WRIA/10045 /2020 Judgment/Order Date: 06-02-2025 (2025) 2 ILRA 482  

HEADNOTE hearing

Civil Law - Service Law - Backwages during the period of imprisonment - Principle of "no work no pay" - Petitioner was imprisoned from 23.01.2015 to 18.12.2018 after a criminal case was registered against him under the Prevention of Corruption Act, 1988, by the Anti-Corruption Department on the complaint of a private electricity consumer. Criminal case was not instituted at the behest of the Corporation/employer. By the impugned order, arrears of salary to the petitioner for the period from 23.01.2015 to 18.12.2018 were declined on the principle of "no work no pay." Held: The principle of "no work no pay" is subject to exception only in rare instances, such as when an employer prevents an employee from discharging duties or creates impediments thereto. In the instant case, the petitioner has no lawful entitlement to backwages during the period of his imprisonment. The Corporation/employer neither created any hindrance nor prevented the petitioner from performing his duties. Granting backwages in violation of the principle of "no work no pay" would amount to unjust enrichment of the petitioner and an unfair loss to the State exchequer. Prayer for grant of backwages rejected; however, the petitioner is entitled to continuity in service for the said period for the purposes of pension. (Para 11) Dismissed. (E-5)

Title: Shivakar Singh Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot

English hearing

WRIA/9193 /2023 Judgment/Order Date: 24-02-2025 (2025) 2 ILRA 459  

HEADNOTE hearing

A. Service Law - UP Government Servant Seniority Rules, 1991 - Rules 8 & 9 - Seniority - Earlier inter-se seniority has been finalized after deciding the objections - Seniority list was published and acted upon too - Effect - How far it create rights - Permissibility of its review - Held, a vested right is created by issuance of the seniority list in as much as a government servant acquires a right to be considered for promotion in case any person lower in the seniority list is promoted, similarly he can claim parity in pay scale and other service benefits based on seniority - It has all the trappings of a quasi-judicial proceeding, and the St. government was denuded of its powers to embark to review of the order dated 13/07/2016 and the subsequent seniority list on merits at the subsequent stage. (Para 36 and 42) B. Service Law - UP Government Servant Seniority Rules, 1991 - Rules 8 & 9 - Seniority - Long-standing seniority - Inter-se seniority between the direct recruits and the promotees was determined - Scope of review - Doctrine of functus officio - Applicability - Held, once a final seniority list has been issued after deciding the objections filed by the concerned parties against the tentative seniority list, finding authority becomes functious officio and does not retain any power to repeatedly exercise the same power to redetermine the seniority between the same group of persons again and again - The longstanding seniority which is in existence for 3-4 years may not be unsettled. (Para 52 and 78) C. Service Law - Seniority - Process of its determination - Nature - Held, the appointing authority is exercising quasi- judicial powers of determination of seniority and his actions would be subject to the same limitations as that of a judicial/quasi judicial authority. (Para 55) D. Judicial review - Scope - Administrative action - Ministerial action and administrative decision - Distinction - In the ministerial action, the reasoning processes is minimum and almost routine - On the other hand, the administrative decision the process in which a decision is taken on objective standard of determination of which opinions may differ. The reasoning process takes into account the rival contentions and then comes a decision. This distinction is important because an administrative action is always reviewable while an administrative decision is the reviewable in special circumstances. (Para 33) E. Principle of res judicata - Distinct applicability to judicial decision and administrative decision - Held, a judicial decision is res judicata between the parties and it is for this reason it is not only the parties who cannot reopen the said decision but even the judicial authority which made the decision is prevented from reviewing it on merits. On the other hand an administrative decision which is not based on a dispute between two parties and which has not given after hearing the parties does not operate as res judicata. (Para 33) F. Principle of res judicata - Nature and Applicability - Held, the principle of res judicata is species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply. (Para 44) G. Estoppel - Cause of action estoppel and Issue estoppel - Distinction - Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged - Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. Here also bar is complete to re-litigation but its operation can be thwarted under certain circumstances. (Para 50) H. Expression 'functus officio' - Meaning - A person who has discharged his duties, or whose office or authority is at an end. (Para 53) I. Seniority - Determination thereof - Date of substantive appointment - Relevancy - Appointment from back date - Competence of government to make it - Held, proviso to Rule 8 empowers the Government from making appointments from a back date which would be the deemed date of substantive appointment - The statutory rules having provided for the same it cannot be said that the same would be illegal or without jurisdiction. (Para 67) J. Interpretation of statute - UP General Clause Act, 1897 - S. 13 - Word 'Person' - A singular include plural - Applicability - Held, the interpretation which is reasonable and is in conformity with the Constitutional scheme, is liable to be accepted and followed rather than any interpretation which would lead to absurdity and arbitrariness - In interpreting the proviso to Rule 8 appointments can be granted from back date either to a single individual or to a group of individuals. (Para 73) K. Doctrine of Precedent - ' Stare decisis et non quieta movere' - Meaning - To stand by decided matters and not to disturb settled points. (Para 75) L. Practice and procedure - Non-joinder of party - Challenge to promotion order - All the affected person were not impleaded - Effect - Held, impleading a long list of parties will not only unnecessarily stretch the process of dispensation of justice but will also involve extravagant expenses in serving all the parties. In cases where there is a common grievance of a large number of employees, impleading few affected employees would be sufficient compliance with the principle of joinder of parties. (Para 81) Writ petition allowed. (E-1)

Title: Shiv Datt Joshi & Ors. Vs. State of U.P.& Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur

English hearing

WRIA/2211 /2025 Judgment/Order Date: 24-02-2025 (2025) 2 ILRA 452  

HEADNOTE hearing

A. Service Law - UP Government Servants (Discipline and Appeal) Rules, 1999 - Rule 9 - Punishment - Stoppage of two increments - Inquiry report was submitted - However, the disciplinary authority, while holding the petitioner guilty, relied upon some independent report of other authority - Permissibility - Held, the disciplinary authority is bound to consider only the material, which has been adduced during the inquiry proceedings. If on perusal of the material which has been adduced during the inquiry proceeding, lead him to take a different stand what has been recorded by the inquiry officer, he is within his competence to issue a notice to the petitioner disagreeing with the findings of the inquiry officer but at this stage he cannot enlarge the scope of inquiry and take the opinion from a third person and relying on the said material imposed punishment upon the government servant - Rule 9 of the Rules of 1999 has been grossly violated. (Para 13, 15 and 16) Writ petition allowed. (E-1)

Title: Dineshwar Mishra Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur

English hearing

WRIA/2077 /2025 Judgment/Order Date: 19-02-2025 (2025) 2 ILRA 445  

HEADNOTE hearing

A. Service Law - Financial Hand Book - Rules 53 & 54 - ReinSt.ment in service - Entitlement of back-wages - Relevant issue, which is required to be take into consideration - No allegation of delaying the expeditious disposal of disciplinary proceeding was there - Effect - Respondent considered the gainful employment after dismissal - Permissibility - Held, only relevant consideration in reducing the back wages paid to a government servant, if any, on his reinSt.ment after dismissal, removal or compulsory retirement, would be the fact that he had not obstructed in expeditious disposal of the disciplinary proceedings - The ground considered by the respondents was wholly irrelevant for the purpose of grant of back-wages - The petitioner would be entitled to full back wages from the date of his suspension to the date of his reinSt.ment. (Para 14, 15 and 18) Writ petition allowed. (E-1)

Title: Gorakhnath Shukla Vs. State of U.P.& Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur

English hearing

WRIA/1977 /2025 Judgment/Order Date: 18-02-2025 (2025) 2 ILRA 441  

HEADNOTE hearing

A. Service Law - Compassionate appointment - Relaxation in qualification - Master Circular No. 16 and Office Memorandum dated 11.12.2009 - Entitlement of sole child after successive death of the parent - Railway claimed that relaxation can be granted only to the widow not to the rest dependent - Permissibility - Held, the provision contained in the Master Circular issued by the Railway Board is applicable to all persons who were dependent on a deceased employee and that is not limited in its application to the widows of the deceased employees - High Court found the facts of the case prima facie making exceptional circumstances, which ought to have been taken into consideration while considering his claim for compassionate appointment by granting relaxation of education qualification in view of the aforesaid provisions contained in the Office Memorandum dated 11.12.2009. (Para 17 and 18) Writ petition dismissed. (E-1)

Title: U.O.I. & Ors. Vs. Sri Santosh Kumar & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Subhash Vidyarthi

English hearing

WRIA/1940 /2025 Judgment/Order Date: 17-02-2025 (2025) 2 ILRA 437  

HEADNOTE hearing

Voluntary Retirement-Tribunal directed the petitioners to grant the voluntary retirement to the Respondent on expiry of statutory period of 90 days -and to pay him all retiral dues-review rejected-recall rejected-present Writ- Petitioner sought voluntary retirement on the ground that he is not keeping good health-previously two punishment already given owing to his unauthorized absence from duty -that punishment does not provided that the periods of his absence shall not be counted in his service or that he shall not be paid salary for those periods-no other adverse consequence will follow due to the respondent's absence for the aforesaid period. W.P. dismissed. (E-9)

Title: U.O.I. & Ors. Vs. Dharmendra Kumar Sahu

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Subhash Vidyarthi

English hearing

WRIA/713 /2025 Judgment/Order Date: 04-02-2025 (2025) 2 ILRA 431  

HEADNOTE hearing

Service Law-salary-On basis of a complaint made by a complainant - an enquiry was initiated despite earlier complaint by the same person was rejected-impugned order- salary stopped -stating that petitioner's appointment was subject to the Writ which was dismissed as withdrawn and interim order was vacated - therefore, order of approval itself becomes inoperative and their salary got stopped -writ- appointment of petitioners were approved by the DIOS during pendency of the writ petition- on basis of consideration by Finance Section - said approval order not challenged-acted upon by granting promotion-impugned order set aside. W.P. disposed. (E-9)

Title: Smt. Durgesh Sharma & Ors. Vs. State of U.P.& Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Shyam Shamshery

English hearing

SPLA/70 /2025 Judgment/Order Date: 14-02-2025 (2025) 2 ILRA 421  

HEADNOTE hearing

A. Service Law - UP Police Radio Subordinate Service Rules, 2015 - Part IV - Reg. 8 (c) - Post of Operators/ Head Operator (Mechanical) - Qualification - Advertisement require three years Diploma - Petitioners, having Bachelor Degree, claim themselves eligible as it is a higher qualification - Permissibility - Held, any recruitment to public posts has to be carried out strictly in accordance with the provisions contained in the Recruitment Rules - A Bachelor Degree are not eligible for seeking appointment in furtherance of the recruitment notification dated 06.01.2022. (Para 6, 19 and 35) B. Service Law - Candidature - Cancellation - False information given during submission of the Application Form - Effect - Held, the petitioners applied for selection to the posts in question on their own by submitting false information regarding their eligibility qualification which renders their candidature liable to be canceled. (Para 25) C. Service Law - Qualification - Issue regarding equivalence - Competence to decide it - Equivalence of qualification for the purpose of appointment to public posts can be decided by the employer alone. The employer in the present case is the St. Government - The Recruitment Board has no authority to take any decision regarding equivalence of qualifications. (Para 21 and 39) D. National Education Policy, 2020 - Nature - How far it override the Rules - Held, the policy is a vision document for making improvements in the education system in future - A mere policy cannot override the specific provisions of recruitment Rules and unless the recruitment Rules are amended. (Para 32 and 33) Special Appeal partly allowed. (E-1)

Title: Prashant Kumar Mishra & Ors. Vs. State of U.P.& Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Subhash Vidyarthi

English hearing

TACR/672 /2024 Judgment/Order Date: 06-02-2025 (2025) 2 ILRA 419  

HEADNOTE hearing

Criminal Law-The Code of Criminal Procedure, 1973-Section 407- Witness Protection Scheme,2018-Transfer application on the ground that respondents are practicing Advocates and the applicant being a poor widow is under their threat perception and is unable to procure any competent Lawyer to contest her case---Directions issued that in case, the applicant/first informant or any of the witnesses approaches the authorities concerned by moving an application seeking protection under the Witness Protection Scheme, 2018 in the light of directions given by the Hon'ble Supreme Court in the case of Mahendra Chawla & ors.Vs U.O.I.& ors., (2019) 14 SCC 615 for a free and fair trial, the authorities concerned shall ensure that the adequate security be provided to the applicant and the witnesses till the conclusion of the trial. (Para 7) (E-15)

Title: Smt. Kavita Chaudhary Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Nand Prabha Shukla

English hearing

CRLR/3040 /2023 Judgment/Order Date: 07-02-2025 (2025) 2 ILRA 415  

HEADNOTE hearing

Criminal Law - Indian Penal Code, 1860 - Sections 302 & 307- Criminal Procedure Code, 1973, Section 439-Bail - Second Bail Application - Prolonged Incarceration - Delay in Trial - Article 21 of the Constitution of India - Accused in custody for over 7 years and 9 months - Trial remained stalled due to pendency of challenge to summoning order under Section 319 Cr.P.C. before Supreme Court - Only 3 of 16 prosecution witnesses examined - No likelihood of conclusion of trial in near future - Held, prolonged detention without progress in trial is violative of right to speedy trial under Article 21 - Bail not to be withheld as punishment - Bail granted. (Paras 16,17, and 18) HELD: Hon'ble Supreme Court in Kalyan Dey Chowdhury Vs Rita Dey Chowdhury Nee Nandy AIR (2017) SC 2383 placing reliance on a earlier judgment in Dr. Kulbhushan Kumar Vs Raj Kumari & anr.(1970) 3 SCC 129, in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Therefore, without disturbing the broad findings of fact given by learned court below, the amount of maintenance awarded to the applicant is being modified as below. (Para 16) Considering the rival submissions of the learned counsel for the parties, totality of the facts and circumstances of the case, it cannot be held that due to non-compliance of mandatory directions of Hon'ble Supreme Court in Rajnesh Vs Neha & anr.(supra) before the court below, the impugned judgment and gets vitiated under law. This court in revisional stage has assured compliance of mandatory directions of Hon'ble Supreme Court in Rajnesh Vs Neha & anr.(supra) to avoid any further delay in final disposal of the matter. The purpose of filing affidavit of disclosure of assets and liabilities is to clarify the stand of the parties in maintenance case, their assets, liabilities and economic condition show that the court may be in a position to out the truth and come to just decision in the case. (Para 17) Revision application dismissed. (E-14)

Title: Nagendra Sirohi Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ram Manohar Narayan Mishra

English hearing

CRLR/2019 /2024 Judgment/Order Date: 19-02-2025 (2025) 2 ILRA 405  

HEADNOTE hearing

Criminal Law -Indian Penal Code, 1860 - Sections 323, 325, 452, 504, 506 & 308 - Criminal Procedure Code, 1973 - Sections 319, 397 & 401-Summoning under Section 319 Cr.P.C. - Sustainability of summoning order passed after conclusion of trial of chargesheeted accused - Applicant not charge-sheeted - Summoned as additional accused after co-accused already convicted and sentenced - Held, in view of law laid down in Sukhpal Singh Khaira v. St. of Punjab, (2022) 17 SCC 246, summoning under Section 319 Cr.P.C. must precede conclusion of trial - Summoning order passed after trial concluded and sentence pronounced is not sustainable - Impugned order set aside. (Paras 15 to 19) HELD: The Hon'ble Court answered question No.1, which is pertinent for the purposes of present Criminal Revision in affirmative and observed as under:- "The power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable." (Para 16) In the light of above observation it can be concluded that where the trial of co-accused where at the time of passing of summoning order under Section 319 Cr.P.C. in respect of a person who was not earlier facing trial as accused in the case after conclusion of trial of the persons who were already facing as accused in the case resulting in their conviction and imposition of sentence, summoning order of the persons concerned as additional accused in exercise of powers under Section 319 Cr.P.C. will not be sustainable. (Para 17) The facts of present case are squarely covered with the land mark judgment of the Hon'ble Supreme Court in Sukhpal Singh Khaira (supra) and in view of foregoing discussion, the summoning order passed by learned court below against the revisionist in exercise of powers under Section 319 Cr.P.C. after conclusion of trial, resulting in conviction and sentencing of accused persons who had already faced trial in main S.T. No. 84 of 2006, is not sustainable and thus cannot affirmed, the impugned summoning order is in conflict with law laid down by Hon'ble Supreme Court in Sukhpal Singh Khaira (supra) as discussed above and thus vitiated by law, consequently the impugned order deserves to be set-aside. (Para 19) Revision application allowed. (E-14)

Title: Ramesh Tiwari Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ram Manohar Narayan Mishra

English hearing

CRLA/8466 /2022 Judgment/Order Date: 06-02-2025 (2025) 2 ILRA 387  

HEADNOTE hearing

Criminal Law - The Indian Evidence Act,1872 - Sections 145 & 155 - Code of Criminal Procedure - Section 162-Deceased died of firearm injury - Sec 145 & 155 of the Indian Evidence Act and Section 162 Cr.P.C., allow the party adversely affected by a deposition made at a trial- to confront the witness (making such deposition) with their previous St.ment including that recorded u/s 161 Cr.P.C.- deposition of D.W.-1 cannot be brushed aside-neither the prosecution could bring out any contradiction in the testimony of the said witness - also failed to discredit his credibility- unable to reconcile the prosecution story with the deposition of D.W.-1- he further proved that the accused-appellant was not present at the time and place of occurrence. Appeal allowed. (E-9)

Title: Mayank Parasari Vs. State of U.P.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saumitra Dayal Singh,Gautam Chowdhary

English hearing

CRLA/2806 /1983 Judgment/Order Date: 13-02-2025 (2025) 2 ILRA 373  

HEADNOTE hearing

Criminal Law -Indian Penal Code-Section 394, 397 & 460-Clear eyewitness account in the present case-PW-1 and PW-3 being immediate family members are natural eyewitnesses of the occurrence-specific St.ment in respect of presence of surviving accused with country made pistol in his hand has also been made-firearm injury caused to the deceased. Appeal dismissed. (E-9)

Title: Rakshpal & Anr. Vs. State of U.P.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vivek Kumar Birla,Syed Qamar Hasan Rizvi

English hearing

BAIL/12654 /2023 Judgment/Order Date: 07-02-2025 (2025) 2 ILRA 369  

HEADNOTE hearing

Criminal Law - Bail - Second Bail Application -Indian Penal Code, 1860 - Sections 302, 307, 286, 506 & 120-B- Delay in Trial - Criminal Law Amendment Act, Section 7- Applicability of Article 21 of the Constitution -Criminal Procedure Code, 1973, Section 439-Constitution of India, Article 21- Applicant accused of double murder by firearm - Co-accused father granted bail by Supreme Court on grounds of advanced age - Applicant in custody since 16.09.2018 - Seven out of twenty- three prosecution witnesses examined - All witnesses supported prosecution - No undue delay attributable to prosecution - Held, although prolonged incarceration may justify bail in exceptional cases, each bail application to be examined on its own facts - When trial is progressing and prosecution witnesses support case, no ground made out for bail merely on ground of co-accused's release or general delay - Bail rejected. (Paras 14,16,17, and 18) HELD: It is settled law that a precedent has to be understood and applied in light of the peculiar facts of that case. (Para 14) In the present case, the trial is proceeding. As many as seven prosecution witnesses have been examined and all of them have supported the prosecution case. Therefore, the facts of the present case are in no manner similar to the facts of the cases of Javed Gulam Nabi Shaikh and Bhanwar Singh (Supra) cited by the learned Counsel for the applicant. (Para 16) The learned Counsel for the applicant could not point out any major discrepancies in the St.ments of the prosecution witnesses. Occurrence of some minor discrepancies in the St.ments of witnesses is natural and it would not give any benefit to the applicant. There is no allegation that the prosecution is causing undue delay in trial. (Para 17) The applicant's father co-accused Komal Singh has been granted bail by the Hon'ble Supreme Court keeping in view the fact that he is a septuagenarian whereas the applicant is merely 42 years of age and this fact distinguishes the case of Komal Singh from the case of the applicant. (Para 18) Bail Application dismissed. (E-14)

Title: Jaswant Singh Vs. State of U.P.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi

English hearing

A482/42213 /2024 Judgment/Order Date: 20-02-2025 (2025) 2 ILRA 366  

HEADNOTE hearing

Criminal Law - Indian Penal Code, 1860 - Sections 323,504,498-A & 506 - Dowry Prohibition Act, 1961 - Section ¾ - Criminal Proceedings - Quashing of - Taking cognizance of inefficiencies in execution of judicial orders, Superintendent of Police directed to appear in person, submit personal affidavit - In compliance of order, officer present, filed compliance affidavit, fails to provide explanation for dereliction of duty - Court summoned Government Advocate seeking clarification - Furthermore, deeper examination of matter brought to light serious procedural impropriety - Private Secretary to Government Advocate found responsible for committing fraud upon court by unlawfully altering first page of affidavit, thereby misrepresenting identity of individual who dictated its contents - The act, reflects attempt to mislead judicial process and exercise functions beyond legally conferred authority - Assumption of powers by administrative officer, without any legal sanction, matter of grave concern - Purely clerical, does not extend to making substantive changes to official documents, particularly those submitted before court of law - Government Advocate granted time to file affidavit, interim order extended till next date of listing. (Para 2 to 5, 8, 10 11) Application pending. (E-13)

Title: Shanu Saxena & Anr. Vs. State of U.P.& Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manju Rani Chauhan

English hearing

WTAX/2300 /2024 Judgment/Order Date: 27-02-2025 (2025) 2 ILRA 363  

HEADNOTE hearing

Civil law - The Uttar Pradesh Goods and Service Tax Act, 2017-Section 83- provisional attachment was made of the bank account of the petitioner- objections of the petitioner were dealt with by the respondent authorities and the provisional attachment was justified under Section 83 of the Act for a period of one year-show cause notice has already been adjudicated upon and order was passed u/s 74 of the Act- statutory alternative remedy to file an appeal u/s 83 of the Act. W.P. dismissed. (E-9)

Title: M/S Rajat Infra Developers Pvt. Ltd. Vs. U.O.I. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Vipin Chandra Dixit

English hearing

WTAX/830 /2024 Judgment/Order Date: 14-02-2025 (2025) 2 ILRA 360  

HEADNOTE hearing

A. Tax Law - Interception and seizure of goods - e-tax Invoice and e-way Bill - Place of shipping address was differently mentioned - No defect in respect of quality and quantity of goods was found - Effect - Held, if the place of shipment is wrongly filled up, then it is merely a technical error - E-way bill has not been cancelled within its validity, therefore, no adverse view can be taken against the petitioner - Seizure or levy of penalty cannot be made. (Para 10, 12 and 14) Writ petition allowed. (E-1)

Title: M/S Zhuzoor Infratech Pvt. Ltd. Vs. Addl. Commissioner Grade 2 & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Piyush Agrawal

English hearing

WRIC/6744 /2019 Judgment/Order Date: 10-02-2025 (2025) 2 ILRA 229  

HEADNOTE hearing

A. Civil Law -Constitution of India,1950- Article 226- Multi-State Co-operative Societies Act,2002-The petitioners challenged the Central Registrar's order dated 26.12.2018 rejecting their application for registration under the Act,2002 despite earlier directions from the HC in related writ petitions-The petitioners claimed a long history of registration and operation dating back to 1919, with branches and members in multiple states including uttar Pradesh, bihar, uttarakhand-the asserted that their society qualified as a multi-state cooperative society and sought mandamus to be treated as such-The court examined the statutory framework of cooperative society laws from 1912 through to the Act 2002- The registration, control and dissolution of a co-operative society depend on its area of operation, if the objects and membership span more than one State, State law alone does not suffice-central legislation becomes applicable-The court held that the Central Registrar erred in disregarding binding judicial directions and failing to properly assess the petitioner's historical registration, area of operation, and legal continuity under the deemed registration provision of law-(Para 1 to 62) The writ petition is dismissed. (E-6)

Title: The Mechanical Dept. Primary & Anr. Vs. Union of India & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Anjani Kumar Mishra,Jayant Banerji

English hearing

WRIC/6041 /2024 Judgment/Order Date: 24-02-2025 (2025) 2 ILRA 180  

HEADNOTE hearing

A. Civil Law-Constitution of India,1950- Article 226- Insolvency and Bankruptcy Code,2016- Sections 31 & 238-M/s Arena and a homebuyer challenged the refusal by NOIDA Authority to revalidate the layout map of the "Lotus Arena-I" housing project in Noida Sports City-The dispute centered on Noida's reliance on an internal board resolution pending direction from the State Government, despite an approved resolution plan under Code,2016 mandating Noida's cooperation-The petitioners argued that the resolution plan, sanctioned by NCLT and upheld by NCLAT, binds NOIDA under section 31 and 238 of the Code,2016- Noida's refusal violated its obligations under the sub-lease deed and IBC-The court examined irregularities highlighted by the CAG report, Noida's objections in insolvency proceedings, and the rights of homebuyers, noting that NOIDA had actively participated in the CIRP and its claims were considered-emphasizing the binding nature of the resolution plan and the prejudice caused to homebuyers, the Court quashed NOIDA's rejection letter dated 01.11.2023 and directed revalidation of the layout map to enable project completion in accordance with the resolution plan.(Para 1 to 195) The writ petition is disposed of. (E-6)

Title: M/S Arena Superstructures Pvt. Ltd. & Anr. Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Mahesh Chandra Tripathi,Prashant Kumar

English hearing

A482/27233/2024 Judgment/Order Date: 24-02-2025 (2025) 2 ILRA 174  

HEADNOTE hearing

Criminal Law - Criminal Procedure Code, 1973 - Sections 362 & 482 - Indian Penal Code, 1860 - Sections 147, 354-Kha, 323, 504 & 506 - The Protection of Children from Sexual Offences (POCSO) Act, 2012 - Sections 7 & 8 - Application u/s 482 - for quashing the impugned order - FIR - lodged by the opposite party no. 4, alleging sexual assault on his minor daughter - investigation - final report - Magistrate issue notices - opposite party no. 4 was not appeared - final report accepted - recalled applicant along with a protest petition - trail court recalled and ordered to registered as complaint case - under challenged - plea taken that, acceptance of a final report does not bar cognizance if sufficient material exists - objected that, if a final report is accepted after hearing the informant, it cannot be recalled u/s 362 Cr.P.C - The legal issue revolves around whether recalling the acceptance of the final report violates Section 362 Cr.P.C., which bars courts from reviewing final orders except for clerical errors - Applicability of Section 362 Cr.P.C. - Section 362 Cr.P.C. bars courts from reviewing or altering final orders except for clerical errors, However, cognizance can still be taken based on fresh material - court finds that, the trial court passed acceptance order of the final report after serving the notice upon the opposite party no. 4 but, it was recalled later without giving any reasoning that the case was of procedural recall/review and not the substantive recall/review, despite the fact that order of accepting the final report was a final order disposing the case regarding cognizance on the basis of material available in the case diary - therefore, same is barred by section 362 Cr.P.C. - Consequently, the impugned order is set aside, and the matter is remanded for fresh consideration - application is allowed. (Para - 17, 18, 19, 20, 21) Application Allowed. (E-11)

Title: Amit Kumar Tiwari & Ors. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Kumar Singh Deshwal

English hearing

A482/25418 /2024 Judgment/Order Date: 10-02-2025 (2025) 2 ILRA 160  

HEADNOTE hearing

Criminal Law - Criminal Procedure Code, 1973- Section 482 - Food Safety & Standards Act, 2006 - Sections 3(1)(n), 3(1)(o), 3(1)(y), 26, 26(2)(i), 26(4), 27, 42(4), 59(i) & 80 - Application U/s 482 - challenging the summoning order as well as the entire proceeding - Applicant is the employee of applicant no. 2 who is running a restaurant - dealing with selling different kind of prepared food - inspection carried out by food safety officer - sample of four sealed packets of turmeric collected of Goldiee Masala Brand - which were found having lead-chromate which is harmful for human consumption -complaint lodged - summon order issued U/s 59(1) of the Act, 2006 - court finds that - it is not in dispute that the applicant has purchased sealed packet of turmeric powder from a licenced/registered manufacturer and relied upon the information given by the manufacturer of the turmeric powder about the quality - if the turmeric powder is found to be unsafe despite guarantee of its quality - in that case, food business operator dealing with business of selling the turmeric powder or its distributor would be liable - held, the restaurant or its owner or any of its employee selling the food is not liable - consequently, the impugned proceeding against the applicants deserve to be quashed - accordingly, application is allowed - However, the court below is free to proceed against the manufacturer / distributor of the turmeric powder who despite issuing an invoice regarding its quality, failed to adhere to its standard. (Para - 27, 28, 30) Application Allowed. (E-11)

Title: Piyush Gupta & Anr. Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Kumar Singh Deshwal

English hearing

A482/11952/2024 Judgment/Order Date: 24-02-2025 (2025) 2 ILRA 153  

HEADNOTE hearing

(A) Criminal Law - Bharatiya Nyaya Sanhita, 2023 (Old Section 482 Cr.P.C.) - Section 528 - The Code of Criminal Procedure, 1973 - Sections 251, 252, 254 & 31 - Indian Penal Code, 1860 - Section 188 - Withdrawal of Prosecution & Cognizance - Disobedience to order duly promulgated by public servant , Section 341 - Punishment for wrongful restraint - Provisions of Section 195 Cr.P.C. are mandatory and non-compliance of it would vitiate the prosecution and other consequential orders - Cognizance of an offence under Section 188 I.P.C. without a complaint by a competent public servant is void ab initio and vitiates the entire proceeding including dependent offences like Section 341 I.P.C. - Plea of guilty must be made before the trial court under Section 251 Cr.P.C., not before the High Court, and must be clear, unambiguous, and unqualified. (Para -23,24) F.I.R. lodged under Sections 341 and 188 IPC - Charge-sheet filed without complaint by public servant under Section 195 Cr.P.C. - application under Section 321 Cr.P.C. filed by Public Prosecutor to withdraw prosecution - trial court rejected the application on the ground that the applicant had already pleaded guilty before the High Court - prosecution under Section 341 I.P.C. could not be withdrawn. (Para - 3, 5, 14- 15) HELD: - Since the charge-sheet relating to Section 188 I.P.C. had already been quashed and the Public Prosecutor had filed an application under Section 321 Cr.P.C. for withdrawal of prosecution in respect of the remaining Section 341 I.P.C., the Court, invoking its power under Section 528 B.N.S.S. (erstwhile Section 482 Cr.P.C.), held that there was no need to remand the matter to the trial court and accordingly treated the prosecution under Section 341 I.P.C. as withdrawn and the withdrawal application as allowed. (Para - 27) Application allowed. (E-7)

Title: Brij Bhushan Sharan Singh Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan

English hearing

A482/8107 /2022 Judgment/Order Date: 06-02-2025 (2025) 2 ILRA 142  

HEADNOTE hearing

Criminal Law - Criminal Procedure Code, 1973 - Section 482 - The Bhartiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Protection of Women from Domestic Violence Act, 2005 - Section 12 - Allahabad High Court Rules, 1952, - Chapter V Rule 6, - Constitution of India, 1950 - Article 226 & 227 - Application U/s 482 - to assail the proceeding initiated under the provisions of the D.V. Act, 2005 - Preliminary Objection of Maintainability - in view of the conflicting decisions of Co- ordinate Benches of this Court - Invocation of Inherent Power - Conflicting Decisions of the Co-ordinate Benches on the issue of maintainability of a petition under Section 482 Cr.P.C for quashing an order passed on notice issued under Section 12 of D.V. Act, 2005 - in case of Smt. Suman Mishra, this court held that the application under Section 482 Cr.P.C was not maintainable - in case of Sandeep Kishor, another Co-ordinate Bench held that an application filed under Section 482 Cr.P.C would not lie against an order passed under Section 12 of the D.V. Act, 2005 - in Case of Devendra Agarwal, another Co-ordinate Bench held that an application under Section 482 Cr.P.C is maintainable - Referral to Larger Bench - court referred the matter to a larger Bench for reconsideration to settle the legal position and bring about certitude on the subject - matter to be placed before the Hon'ble Chief Justice for requisite orders - The instant application shall be adjourned by the trial court till final outcome of the reference. (Para - 19, 20, 21, 23) Application Pending. (E-11)

Title: Ram Lotan Vishwakarma & Ors. Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Om Prakash Shukla

English hearing

A482/6694 /2019 Judgment/Order Date: 19-02-2025 (2025) 2 ILRA 138  

HEADNOTE hearing

Criminal Law - Criminal Procedure Code, 1973 - Sections 200, 202, 202(2) & 482 - The Negotiable Instruments Act, 1881 - Sections 138, 143, 144, 145 & 147 - Application - challenging the summoning order as well as the orders passed u/s 82 and 83 of Cr.P.C. - Complaint Case - St.ment u/s 200 Cr.P.C. - plea taken that before issue notices, it is mandatory on the part of Magistrate, to conduct an enquiry u/s 202 Cr.P.c. which was so done summoning order issued - applicability of section 202 Cr.P.C. in respect of complaints filed u/s 138 of NI Act, - court finds that, Magistrate while passing the impugned order has adverted to the complaint and the St.ment u/s 200 Cr.P.C., - there is no reason for insisting on the evidence of the witnesses to be taken on oath and section 202(2) Cr.P.C. shall not come in the way as held by the Supreme Court (in case of Mandvi Cooperative Bank Ltd. Vs Nimesh B. Thakore) which provides that Section 202(2) of Cr.P.C. is inapplicable to complaints u/s 138 of NI Act, in respect of examination of witnesses on oath - held, there is no bar to permit the evidence of witnesses on behalf of the complainant on affidavit - hence, being no reason to believe that the magistrate has not conducted enquiry to arrive at sufficient ground to proceed against the accused, present application devoid it merit and is accordingly, dismissed. (Para - 8, 9) Application Dismissed. (E-11)

Title: Bhagwati Sharan Dwivedi Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Karunesh Singh Pawar

English hearing

A482/2882 /2016 Judgment/Order Date: 21-02-2025 (2025) 2 ILRA 131  

HEADNOTE hearing

Criminal Law - Constitution of India, 1950 - Articles 12, 14, 21 & 39-A - Fair Investigation - Code of Criminal Procedure, 1973 - Sections 169, 170 & 173(2) - Issue: Can a superior officer of police issue directions for filing of a charge sheet or final report ? - Section 36 Cr.P.C. - Powers of Superior Officers of Police: It is permissible for any superior officer of police to take over the investigation from the officer in charge of the police station, either suo motu or on the direction of a superior officer, including that of the Government. If a superior officer of police investigates the matter himself, he may form the final opinion for filing a charge sheet or final report. However, while exercising powers as a supervisory authority, he cannot form the opinion in that regard - it lies exclusively within the domain of the investigating officer/in-charge of the police station. While exercising supervisory authority, if it appears to the superior officer that there are shortcomings or flaws in the investigation, he may point out such shortcomings and flaws and direct the investigating officer to conduct further investigation on those points, and then form an opinion. But he cannot form his own opinion either to send the charge sheet or the final report, and no such direction can be given by him. If the officer in charge of the police station is of the opinion, and submits a final report to the effect that no case is made out to send up the accused for trial, no other authority has the power to direct him to change his opinion and file/submit a charge sheet to the Magistrate. No authority can direct the investigating officer either to file a charge sheet or a final report. There is no power, express or implied, conferred under the Code on a supervising authority of police to direct the investigating officer to file a charge sheet or a final report, nor can he form his own opinion in this regard and direct the investigating officer accordingly. (Paras 19, 21, 23, 24) Criminal Law - In the instant case F.I.R. was lodged against the applicants. Investigating Officer submitted final report. In the meantime, the investigation was transferred to the C.B.C.I.D. S.P., C.B.C.I.D., cancelled the final report and directed that a charge sheet be filed. Subsequently, a charge sheet was filed, on which cognizance was taken. The order of cognizance and the charge sheet was challenged. Held: The charge sheet filed by the Investigating Officer in compliance with the illegal order passed by the supervisory authority, i.e., the Superintendent of Police, cannot be held to be legal. Application was allowed, and the charge sheet along with the entire proceedings of the case was quashed. (Para 24) Allowed. (E-5)

Title: Pradeep Kumar Maurya & Ors. Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Chandra Sharma

English hearing

A482/2818 /2020 Judgment/Order Date: 19-02-2025 (2025) 2 ILRA 107  

HEADNOTE hearing

Criminal Law - Indian Penal Code, 1860 - Sections 498A, 406 & 506 - Dowry Prohibition Act, 1961 - Section ¾ - Criminal Proceedings - Quashing of - Summoning order was non-speaking order which was on typed proforma, in which gaps filled with pen - Court concerned not given any reason for summoning accused persons - Allegations against husband for offence u/s 377 I.P.C. found false, exonerated - Other two co-accused persons (nand and nandoi) assigned general role, exonerated - Husband along with other family members were accused in F.I.R., lodged with inordinate delay of 05 months. (Para 30) Both are well educated, well placed persons - Dispute was purely matrimonial in nature - Couple have travelled to various foreign places - Clash of ego carried on for long time, resulted in lodging of F.I.R. and complaint - Allegations for violence alleged to have taken place in 2018-2019 after 02 years of marriage - Complainant carries multiple prayers including return of "Streedhan" - Complainant have been assaulted and beaten by her husband, no supporting documents to show injury received by her - Allegations are general and omnibus - Complaint filed with intention to implicate maximum number of family members for obvious reasons. (Para 31, 33) Applications allowed. (E-13)

Title: Surendra Kumar & Anr. Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Samit Gopal

English hearing

A482/1287 /2025 Judgment/Order Date: 11-02-2025 (2025) 2 ILRA 102  

HEADNOTE hearing

A. Criminal Law - Code of Criminal Procedure, 1973 - Section 161 - Evidence Act, 1872 - Section 33 - Bharatiya Sakshya Adhiniyam, 2023- Sections 27 & 33 of the Evidence Act, 1872, relates to the relevancy of certain evidence for proving, in a subsequent proceeding or at a later stage of the same proceeding, the truth of facts stated therein. Evidence given by a witness in a judicial proceeding becomes relevant for such purposes when the witness is dead or unavailable. However, a statement recorded by an Investigating Officer under Section 161 CrPC does not fall within the ambit of Section 33 of the Evidence Act, 1872, nor does it satisfy the requirements under Section 27 of the Bharatiya Sakshya Adhiniyam, 2023. Hence, such statements cannot be read into evidence for proving the truth of facts in subsequent judicial proceedings. (Para 5, 6) B. Bharatiya Nagarik Suraksha Sanhita, 2023- Section 528 - Code of Criminal Procedure, 1973, S. 482 - Inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Sanhita, to prevent abuse of the process of any Court, or to otherwise secure the ends of justice. There are two parts: (i) exercise of inherent powers ex debito justitiae to prevent abuse of process and ensure substantial justice, and (ii) giving effect to the provisions of the Code when no specific remedy exists. The inherent jurisdiction of the Court is of wide and plenary amplitude under Section 528 of BNSS. (Para 11) C. Lapse on part of counsel - It is a trite law that a litigant should not suffer for the lapses or inadvertent mistakes of their counsel. Once a party engages a lawyer, confidence is reposed in the lawyer to safeguard their interest. If due diligence is shown by the counsel but technical or procedural lapse occurs inadvertently, the party ought not to be penalised. In the present case, the applicant had earlier filed an application dated 18.07.2024 u/s 33 of the Indian Evidence Act, 1872 seeking to rely on the statement of Late Vijay Bahadur Singh, the Investigating Officer (CBCID), recorded under Section 161 CrPC in previous proceedings. However, Section 33 does not permit such statements, recorded under Section 161 CrPC, to be treated as relevant in subsequent judicial proceedings. Application was defective. Applicant sought liberty to move a fresh application u/s 33 with an appropriate prayer. Held : The Court held that parties should not be prejudiced due to their counsel's lapses. If inherent powers under Section 528 BNSS are not exercised, grave injustice would be caused, rendering the applicant remedy-less, which is impermissible under the constitutional scheme. Accordingly, liberty was granted to the applicant to move a fresh application under Section 33 of the Evidence Act, 1872. The trial court was directed to consider the same in accordance with law. (Paras 14, 15, 18) Held: Application Allowed. (E-5)

Title: Anil Kumar Srivastava Vs. C.B.I./S.C.B. Lko. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shree Prakash Singh

English hearing

A227/15602 /2024 Judgment/Order Date: 21-02-2025 (2025) 2 ILRA 99  

HEADNOTE hearing

Criminal Law-The Constitution of India, 1950-Article 227 - The Code of Criminal Procedure, 1973-Section 439(2)---Bail cancellation application can only be preferred under Section 439(2) Cr.P.C--- The procedure has not mandated for seeking cancellation of bail through preferring petition under Article 227 of the Constitution of India and the prayer made in the instant petition for seeking quashing the order only to the extent insofar as it considers the non-bailable offences against the respondent as bailable and granted anticipatory bail to the respondent cannot be considered since the same is directly seeking cancellation of the bail as extended in favour of respondent. Petition dismissed. (E-15)

Title: Rajesh Kumar Sharma Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Srivastava

English hearing

A227/13987 /2024 Judgment/Order Date: 21-02-2025 (2025) 2 ILRA 90  

HEADNOTE hearing

Criminal Law - Constitution of India, 1950 - Article 21, 22 & 227 - Indian Penal Code, 1860 - Sections - 304-A, 420, 468 & 201 - Criminal Procedure Code, 1973 - Sections 173(2), 173(8) & 438: - writ petition - petitioner challenge the Sessions Court's order - by which trial court directed to I.O. to re-investigate the role of hospital in the case, while granting anticipatory bail to Doctor - on the ground that the Sessions Court overstepped its jurisdiction, as only higher constitutional courts (High Court or Supreme Court) can order re-investigation and the direction for re-investigation is deemed unjustified and beyond the scope of anticipatory bail proceedings under Section 438 CrPC. - court finds that, -the main issue revolved around whether the Sessions Court could order a re-investigation while considering an Anticipatory bail application - Distinction Between Re-investigation and Further Investigation - Re-investigation requires prior investigation to be set aside and is rarely ordered, whereas further investigation can occur without invalidating earlier findings - Scope of Anticipatory Bail Proceedings - there was no other issue under Section 438 Cr.P.C. to deal with other matter and the observation made by the learned Session Court was uncalled - held, - the power of re- investigation has not been given to the other court of law especially below to the High Court, - the Sessions Court lacked jurisdiction to direct re-investigation is hereby set-aside - petition stands Allowed. (Para - 27, 28, 30, 36, 37, 38) Writ petition Allowed (E-11)

Title: Jaypee Hospital Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Srivastava

English hearing

A227/7467 /2021 Judgment/Order Date: 28-02-2025 (2025) 2 ILRA 78  

HEADNOTE hearing

Civil Law- The Constitution of India,1950- Article 227 - Insurance Regulatory and Development Authority (Protection of Policyholders Interest) Regulations, 2002- Regulations 3 & 4 - The Insurance Act, 1938-Sections-42, 45(3) & (4)---Petition challenging award to pay compensation along with interest---The person who solicits and negotiates a contract of insurance shall be 'deemed for the purpose of the formation of the contract, to be the agent of the insurer'--- Entire case of the Insurance Company was based upon the repudiation of contract of insurance on the basis of misSt.ment and suppression of material facts. The said ground is not available to be pleaded by the petitioner in view of non- compliance of Clause 3 and Clause 4 of the IRDA Regulations, non-refund of the premium collected as prescribed under second proviso to Section 45 (4) and the Insurer not discharging the burden as prescribed under Section 45(4) and also not considering the fact that the Insurer had pleaded that the alleged misSt.ment or suppression was without any deliberate intention, even if it is presumed for the sake of argument that the contract was repudiated on the ground of fraud as prescribed under Section 45(3) of the Insurance Act. Petition dismissed. (E-15)

Title: Bajaj Allianz Life Insurance Co. Ltd. Vs. Shradha Padmaja Awasthi & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Pankaj Bhatia

English hearing

A227/5780 /2023 Judgment/Order Date: 13-02-2025 (2025) 2 ILRA 68  

HEADNOTE hearing

Civil Law - U.P. Urban Building Control of Letting, Rent and Eviction Act, 1972 - Sections 20 (4) & 30 (1) - Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 - Section 4 - Against eviction order - Quantum of deposit - Tenant/petitioner upon suit being instituted for non-payment of rent, required to deposit rent and damages both for use and occupation of building and too in its entirety but damages to be calculated at same rate as rent together with their interest at rate of 9% per annum and cost of suit that may have accrued to landlord - In entire judgment of trial court, there is no determination of or reference to cost of suit and what damages tenant was liable to pay - Findings that demanded rate of rent and damages not paid - Merely because tenant could not exactly say what would be amount or rate of rent at current market value, trial court not justified in holding that deposit made fell short of requisite deposit - To deny statutory benefit to petitioner are unsustainable - The deposit could not rejected only on ground that challan form did not disclose under which head deposit had been made - Suit for recovery of arrears of rent and damages by landlord is dismissed. (Para 19, 25, 26, 28) Petition partly allowed. (E-13)

Title: Mahendra Kumar Jain Vs. Mohammad Imran & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajit Kumar

English hearing

A227/3900/2022 Judgment/Order Date: 06-02-2025 (2025) 2 ILRA 64  

HEADNOTE hearing

Civil Law-The Uttar Pradesh Urban Building (Regulation of letting, Rent and Eviction) Act, 1972-Sections- 21 (1) (a) & 2 (1) (bb)- Whether even in case of a private trust bona fide need can only be set up for the requirement of the trust and not qua family members of the trustee?---After the amending Act came into force the public charitable trusts no more are amenable to rent authority jurisdiction qua rights under the Act of 1972 but the private trusts do and the last part of provisions as have remained un - amended under Section 21(1) (a) shall not apply to a private trust. Petition dismissed. (E-15)

Title: Rambabu Gupta & Ors. Vs. Shri Ganesh Maharaj Virajman

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajit Kumar

English hearing

A227/1401 /2025 Judgment/Order Date: 13-02-2025 (2025) 2 ILRA 61  

HEADNOTE hearing

Civil Law - U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Constitution of India, Article 227- Release application - Co-owner's maintainability to seek release - Tenant's objection that purchaser of undivided property has no possessory right rejected - Held, tenant cannot object to release application on ground that landlord is only a co-owner - Notional possession of co- owner sufficient to maintain release application - Proceedings under Rent Act summary in nature - Issue of exclusive title or partition not germane - Petition under Article 227 against rejection of amendment in objection found devoid of merit - Petition dismissed. (Paras 5 and 6) HELD: Having heard learned counsel for the respective parties and having perused the records, I find merit in the submissions advanced by Sri O.P. Singh, learned Senior Advocate appearing for the respondents. A tenant cannot take an objection to a co-owner for maintaining a release application as it has been held in a catena of decisions by this Court as well as Supreme Court that one of the co-owners can maintain a release application. M/s. India Umbrella Manufacturing Company & ors. v. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & ors., (2004) 3 SCC 178, Sri Ram Pasricha v. Jagannath & ors. (1976) 4 SCC 184. (Para 5) The plea that is sought to be taken that a co- owner cannot have a possessory right unless there is a partition in metes and bounds of a property, is something like a plea by a co-owner to be taken against other co-owners. This plea according to me is not available to a tenant. One must keep in mind that a vendee may not have an exclusive right of transferring possession of a specific part of joint property but on principle of joint ownership, he is in notional possession of the undivided property with all his co-sharers. This theory of possessory title, however, cannot help the tenant to question maintainability of release application. Once the property is released by a tenant, it would vest in all co-owners and will come in valid exclusive possession of one only after partition. So upon release, if a co-owner gets possession of property, he cannot sell it out with transfer of exclusive possession thereof but tenant does not get any legal right to question maintainability of release application. Thus, maintainability of release application cannot be questioned on the basis that co-owner filed a release application. The observations that have come to be made in the judgment of Supreme Court in Gajara Vishnu Gosavi (supra), do not come in the conflict with what view I have taken above. That was a case in which a purchaser of the property from a co-parcener was trying to have a possessory rights in respect of undivided property. It is a settled law that in respect of a property of co-sharers, possession of one is taken to be possession of all other co-sharers. This is the principle that has been followed till date. However, in respect of release application upon being filed which is a summary proceeding in which even the title issue cannot be gone into except incidentally and that too where the petitioner raises plea of inherent lack of title but this is not the case in hand. The facts of that case are absolutely distinguishable and the principle enunciated in the said judgment does not attract to the present case. (para 6) Petition dismissed. (E-14)

Title: Shreeram Yadav Vs. Sanjay Mall & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajit Kumar

English hearing

SAPL/42 /2013 Judgment/Order Date: 28-02-2025 (2025) 2 ILRA 48  

HEADNOTE hearing

Civil Law - Code of Civil Procedure, 1908 - Order 41 - Rule 31 - Registration Act, 1908 - Sections 34 & 35 - A plea has been taken if Will was executed on basis of fraud, father of plaintiff-respondent could have told about it before Registering Authority in enquiry - Not taken before Courts below - No evidence has been adduced and pointed out by appellant - D.W.2, witness of Will not given any evidence of registration of Will or presentation of father of respondent before registering authority and as per endorsement on Will, executor has been identified by D.W.2 and Patandeen - Thus, misconceived, not tenable. (Para 25) Perusal of judgment passed by lower appellate court indicates no points of determination have been framed but all 7 issues framed by trial court considered separately and independent findings recorded after considering pleadings, evidence and material on record - Substantial compliance of rule - Findings recorded by courts below regarding parentage of respondent and fraud in execution of Will are based on evidence on record, does not suffer from any illegality. (Para 27, 31) Appeal dismissed. (E-13)

Title: Juggi Lal Vs. Guru Prasad

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar

English hearing

SAPL/12 /2022 Judgment/Order Date: 13-02-2025 (2025) 2 ILRA 42  

HEADNOTE hearing

Civil Law - Code of Civil Procedure, 1908 - Section 100 - Learned lower appellate court could not have granted relief of permanent injunction without recording finding of possession of plaintiff/ respondent no.1 on basis of pleadings, evidence and material on record, particularly when land in dispute was not identifiable because suit was filed for permanent injunction and cancellation of sale deed for same land - Even if, plaintiff- respondent no.1 may be in possession on said portion on basis of decree of partition passed by competent court in accordance with law because land on which relief of permanent injunction granted was not specifically in issue in instant proceedings as land in dispute found unidentifiable - Thus, impugned judgment and decree not sustainable in eyes of law and set-aside. (Para 18) Appeal allowed. (E-13)

Title: Ram Lal (Dead) & Ors. Vs. Smt. Vijay Laxmi & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar

English hearing

GOVA/1062 /2024 Judgment/Order Date: 21-02-2025 (2025) 2 ILRA 28  

HEADNOTE hearing

Criminal Law - Indian Penal Code,1860 - Sections 498A, 304B & 302 - Dowry Prohibition Act, 1961 - Section 4 - Code of Criminal Procedure, 1973 - Sections 161 & 313 - Appeal against acquittal - Indian Evidence Act, 1872 - Section 113-B - Death due to demand of dowry not proved as theory propounded by PW1 to PW3 regarding demand of dowry made just after four days of marriage when deceased (victim) went for first time to her maternal house from matrimonial house stands belied since FIR lodged on 22.6.2017 relating to incident dated 18.6.2017 does not show this fact - No cruelty was inflicted upon deceased - DW1 deposed that A1 was present in his house on fateful day as he came to his house to meet his ailing teacher, two or three women came from house of A1, apprised that wife of A1 consumed pesticide pills, A1 along with DW1 and villagers went to house where victim consumed by mistake thinking it to be medicine for fever - Testimony of DW1 intact, no questions for demolishing testimony has been asked by prosecution. (Para 41, 43) PW2 and PW3 deposed that accused A2 was staying for the past 30-32 years, where her husband was working - Nothing on record either in deposition of prosecution witness or otherwise suggest that A1 and A2 were involved in commission of crime - No illegality in impugned order. (Para 44, 46) Appeals rejected. (E-13)

Title: State of U.P. Vs. Manish Kumar & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajiv Gupta,Vikas Budhwar

English hearing

FAFO/44 /2021 Judgment/Order Date: 11-02-2025 (2025) 2 ILRA 24  

HEADNOTE hearing

Railway Claims - Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 -Compensation - Interest - Applicability of Rina Devi principle - Compensation determined under amended rules higher than calculated amount with interest under earlier rules - Tribunal rightly awarded compensation as per higher amount under new rules - Interest granted from date of award, not from date of accident - Held, as per U.O.I. v. Rina Devi, (2019) 3 SCC 572, interest on compensation is payable only on the amount accruing as per comparative calculation - No error in Tribunal's computation - Request for lump sum disbursal without pleading or cause rejected - Appeal misconceived and dismissed. (Paras 7,8, and 10) HELD: The alleged untoward incident happened on 15.06.2015, in regard to which the claim petition was filed before the Railway Claims Tribunal, which has been allowed by means of impugned judgement and award dated 18.10.2019 passed in Case No.OA/II/U/995/15 by the Railway Claims Tribunal, Lucknow Bench, Lucknow. The amount of compensation of Rs.4 lakhs at the time of accident was enhanced to Rs.8 lakhs by means of the amendment in Part-I of the Schedule of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 vide G.S.R. 1165 (E) dated 22.12.2016. The Hon'ble Supreme Court, in the case of U.O.I. Vs Rina Devi (supra) has concluded that the compensation will be payable as applicable on the date of the accident with interest as may be considered reasonable from time to time on the same pattern as in accident claim cases and if the amount so calculated is less than the amount prescribed as on the date of the award of the Tribunal, the claimant will be entitled for higher of the two amounts.... (para 7) In view of above, the compensation is to be calculated on the date of award considering the compensation applicable on the date of accident and interest thereon as may be considered reasonable from time to time and after calculating the compensation applicable on the date of accident with the interest thereon up to the date of award and on comparing the same with the present applicable compensation, whichever is higher, the same would be the amount of compensation on the date of award, for which the claimant is entitled. Once the amount of compensation is to be determined in view of paragraph 15.4 of the aforesaid judgement of U.O.I. Vs Rina Devi (supra) on the date of award, the submission of learned counsel for the appellants that on the so determined amount of compensation, the interest should have been awarded from the date of accident, is misconceived and is not tenable because once the said amount of compensation accrues on the date of award after calculating as per procedure provided in the judgement of Hon'ble Supreme Court, the interest can be awarded only for the subsequent period from the date it accrues as the interest can not be awarded for the period prior to the date on which it accrues. (Para 8) So far as the judgement relied by learned counsel for the appellants, in the case of Anju & ors. versus U.O.I. & ors.connected revisions (supra), is concerned, the appellants have not taken any ground in appeal and shown that the appellant is in need of the whole money together. It is also to be noted that despite repeated asking to learned counsel for the appellant by the Court that if required, he may move an affidavit and application for amendment, which may be considered, learned counsel for the appellants declined to do so and insisted for disposal of appeal today itself. Thus the contention of learned counsel for the appellants is misconceived and not tenable. (Para 10) Appeal dismissed. (E-14)

Title: Amrendra Bahadur Singh & Anr. Vs. U.O.I.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar

English hearing

FAFO/32 /2022 Judgment/Order Date: 17-02-2025 (2025) 2 ILRA 9  

HEADNOTE hearing

Civil Law-The Code of Civil Procedure, 1908-Sections 96, 100 & 107 - Order 41 - Rule 17, 23, 23-A, 25 & Order 43 Rule (1) (u))-Appeal under Order XLIII Rule 1(U) against the remand order passed by the Appellate Court---If particular issue of limitation was not framed by the trial court as recorded by the lower appellate court and on the basis of record the trial court has recorded a finding which shows the suit is not time barred, it could have considered the same and recorded a finding thereon, if the evidence is sufficient by framing a issue, if required as first appeal is in continuation of the suit and appellate court has all the powers for considering suit on facts as well as law---Admittedly the commission report is on record, but no objection to the same has been filed by the defendant-respondents and no finding has been recorded by the trial court that it is not satisfied with the proceedings and the report of commissioner, therefore, it stands final and if it has not been considered by the trial court and the lower appellate court was of the view that it was required to be considered, it could have considered the same and upon considering it an independent finding could have been recorded and after it if the appellate court was of the view that the matter is required to be remanded, it could have remanded recording specific findings as remand on technical ground without affecting merit is not tenable.(Para 36 & 40) The impugned order was passed without dealing with the case as an appellate court under Section 96 of C.P.C. and exercising the powers under Section 107 of C.P.C. read with Order-41, Rules-23, 23-A and 25 and passing judgment without complying with the provision of under Order 41 Rule 31 of C.P.C., therefore, the impugned judgment and order passed by the lower appellate court is liable to be set aside and the matter is liable to be remanded to the lower appellate court to consider and decide the appeal afresh in accordance with law and the observations made herein-above in this order. (E-15) (Para 41)

Title: Prakash Narain & Ors. Vs. Hari Bux Singh & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar

English hearing

BAIL/39053 /2024 Judgment/Order Date: 20-02-2025 (2025) 2 ILRA 4  

HEADNOTE hearing

Criminal Law - Indian Penal Code, 1860 - Sections 306, 376, 313 & 323- Bail - Abetment of Suicide - Allegations of coercing victim into repeated abortions - Suicide note silent on applicant's role - FIR initially under Section 302 IPC, later converted to Section 306 IPC - No direct incitement or overt act attributed to applicant - Victim found hanging in locked room - No evidence of forcible entry or strangulation - Allegation of illegal influence in investigation unfounded - Held, prima facie ingredients of Section 306 IPC not satisfied - Bail granted. (Paras 33 to 37) HELD: It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned A.G.A. (Para 33) The FIR mentions the fact that the applicant had committed the murder of the deceased person, but the investigation St.s otherwise. It St.s that it is a case of abetment to suicide. The door of the deceased person is St.d to have been broke open by the guard and the security officer of the society. (Para 35) No direct overt act has been assigned to the applicant of having abetted the deceased to commit suicide. It is true that the deceased being a woman might have been under stress. (Para 36) It is admitted in the instant case that the applicant and the deceased person were having consensual corporeal relationship with each other. The element of abetting the deceased to commit suicide seems to be missing in the instant case. (Para 37) Bail Application allowed. (E-14)

Title: Saurabh Meena Vs. State of U.P.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Krishan Pahal

English hearing

CREF/1 /2024 Judgment/Order Date: 22-01-2025 (2025) 1 ILRA 811  

HEADNOTE hearing

(A) Criminal Law - Criminal Procedure Code, 1973 - Sections 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 81, 86, 341, 349, 372, 374, 377, 378, 390 & 446 - Allahabad High Court Rules, 1952 - Rule 18, 22 & 41 - Criminal Reference - in an appeal against acquittal while summoning the accused person under Section 390 Cr.P.C. coercive process even of the nature of bailable warrant or non-bailable warrant may be issued against the appellant having regard to the peculiar facts and circumstances of each case but it may not be construed to mean that in each and every appeal against acquittal the accused person must be summoned in variably by issuing bailable or non-bailable warrants and in an appropriate case summons may also be issued and in appeal against conviction wherein an appellant has already been released on bail and his counsel is not appearing for arguing the appeal no warrant of arrest could be issued straightaway against him and only bailable warrant be issued at the first instance to ensure his representation. (Para - 119) (B) Criminal Law - Criminal Procedure Code, 1973 - Sections 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 81, 86, 341, 349, 372, 374, 377, 378, 390 & 446 - Allahabad High Court Rules, 1952- Rule 18, 22 & 41 - Criminal Reference - where non-bailable warrants issued against an appellant - in appeal against conviction or against acquittal - and - as to whether such accused person or appellant against whom non-bailable warrants have been issued by High court, may be released on bail by the District Court or the Chief Judicial Magistrate concerned without any such stipulation occurring in the order of the High Court - held, they have no jurisdiction to release such person on bail - thus, observation & directions as contained in order dated 18.01.2024 passed in Government Appeal No. 454/2022 and the directions dated 19.01.2024 in Government Appeal No. 2552/1981 cannot be said to be a correct appreciation of law. (Para - 120, 155) (C) Criminal Law - Criminal Procedure Code, 1973 - Sections 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 81, 86, 341, 349, 372, 374, 377, 378, 390 & 446 - Allahabad High Court Rules, 1952- Rule 18, 22 & 41 - Criminal Reference - Whether an appeal, either against acquittal or conviction, can be heard by appointing an Amicus Curiae for the accused- respondent or the convicted-appellant - an appellant who is avoiding his presence before the court and is not cooperating with hearing of the appeal may not be allowed to do-so - held, if the appellate court is satisfied that delaying tactics are being adopted by such an accused or appellant/convict, it may act in accordance with the law laid down by the Hon'ble Supreme Court in case of 'Bani Singh & ors.Vs St. of U.P.', Surya Baksh Singh Vs St. of UP, and 'K.S. Panduranga Vs St. of Karn.' and in 'Anokhilal Vs St. of MP' - answered accordingly. (Para - 155) Disposed of. (E-11)

Title: In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sangeeta Chandra,Pankaj Bhatia,Mohd Faiz Alam Khan

English hearing

WRIA/17483 /2024 Judgment/Order Date: 15-01-2025 (2025) 1 ILRA 800  

HEADNOTE hearing

A. Service Law - Compassionate Appointment - U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 - The concept of compassionate ground appointments is a welfare measure taken by a model employer. However, an unjustified generous approach in compassionate ground which is not consistent with the applicable service rules will confer benefit to underserving and ineligible candidates, and simultaneously deny the rights and lawful claims of eligible and meritorious candidates from getting appointment to government posts. Treating compassionate ground appointments as an unconditional and vested right and making it a source of recruitment will shear the thin veil of legality which protects such appointments from the vice of unconstitutionality. The very concept of compassionate ground will then be exposed to the wrath of Articles 14, 15, 16 of the Constitution of India. (Para 14) B. The purpose of grant of compassionate ground appointments can be subserved and their constitutionality can be saved only by strict compliance of the rules governing the grant of compassionate ground appointments. (Para 15) Appointment on compassionate grounds seeks to relieve the immediate financial hardship faced by the dependants of the deceased. It acts as an exception to Articles 14 and 16 of the Constitution as the defendant are given preferential appointment ahead of other equally meritorious candidates similarly placed and hence it cannot be claimed as a right. This appointment must be done in accordance with the rules for such appointment. The dependant seeking such appointment must be eligible for such consideration and facing financial hardship to the extent delineated by the rules. (Para 18) C. One of the mandatory prerequisites for appointments on compassionate ground as contemplated in the Uttar Pradesh Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974 is that the application for employment should be made within five years from the date of death of the government servant. However, the said provision also empowers the St. Government to dispense with or relax the aforesaid time limit in appropriate cases. The said provision for condonation of delay by the St. Government/ competent authority after due application of mind to relevant facts is mandatory in nature. Failure to condone the delay in making the application for compassionate appointment by the St. Government/competent authority after due application of mind to relevant factors will vitiate the appointment. (Para 21) The mandatory prerequisite of condonation of delay in making the application for compassionate appointment by the competent authority under the Dying-in-Harness Rules, 1974 has been violated. The appointment of the petitioner as a contractual worker was not made under the Dying-in-Harness Rules, 1974. Consequently the petitioner cannot be treated as a regularly appointed employee and is not entitled to benefits claimed by him. Further, the petitioner cannot set up a claim for appointment on compassionate ground at this belated stage under the Dying-in-Harness Rules, 1974. (Para 29) D. Appointments based on descent or claims of appointment which rest on heredity, are abhorred in the scheme of Articles 14, 15, 16 of the Constitution of India. Delay in making a claim for compassionate ground appointment dilutes the case of immediate financial penury, and consequently negates the entitlement for appointment on compassionate ground. Appointments on compassionate ground cannot wait for the claimants to attain majority or to enable them to acquire additional qualifications and get a better deal in the said appointments. Infact, such grounds militate against claim for appointments on compassionate ground. (Para 23) In the present case, the petitioner was a minor at the time of the death of his father. No post could have been reserved for him till he attained majority. The delay of almost seven years in making the application for appointment on compassionate ground was never condoned by the St. Government/competent authority under the Dying-in- Harness Rules, 1974. (Para 28) In the facts of this case, contractual employment of the said nature cannot be converted into an appointment under the Dying-in-Harness Rules, 1974. If this course is made permissible it will become a novel device to breach specific statutory provisions. (Para 31) Writ petition dismissed. (E-4)

Title: Ashish Yadav Vs. Managing Director, U.P.S.R.T.C. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot

English hearing

WRIA/12938 /2024 Judgment/Order Date: 03-01-2025 (2025) 1 ILRA 792  

HEADNOTE hearing

A. Service Law - Pension - Defence Service Regulation: Regulation 333; Hindu Marriage Act, 1955 - Second marriage can be contracted only in certain circumstances and that too after obtaining sanction from the competent authority and any violation of this provision may attract termination of service of concerned employee. (Para 16) In the present case, Late Tek Bahadur Thapa was a Nepalese Gorkha and as per Regulation 333 quoted above, he could have remarried in the following circumstances: - (i) When the wife suffers from incurable insanity (madness), (ii) When there is no birth till ten years of marriage, (iii) When the wife is paralysed and cannot move, (iv) When the wife becomes blind of both the eyes. (v) When the wife is suffering from an infectious incurable sexually transmitted disease. (Para 7) Late Tek Bahadur Thapa had four daughters and a son from his first marriage and it is nobody's case that his first wife Smt. Dalli Maya Kumal suffered from any disease/infirmity mentioned in Regulation 333(B)(a) of Army Regulations. Sri Tek Bahadur Thapa did not apply for sanction to contract plural marriages on any of the grounds mentioned in Regulation 333(B)(b). Service of the person who has contracted plural marriages without obtaining sanction from the competent authority can be terminated under the provisions contained in Regulation 333(B)(g) of Army Regulations, but the fact of Late Tek Bahadur Thapa having entered into plural marriages was not brought to the notice of the authorities during his service period or even thereafter during his life time. Therefore, no administrative action for termination of his service was taken. (Para 6, 8) B. The petitioner could not point out any provision of law under which this marriage (1st marriage) was void. Therefore, it cannot be accepted that the marriage of late Tek Bahadur Thapa with Smt. Dalli Maya Kumal was void. (Para 14) C. The submission that the petitioner is an illiterate person and she was not responsible for proper upkeep of the service records of her deceased husband and it was for the authorities to correctly maintain the service records of late Tek Bahadur Thapa and record the name of the petitioner therein as wife, does not hold any force as information about family members/dependents is given to the authorities by the concerned employee/officer himself. (Para 15) The Armed Forces Tribunal dismissed the original application filed by the petitioner on the ground that her name is not recorded in the service record of the deceased soldier. (Para 9) Late Tek Bahadur Thapa had mentioned the name of Smt. Dalli Maya Kumal as his wife and it is admitted by the petitioner that Smt. Dalli Maya Kumal was in fact the wife of late Tek Bahadur Thapa. The petitioner's marriage with late Tek Bahadur Thapa was in contravention of the provisions of Regulation 333 and it would not confer any right on the petitioner so far as any benefits relation to or arising out of services rendered by late Tek Bahadur Thapa is concerned. (Para 16) Writ petition dismissed. (E-4)

Title: Smt. Pin Maya Kumal Vs. Govt. of India & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Subhash Vidyarthi

English hearing

WRIA/12422 /2024 Judgment/Order Date: 06-01-2025 (2025) 1 ILRA 782  

HEADNOTE hearing

A. Service Law - Disciplinary Enquiry - Sexual Harassment - Conspiracy - CCS (CCA) Rules, 1965 - Rule 11(i), 29 - The action (revisional power) could not have been set aside merely for want of the order having been passed by an authority other than the President. Petitioners have submitted that a bare perusal of the Rule 29 indicates that besides the President, the Head of Department and the appellate authority are also empowered to exercise the revisional power under the Rule. In the present case, the fresh action has been instituted by an order passed by the appellate authority. (Para 12) B. None of the allegations levelled in the complaint make out a case "sexual harassment" as defined in the guidelines issued by the Government of India. (Para 18) C. The complainant has already written to the Additional Director, G.S.I. stating that the dispute between her and the opposite party no. 2 stands settled. In these circumstances, before directing any action to be taken against the opposite party no. 2, the authorities ought to have satisfied themselves whether any prima facie case of commission of sexual harassment by the opposite party no. 2 was made out. The authorities have not recorded any satisfaction before instituting proceeding afresh against the opposite party no. 2. After examination of record, it can be concluded that no case for instituting any fresh proceeding on the allegation of sexual harassment is made out against the opposite party no. 2. (Para 19) D.(i) The opposite party no. 2 has sent a complaint dated 07.05.2023 to the Director General, GSI against two officers, reproducing a transcript of a conversation showing that they had instigated the complainant to file a false complaint against the opposite party no. 2 and in response to this suggestion the complainant had stated that the opposite party no. 2 had not said anything to her. The opposite party no. 2 has requested the Director General to take action against the aforesaid two officers but it appears that no action has been taken against those two officers. (Para 20) (ii) The Internal Complaints Committee had found opposite party no. 2 as well as the complainant guilty of aggravating their personal issues to the extent that the whole office suffered and the committee had recommended appropriate action to be taken against both but action has been taken against opposite party no. 2 only and no action has been taken against the complainant in spite of the recommendation of the internal complainants committee. It prima facie indicates that the authorities have acted vindictively against the opposite party no. 2 while shielding the other erring persons. (Para 20) In these circumstances, no fresh proceedings can be drawn against the opposite party no. 2 on the ground that he has committed an act of sexual harassment against the complainant. (Para 21) E. Jurisdiction - Although it is a general principle of law that the validity of an order is to be examined on the basis of the reasons mentioned in the order. It is equally well settled that even if an order suffers from some illegality, the High Court will not exercise its jurisdiction to quash the same if it would result in restoration of another illegality or if it would propagate an injustice. The High Court being a court record as mentioned in Article 215 of the Constitution of India, has all powers inherent in such a court so as to secure the ends of justice. Interfering in the impugned order passed by the tribunal for on the ground that the reason assigned by the Tribunal for setting aside the order is incorrect, would result in initiation of fresh disciplinary proceedings against the opposite party no. 2, which is not warranted for the reasons mentioned in this order and which would not be in the interest of justice. (Para 22) Writ petition dismissed. (E-4) Present petition seeks quashing of the judgment and order dated 08.05.2024, passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow allowing Original Application No. 332/00365 of 2023 filed by the opposite party no. 2.

Title: Union of India & Ors. Vs. Central Administrative Tribunal Lko. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Subhash Vidyarthi

English hearing

WRIA/10247 /2024 Judgment/Order Date: 10-01-2025 (2025) 1 ILRA 775  

HEADNOTE hearing

(A) Service Law - Payment of Gratuity - Payment of Gratuity Act, 1972 - Section 4 - Gratuity is payable to an employee on the termination of his employment after he has rendered service for not less than five years either on his superannuation or on his retirement or resignation or on his death or disablement due to accident or disease. (Para -19,22) (B) Service Law - Payment of Gratuity Act, 1972 - Section 4(6) - An employee's gratuity can be fully or partially forfeited if their services are terminated due to - (i) Willful damage or loss to employer's property ,(ii) Riotous or disorderly conduct, (iii) Acts or violence or (iv) Offences involving moral turpitude - Termination of service is required for gratuity forfeiture - Termination of service is the sine-qua-non to forfeiture, fully or partly, of the gratuity.(Para -20) Petitioner's husband, a storekeeper in the respondent corporation - died in harness - Employer sought to recover Rs. 6,20,101.56 from his gratuity - alleging a shortage in stores - petitioner challenged the deduction - arguing that gratuity could not be withheld as her husband was never terminated - no disciplinary proceedings were ever initiated - failed to pay the Employees' Deposit Linked Insurance (EDLI) amount to the petitioner - hence petition. (Para - 2 to 17) HELD: - Employer cannot withhold gratuity unless the employee was terminated . As the deceased was never terminated but died in harness, recovery from gratuity is impermissible. Orders impugned, forfeiting /making deductions from gratuity of the petitioner's husband, are legally not tenable in the eyes of law and merit to be quashed. Employer must pay the full gratuity within eight weeks with interest and must also decide on the EDLI payment within the same period. (Para -21,23,26,27) Petition allowed. (E-7)

Title: Smt. Anju Srivastava Vs. U.P. State Agro Indus. Corp. Ltd. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Abdul Moin

English hearing

WRIA/4769 /2022 Judgment/Order Date: 24-01-2025 (2025) 1 ILRA 747  

HEADNOTE hearing

Civil Law- The Constitution of India, 1950- Article 226 - The Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974-Rule 5(1) - Petitioner claimed compassionate appointment on account of his mother's demise as well as payment of the ex gratia sum of Rs.50 lacs which was directed to be provided by the St. Government to the dependents of employees, engaged in the prevention, control and treatment of the Covid19 disease, who died in consequence of contracting the virus--- A deceased government servant's dependent is eligible for a consideration for appointment under the Rules of 1974, if the deceased's spouse is not a government servant or already employed under the Central Government or a St. Government or a Corporation, owned or controlled by the Central Government or the St. Government. The respondents have by one stroke of pen, changed all entries of 'P's in the attendance register for the petitioner's mother from 15th April to 26th to 'A's. It is a case of unmistakable forgery to the naked eye. There is not even an initial made to show if this is some kind of correction with a note indicating by which authority and under what circumstances, the correction, if any, was done. The inescapable inference, therefore, is that the petitioner's mother attended her duty in the month of April until 26th, when she was taken ill and admitted to the hospital--- The petitioner's mother was similarly exposed, contracted the virus and apparently died of the deadly disease--- Mandamus is issued to the respondents to pay the petitioner due compensation for his mother's death, treating it to be death for which compensation is payable under the Government Orders dated 11.04.2020, 22.06.2021 and 26.07.2021. (Para 10, 52 & 54) Petition allowed. (E-15)

Title: Anand Kumar Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir

English hearing