme Court inMaharashtra Road Transport CorporationVs Casteribe Rajya P. KarmchariSanghatana13. However, a generaldirection of the nature which was issuedby the learned Single Judge in the presentcase cannot be issued in exercise of thewrit jurisdiction under Article 226 of theConstitution.

17. For these reasons, we are of theview that the impugned judgement andorder of the learned Single Judge wouldhave to be set aside and is set aside to theextent it directs the State to grant to thefirst respondent salary equivalent to thesalary payable to the lowest grade of anemployee holding the post of sweeper inthe State and for the payment of arrearsw.e.f. 8 February 1994. We, however,direct that from the date of the decision ofthe learned Single Judge, namely 16 April2014, the first respondent would beentitled to the payment of minimumwages as applicable in the State under therelevant notification, or as the case maybe, Government Order holding the field.

18. The special appeal is,accordingly, disposed of in the aforesaidterms.

19. There shall be no order as tocosts.



BEFORETHE HON'BLE DINESH MAHESHWARI, J.

THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 17459 of 2012

Ram Rekha Singh ...PetitionerVersus

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

Counsel for the Petitioner:Sri Manish Kumar Nigam, Sri ManojKumar

Counsel for the Respondents:C.S.C., Sri Ravi Prakash Srivastava, SriV.P. Mathur

U.P. Government Servant (Discipline &Appeal) Rules 1999-Rule-7-Terminationwith recovery of Rs. 26,17,408/- towardsalleged loss-petitioner working as BlockDevelopment Officer-placed undersuspension-quashed on ground of undue-delay-after receiving reply to show causenotice-impugned termination orderpassed-without following procedureprescribed under Rule in utter violationNatural Justice-termination order quashedwith reinstatement in service-enquiry tobe concluded from stage of serving chargesheet-to conclude disciplinary proceedingwithin 4 months.

Held: Para-22 & 2422. Noteworthy it is that even in thepunishment order, as regards practicallyall the charges against the petitioner, thedisciplinary authority has merelyobserved that the delinquent had notadduced any evidence to refute thecharges and hence, the same stoodproved. The basic requirement of theprimary evidence on the part of thedepartment to substantiate the chargesappears to have been ignored as if withthe assumption that levelling of chargeswas sufficient and no evidence wasrequisite to substantiate the same. Thisapproach cannot be countenanced.

3 All]. Ram Rekha Singh Vs. State of U.P. & Ors. 1273

24. In view of what has been discussedhereinabove, the impugned order ofpunishment and also the inquiry reportare required to be quashed. However, inthe facts and circumstances of the case,it appears just and proper to allow therespondents to hold the disciplinaryproceedings afresh from the stage ofserving of the charge sheet.

Case Law discussed:(2010) 2 SCC 772; 2012 (1) AWC 354; 2008(1) ADJ 284; W.P. No. 369763 of 2010.

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

1. By way of this writ petition, thepetitioner, who had been serving as BlockDevelopment Officer, has questioned theorder dated 01.02.2012 as passed by theState Government in conclusion of thedisciplinary proceedings that his servicesshall stand terminated and an amount ofRs.26,17,408/- shall be recovered fromhim towards the alleged loss to theGovernment. The order so passed againsthim has been questioned by the petitioneressentially on the grounds that the entiredisciplinary proceedings had been inviolation of the provisions of the U.P.Government Servant (Discipline andAppeal) Rules, 1999('the Rules of 1999'hereafter) as also the basic principles ofnatural justice.

2. The issue involved in the presentmatter being related to the validity of thedisciplinary proceedings, only a briefreference to the background aspects of thematter would suffice. The petitioner,working as Block Development Officer,Nagra/ Rasra, District Ballia, was placedunder suspension in contemplation of aninquiry by the order dated11.10.2007(Annexure No.2). In this orderof suspension, seven distinct allegations

were made against the petitioner, essentiallyof the nature that he indulged inmisappropriation of the government moneyby various acts of improper and illegalpayments towards different works. Byanother order dated 11.10.2007(AnnexureNo.3), the Collector, Basti was appointed asthe Inquiry Officer but then, by yet anotherorder dated 05.12.2007, the Collector,Ballia was appointed as the Inquiry Officer.The petitioner was, thereafter, served with acharge sheet by the Collector, Ballia on15.05.2008; though this charge sheet wasdated 11.10.2007. In this charge sheet, asmany as fifteen different charges werelevelled against the petitioner. It is the caseof the petitioner that he had alreadysubmitted an explanation/ representationdated 15.12.2007 in relation to the sevencharges which were mentioned in thesuspension order dated 11.10.2007; and thatregarding eight new charges in the chargesheet, documents were required, which hedemanded under his letter dated15.05.2008(Annexure No.6) but the samewere not supplied to him.

3. The petitioner has averred thatafter service of the charge sheet on15.05.2008, he was not given any noticeregarding any further action taken by theInquiry Officer in relation to the inquiryproceedings. On the other hand, by anorder dated 17.06.2008(Annexure No.7),he was reinstated in service, revoking theorder of suspension on the ground thatthere was delay in receiving the reportfrom the Inquiry Officer. However, lateron, the petitioner was served with thenotice dated 30.07.2008 (Annexure No.8),enclosing therewith a copy of the inquiryreport, said to have been drawn by theInquiry Officer on 02.06.2008.


4. The opening remarks in the inquiryreport dated 02.06.2008, indicating thebackground in which, and the basis onwhich, the inquiry report was drawn deserveto be noticed for their relevance and thesame are reproduced as under :-

"Jh jkejs[kk flag ;kno] [k.Mfodkl vf/kdkjh] uxjk@jlM+k] tuincfy;k dks dfri; vkjksiksa esa izeq[klfpo] mRrj izns'k 'kklu] xzkE; fodklvuqHkkx&1 ds dk;kZy; Kki la[;k4603@38&1&2007&94f'k0@06fnukad 11 vDVwcj 2007 }kjkfuyfEcr djds muds fo:) foHkkxh;dk;Zokgh izkjEHk dh x;h vkSj blfoHkkxh; dk;Zokgh esa ftykf/kdkjh]cLrh dks tkWp vf/kdkjh ukfer fd;kx;kA iqu% mRrj izns'k 'kklu] xzkE;fodkl vuqHkkx&1 ds dk;kZy; Kkila'kks/ku la[;k5325@38&1&2007&94f'kdk0@06y[kuÅ fnukad 05 fnlEcj 2007 }kjkv/kksgLrk{kjh dks tkWp vf/kdkjh ukferfd;k x;k gSA

Jh jkejs[kk flag ;kno] fuyfEcrvf/kdkjh ds fo:) yxk;s x;s vkjksiksa dslaca/k esa vkjksi i= xfBr dj jkT;iky]mRrj izns'k 'kklu dh vksj ls vuqeksfnrvkjksi i= la[;k5026@38&1&07&97f'k0@06 y[kuÅfnukad 11 vDVwcj 2007 Jh jkejs[kk flag;kno] mijksDr dks miyC/k djkus gsrqiwokZf/kdkjh@tkap vf/kdkjh ds gLrk{kj lsfuxZr fd;k x;k ijUrq ;g vkjksi i= vkjksihvf/kdkjh Jh jkejs[kk flag ¼fuyfEcr½ [k.Mfodkl vf/kdkjh ij fof/k lEer :i ls rkehy ugksus ds QyLo:i mUgs mDr vkjksi i= ,oaizLrkfor lk{; lfgr fnukad 15-05-2008 dksO;fDrxr :i ls miyC/k djk;k x;k rFkkmUgksus fnukad 15-05-08 dks gh fyf[kr:i ls vkosnu i= fn;k fd og 03 fnu ds vUnj¼vFkkZr 18-05-08½ rd viuk Li"Vhdj.k

izLrqr dj nsxsa ijUrq muds }kjk mDrvkjksi i= dk izR;qRrj vFkok Li"Vhdj.kvHkh rd izLrqr ugh fd;k x;k gSA

mDr vkjksi i= ds lkis{k Li"Vhdj.knsus ds LFkku ij Jh jke js[kk flag ;kno¼fuyfEcr½ vfrpkjh deZpkjh }kjk fuEuvkosnu i= v/kksgLrk{kjh ds dk;kZy;esa izLrqr fd, x;s gS%

¼d½ izeq[k lfpo] m0iz0 'kklu] xzkE;fodkl dks ftykf/kdkjh@tkap vf/kdkjh dsek/;e ls lEcksf/kr vkosnu i= fnukad 11-03-2008 tks fd fuyEcu vkns'k fnukad 11-10-2007 ds dze esa tkap ,oa Li"Vhdj.k gsrqizLrqr fd;k x;k ¼izfr layXu½ gSA mDr i=esa ;g dgk x;k gS fd vipkjh vf/kdkjh dksvkjksi i= ds lk{; izkIr ugh gS rFkk vkjksi i=ds dqN foUnqvksa ij viuk Li"Vhdj.k nsrsgq, 'ks"k dk;Z dks iwjk djus ds fy, Jhlqcsnkj flag] voj vfHk;Urk ,oa 'ks"kHkqxrku djus ds fy, jkejs[kk flag [k.M fodklvf/kdkjh ds uxjk ,oa jlM+k dk dk;ZHkkjnsus dk vuqjks/k fd;k gSA

¼[k½ vkjksi i= fnukad 15-05-2008dks izLrkfor leLr lk{; izkIr djus dsmijkUr vfrpkjh vf/kdjh us fnukad 15-05-08] ftls dk;kZy; esa fnukad 17-05-08dks miyC/k djk;k x;k gS] es rFkkdfFkrmRrj fnukad 15-12-2007 ,oa ekax i=fnukad 05-05-2008 dh ckr dgh xbZgS] bl dk;kZy; esa izkIr ugh gSA

vr,o vkjksih Jh jkejs[kk flag ;kno]¼fuyfEcr½ vf/kdkjh ds fo:) yxk;s x;s dqy15 vkjksiksa ds lUnHkZ esa i=koyh ijmiyC/k vfHkys[kksa ,oa muds }kjk fn, x,lanfHkZr vkosnu i=ksa ds ijh{k.kksijkUrvkjksiokj foopsuk ds dze esa tkWp vk[;kfuEuor gS%"

5. After the aforesaid remarks, theInquiry Officer proceeded essentially with


the observations that the relevant recordwas with the delinquent himself who hadfailed to state any explanation/justification in relation to the charges; andfound charge no.1 partially proved andcharges no.2 to 15 fully proved againsthim.

6. The petitioner submitted a replyto the notice dated 30.07.2008 on13.02.2009(Annexure No.9), denying allthe charges and the findings; and assertedthat the record was available with otherofficers. Thereafter, the Governmentproceeded to pass the order dated01.02.2012, awarding punishment, asnoticed at the outset.

7. Questioning the order so passedagainst him, the petitioner has urged thatthe entire proceedings against him hadbeen in violation of the Rules of 1999 asalso the principles of natural justice. Thepetitioner has referred to Rule 7 of theRules of 1999 and has submitted that afterdenial of imputations, the Inquiry Officerwas bound to call the witnesses to provethe charges and to record the oralevidence in the presence of petitioner,who was required to be given anopportunity to cross examine thewitnesses; and thereafter, the petitionerwas to be afforded the opportunity to leadevidence in defence. It is also submittedthat even non-submission of explanationby the delinquent is not decisive of thematter nor could be considered ipso factoadmission of the guilt; and the charges ofmisappropriation/ embezzlement arerequired to be proved by cogent evidenceand finding of guilt could be recordedonly on the basis of such evidence.According to the petitioner, after servingof the charge sheet on 15.05.2008, theInquiry Officer neither fixed any date,

time and place for holding the inquiry, norexamined any witness, nor afforded anyopportunity to him to produce theevidence. It is submitted that thedocuments requested by the petitioner forgiving effective reply to the charge sheetwere not supplied to him.

8. It may be observed that thepetitioner has also taken detailedaverments in relation to the merits of thecharges levelled against him and hasattempted to show that the charges wereeither misplaced or were notsubstantiated. However, looking to thescope of this petition and the orderproposed to be passed, we would prefernot to dilate upon the merits of thecharges in this order and such aspects areleft at that only.

9. The respondents have filed thecounter affidavit seeking to contest thesubmissions made by the petitioner. It issubmitted by the respondents that thepetitioner has been involved inembezzlement of huge amount ofgovernment money and as such, under adetailed charge sheet along with thematerial documents the inquiry wasconducted through duly appointed InquiryOfficer. The respondents have alleged thatthe petitioner tried to avoid the chargesheet and ultimately, he received the sameonly after advertisement was made in thenewspaper on 06.03.2008. Therespondents have further alleged that thepetitioner did receive all the materialdocuments annexed with the charge sheetbut chose not to file any reply to thecharge sheet and hence, the InquiryOfficer was left with no option but toproceed with the inquiry along with thematerial documents available with thedepartment; and after due proceedings,


which the petitioner avoided, the InquiryOfficer submitted a detailed inquiry reportin pursuance whereof a show cause noticealong with inquiry report was served uponthe petitioner; and after due consideration ofthe petitioner's reply, final punishment orderwas passed by the competent authority.According to the respondents the inquiryproceedings cannot be said to be vitiated onany count or at any stage. Respondents havealso refuted the submissions of thepetitioner about non supplying of thedocuments with reference to the letter of thepetitioner dated 15.05.2008(Annexure -C.A.2) that therein the petitioner himselfadmitted having received all the documents/evidence relied upon in the charge sheet andgave an undertaking for submission of replywithin three days, but he did not file anyreply even until finalization of the inquiry.The respondents have also contested thesubmission of the petitioner that no time,date and place was fixed by the InquiryOfficer and have referred to thecommunication of the Inquiry Officer dated05.05.2008 (Annexure-C.A.3) whereby, thepetitioner was informed that 15.05.2008was the date fixed for the purpose ofinquiry. The respondents have also deniedthe averments of the petitioner about thesubmission of the representation dated15.05.2008 with the assertion that no suchletter was received in the office of therespondents authorities, nor the same wasavailable with the Inquiry Officer.

10. Thus, according to therespondents there were no shortcomingsin the inquiry proceedings and in the caseof serious financial irregularities/embezzlement where the petitionerretained and withheld the documentshimself, the punishment order has rightlybeen passed after due inquiry in which the

petitioner was given proper and ampleopportunities to defend.

11. The respondents have alsoattempted to join the issue on the meritsof the charges but, as observedhereinbefore, we do not propose to enterinto the merits of the charges in this orderand hence, those aspects are not beingdilated upon.

12. The petitioner has filed a rejoinderaffidavit, refuting the allegation that heattempted to avoid the service of chargesheet; and has submitted that charge sheetwas served upon him on 15.05.2008 and nodate in the inquiry was fixed by the InquiryOfficer thereafter, nor any evidence wasrecorded by the Inquiry Officer, nor anyopportunity was given to him to leadevidence, and, Inquiry Officer straightwaysubmitted the inquiry report within a shortperiod of 18 days in utter disregard to theprovisions of the Rules of 1999 andprinciples of natural justice.

13. The learned counsel for the partieshave made the submissions in conformitywith the averments taken and the groundsurged in the pleadings as noticedhereinabove. The learned counsel for thepetitioner has referred to and relied upon thedecision of Hon'ble Supreme Court in thecase of State of U.P. Vs. Saroj Kumar Sinha,(2010) 2 SCC 772, and of this Court in thecase of Mahesh Narain Gupta Vs. State ofU.P. and others, 2012 (1) AWC 354, Mohd.Javed Khan Vs. State of U.P. and others,2008 (1) ADJ 284, and Vijay Kumar SinhaVs. State of U.P. and others, Civil Misc. WritPetition No.36973 of 2010 decided on19.04.2011.

14. Having given anxiousconsideration to the rival submissions andhaving examined the record with


reference to the law applicable, we areunable to to approve the process of thedisciplinary proceedings, as adopted bythe respondents in this case; and we areclearly of the view that the punishmentorder consequent to these invalidproceedings deserve to be annulled whileleaving it open for the respondents to takeup the proceedings in accordance withlaw.

15. It remains trite that indepartmental inquiry proceedings, therequirement of rules in particular and theprinciples of natural justice in general arerequired to be followed; and theproceedings held in violation thereofcannot be sustained. In the case of SarojKumar Sinha(supra) the Hon'ble SupremeCourt, inter alia, said,

29. Apart from the above, by virtueof Article 311(2) of the Constitution ofIndia the departmental enquiry had to beconducted in accordance with the rules ofnatural justice. It is a basic requirementof the rules of natural justice that anemployee be given a reasonableopportunity of being heard in anyproceedings which may culminate inpunishment being imposed on theemployee.

30. When a departmental enquiry isconducted against the government servantit cannot be treated as a casual exercise.The enquiry proceedings also cannot beconducted with a closed mind. Theinquiry officer has to be wholly unbiased.The rules of natural justice are requiredto be observed to ensure not only thatjustice is done but is manifestly seen to bedone. The object of rules of natural justiceis to ensure that a government servant istreated fairly in proceedings which may

culminate in imposition of punishmentincluding dismissal/ removal fromservice.

16. It is also not a matter of muchdebate that even if the delinquent does notsubmit his reply to the charge sheet theInquiry Officer cannot conclude that thecharges stood automatically proved.Recording of necessary evidence withparticipation of the delinquent in such aprocess is also the basic requirement offair opportunity of hearing in such mattersof disciplinary proceedings. In the case ofMahesh Narain Gupta (supra), whilereferring to several of the decided cases,this Court, inter alia, said,

16. As it is a case of non recording ofany evidence either oral or documentaryin the enquiry proceedings andsubmission of the enquiry report justifyingall the charges only on the ground of non-filing of the reply/ evidence from thepetitioner's side, we are of the view thatgoing into merit of the charges and torecord own finding may be neither propernor justified as that will be again exercisein ex parte manner behind the back of thepetitioner, i.e., without opportunity tohim.

17. At this stage, we are to observethat in the disciplinary proceedingsagainst a delinquent, the department isjust like a plaintiff and initial burden lieson the department to prove the chargeswhich can certainly be proved only bycollecting some oral evidence ordocumentary evidence, in presence andnotice of charged employee. Even if thedepartment is to rely its own record/document which are already available,then also the Enquiry Officer by lookinginto them and by assigning his ownreason after analysis will have to record a


finding that those documents aresufficient enough to prove the charges.

18. In no case, approach of theEnquiry Officer that as no reply has beensubmitted, the charges will have to beautomatically proved can be approved.This will be erroneous. It has beenrepeatedly said that disciplinary authorityhas a right to proceed against delinquentemployee in ex parte manner but someevidence will have to be collected andjustification to sustain the charges willhave to be stated in detail. The approachof the Enquiry Officer of automatic proveof charges on account of non-filing ofreply is clearly misconceived anderroneous. This is against the principle ofnatural justice, fair play, fair hearingand, thus, Enquiry Officer has to becautioned in this respect.

17. We need not to multiply thereference to the authorities in the presentcase, because herein, it is explicit andapparent that the petitioner has beendenied a fair opportunity of hearing and infact, the proceedings have been conductedin a rather casual and perfunctory manner.

18. It is clear from the own showingof the respondents that after theadvertisement in the newspaper on06.03.2008, a notice was served upon thepetitioner for the purpose of the inquiryproceedings on 15.05.2008 at 3:00 p.m. inthe office of the Collector, Ballia(videAnnexure - C.A.-3). The petitioner is saidto have appeared before the InquiryOfficer on 15.5.2008(Annexure - C.A.-2)and submitted that he would file the replywithin three days. The petitioner hasstated in this writ petition that he made arepresentation dated 15.05.2008 with thesubmissions that he had already stated his

explanation as regards seven chargescontained in the order of suspension andregarding eight new charges in the chargesheet, documents were required, which hadalready been asked for and the same may besupplied. The document in support of thesesubmissions has been filled as Annexure - 6to the petition. This document Annexure - 6bears the seal and signatures from the officeof the Collector, Ballia dated 17.05.2008. Itis difficult to accept the suggestions made bythe respondents in their reply that the saidrepresentation was not received in theiroffice or was not available with the InquiryOfficer.

19. In the given fact situation, evenif it be assumed that there had been anymiscommunication, it is further difficultto accept the submissions of therespondents that the petitioner was not atall interested in participating in theinquiry proceedings.

20. Moreover, and even if all thesubmissions of the respondents are takenon their face value, it remains seriouslyquestionable yet as to on what basis andevidence had the Inquiry Officer drawnhis report dated 02.06.2008 ? The entireof the report nowhere mentions abouteven a single witness having beenexamined in support of the chargeslevelled against the petitioner. It has alsonot been shown that after 15.05.2008, theInquiry Officer ever fixed any other datefor proceedings ahead with the inquiry.

21. In a comprehension of record,the conclusion is irresistible that theinquiry proceedings had been conductedin a casual manner and with a closedmind. For no witnesses having beenexamined and no opportunity having beenextended to the petitioner, we are clearly


of the view that the proceedings cannot besustained. The order passed consequent tosuch proceedings by the respondents isliable to be set aside.

22. Noteworthy it is that even in thepunishment order, as regards practicallyall the charges against the petitioner, thedisciplinary authority has merelyobserved that the delinquent had notadduced any evidence to refute thecharges and hence, the same stoodproved. The basic requirement of theprimary evidence on the part of thedepartment to substantiate the chargesappears to have been ignored as if withthe assumption that levelling of chargeswas sufficient and no evidence wasrequisite to substantiate the same. Thisapproach cannot be countenanced.

23. We may also observe that it hasrepeatedly been sought to be asserted bythe Inquiry Officer as also by thedisciplinary authority that the relevantrecord was retained by the delinquenthimself. Significantly, even the primaryevidence in this regard had also not beenadduced to establish that the referredrecord was in the possession of thedelinquent-petitioner.

24. In view of what has beendiscussed hereinabove, the impugnedorder of punishment and also the inquiryreport are required to be quashed.However, in the facts and circumstancesof the case, it appears just and proper toallow the respondents to hold thedisciplinary proceedings afresh from thestage of serving of the charge sheet.

25. Accordingly and in view ofabove, this writ petition succeeds and isallowed to that extent and in the manner

indicated. The impugned order ofpunishment dated 01.02.2012 and so alsothe inquiry report dated 02.06.2008 arequashed and set aside. The petitioner shallbe reinstated in service forthwith. Therespondents shall hold the disciplinaryproceedings afresh from the stage of servingof charge sheet and for that purpose, it shallbe open for the respondents to appoint anyother Inquiry Officer, if so chosen. TheInquiry Officer shall fix a date forproceeding with the inquiry with due noticeto the petitioner and shall attempt toconclude the proceedings at the earliest,preferably within a period of four monthsfrom the first date of appearance of thepetitioner. The payment of arrears andsalary etc., for the period during which thepetitioner had remained out of service, shallbe subject to the final decision taken by therespondents while concluding theproceedings afresh.



BEFORETHE HON'BLE DEVI PRASAD SINGH, J.

THE HON'BLE MAHESH CHANDRA TRIPATHI, J.


Neetu Devi... PetitionerVersus


Counsel for the Petitioner:Sri Nisheeth Yadav, Sri C.B. Yadav

Counsel for the Respondents:C.S.C., Sri Rajesh Tripathi

Indian Electricity Rules, 1956-Rule 29,30(4), 51(1) and 77 (3)-Duty ofelectricity department to maintain propersupply-petitioner's husband about 26years loss of his life due to electrocution-


claim of immediate compensation-deniedshifting responsibility upon PrincipalI.T.I-apart from compensation of Rs. 75lac-held-apart from forum of Civil Suit-Rs.12 Lac shall be solace to her-accordinglydirection issued to deposit 12 Lacs withintwo months-in case of default -D.M. torecover as arrears of Land revenue.

Held: Para-19Accordingly, in view of above, since inthe present case, the petitioner'shusband suffered because of negligenceon the part of the respondents No.2, 5and 6, and while staying with his ownfriend petitioner's husband died onaccount of electrocution at the youngage of 26 years leaving the petitionerwidow, this Court may grantcompensation which shall be in additionto the petitioner's right in accordancewith law before the appropriate court orforum.

Case Law discussed:2012 (9) SCC 791; (2005) 6 Supreme CourtCases 344.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1 Heard learned counselrepresenting the parties. The petitionerhas preferred the instant writ petitionunder Article 226 of the constitution ofIndia to issue a writ in the nature ofmandamus directing the U.P. PowerCorporation Limited to paycompensation.

2 According to the petitioner'scounsel, petitioner's husband on 8.7.2009,at about 6:30 a.m., Arimardan Singh camein contact with the insulated open cableinstalled by U.P. Power CorporationLimited. On being touched with theinsulated cable, he was electrocuted andsuccumbed to injuries. Post mortem wasconducted and the post mortem reportrevealed that he died because of

electrocution. A copy of post mortemreport of petitioner's husband, has beenannexed as Annexure No.3 to the writpetition. After the death of petitioner'shusband, the petitioner requested theExecutive Engineer of U.P. PowerCorporation Limited for payment ofcompensation. A copy of representationsubmitted to the competent authority, hasbeen filed as Anenxure No.4 to the writpetition.

3 It has also been submitted by thepetitioner's counsel that the incidentoccurred because of lapse on the part ofU.P. Power Corporation Limited and itsMaintenance Engineer. On account ofnegligence of the U.P. Power CorporationLimited to maintain its electricity line, theelectrocution took place.

A legal notice was also sent by thepetitioner for payment of compensation tothe tune of Rs.75,00,000/-. In spite ofrepeated requests made, the compensationwas not paid.

4 Submission of the petitioner'scounsel is that in pursuance of provisionscontained in Rule 29, 30 (4), 50 (1) and77 (3) of Indian Electricity Rules, 1956,the petitioner is entitled for compensation.It is also submitted that immediatecompensation of Rs.1,00,000/- shouldalso be paid to the petitioner underrelevant Rules. A specific pleading hasbeen made in the writ petition that therespondent U.P. Power CorporationLimited has not maintained its electricityline with sufficient care to prevent suchmis-happening. Accordingly, thedependant of the deceased person whosuffered on account of ill-maintenance ofelectricity line, shall be entitled forpayment of compensation. The aforesaid

3 All]. Neetu Devi Vs. State of U.P. & Ors. 1281

Rules relied upon by the petitioner'scounsel, are reproduced as under:-

29. Construction, installation,protection, operation and maintenance ofelectric supply lines and apparatus-- (1)All electric supply lines and apparatusshall be of sufficient ratings for power,insulation and estimated fault current andof sufficient mechanical strength, for theduty which they may be required toperform under the environmentalconditions of installation, and shall beconstructed, installed, protected, workedand maintained in such a manner as toensure safety of [human beings, animalsand property.

(2) Save as otherwise provided inthese rules, the relevant code of practiceof the 3[Bureau of Indian Standards]4[including National Electrical Code] ifany may be followed to carry out thepurposes of this rule and in the event ofany inconsistency, the provision of theserules shall prevail.

(3) The material and apparatus usedshall conform to the relevantspecifications of the [Bureau of IndianStandards] where such specifications havealready been laid down.

30. Service lines and apparatus onconsumer's premises-- (1) The suppliershall ensure that all electric supply lines,wires, fittings and apparatus belonging tohim or under his control, which are on aconsumer's premises, are in a safecondition and in all respects fit forsupplying energy and the supplier shalltake due precautions to avoid dangerarising on such premises from suchsupply lines, wires, fittings and apparatus.

(2) Service-lines placed by thesupplier on the premises of a consumerwhich are underground or which are

accessible shall be so insulated andprotected by the supplier as to be securedunder all ordinary conditions againstelectrical, mechanical, chemical or otherinjury to the insulation.

(3) The consumer shall, as far ascircumstances permit, take precautions forthe safe custody of the equipment on hispremises belonging to the supplier.

(4) The consumer shall also ensurethat the installation under his control ismaintained in a safe condition.

50. Supply and use of energy-- (1)The energy shall not be supplied,transformed, converted or used orcontinued to be supplied, transformed,converted or used unless provisions as setout below are observed:-

(a) The following controls of requisitecapacity to carry and break the current 2[areplaced] after the point of commencement ofsupply as defined in rule 58 so as to bereadily accessible and capable of beingeasily operated to completely isolate thesupply to the installation such equipmentbeing in addition to any equipment installedfor controlling individual circuits orapparatus: -

(i) a linked switch with fuse(s) or acircuit breaker by low and mediumvoltage consumers.

(ii) a linked switch with fuse(s) or acircuit breaker by HV consumers havingaggregate installed transformer/apparatuscapacity up to 1000 KVA to be suppliedat voltage upto 11 KV and 2500 KVA athigher -voltages (above 11 KV and notexceeding 33 KV).

(iii) a circuit breaker by HVconsumers having an aggregate installed

transformer/apparatus capacity above1000 KVA and supplied at 11 KV and


above 2500 KVA supplied at highervoltages (above 11 KV and not exceeding33 KV).

(iv) a circuit breaker by EHVconsumer;

Provided that where the point ofcommencement of supply and theconsumer apparatus are near each otherone linked switch with fuse(s) or circuitbreaker near the point of commencementof supply as required by this clause shallbe considered sufficient for the purpose ofthis rule;

(b) In case of every transformer thefollowing shall be provided: -

(i) On primary side for transformersa linked switch with fuse(s) or circuitbreaker of adequate capacity:

Provided that the linked switch onthe primary side of the transformer maybe of such capacity as to carry the fullload current and to break only themagnetising current of the transformer:

[Provided further that fortransformers--

(A) having a capacity of 5000 KVAand above and installed before thecommencement of the Indian Electricity(Amendment-1) Rules, 2000 and

(B) having a capacity of 1000 KVAand above and installed on or after thecommencement of the Indian Electricity(Amendment-1) Rules, 2000 a circuitbreaker shall be provided.]

Provided further that the provision oflinked switch on the primary side of the

transformer shall not apply to the unitauxiliary transformer of the generator.

(ii) In respect of all transformersinstalled on or after the commencement ofthe Indian Electricity (Amendment-1)Rules, 2000, on the secondary side of alltransformers transforming HV to EHV,MV or LV a circuit breaker of adequaterating shall be installed:

Provided that for supplier'stransformers of capacity upto 630 KVA, alinked switch with fuse or circuit breakerof adequate rating shall be installed onsecondary side.]

(c) Except in the case of compositecontrol gear designed as a unit distinctcircuit is protected against excess energyby means of suitable cut-out or a circuitbreaker of adequate breaking capacitysuitably located and, so constructed as toprevent danger from overheating, arcingor scattering of hot metal when it comesinto operation and to permit for readyrenewal of the fusible metal of the cut-outwithout danger;

(d) The supply of energy of eachmotor or a group of motors or otherapparatus meant for operating oneparticular machine is controlled by asuitable linked switch or a circuit breakeror an emergency tripping device withmanual reset of requisite capacity placedin such a position as to be adjacent to themotor or a group of motors or otherapparatus readily accessible to and easilyoperated by the person incharge and soconnected in the circuit that by its meansall supply of energy can be cut off fromthe motor or group of motors or apparatusfrom any regulating switch, resistance ofother device associated therewith;


(e) All insulating materials arechosen with special regard to thecircumstances of its proposed use andtheir mechanical strength is sufficient forits purpose and so far as is practicable ofsuch a character or so protected as tomaintain adequately its insulatingproperty under all working conditions inrespect of Temperature and moisture; and

(f) Adequate precautions shall betaken to ensure that no live parts are so

exposed as to cause danger."

(2) Where energy is being supplied,transformed, converted or used the

[consumer, supplier or the owner] ofthe concerned installation shall beresponsible for the continuous observanceof the provisions of sub-rule (1) in respectof his installations.

(3) Every consumer shall use allreasonable mean to ensure that whereenergy is supplied by a supplier no personother than the supplier shall interfere withthe service lines and apparatus placed bythe supplier on the premises of theconsumer.]"

77. Clearance above ground of thelowest conductor-(1) No conductor of anoverhead line, including service lines,erected across a street shall at any partthereof be at a height of less than--

(a) For low and medium voltage lines5.8 metres

(b) For high voltage lines 6.1 metres

(2) No conductor of an overheadline, including service lines, erected alongany street shall at any part thereof be at aheight less than--

(a) For low and medium voltage lines5.5 metres

(b) For high voltage lines 5.8 metres

(3) No conductor of in overhead lineincluding service lines, erected elsewherethan along or across any street shall be ata height less than--

(a) For low, medium and highvoltages lines upto and including 11,000volts, if bare 4.6 metres

(b) For low, medium and highvoltage lines upto and including 11,000volts, if insulated 4.0 metres

(c) For high voltage lines above11,000 volts 5.2 metres

(4) For extra-high voltage lines theclearance above ground shall not be lessthan 5.2 metres plus 0.3 metre for every33,000 volts or part thereof by which thevoltage of the line exceeds 33,000 volts.

Provided that the minimum clearancealong or across any street shall not be lessthan 6.1 metres."

5 A plain reading of the aforesaidRules as well as factual matrix on record,prima facie makes out a case for paymentof compensation since electrical line wasnot maintained in terms of Rules (supra).

6 Rule 29 (supra) makes itmandatory to maintain electricity supplyline and its insulation with sufficientmechanical strength. It is because of thefailure on the part of the respondents inmaintaining the electricity line that thepetitioner's husband has succumbed toelectrocution.

7 Petitioner's counsel also reliedupon a circular dated 19.6.2008 contained


in Annexure No.9 to the writ petition. Forconvenience, the entire officememorandum dated 19.6.2008isreproduced as under:-

** m0 iz0 ikoj dkjiksjs'ku fyfeVsM¼m0 iz0 ljdkj dk midze½U.P. POWER CORPORATION

LIMITED(Govt. of Uttar Pradesh Undertaking)______________________________

_______________________________________

'kfDr Hkou foLrkj] 14&v'kksdekxZ] y[kuÅ&226001

la[;k% 2400 vkS0 l0@2008&19¼125½ ,0 ,l0@2001fnukad% 19 twu] 2008

dk;kZy;&Kki

m0iz0 ikoj dkjiksjs'ku fyfeVsM ds=qfViw.kZ fo|qrh; vf/k"Bkiu ds lEidZesa vkus ls ckgjh O;fDr;ksa dh ?kkrd,oe~ lk/kkj.k nq?kZVuk ls gqbZ viaxrkij vuqxzg /kujkf'k vuqeU; fd;s tkuslecU/kh dk;kZy; Kki la[;k&1780&vkSl0la0&17@ikdkfy@2006&19 ¼125½ ,0,l0@2001] fnukad 19-4-06 esafuEuor~ la'kks/ku rRdky izHkko ls fy;stkrs gSa%&

¼d½ orZeku esa ?kkrd ekuo fo|qrnq?kZVuk ds QyLi:i vuqeU; ns;vuqxzg /kujkf'k #0 50]000@& ¼#i;kipkl gtkj½ ds LFkku ij #01]00]000@&¼#i;k ,d yk[k½ izfr O;fDrgksxhA

¼[k½ ckgjh O;fDr@O;fDr;ksa dhlk/kkj.k nq?kZVuk eas gqbZ iw.kZviaxrk dh fLFkfr esa orZeku esavuqeU; {kfriwfrZ #0 50]000@&¼#i;s

ipkl gtkj½ ls c<+kdj #01]00]000@&¼#i;s ,d yk[k½ izfr O;fDrrFkk vkaf'kd viaxrk dh fLFkfr esa #01]00]000@&¼ #0 ,d yk[k½ dh /kujkf'kdks vtZu {kerk esa fpfdRlh; izek.k i=ds vk/kkj ij gq, izfr'kr g`kl ds vuqlkjx.kuk dj vuqikfr vuqxzg /kujkf'k vuqeU;dh tk;sxh ftldh vf/kdre lhek #0 ,d yk[kgksxhA

¼x½ i'kqvksa dh ?kkrd nq?kZVukgsrq vuqeU; vuqxzg /kujkf'k #05000@&¼#i;s ikap gtkj½ vuqeU; dhtk;sxhA

izR;sd fo|qr nq?kZVuk dh fo|qrlqj{kk funs'kky; vFkok vU; laLFkkuksa}kjk dh xbZ tkWapksa dks laKku esaysdj foHkkxh; tkWap dh tk;s vkSj{kfriwfrZ ds :i esa Hkqxrku dh xbZ/kujkf'k dh olwyh fo|qr nq?kZVuk gsrqmRrjnk;h ¼;fn dksbZ gks rks½ dkfeZd¼vf/kdkjh@deZpkjh½ ls vuq'kklfuddk;Zokgh ds vfrfjDr dh tk;sA

mDr vkns'k fnukad 19-6-2008vFkok blds mijkUr gksus okyh fo|qrnq?kZVuk ds izdj.k ds lEcU/k esaizHkkoh gksaxsaA

v/;{k

la[;k% 2400 ¼1½vkSl&17@ikdkfy@2008&rn~fnukad%

izfrfyfi fuEufyf[kr dks lwpukFkZ,oe~ vko';d dk;Zokgh gsrq izsf"kr %&

1½ leLr izcU/k funs'kd]iwokZaUpy@if'pekapy@e/;kapy@nf{k.kkapy fo|qr forj.k fuxefyfeVsM@dsLdks]okjk.klh@esjB@y[kuÅ@vkxjk@dkuiqjA


2½ eq[; vfHk;Urk ¼ty&fo|qr½] m0iz0 ikoj dkjiksjs'ku fyfeVsMA

3½ leLr eq[; vfHk;Urk ¼ forj.k ½]m0 iz0 ikoj dkjiksjs'ku fyfeVsM dks blvk'k; ls fd os vius Lrj ls mDr vkns'k dhizfr vf/kuLFk vf/kdkfj;ksa@bdkbZ;ksadks miyC/k djk nsaA

4½ leLr mi egkizcU/kd] m0 iz0ikoj dkjiksjs'ku fyfeVsMA

5½ leLr vf/k'kklh vfHk;Urk] m0 iz0ikoj dkjiksjs'ku fyfeVsMA

6½ egkizcU/kd] ys[kk ,oe~lEizs{kk] m0 iz0 ikoj dkjiksjs'kufyfeVsMA

7½ mi egkizcU/kd] ¼ys[kk½] m0iz0 ikoj dkjiksjs'ku fyfeVsMA

8½ leLr ojf"B dkfeZdvf/kdkjh@dkfeZd vf/kdkjh] m0 iz0 ikojdkjiksjs'ku fyfeVsMA

9½ vuqlfpo] dkfeZd foRr uhfr] m0iz0 ikoj dkjiksjs'ku fyfeVsMA

10½ dkjiksjs'ku ¼eq0½] 'kfDrHkou ds leLrvf/kdkjh@vuqHkkx@f'kfojA

11½ dEiuh lfpo] m0 iz0 ikojdkjiksjs'ku fyfeVsMA

12½ dV Qkby@i=koyhla[;k&8&,e@92 A

vkKk ls]viBuh;

¼v'kksd dqekj½mi egkizcU/kd ¼vkS0 la0½ **

8 A plain reading of the aforesaidoffice memo of U.P. Power CorporationLimited shows that the sufferer shall beentitled to Rs.1,00,000/- as a measure ofimmediate compensatory payment. Whyrespondent U.P. Power CorporationLimited has failed to discharge itsstatutory obligation is not borne out fromthe record. Otherwise also, the amount ofRs.1,00,000/- is too meagre in the eventof death on account of electrocution.

Office memorandum (supra) grantsnon-statutory immediate relief. Courtsmay provide compensation in view ofactual damage caused, which may bemuch higher than it (supra).

9 Rule 29 of the Indian ElectricityRules, 1956 (supra), provides that allelectricity supply line and apparatus shallcontain sufficient safeguard and insulationto check such incident. There appears tobe no room of doubt that in caserespondents would have taken necessarysteps in pursuance of statutory duty, thenincident would not have happened andpetitioner's husband aged about 26 yearsof life, would not have suffered withuntimely death.

Thus, it appears that on account ofnegligence on the part of U.P. PowerCorporation Limited, vis-a-vis respondentNo.6, the incident occurred andpetitioner's husband died because ofelectrocution.

10 While submitting reply to thepresent writ petition, it has been submitted bythe respondents that under Section 161 ofIndian Electricity Act, 2003, the DirectorateElectrical Supply has been assigned duty forinquiry of such incident. According to reportof the Director, Electricity Safety,Farrukhabad, 80 kilo volt ampier was givento the Industrial Training Institute,Farrukhabad campus by the DakshinanchalVidyut Vitran, Limited Fatehgarh,Farrukhabad on low transmission line. It hasalso been stated that the maintenance ofelectricity after the energy meter was the soleresponsibility of Industrial Training Institute,Farrukhabad. One Ram Naresh InstructorMachine, Industrial Training Institute,Farrukhabad is allotted residential house inthe campus where he lives along with family


members. At the relevant time, he wasposted at ITI, Allahabad. Being close friendof Ram Naresh, Sri Amrendra Singh wasstaying in his house. According to the report,when Amrendra Singh was going to takebath, he came into contact with broken cableat the stairs of the bathroom. In consequencethereof, he was electrocuted. A finding hasbeen recorded by the inquiry officer that theelectricity maintenance of the house was notin accordance with Rules 29, 30 (4), 50 (1),77 (3) of the Indian Electricity Rules, 1956.A finding has been further recorded that itwas sheer negligence on the part of thePrincipal, ITI, Farrukhabad with defectiveinstallation of electricity line. The DirectorElectrical Safety, submitted report on30.9.2009 and also furnished a copy thereofto the petitioner informing her to contact thePrincipal ITI, Farrukhabad for payment ofcompensation. Thus, the respondent No.5,U.P. Power Corporation Limited avoidedresponsibility to pay compensation in spite ofthe fact that a finding has been recorded withregard to negligence in maintenance ofpower connection.

11 It is submitted by the learnedcounsel for the respondent U.P. PowerCorporation Limited that the Director,Electrical Safety Farrukhabad hasnowhere recorded finding that the U.P.Power Corporation Limited is liable tomake payment of compensation. In viewof the above, the U.P. Power CorporationLimited has set up a case that it shall notbe liable to make payment ofcompensation. The responsibility to paycompensation in pursuance of report ofthe Director Electrical Safety, has beenshifted on the Principal ITI who has alsodisowned the liability to paycompensation. In such a situation, aquestion has cropped up as to who isresponsible to pay the compensation on

account of electrocution of petitioner'shusband.

12 The statutory provisionsdiscussed hereinabove, provides tomaintain the electricity line or cablesstrictly in accordance with Rules to avoidany such incident.

13 Rule 29 (supra) casts a duty onU.P. Power Corporation Limited also todo needful with regard to installation,protection and maintenance of electricitysupply line and apparatus. U.P. PowerCorporation Limited cannot shirk fromthe statutory duty to ensure that theelectricity lines are maintained inaccordance with Rules and sufficientsafeguard.

14 Nothing has been brought onrecord while filing counter affidavit thatthe required inspection has been done inaccordance with rules by the officers ofthe U.P. Power Corporation Limited tocheck the maintenance of electricity line.Being a connection of high voltage, it wasexpected that the U.P. Power CorporationLimited shall ensure that the consumer ismaintaining the electricity line inaccordance with Rules. It does not meanthat the consumer can disown the liabilitywith regard to maintenance of electricityline within its own premises. Section 31of the Indian Electricity Rules, 1956, alsocasts duty on the consumer with regard tomaintenance of electricity line within itsown premises. For convenience, Section31 (supra) is reproduced as under:

"31. Cut-out on consumer'spremises.--(1) The supplier shall providea suitable cut-out in each conductor ofevery service-line other than an earthed orearthed neutral conductor or the earthed


external conductor of a concentric cablewithin a consumer's premises, in anaccessible position. Such cut-out shall becontained within an adequately enclosedfireproof receptacle. Where more than oneconsumer is supplied through a commonservice-line, each such consumer shall beprovided with an independent cut-out atthe point of junction to the commonservice.

(2) Every electric supply line otherthan the earth or earthed neutral conductorof any system or the earthed externalconductor of a concentric cable shall beprotected by a suitable cut-out by itsowner.

1[(3) * * * * *]

1. Sub-rule (3) omitted by GSR 358,dt. 30.4.1987, w.e.f. 5.9.1987."

15 In the present case, it appears thatthe respondent Industrial TrainingInstitute as well as U.P. PowerCorporation Limited, have failed todischarge their statutory obligation withregard to maintenance of electricity line.The report submitted by the DirectorElectrical Safety is the eye opener whichshows how the consumer and U.P. PowerCorporation Limited have beennegligence in the discharge of theirstatutory duty. While supplying electricityline to the industrial consumers, it shallalways be obligatory on the part of theElectricity Department to have a regularcheck with regard to use of electricity lineby such industrial units. In case the theU.P. Power Corporation Limited wouldhave done regular inspection ofrespondent industrial unit, such incidentwould not have occurred.

16 The husband of the petitioner hadvisited his friend for personal reason andstayed in the premises in question. It is notonly the consumer but whosoever visits theconsumer and suffers from suchincident/accident, shall be entitled forpayment of compensation in pursuance ofoffice memo of the U.P. Power CorporationLimited (supra). Accordingly, we are of theview that not only the U.P. PowerCorporation Limited but also the respondentIndustrial Training Institute shall be liable topay compensation. Both are jointlyresponsible and seem to be negligent tomaintain electricity line. A person who hadgone to attend his friend in young age, hadsuffered with the accident leaving behindthe petitioner widow, without any source oflivelihood, in such situation, it shall beappropriate that the petitioner be awardedsome compensatory costs and the U.P.Power Corporation Limited may also bedirected to pay compensation in accordancewith statutory Rules (supra) which shall bein addition to the damages claimed by thepetitioner by filing a suit or approachingother appropriate alike forum for paymentof compensation.

17 Death because of electrocution inview of ill-maintenance of electricity lineby the respondents, is violative of Article21 of the Constitution of India. In thematter involving infringement ordeprivation of fundamental right, thisCourt has got ample power to awardcompensation under Article 226 of theConstitution of India.

In the present case, because of ill-maintenance of electricity line as held inthe report of the Director, ElectricalSafety, the husband became victim of it.Hence in such a situation, this Court maydirect for payment of compensation.


18 In the case reported in 2012 (9)SCC 791: Raghuvansh DewanchandBhasin Vs. State of Maharashtra, whileconsidering the ambit and scope of Article21 and its violation, and court's right topayment compensation, their lordshipsheld as under:-

17 It is trite principle of law that inmatters involving infringement ordeprivation of a fundamental right; abuseof process of law, harassment etc., thecourts have ample power to awardadequate compensation to an aggrievedperson not only to remedy the wrong doneto him but also to serve as a deterrent forthe wrongdoer.

18 In Rudul Sah Vs. State of Bihar,Y.V. Chandrachud, CJ, speaking for aBench of three learned Judges of thisCourt had observed thus: (SCC p. 147,para 10)

"10. ...One of the telling ways inwhich the violation of that right canreasonably be prevented and duecompliance with the mandate of Article21 secured, is to mulct its violators in thepayment of monetary compensation.Administrative sclerosis leading toflagrant infringements of fundamentalrights cannot be corrected by any othermethod open to the judiciary to adopt."

19 In Bhim Singh, MLA Vs. Stateof J & K, holding illegal detention inpolice custody of the petitioner BhimSingh to be violative of his rights underArticles 21 and 22(2) of the Constitution,this Court, in exercise of its power toaward compensation under Article 32,directed the State to pay monetarycompensation to the petitioner. Relyingon Rudal Sah , O. Chinnappa Reddy, J.

echoed the following views: (SCC p.686,para 2)

"2. ... When a person comes to uswith the complaint that he has beenarrested and imprisoned with mischievousor malicious intent and that hisconstitutional and legal rights wereinvaded, the mischief or malice and theinvasion may not be washed away orwished away by his being set free. Inappropriate cases we have the jurisdictionto compensate the victim by awardingsuitable monetary compensation..."

20. In Nilabati Behera (Smt) AliasLalita Behera Vs. State of Orissa, clearingthe doubt and indicating the precise natureof the constitutional remedy underArticles 32 and 226 of the Constitution toaward compensation for contravention offundamental rights, which had arisenbecause of the observation that "thepetitioner could have been relegated to theordinary remedy of a suit if his claim tocompensation was factually controversial"in Rudul Sah (SCC p. 147, para 10), J.S.Verma, J. (as His Lordship then was)stated as under: (Nilabati Behera case,SCC pp. 762-63, para 17)

"17 It follows that 'a claim in publiclaw for compensation' for contraventionof human rights and fundamentalfreedoms, the protection of which isguaranteed in the Constitution, is anacknowledged remedy for enforcementand protection of such rights, and such aclaim based on strict liability made byresorting to a constitutional remedyprovided for the enforcement of afundamental right is 'distinct from, and inaddition to, the remedy in private law fordamages for the tort' resulting from thecontravention of the fundamental right.


The defence of sovereign immunity beinginapplicable, and alien to the concept ofguarantee of fundamental rights, there canbe no question of such a defence beingavailable in the constitutional remedy. Itis this principle which justifies award ofmonetary compensation for contraventionof fundamental rights guaranteed by theConstitution, when that is the onlypracticable mode of redress available forthe contravention made by the State or itsservants in the purported exercise of theirpowers, and enforcement of thefundamental right is claimed by resort tothe remedy in public law under theConstitution by recourse to Articles 32and 226 of the Constitution. This is whatwas indicated in Rudul Sah and is thebasis of the subsequent decisions in whichcompensation was awarded under Articles32 and 226 of the Constitution, forcontravention of fundamental rights."

(emphasis supplied)

21. In the same decision, in hisconcurring judgment, Dr. A.S. Anand, J.(as His Lordship then was), explaining thescope and purpose of public lawproceedings and private law proceedingsstated as under: (Nilabati Behera case,SCC pp. 768-69, para 34)

"34. The public law proceedingsserve a different purpose than the privatelaw proceedings. The relief of monetarycompensation, as exemplary damages, inproceedings under Article 32 by thisCourt or under Article 226 by the HighCourts, for established infringement of theindefeasible right guaranteed underArticle 21 of the Constitution is a remedyavailable in public law and is based on thestrict liability for contravention of theguaranteed basic and indefeasible rights

of the citizen. The purpose of public lawis not only to civilize public power butalso to assure the citizen that they liveunder a legal system which aims to protecttheir interests and preserve their rights.Therefore, when the court moulds the reliefby granting "compensation" in proceedingsunder Article 32 or 226 of the Constitutionseeking enforcement or protection offundamental rights, it does so under thepublic law by way of penalising thewrongdoer and fixing the liability for thepublic wrong on the State which has failedin its public duty to protect the fundamentalrights of the citizen. The payment ofcompensation in such cases is not to beunderstood, as it is generally understood ina civil action for damages under the privatelaw but in the broader sense of providingrelief by an order of making 'monetaryamends' under the public law for the wrongdone due to breach of public duty, of notprotecting the fundamental rights of thecitizen. The compensation is in the nature of'exemplary damages' awarded against thewrongdoer for the breach of its public lawduty and is independent of the rightsavailable to the aggrieved party to claimcompensation under the private law in anaction based on tort, through a suitinstituted in a court of competentjurisdiction or/and prosecute the offenderunder the penal law." (emphasis supplied)

22. The power and jurisdiction ofthis Court and the High Courts to grantmonetary compensation in exercise of itsjurisdiction respectively under Articles 32and 226 of the Constitution of India to avictim whose fundamental rights underArticle 21of the Constitution are violatedare thus, well-established. However, thequestion now is whether on facts in hand,the appellant is entitled to monetarycompensation in addition to what has


already been awarded to him by the HighCourt. Having considered the case in thelight of the fact- situation stated above,we are of the opinion that the appellantdoes not deserve further monetarycompensation."

19 Accordingly, in view of above,since in the present case, the petitioner'shusband suffered because of negligenceon the part of the respondents No.2, 5 and6, and while staying with his own friendpetitioner's husband died on account ofelectrocution at the young age of 26 years

leaving the petitioner widow, this Courtmay grant compensation which shall be inaddition to the petitioner's right inaccordance with law before theappropriate court or forum.

20 It shall be appropriate that therespondent No.5 U.P. Power CorporationLimited Respondent No.6 Principal,Industrial Training Institute (ITI),Farrukhabad, who seems to be equallyresponsible for ill-maintenance ofelectricity connection be directed to paycompensation.

21 In such a situation, where ayoung man of 26 years electrocutedbecause of fault of respondent U.P. PowerCorporation Limited as well asrespondent No.6, appropriatecompensation may be awarded as ameasure of immediate relief to the widowapart from the costs in view of thejudgment reported in (2005) 6 SupremeCourt Cases 344, Salem Advocate BarAssociation (II), Vs. Union of India. Weassess the compensation to the tune ofRs.10,00,000/- (ten lakhs) which shall bepaid by respondent U.P. PowerCorporation Limited, as well asrespondent No.6 equally (five lakh each).

We further assess the costs to both ofthem to the tune of Rs.1,00,000/-, one lakheach ( total rupees two lakhs). Thecompensation paid in pursuance of thepresent judgment, shall be in addition towhatever is being paid to the petitionerwidow of the deceased husband by otherforum in a civil suit or other statutoryauthority. We feel that amount ofRs.12,00,000/- (twelve lakhs) shall notcompensate the vacuum created in the lifeof widow but it shall be a solace to her toprepare a future plan of life and deterrent towrong doers.

22 Accordingly, the writ petition isallowed. A writ in the nature ofmandamus is issued directing therespondent No.2 and 5, and respondentNo.6 to pay an amount of Rs.5,00,000/-each (total rupees ten lakhs). The costs isassessed to Rs.1,00,000/- each payable byrespondent No.2 and 5, and respondentNo.6 (total rupees two lakhs).

Let the amount of Rs.12,00,000/-(total rupees twelve lakhs) be depositedby the respondent No.2 and 5 andrespondent No.6 equally within twomonths in this Court to which thepetitioner shall be entitled to withdraw. Inthe event of failure on the part of therespondent No.2 and 5 and respondentNo.6 to deposit the aforesaid amount, theDistrict Magistrate, Lucknow as well asDistrict Farrukhabad shall recover thesame from the respondent No.2 and 5 andrespondent No.6, as arrears of landrevenue and remit it to this Court whichthe petitioner shall be entitled towithdraw. Registry of this Court to takefollow up action.

The writ petition is allowedaccordingly. The compensation paid in

3 All]. Akhilesh Kumar Vs. State of U.P. & Ors. 1291

pursuance of the present judgment, shallbe in addition to compensation claimed bythe petitioner in suit before appropriatecourt, authority or forum.



BEFORETHE HON'BLE VIVEK KUMAR BIRLA, J.


Akhilesh Kumar ...PetitionerVersus


Counsel for the Petitioner:Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:C.S.C., Sri Q.H. Siddiqui

U.P. Recruitments of Dependents ofGovernment Servant (Dying in Harness)Rules 1974-Rule-2 (c)(v)-word “Family”whether of includes brother-after deathof unmarried brother where father alivebut living separately with second wifeafter death of mother of petitioner-held-'Yes' in view of full Bench decision ofSheo Kumar Dubey.

Held: Para-14Therefore, in my opinion the "family" oflate Manoj Kumar is to be seen for thepurpose of Dying in Harness Rule, 1974and not that of Sri Chhote Lal, father of thepetitioner who got remarried as back as inthe year 1998 and was living with RadhikaDevi and three daughters born out ofsecond marriage and was not maintainingthe petitioner and his brothers includingdeceased Manoj Kumar. As such for allpurposes under the provisions of Dying inHarness Rule 1974 his family becamedifferent family as contemplated in theaforesaid Rules 1974 and to holdotherwise would defeat the purpose of thesaid Rules.

(B)U.P. Recruitment of dependents ofGovernment Servant (Dying in Harness)Rules 1974-Rule-5-Compassionateappointment-petitioner being brother ofunmarried deceased employee-fullydependent-having no source of income-applying golden Rule of interpretation-entitled for compassionate appointment-even the father being working ------------still alive-but living separately with secondwife and her children-order quashedconsequential direction given.

Held: Para-20In the present as already held that thepetitioner has included in the family oflate Manoj Kumar as defined under Rule2 (c) (iv) of the Dying in Harness Rule1974, as such the petitioner who isbrother of the deceased and is not inservice is entitled for appointment oncompassionate ground provided hemaintains other family members of thedeceased namely his younger brotherAmit Kumar, who is also living with himand was also dependent of late ManojKumar. Admittedly, deceased ManojKumar was unmarried as such thequestion of spouse being being in servicedoes not arise. It is also undisputed factthat the petitioner Akhilesh Kumar is notin service of Central Govt. or State Govt.or in any Corporation as mentioned inRule 5 of the Act.

Case Law discussed:2014 (123) RD 504 (FB);2014 (2) (ADJ) 312(FB).

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Siddharth Khare,learned counsel for the petitioner andlearned Standing Counsel appearing forthe respondents.

2. Facts of the case are that lateManoj Kumar, the brother of thepetitioner, was working as JuniorEngineer (Civil) in Jal Nigam, who


expired on 13.1.2010, while he wasposted in Jal Nigam Corporation. It isalleged that after the death of the motherof the petitioner Smt. Prabhawati Devi,the father of the petitioner married againwith one Radhika in the year 1998 andstarted living separately from late ManojKumar (brother of the petitioner),Akhilesh Kumar (petitioner) and hisyounger brother Amit Kumar. It para 18and 19 of the petition it has beencategorically stated that from his secondwife the father of the petitioner ChhoteLal also has three daughters aged about 9years, 13 years and 14 years and he ismaintaining his second wife and threedaughters only. Since the petitioner andhis younger brother Amit Kumar werefinancial dependent on their brother lateManoj Kumar as such after his death anapplication dated 5.5.2011 was filed bythe petitioner for seeking appointment oncompassionate ground, a copy whereof isAnnexure-1 to the petition. The paperswere forwarded by the ExecutiveEngineer, Division Office Pratapgarh tothe Superintendent Engineer at Allahabad,which in turn, were further forwarded bythe Superintendent Engineer to the ChiefEngineer, Jal Nigam Lucknow. It is alsoon record that a communication dated11.7.2011 was issued by the ChiefEngineer Lucknow to the ExecutiveEngineer Allahabad to consider the caseof the petitioner as per the Dying InHarness Amendment Rules 2001, a copywhereof is Annexure-2 to the writpetition. Further correspondence amongstthe respondent authorities has also beenplaced on record, which shows that thecase of the petitioner was beingconsidered for this purpose. The aforesaidcorrespondent are Annexures 5, 6, 7 and8, which demonstrate that a finding of facthas come that petitioner and his younger

brother Amit Kumar, were dependent onthem deceased brother Manoj Kumar andwere living with him. It was also recordedthat the father of the petitioner is alive andis working in Akashvani.

3. On the basis of the aforesaidinformation, the application of thepetitioner, seeking compassionateappointment, was rejected vide orderdated 1.12.2011, a copy whereof isAnnexure-9 to the petition. The petitionerfiled a representation before theManaging Director, Jal Nigam, Lucknow,challenging the aforesaid communication.In the order dated 1.12.2011 two groundsfor rejecting the claim of the petitionerwere mentioned. First ground is that thepetitioner is son of Chhote Lal and assuch he is his family member and secondground is that since Chhote Lal is aliveand is working in Akashvani, therefore,he would be treated as dependent of hisfather Chhote Lal and cannot be treated adependent of his brother Manoj Kumarand it will also be deemed that thefinancial condition of the family ofChhote Lal is sound. It was furtherobserved that in case the petitioner is notable to maintain himself, his father isliable to maintain him and for thispurpose he may proceed against his fatherand that under these circumstancescompassionate appointment cannot begranted to him. Thereafter the petitionerfiled a petition being Writ Petition No.3287 of 2013, highlighting thecommunication dated 1.12.2011 regardingthe rejection of his claim and that thematter on his further representation is notbeing proceeded with by the competentauthorities. In the aforesaid writ petition adirection was issued to the concernedauthority to finalise the proceedingspreferably within two months from the


date of the production of the certifiedcopy of the order before him, a copy ofthe judgement and order dated 21.1.2013passed in Writ Petition No. 3287 of 2013is Annexure-12 to the writ petition.

4. Subsequently, the representationof the petition was dismissed by theExecutive Engineer, Allahabad, vide hisorder dated 27.4.2013, which isAnnexure-13 to the petition. In this orderapart from the grounds which were earliermentioned in the order dated 1.12.2011namely, that his father is alive and isworking in Akashvani, an additionalground was added that his mother Smt.Prabhawati Devi lives in Allahabad alongwith her children whereas the mother ofthe late Monoj Kumar was one Smt.Radhika Devi and as such the petitionerbeing the step brother of Manoj Kumarcannot be treated his dependent and is notentitled for compassionate appointment.

5. In so far as the petitionerAkhilesh Kumar being stepbrother ofManoj Kumar is concerned, Sri SiddharthKhare submitted that his ground is neitherhere nor there and is contrary to theevidence on record. For this purpose he hasdrawn the attention of this court toAnnexure-15 of the petition, which is aHigh School Examination 2006 Certificateof the petitioner Akhilesh Kumar where inhis mother is shown to be Prabhawati Devi.He has thereafter placed the High SchoolExamination Certificate 2001 of ManojKumar where again late Smt. PrabhawatiDevi has been shown as his mother. Aperusal thereof clearly shows that themother of the petitioner Akhilesh Kumar aswell as of late Manoj Kumar was samenamely, Prabhawati Devi.

6. Assertion with regard to theaforesaid fact have been made in para 28to 34 of the petition. In the counteraffidavit in para 19 the said fact has notbeen denied by the respondents. It hadalso not been denied that no opportunityof hearing was accorded to the petition toprove his case that the mother of both,Akhilesh Kumar petition as well as lateManoj Kumar was one and same namelySmt. Prabhawati Devi. Therefore, in viewof the aforesaid record available beforethis court, to which there is no specificdenial, there appears to be no hesitation inholding that a new ground has beeninserted while rejecting the claim of thepetitioner which is contrary to the recordavailable. This fact is further fortifiedfrom the inquiry report dated 30.9.2011,which is on record as Annexure-8 to thepetition wherein a categorical finding offact has come that the father of thepetitioner had solemnized secondmarriage and is living separately. It wasalso recorded that deceased and hisyounger brother Amit Kumar weredependent of their brother late ManojKumar and was living separately withhim. It is needless to note that had Smt.Prabhawati Devi, mother of the petitionerand first wife of Chhote Lal being alive,he could not have entered into secondmarriage on 3.4.1998 as it is proved fromthe marriage agreement dated 3.4.1998,which is Annexure-14 to the writ petition.For the purpose of the present case deathof Smt. Prabhawati Devi is not veryrelevant once it is proved that thepetitioner was dependent on late ManojKumar. Therefore, the controversy raisedregarding the petitioner being stepbrotherof late Manoj Kumar appears to be anafterthought and has no legs to stand asper the record available before this court.


7. Now coming to the second issue thatas to whether the petitioner comes within thedefinition of family member of late ManojKumar within the meaning of the U.P.Recruitment of Dependents of GovernmentServant Dying in Harness Rule 1974 asamended from time to time herein afterreferred to as Dying in Harness Rules 1974.Thereafter the issue would be as to whetherthe petitioner is entitled for recruitment oncompassionate ground as per Rule 5 of theDying in Harness Rules 1974, in view of thefact that his father is alive and is inGovernment/Corporation service, For thispurpose it is necessary to note the relevantun-amended and amended Dying in HarnessRules relating to the present controversy.

8. First of all definition of family is tobe noted which has under gone variousamendments. Definition as given in Rule 2(c) of "family" as provided originally inDying in Harness Rule 1974 is quotedbelow :-

(c) "family" shall include thefollowing relations of the deceasedGovernment servant:

(i) Wife or husband;(ii) Sons;(iii) Unmarried and widowed

daughters;

9. Subsequently, an amendment wasmade in the definition and videNotification dated 12.10.2001, followingclause was added which is quoted here inunder :-

(iv) If the deceased was unmarriedGovernment servant, brother, unmarriedsister and widowed mother dependant onthe deceased Government servant.

10. Rule 5 which provides for arecruitment for a member of family ofdeceased originally quoted herein under :-

5. Recruitment of a member of thefamily of the deceased.

(1) In case a Government servantdies in harness after the commencementof these rules and the spouse of thedeceased Government servant is notalready employed under the CentralGovernment or a State Government or acorporation owned or controlled by theCentral Government or a StateGovernment, one member of his familywho is not already employed under theCentral Government or a StateGovernment or a Corporation owned orcontrolled by the Central Government or aState Government shall, on making anapplication for the purposes, be given asuitable employment in Governmentservice on a post except the post which iswithin the purview of the Uttar PradeshPublic Service Commission, in relaxationof the normal recruitment rules if suchperson-

(i) fulfils the educationalqualifications prescribed for the post.

(ii) is otherwise qualified forGovernment service, and

(iii) makes the application foremployment within five years from thedate of the death of the Governmentservant:

Provided that where the Stategovernment is satisfied that the time- limitfixed for making the application foremployment causes undue hardship in anyparticular case, it may dispense with orrelax the requirement as it may consider


necessary for dealing with the case in ajust and equitable manner.

(2) As far as possible, such anemployment should be given in the samedepartment in which the deceasedGovernment servant was employed priorto his death.

11. Subsequently vide Notificationdated 12.10.2001 Sub Rule 3 and 4 wereadded to Rule 5 which are quoted hereinunder:-

3. Every appointment made undersub-rule (1) shall be subject to thecondition that the person appointed undersub-rule (1) shall maintain other membersof the family of deceased Governmentservant, who were dependent on thedeceased Government servantimmediately before his death and areunable to maintain themselves.

4. Where the person appointed undersub-rule (1) neglects or refuses tomaintain a person to whom he is liable tomaintain under sub-rule (3), his servicesmay be terminated in accordance with theUttar Pradesh Government Servant(Discipline and Appeal) Rules, 1999, asamended from time to time.

12. The aforesaid amendments in theDying in Harness Rules, 1974 wouldclearly indicate that consciously, on onehand, the inclusion of family membershas been increased in the definition of"family" as given in Rule 2 (c) of theaforesaid Rules and on the other hand, inRule 5 by adding sub-rule 3 and 4, acondition has been imposed on suchfamily member, who is seekingappointment on compassionate groundthat he would maintain other familymembers. Not only this, it has also been

provided that in case he refuses tomaintain other members, his services maybe terminated. Thus, clearly the effort isnot only to increase the number of familymembers, who may seek compassionateappointment but such entitlement wouldcome with the liability to maintain otherpersons. As such the intention of theLegislature is to be seen in the light of theaforesaid amendments.

13. Now in view of the aforesaidprovisions and the amendmentsconsciously made therein the claim of thepetitioner is to be tested.

14. In so far as the facts of the caseregarding petitioner being a member ofthe family is concerned, the record clearlyshows that the mother of the deceased andthe petitioner Smt. Prabhawati Devi diedin the year 1997 as nothing contrary existon record. Thereafter the father of thepetitioner Chhote Lal remarried on3.4.1998 with one Radhika Devi and asper inquiry conducted by the respondentauthorities he is undisputedly livingseparately with three daughters born outof the second marriage. A further findingof fact was clearly recorded in the inquiryconducted is that the petitioner along withhis younger brother Amit Kumar wasliving separately along with the deceasedManoj Kumar and were completelyfinancial dependent on him for hiseducation and living etc. Therefore, in myopinion the "family" of late Manoj Kumaris to be seen for the purpose of Dying inHarness Rule, 1974 and not that of SriChhote Lal, father of the petitioner whogot remarried as back as in the year 1998and was living with Radhika Devi andthree daughters born out of secondmarriage and was not maintaining thepetitioner and his brothers including


deceased Manoj Kumar. As such for allpurposes under the provisions of Dying inHarness Rule 1974 his family becamedifferent family as contemplated in theaforesaid Rules 1974 and to holdotherwise would defeat the purpose of thesaid Rules.

15. Now coming to the question ofpetitioner falling in the family of lateManoj Kumar is concerned, newly addedclause (iv) clearly provides that if thedeceased was unmarried governmentservant brother dependent on the deceasedemployee deceased government servantwould be included in the family, andtherefore, can claim the compassionateappointment under Dying in Harness Rule1974.

16. A reference may be made to ajudgement of this court in Indrapal SinghVs. State of U.P. and others 2014 (123)RD 504 (FB) wherein Full Bench of thiscourt was considering the expression of"family" and 'house-hold' under the U.P.Scheduled Commodities DistributionOrdinance, 2004 and Clause 2 (0) and theGovernment Order dated 3.7.1990. Forthe purpose of arriving at rightconclusion, in para 29 of the aforesaidjudgement, it was observed that thedefinition has to be interpreted andunderstood in the context in which theyhave been used. For this purpose para 30,31, 32 and 34 are quoted here in under :-

30. In Francis Bennion's StatutoryInterpretation, purposive construction hasbeen described as under :

"A purposive construction of anenactment is one which gives effect to thelegislative purpose by (a) following theliteral meaning of the enactment where

that meaning is in accordance with thelegislative purpose (in this Code called apurposive-and-literal construction), or (b)applying a strained meaning where theliteral meaning is not in accordance withthe legislative purpose (in the Code calleda purposive-and-strained construction)."

31. In 'The Interpretation andApplication of Statutes' by ReedDickerson, the author at p.135 hasdiscussed the subject while dealing withthe importance of context of the statute inthe following terms:

"... The essence of the language is toreflect, express, and perhaps even affectthe conceptual matrix of established ideasand values that identifies the culture towhich it belongs. For this reason,language has been called "conceptual mapof human experience".'

32. In Reserve Bank of India v.Peerless General Finance and InvestmentCo. Ltd. [(1987) 1 SCC 424] Apex Courtstated as follows:

"..............If a statute is looked at, inthe context of its enactment, with theglasses of the statute-maker, provided bysuch context, its scheme, the sections,clauses, phrases and words may takecolour and appear different than when thestatute is looked at without the glassesprovided by the context. With theseglasses we must look at the Act as awhole and discover what each section,each clause, each phrase and each word ismeant and designed to say as to fit intothe scheme of the entire Act.............."

34. Apex Court in the case ofChairman, Indore Vikas Pradhikaran vs.M/s. Pure Industrial Cock & Chemicals


Ltd AIR 2007 SC 2458 has mentionedthat an act should be interpreted havingregard to its history and the meaninggiven to a word cannot be read in adifferent way than what was interpreted inthe earlier repealed section and the wordshave to be incorporated in the context inwhich they are used. Apex Court, onceagain in the case of State of Gujarat Vs.Justice R.A. Mehta, 2013 (1) scale 7, hasonce again reiterated the same principle,that every statute has, therefore, to beconstrued in the context of a scheme as awhole. Consideration of context, it is trite,is to be given the meaning to legislativeintention according to the terms it hasbeen expressed.

17. The aforesaid observation of theFull Bench leaves no room to doubt thatin the present case that the family of lateManoj Kumar, who was undisputedlyunmarried on the date of his death, has tobe considered and on meaningfulconsideration the present petitionerAkhilesh Kumar clearly falls within thedefinition of family of late Manoj Kumaras per Rule 2 (c) (iv).

18. Now next question that as towhether in view of the fact that father ofthe petitioner was alive and was inGovernment/Corporation service, thepetitioner could not have been grantedcompassionate appointment, is to beconsidered. For this purpose a referencemay be made to certain observation ofthis court made in Full Bench decision inSheo Kumar Dubey and others Vs. Stateof U.P. and others 2014 (2) (ADJ) 312(FB). Para 3,6 and 29 are quoted here inunder :-

3. Before we elucidate the principleswhich emerge from the body of precedent

on the subject, it would, at the outset, benecessary to emphasise certain basicprecepts and interpret the provisions ofthe Rules as they stand. Appointments topublic offices have to comply with therequirements of Article 14 and Article 16of the Constitution. Article 16 providesfor equality of opportunity in matters ofpublic employment. Compassionateappointment is in the nature of anexception to the ordinary norm ofallowing equality of opportunity to everyeligible person to compete for publicemployment. The reason for the exceptionas envisaged in the Rules is that theimmediacy of the financial hardship thatis sustained by a bereaved family by thedeath of its earning member is sought tobe alleviated in a situation in which thegovernment servant died while in service.Rule 5 of the Rules applies where agovernment servant has died in harnessafter the commencement of the Rules.

6. The Rules have been framed by theState Government in exercise of the powersconferred by the proviso to Article 309 of theConstitution. The Rules make it abundantlyclear that the purpose and object underlyingthe provision for compassionate appointmentis not to reserve a post for a member of thefamily of a deceased government servant whohas died while in service. The basic object andpurpose is to provide a means to alleviate thefinancial distress of a family caused by thedeath of its member who was in governmentservice. This is the underlying theme or threadwhich cuts across almost every provision ofthe Rules. Firstly, the spouse of the deceasedgovernment servant must not already beemployed in the Central or State Governmentsor their Corporations. If the spouse is soemployed, then obviously, there would be nowarrant to grant compassionate appointmentsince the spouse would be expected to provide


to the members of the family a nucleus forsustaining their livelihood. Secondly, theapplicant himself should not be employedwith the Central or State Governments or theirCorporations. Thirdly, an application forappointment has to be made within five yearsfrom the date of death of the governmentservant. The rationale for imposing a limit offive years beyond which an application cannotbe entertained is that the purpose ofcompassionate appointment is to bridge theimmediacy of the loss of an earning memberand the financial distress that is sustained inconsequence. A lapse of time is regarded bythe Rules as leading to a dilution of theimmediacy of the requirement. The firstproviso to Rule 5, however, confers upon theState Government a discretion to dispensewith or relax the requirement of submitting anapplication in five years. This power is notunguided and is not left to the arbitrarydiscretion of the decision-making authority.Every discretionary power in public law has tobe structured on objective principles. The firstproviso requires the Government to besatisfied that the strict application of the normof five years for submitting an applicationwould cause undue hardship. Thedispensation or relaxation is in order to dealwith a case in a just and equitable manner.Under the second proviso, the burden hasbeen cast on the applicant to furnish reasonsand produce a justification together withevidence in the form of documents and proofin support of the cause for the delay in makingan application within the stipulated period.Finally, on this aspect of interpretation, it mustbe emphasized that an applicant foremployment under the Rules has to disclose ina full, true and candid manner, details of thefinancial condition of the family as well as allrelevant details pertaining to the members ofthe family of the deceased including theirnames, age and status in regard to theirmarriage, employment and income. All these

aspects have a bearing on the financial need ofthe family which has to be assessed before adecision is taken to grant compassionateappointment. The discretionary power to relaxthe time limit of five years is in the nature ofan exception. It is a power which is vested inthe State Government, a circumstance whichis indicative of the fact that the subordinatelegislation expects it to be exercised withscrupulous care. Ordinarily, the time limit offive years governs. The State Governmentmay relax the norm on a careful evaluation ofthe circumstances mandated by the secondproviso. It is but a matter of first principle thata discretionary power to relax the ordinaryrequirement should not swallow the main orsubstantive provision and render the basicpurpose and object nugatory. The Rulesindicate, in consequence, that an applicationfor compassionate appointment, which is inrelaxation of the normal recruitment Rules,must be made within a period of five years ofthe date of death of the government servant.But the State Government is conferred with adiscretionary power to relax the requirementof five years in order to alleviate a situation ofundue hardship so as to deal with a case in ajust and equitable manner. The satisfaction ofthe State Government before it exercises thepower of relaxation is not a subjectivesatisfaction but must be based on objectiveconsiderations founded on the disclosuresmade by the applicant for compassionateappointment. Those disclosures, in writing,must necessarily have a bearing on the reasonsfor the delay and on whether undue hardshipwithin the meaning of the first proviso to Rule5 of the Rules would be caused by theapplication of the time limit of five years. Theexpression 'undue hardship' has not beendefined in the Rules. Undue hardship wouldnecessarily postulate a consideration ofrelevant facts and circumstances including theincome of the family, its financial conditionand the extent of dependency.


29. We now proceed to formulate theprinciples which must governcompassionate appointment in pursuanceof Dying in Harness Rules:

(i) A provision for compassionateappointment is an exception to theprinciple that there must be an equality ofopportunity in matters of publicemployment. The exception to beconstitutionally valid has to be carefullystructured and implemented in order toconfine compassionate appointment toonly those situations which subserve thebasic object and purpose which is soughtto be achieved;

(ii) There is no general or vestedright to compassionate appointment.Compassionate appointment can beclaimed only where a scheme or rulesprovide for such appointment. Wheresuch a provision is made in anadministrative scheme or statutory rules,compassionate appointment must fallstrictly within the scheme or, as the casemay be, the rules;

(iii) The object and purpose ofproviding compassionate appointment isto enable the dependent members of thefamily of a deceased employee to tideover the immediate financial crisis causedby the death of the bread-earner;

(iv) In determining as to whether thefamily is in financial crisis, all relevantaspects must be borne in mind includingthe income of the family; its liabilities, theterminal benefits received by the family;the age, dependency and marital status ofits members, together with the incomefrom any other sources of employment;

(v) Where a long lapse of time hasoccurred since the date of death of thedeceased employee, the sense of immediacyfor seeking compassionate appointmentwould cease to exist and this would be arelevant circumstance which must weighwith the authorities in determining as towhether a case for the grant ofcompassionate appointment has been madeout;

(vi) Rule 5 mandates that ordinarily,an application for compassionateappointment must be made within fiveyears of the date of death of the deceasedemployee. The power conferred by thefirst proviso is a discretion to relax theperiod in a case of undue hardship and fordealing with the case in a just andequitable manner;

(vii) The burden lies on the applicant,where there is a delay in making anapplication within the period of five years toestablish a case on the basis of reasons anda justification supported by documentaryand other evidence. It is for the StateGovernment after considering all the factsto take an appropriate decision. The powerto relax is in the nature of an exception andis conditioned by the existence of objectiveconsiderations to the satisfaction of thegovernment;

(viii) Provisions for the grant ofcompassionate appointment do not constitutea reservation of a post in favour of a memberof the family of the deceased employee.Hence, there is no general right which can beasserted to the effect that a member of thefamily who was a minor at the time of deathwould be entitled to claim compassionateappointment upon attaining majority. Wherethe rules provide for a period of time withinwhich an application has to be made, the


operation of the rule is not suspended duringthe minority of a member of the family.

19. There is no doubt thatimmediacy of financial hardship is to beconsidered and the claim of the applicantis to be considered within the parameterof Rule 5 of Rule Dying in Harness Rule1974 as amended from time to time.

20. In the present as already held thatthe petitioner has included in the family oflate Manoj Kumar as defined under Rule 2(c) (iv) of the Dying in Harness Rule 1974,as such the petitioner who is brother of thedeceased and is not in service is entitled forappointment on compassionate ground

provided he maintains other family membersof the deceased namely his younger brotherAmit Kumar, who is also living with himand was also dependent of late ManojKumar. Admittedly, deceased Manoj Kumarwas unmarried as such the question ofspouse being being in service does not arise.It is also undisputed fact that the petitionerAkhilesh Kumar is not in service of CentralGovt. or State Govt. or in any Corporation asmentioned in Rule 5 of the Act.

21. As laid down in Full Benchdecision in the case of Sheo Kumar Dubey(supra) para 29 (ii) (iii) (iv) suffice to say thatonce the father had left all the three brothersnamely late Manoj Kumar, petitioner

Akhilesh Kumar and younger brother AmitKumar, the purpose and scheme of Dying inHarness Rule 1974 would be served byproviding financial assistance to the petitionerby appointing him on compassionate groundwho had filed his application well within timeon 5.5.2011 whereas Manoj Kumar hasexpired on 13.1.2010 after completion of 18years of his age. There is no evidence onrecord that the petitioner had any source ofincome to maintain himself and his youngerbrother Amit Kumar, who is now hisdependent. Therefore, applying the goldenRule of interpretation which says that everystatute has to be construed in the context of ascheme as a whole and is to be given themeaning of the legislative intention accordingto the terms it has been expressed. Therefore,in view of the above discussion the impugnedorder dated 27.4.2013 is not sustainable and isliable to be quashed.

22. Consequently, the order dated27.4.2013 passed by SuperintendentEngineer, U.P. Jal Nigam, Allahabad ishereby quashed. The respondent authoritiesare, accordingly, directed to consider theclaim of the petitioner for appointment of on

compassionate ground in Jal Nigamdepartment and accordance with theeducational qualifications and pass suitableorder afresh, in the light of the above noteddiscussion, within a period of three monthsfrom the date of the production of thecertified copy of this order.

23. The writ petition is, accordingly,allowed with the aforesaid observations.


CRIMINAL SIDEDATED: ALLAHABAD 24.09.2014

BEFORETHE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Misc. Application No. 40543 of 2014(U/s 482 Cr.P.C.)

Dr. Malay Sharma ...ApplicantVersus

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

Counsel for the Applicant:Sri Aditya Prasad

Counsel for the Respondents:A.G.A., Sri Swetashwa Agarwal

3 All]. Dr. Malay Sharma Vs. State of U.P. & Anr. 1301

Cr.P.C. Section 482-Quashing of complaintcase-offence u/s 506 I.P.C. no independentwitness-applicant also working in samehospital-present prosecution-on malafideground-held-prima facie offence made out-considering amendment by notification21.08.89-offence under section 506 IPCpunishable with 7 years rigorousimprisonment-is cognizable offence underdefinition of 2-D of Cr.P.C.-no relief can begranted-application rejected.

Held: Para-7Perusal of the record shows that videState amendment notification No.777/VIII 9-4(2)-87, dated 31st July,1989, published in U.P. Gazette, Extra,Part A, Section (Kha), dated 2nd August,1989. It has been specified that anyoffence punishable under Section 506I.P.C. if committed in the State of UttarPradesh shall be cognizable and if threatbe to cause death or grievous hurt,punishment should be for seven years orfine or both. Thus, since section 506I.P.C is a cognizable offence, thedefinition of Section 2D Cr.P.C. defining acomplaint shall not be applicable in thiscase. As far as the fact that only thewitnesses of hospital have been sightedin the first information report, thismatter and all the other disputeddefences of the accused cannot belooked into at this stage by this court inthe jurisdiction under Section 482 Cr.P.C.

(Delivered by Hon'ble Mrs. RanjanaPandya, J.)

1. Heard learned counsel for theapplicant, Sri Swetashwa Agrawal,Advocate who has put his appearance onbehalf of the opposite party no. 2 andlearned A.G.A. for the State.

2. Counsel for the applicant hasargued that the applicant was alsoworking in the Jaswant Rai Hospital,Meerut at the time of occurrence. All thewitnesses cited in the first information

report are those who were working inJaswant Rai Hospital, Meerut. The casehas no merit and the application is liableto be allowed.

3. The contention of the counsel forthe applicant is that no offence against theapplicant is disclosed and the presentprosecution has been instituted with malafide intention for the purposes ofharassment.

4. From the perusal of the materialon record and looking into the nature ofthe case at this stage it cannot be said thatno offence is made out against theapplicant.

5. All the submissions made at thebar relates to a disputed questions of factwhich cannot be adjudicated upon by thiscourt under Section 482 Cr.P.C. At thisstage only prima facie case is to be seenin the light of law laid down by theSupreme Court in cases of R.P. Kapur Vs.State of Punjab, AIR 1960 SC 866, Stateof Haryana Vs. Bhajan Lal, 1992 SCC(Cr.) 426, Zandu Pharmaceutical WorksLtd. Vs. Mohd. Saraful Haq and another(Para-10) 2005 SCC (Cr.) 283.

6. He has further relied on ajudgment passed in application underSection 482 No. 27543 of 2011, in whichthis court disposed of the application. Theorder passed in Application No. 27543 of2011 cannot be looked into, neither it canbe considered because that court did notlook into the amendment as incorporatedby the State of U.P. and thus, that ordercannot be relied on.

7. Perusal of the record shows thatvide State amendment notification No.777/VIII 9-4(2)-87, dated 31st July, 1989,


published in U.P. Gazette, Extra, Part A,Section (Kha), dated 2nd August, 1989. Ithas been specified that any offencepunishable under Section 506 I.P.C. ifcommitted in the State of Uttar Pradeshshall be cognizable and if threat be to causedeath or grievous hurt, punishment shouldbe for seven years or fine or both. Thus,since section 506 I.P.C is a cognizableoffence, the definition of Section 2DCr.P.C. defining a complaint shall not beapplicable in this case. As far as the fact thatonly the witnesses of hospital have beensighted in the first information report, thismatter and all the other disputed defences ofthe accused cannot be looked into at thisstage by this court in the jurisdiction underSection 482 Cr.P.C.

8. The application is devoid ofmerits and is liable to be dismissed.

9. Accordingly the application isdismissed.

--------

3 All]. Raj Guru and Ors. Vs. State 1177 · of village Kohadi Khurd to see Dwarpooja in village...

Documents

Transcript of 3 All]. Raj Guru and Ors. Vs. State 1177 · of village Kohadi Khurd to see Dwarpooja in village...